Free Exercise Jurisprudence: Does Mahmoud Silently Overrule Smith

 What is left of Smith’s holding that there is no free exercise claim against laws that are neutral and generally applicable?

Answer—not much, in fact I have argued that Smith has been silently overruled by Mahmoud.

Covid cases—Cuomo, Tandon, etc.

This Court’s decisions have made the following points clear.

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. This is the most favored nation theory that some of us have been arguing since Smith and Lukumi were decided. Even if the law is broadly applicable, if it contains any comparable secular exemption then it is not generally applicable under Smith.

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. Comparability is concerned with the risks various activities pose, not the reasons why people gather.

Fulton v. City of Philadelphia (unanimous decision Chief Justice Roberts opinion)

Fulton holds that even if a law is otherwise completely neutral and generally applicable, it will still trigger strict scrutiny if it provides for some kind of ad hoc discretionary individualized exemption process: “A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’”

In Fulton, the antidiscrimination policy concerning prospective foster or adoptive parents applied generally “unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” The mere existence of that discretionary exemption process renders the law not generally applicable and thus strict scrutiny applied.

Does Mahmoud overrule Smith?

Justice Alito decided that the burden on the right of parents to direct the religious upbringing of their children was so severe in Mahmoud as to trigger strict scrutiny under the Free Exercise Clause “regardless of whether the law is neutral and generally applicable.” 

In other words, the precedent the Court applied was Yoder (and Pierce v Society of Sisters), not Employment Division v Smith.

So, does Mahmoud overrule Employment Division v. Smith? Or is it merely an exception to the general applicability test created by Smith?

Mahmoud does not explicitly overrule Smith, but I think it effectively and mortally wounds Smith’s general applicability test.

Smith may not be dead, but it is expiring on life support. Mahmoud makes clear that Yoder is not a narrow exception for the Amish, nor has it ever been confined “to its facts.” (p. 29)

 To the contrary, says Justice Alito, “Yoder is an important precedent of this Court…[and it] “embodies” a general principle of law “and that principle provides more robust protection for religious liberty than the alarmingly narrow rule that the dissent propounds.”

Just as the Lemon test was mortally wounded before Kennedy v. Bremerton mercifully euthanized that rule, Smith is equally dead as a doornail and only awaits the mercy of being finally put to sleep by the Court sometime in the near future.

Yoder, not Smith, is now the law of Free Exercise, and that law is that a substantial burden on the free exercise of religion triggers strict scrutiny “regardless of whether the law is neutral or generally applicable.” (p. 36)

When government substantially interferes with parental rights, strict scrutiny applies, even if the law is neutral and generally applicable.

When government shuts the doors of churches and religious assemblies, as it did during the Covid years, strict scrutiny applies, even if the law is neutral and generally applicable.

And when government otherwise substantially interferes with religious exercise, strict scrutiny applies, even if the law is neutral and generally applicable.

Smith has been repudiated, and Yoder and the substantial burden test is now the law of Free Exercise.

Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Court Protects Girls' and Women's Sports: WEST VIRGINIA ET AL. v. B. P. J.

 NYT: 

The Supreme Court upheld West Virginia and Idaho state laws on Tuesday that bar transgender athletes from playing on girls’ and women’s sports teams, a decision with nationwide implications involving an issue championed by President Trump.

Justice Brett Kavanaugh, writing for the [6 tp 3] majority, said states “may maintain women’s and girls’ sports for biological females.”

 

Common sense and fairness prevails! 

"Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR"

We won't cover all this in class, but this is an  interesting prediction of where Free Exercise law may be heading.

