Content Neutrality

In Carey v. Brown (see casebook p. 1331), an ordinance prohibited residential picketing but exempted "the peaceful picketing of a place of employment involved in a labor dispute." Is this ordinance content neutral?

How about the Westminster ordinance which prohibits focused picketing outside "religious premises" at the time of "a