Josh Blackman writes (link):

In January, a group of Amish people filed a cert petition. Mast v. Fillmore County challenged Minnesota's decision to require them to install a septic system. The Amish people objected to installing this system on religious grounds. They argued that the state violated RLUIPA. On Friday, the Court GVR'd Mast in light of Fulton. Justice Alito only concurred in the judgment to vacate the judgment, and remand. But he did not agree with the decision to remand in light of Fulton. He wrote, "The lower court plainly misinterpreted and misapplied" RLUIPA. I don't recall ever seeing a Justice concur in the judgment of a GVR, but not agree with the majority on the basis of the remand. He threw shade at the shadow docket!

Justice Gorsuch wrote a seven-page opinion concurring in the GVR. He agreed that the case should be reconsidered in light of Fulton. And he sketched out what should become the post-Fulton roadmap for Free Exercise Clause cases. Specifically, Justice Gorsuch highlighted three aspects of Fulton that apply in strict scrutiny cases–the standard of review that governs RLUIPA claims.

First, Justice Gorsuch explains that the government must establish its interest with specificity. This analysis must be "precise," rather than "broadly formulated."

Perhaps most notably, the County and courts below erred by treating the County's general interest in sanitation regulations as "compelling" without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands "a more precise analysis."593 U. S., at ___ (slip op., at 14). Courts cannot "rely on 'broadly formulated'" governmental interests, but must"'scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.'" Ibid. (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 431 (2006)).

And the government must establish this interest with respect to the specific religious community. As I read Gorsuch, Philadelphia would be required to establish its interest with respect to the Roman Catholic Church. And Minnesota would have to establish its interest with respect to this specific Amish group.

Accordingly, the question in this case "is not whether the [County] has a compelling interest in enforcing its [septic system requirement] generally, but whether it has such an interest in denying an exception" from that requirement to the Swartzentruber Amish specifically. Fulton, 593 U. S., at ___ (slip op., at 14) (emphasis added); see also Holt v. Hobbs, 574 U. S. 352, 362–363 (2015) (RLUIPA requires courts to "scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants" (internal quotation marks omitted; emphasis added)).*

Second, Justice Gorsuch considers the sorts of exemptions the state gives to other groups.

Separately, the County and lower courts erred by failing to give due weight to exemptions other groups enjoy. For example, in Minnesota those who "hand-carr[y]" their gray water are allowed to discharge it onto the land directly. Minn. Admin. Rule 7080.1500, §2. So thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate.

Gorsuch explains that with strict scrutiny, the government must show why it cannot give the Amish the same exemption. And that rationale must be "compelling."

Under strict scrutiny doctrine, the County must offer a compelling explanation why the same flexibility extended to others cannot be extended to the Amish. As Fulton put it, the government must offer a "compelling reason why it has a particular interest in denying an exception to [a religious claimant] while making [exceptions] available to others." 593 U. S., at ___ (slip op., at 15). Or as this Court has said elsewhere, it is "established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation marks and alteration omitted);see also Holt, 574 U. S., at 367 ("[T]he Department has not adequately demonstrated why its grooming policy is substantially underinclusive"); O Centro Espírita, 546 U. S., at 436 ("The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions").

Next, Gorsuch makes a fascinating move. The Court must consider other jurisdictions that have exempted people of faith.

Relatedly, the County and lower courts failed to give sufficient weight to rules in other jurisdictions. Governments in Montana, Wyoming, and other States allow for the disposal of gray water using mulch basins of the sort the Amish have offered to employ. App. to Pet. for Cert. 73–74.Given that, the County in this case bore the burden of presenting a "compelling reason why" it cannot offer the Amish this same alternative. Fulton, 593 U. S., at ___ (slip op., at15). To be sure, the County stresses the fact that the "record contains no evidence of a single, properly working mulch basin system in Minnesota." App. to Pet. for Cert. 74. But that is not enough.

Minnesota must show why they cannot follow the rules from other jurisdictions.

It is the government's burden to show this alternative won't work; not the Amish's to show it will. "[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13).

I don't think this principle follows from Fulton. But it could potentially be a game-changer for Free Exercise cases. States that are overly protective of religious liberty will now set the floor for states hostile to free exercise claims. California would have to follow Texas.

Third, the state must demonstrate that its policy is narrowly tailored "with evidence." Not "supposition." And Justice Gorsuch favorably cites Tandon v. Newsom, which favorably cites Judge Sutton's Neace decision: the state cannot assume that people of faith are less trustworthy. than others who receive exemptions.

But strict scrutiny demands more than supposition.The County must prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. Here, that means proving that mulch basins will not work on these particular farms with these particular claimants. Again, if "the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 3) ("The State cannot 'assume the worst when people go to worship but assume the best when people go to work'" (quoting Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam))).

I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton. Lower courts, take notice.

Fifth Circuit en banc in Classroom Ten Commandment Case

Stephanie Barclay writes

 

Money quotation:

 But the Founding-era hallmark of a religious establishment was mandatory attendance at religious services, not mere exposure to religious content. In Louisiana and Texas, students are not being required to pray, to affirm religious belief, or to participate in any religious observance, or asked to view others undertaking these exercises. They are being exposed to a display of text – text that, whatever its religious significance, the states contend has historical importance to the development of American law.

Any governmental acknowledgment of religion could be characterized as “coercive” to someone who disagrees with it. That is precisely the open-ended, policy-driven inquiry that Kennedy rejected in favor of historical analysis.

Nebraska Lawyers are Courageous: Meriwether v Hartrop

 Meriwether v Hartrop is a case about competing narratives, competing versions of the truth. Is biology a social construct? Can a man become a woman by identifying as a woman? Can a woman become a man by identifying as a man? Or is biology (and faith) real and inform us that gender is fixed at birth regardless of personal choice and identity?

Meriwther believed his version of the truth. Is his version a reasonable understanding of reality? If so, can his government employer compel him to say things he believes are untrue? To borrow from 1984, does he have the right to hold to his belief that 2 plus 2 make 4? Or must he say 2 plus 2 make 5?

If he had been a coward, it would have been so easy to use compelled pronouns and protect his job and his livelihood. But he chose to be a courageous leader, and declined to say something he believed to be untrue.

Here is a way to think about it. If you shared Meriwether's views about biology and gender, what would you do if you were at a meeting of student group leaders, and the person who called the meeting said "Let's start this meeting by introducing ourselves and sharing our pronouns?" Would you set aside what you believe to be true and share your pronouns to appease those who hold the competing narrative about biology and gender? Would you sacrifice what you believe to be true in order to be "nice"? Does being nice require you to appear to embrace a narrative you believe is untrue?

Courage is contagious; when you take a stand for truth it makes it easier for the next person to do so. But cowardice is also contagious. And the Law College's mission statement makes courage part of our mission.

So be courageous. And to paraphrase Charlie Kirk's advice, live large, love God, find love, get married, and have as many children as God gives you. Marriage and children are wonderful gifts to make life on this planet full of love and joy.

Be seeing you!

Review Session Saturday December 6 at 6 PM in Room 113

 I have scheduled an optional exam Q & A session for Saturday December 6 in Room 113.

Be Thankful This Week!

 

Christmas on Blackacre 2025

Meriwether v. Hartrop (compelled pronoun case)

                                                         Judge Amul Thapar

 

Professor at state university was disciplined because he refused to use a student's "preferred pronouns." The Sixth Circuit wrote a powerful opinion protecting academic free speech. Here is the court's description of the facts:

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].”  Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.”  What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.”

 Here are a few great excerpts from the decision:

1. "THAPAR, Circuit Judge. Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse."

2. "“Universities have historically been fierce guardians of intellectual debate and free speech.”  Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).  But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment.  The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment.  We disagree:  Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors.  Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed."

3. "A decade later, in a case involving a similar New York law banning “subversive” activities, the Supreme Court affirmed that the Constitution protects “academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).  It characterized academic freedom as “a special concern of the First Amendment” and said that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Id.  After all, the classroom is “peculiarly the ‘marketplace of ideas.’”  Id.  And when the state stifles a professor’s viewpoint on a matter of public import, much more than the professor’s rights are at stake.  Our nation’s future “depends upon leaders trained through wide exposure to [the] robust exchange of ideas”—not through the “authoritative” compulsion of orthodox speech.  Id. (citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality opinion) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”)."

4. " One final point worth considering:  If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.  A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”  That cannot be.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy.  Barnette, 319 U.S. at 642." 

5. "The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.  And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.  Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection):  (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints.  See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion).  Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police.  They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy.  Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.”  Tinker, 393 U.S. at 511."  

6. "Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”  Tinker, 393 U.S. at 511."

  Here is a link to the 6th Circuit's opinion. And here is a link to a short article analyzing the opinion.

 I have not assigned this opinion, but I encourage you to read it at some point during your journey through the halls of academia. There has never been a time in my 47 years of teaching when this opinion was more important and more necessary for the preservation of the university as a free and open marketplace of ideas.

In a recent case decided before the Virginia Supreme Court, a public high school teacher. who was fired because he refused to use a student's preferred pronouns (but instead used the student's preferred first name), won under the free exercise clause of the Virginia Constitution and under the Virginia Religious Freedom Restoration Act. See Vlaming v. West Point School Board. On remand, the case was settled when the school board agreed to pay $575,000 to Vlaming.

First Amendment Fall 2025: Week Thirteen Assignments

--Christian Legal Society v. Martinez (link);Citizens United (link)

-Freedom of Speech of Government Employees: Pickering (link);. Connick (link); Garcetti (link); Discussion of 6th Circuit decision in Meriwether v. Hartrop (blog post to be provided)

 

Speech by Government Employees: Black Letter Rules

 

In an article, Prof. Volokh provides a nice summary of the black letter rules concerning speech by government employees:

 "Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

    the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
    the speech is on a matter of purely private concern, Connick v. Myers (1983), or
    the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs."

Garcetti Hypos

Consider two hypos involving Assistant Dean Mary Smith, the Admissions Director at a state university.

Case One

Assistant Dean Smith is asked by Dean Tom Jones to write a description of the school's "diversity policy" for inclusion in the minority admission packet sent to minority students the school wishes to attract. Dean Smith describes the schools commitment to diversity accurately, but proceeds to criticize the policy as amounting to unfair discrimination against non-minority applicants. The packet is sent to prospective minority students, many of whom are offended by Dean Smith's criticism of the program.

Case Two

Dean Smith writes a letter to the editor of the state's largest newspaper accurately describing the school's diversity program and criticizing it as amounting to unfair discrimination against non-minority students. Many readers respond to this article, some of them are upset by the policy's unfair reverse discrimination, some of them critical of Dean Smith for having aired her concerns in a public forum.

In both cases Dean Smith is fired or demoted for expressing her criticism of the school's diversity policy.

Apply the First Amendment.

Pickering: Speech by Government Employees

Public school teacher writes letter to the editor of local newspaper critical of School Board’s handling of school tax revenues.

He was fired because the Board concluded that the publication of the letter was "detrimental to the efficient operation and administration of the schools of the district."

First question—suppose a citizen had written the same letter criticizing the School Board—does the First Amendment protect this kind of expression from state laws restricting this kind of speech?

Do citizens waive their First Amendment rights when they go to work for the government?

Justice Holmes once said: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  What does he mean by this?

So we could have a categorical rule one way or the other—full speech rights or zero speech rights for public employees. But that is not the way the Court chooses to go. What is the Court’s approach to this issue? Page 2:

“To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Keyishian v. Board of Regents, 385 U.S. 589 (1967). "The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

 This is the so-called “Pickering balancing test.” Like most balancing tests, it results in a certain amount of unpredictability (Scalia once criticized a similar balancing test by saying it is like trying to decide whether a particular rock is heavier than a particular string is long.)

 Contrast government-as-sovereign with government-as-employer—the government-as-employer has an interest in efficient operation of the workplace that must be balanced against the free speech rights of its employees to speak about issues of public concern as citizens in a free society.

 Here there was no showing that the letter to the editor “impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” (p. 3)

Efficiency vs. conformity—coercion in the Leviathan state may take the form of withholding employment from those who critical of government policy or government officials.

Garcetti v. Ceballos

Here a District Attorney was sanctioned for writing an internal memo about inaccuracies in an affidavit used to obtain a search warrant.

“The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties.” (p.1)

 Test (p.2):

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.  This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations....”

Page 3: “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

Page 3: “The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."”

The problem for Ceballos in this case is his speech was not that of a citizen speaking out about a matter of public concern but a memo to his supervisors concerning a matter that was part of his professional duties. Thus, under the Court’s test he had no First Amendment cause of action based upon his employer’s “reaction to the speech.” P. 2.

Page 3: “The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Does this make sense? Should Ceballos have written his memo as an open letter to the editor of a local newspaper instead of as an internal memo?

What about a public school teacher in a biology class who, when asked a question by a student about intelligent design, replies that he personally thinks it is a reasonable response to Darwinian evolution? If he is fired or disciplined for this remark, does he have any First Amendment protection?

Connick v. Myers

When the government acts as an employer it may regulate speech more extensively than it could when acting as a regulator.

When government restricts speech as an employer, the Court applies a two-part test: 

 First, if the employee speech deals with a matter of “public concern” upon which “free and open debate is vital to informed decision-making by the electorate,” the Court applies a balancing test – the State bears the burden of demonstrating that its interest in promoting workplace efficiency outweighs the First Amendment interest in open debate.  [“In performing the balancing, the statement will not be considered in a vacuum:  the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Rankin, 483 U.S. at 388].

Second, when a government employee speaks “not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances” the courts will not review a personnel decision. 

See opinion at p.2 (Roman Numeral II):

 "Pickering, its antecedents, and its progeny lead us to conclude that if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable."

Was Myers' Free Speech claim an attempt to "constitutionalize the employee grievance" process? 

See Roman Numeral III: 

"Myers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment...."

 Suppose an office clerk makes a mildly sexist joke in the office break room? If he is discharged when a female co-worker complains to HR, does he have first amendment rights?

 Should government employers be allowed to ban workplace speech that offends co-workers?

 [Charles Sykes: “Once feelings are established as the barometer of acceptable behavior . . . speech and thought are only as free as the most hypersensitive group on campus will permit.”]

Christian Legal Society Decision: Information of Disinformation

 On page one of our linked opinion, Justice Ginsburg says this: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Is this information? Or disinformation? 

If CLS had prevailed on its free speech/expressive association claims, would those rights belong only to CLS? Or would every other student organization have the exact same rights under the Free Speech Clause as CLS?

Citizens United Excerpts

The law at issue in Citizens United made it a felony for certain speakers (corporations but not media corporations) to engage in election speech within  30 or 60 days before an election. Justice Kennedy's majority opinion described the draconian nature of the law:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations--including nonprofit advocacy corporations--either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

 

And here is how he explains the Court's decision to strike down this criminalization of political speech: 

  Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

     Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office."

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.

     Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.  As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.

     Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

 

What are your thoughts?

Citizens United and Discrimination Against Certain Classes of Speakers

Notice that under the law struck down in Citizens United, different classes of speakers are treated differently with respect to the right to engage in political speech shortly before elections:

1. Bill Gates could spend billions to produce an anti-Trump film--Bad Orange Man--and make it available on demand for free

2. The New York Times could use corporate funds to produce an anti-Trump film--Mean Tweet Man--and make it available on its corporate web site for free

3. But if Hobby Lobby wanted to use its corporate funds to subsidize an anti-Harris film--Kamradalla--and make it available on demand, it commits a felony

This kind of discrimination against different classes of speakers (individuals, media corporations, and non-media corporations) is difficult to justify under the Free Speech Clause. It is particularly difficult to defend two classes of corporations--media corporations (including for-profit media corporations that are often owned by non-media conglomerate corporations or by billionaires like Jeff Bezos) and "non-media" corporations which wish to fund speech that a media corporation would be free to do.

If we are going to ban corporate political speech during election seasons, let's not discriminate between media corporations and non-media corporations. Let's ban them all, or ban none. 60 Days without any political news! Thoughts?

Citizens United: Notes and Questions

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Does the first amendment protect speakers or “speech?" Or both?

Should it matter whether the speaker is a corporation or a natural (i.e. human) person?

Who is the speaker in the movie Hillary?

The corporation that paid to make the movie available to the public?

The director and producer of the film?

The writers who wrote the screenplay (the narration, etc.)?

What about listeners? Do willing members of the audience for speech have a right to receive speech?

For example, if government bans corporations from distributing films such as Hillary, doesn’t this restriction deprive natural persons, such as me and you, access to the film? And remember, since this movie was "on demand" on cable tv, the listener actually had to seek it out and press play to receive it.

As the Supreme Court once put it: "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers." (Lamont v. Postmaster General, 381 U.S. 301)

Suppose the State of Mississippi forbids the possession of books written by Karl Marx. Of course, Marx is not around to sue to challenge this censorship law's constitutionality under the First Amendment. Do I have a right, as a willing audience for Marx's books [remember this is only a hypothetical], to challenge the law under the First Amendment?

Prof. Kathleen Sullivan says that one difference between the majority and the dissent is that the majority has a vision of free speech as liberty and the dissent has a vision of free speech as equality (the "antidistortion" rationale). As she puts it:

"The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech." 

Is Sullivan concerned about equality or equity? What is the difference between these two concepts? Subtract the "al" from equality under the law and you get something far different from equality under the law. In this case it means taking free speech rights from those who have the resources to speak in order to somehow make the marketplace of ideas more fair.

In other words, the dissent is okay with government prohibiting freedom of speech by wealthy corporations, because this amounts to a redistribution of "speaking power" from powerful corporations to natural persons. 

Of course, media corporations (New York Times, CBS, NBC, Fox) were exempt from the restriction, and some might conclude that this allows certain powerful media corporations to select which political news and viewpoints are "fit to print" for natural persons to see or hear. Perhaps non-media corporations have a different view of what is fit for audiences to see? Perhaps audiences would like to decide for themselves?

And here is the money excerpt from Justice Kennedy's opinion:

Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

     Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office." 

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.  As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content....The First Amendment protects speech and speaker, and the ideas that flow from each.

 

And here is the key to Justice Stevens' dissent: 

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

If you agree with Justice Stevens, would you also support locking the doors of media for-profit corporations such as the New York Times, NBC, and Fox News? Is there any reason to treat some corporations better than others? What is that reason?

 

 

Christian Legal Society of Hastings College of Law v. Martinez

I. Facts

1. CLS was refused recognition by UC Hastings under an anti-discrimination policy prohibiting discrimination on the basis of race, gender, religion and sexual orientation. They were banned because their bylaws limited membership and leadership to students who affirmed CLS’s statement of faith which included beliefs about the deity of Jesus and Biblical standards of sexual conduct. Thus, they were banned from campus because their bylaws excluded students on the basis of religion and sexual orientation.

2. However, after the litigation, Hastings announced that its actual  policy for recognized student groups was a so-called "all-comers" policy, one that required all student groups to allow any student to be a member and to seek leadership positions. So, at least in theory, the Hastings Democratic Student group could not limit membership to democrats, the Minority Law Students could not exclude White Supremacists from membership, and the CLS could not limit membership to Christians who affirmed the CLS's doctrinal statement.

3. I don’t know why they did this, but in litigating this case CLS stipulated that the Hastings policy currently in effect was the "all-comers" policy, which, if properly enforced, applies the same standard for recognition to every student group. There is a selective enforcement issue in the case-but lets hold that for the present and focus on the how the Court analyzed the "accept all comers" policy under the First Amendment.

II. Law

1. Nonpublic Forum Rule: When a state university decides to create what is called a "non-public forum" for student groups to meet on campus, the First Amendment permits the University to impose restrictions on access so long as the restrictions are "reasonable  and viewpoint neutral."  So, for example, only student groups are recognized and permitted access to the University's limited public forum. A non-student group-for example the Lincoln Rotary Club-would not be eligible to meet in the limited public forum. In this case, under the "all comers" policy, access to the limited public forum was for student groups who adopt an all comers membership policy. Moreover, under the "all comers" policy, only student groups that were open to "all-comers" were allowed access. This renders the policy a non-public forum under forum analysis (as in Forbes).

Issue: Is the policy under which CLS was excluded both reasonable and viewpoint neutral?

2. Freedom of Expressive Association [remember the Boy Scouts case]

--From Wooley: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

--In Hurley, Justice Souter compared the idea of speaker autonomy--the right of the speaker to shape her "expression by speaking on one subject while remaining silent on another" (515 U.S. at 574) to that of a composer of a musical score who selects which notes to include and which to exclude.

-in  Dale v. Boy Scouts: "The freedom at issue here has both affirmative and negative aspects. The affirmative aspect is the right of the expressive association to select leaders who will communicate the organizations  beliefs....The negative aspect is the right not to be associated with [leaders whose] ideas and beliefs the organization  does not wish to endorse." 

What is the test concerning whether a law restricts the right to expressive association?

 The issue is whether "forced inclusion" of the unwanted member would "affect in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express." (casebook p. 1603)

The First Amendment Right of Expressive Association thus includes the right to exclude any member or leader whose presence in the group ""affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express."

Is David Duke or another known-supporter  of the KKK a good spokesperson/leader/representative for the ideas sought to be advanced by the NAACP? If a law were passed forbidding the NAACP from excluding someone like David Duke from a leadership position in the association, would it impair the NAACP's ability to clearly express its message of racial equality and racial tolerance?

Should a GLBT youth organization be free to exclude the Apostle Paul from a leadership position because of his conservative beliefs about the sinfulness of homosexuality?

Must CLS allow an atheist (or a Buddhist) to serve as president of the CLS?

III. Which Body of Law Applies

1. CLS argued that Hastings' decision to exclude it should be evaluated under both forum rules and freedom of expressive association rules.

2. But the Court held that its "limited-public-forum precedents supply the appropriate framework for assessing" CLS’s First Amendment rights.  

3. If I have two free speech rights that arguably apply to a particular case, may government require me to choose between those two First Amendment rights? In other words, may government tell CLS that if it wishes to be part of a limited public forum for student groups it must forego its right of expressive association and agree to admit atheists and others who don't support its doctrinal beliefs to be members and even leaders of the group? If it must admit non-Christians as members and leaders, is it still the Christian Legal Society?

4. The decision to apply only the nonpublic forum rules was critical, because if the expressive association  test had been applied CLS had a slam dunk case--the "accept all comers" policy facially denies recognized student groups the right to exclude members and leaders who do not share the beliefs the group exists to express!

5. Under the limited [nonpublic] public forum rule, the issue was whether the "all comers" policy was both reasonable and viewpoint-neutral. The majority concludes that it is both.

But is it reasonable to require a group to admit members and leaders with views that are totally at odds with the views the group wishes to express and with those it wishes not to express? Is it reasonable to impose an all comers policy that "affects in a significant way the ability of the group to express those views, and only those views [right not to speak], that it intends to express?"

I'm with Justice Alito's dissent. What do you think?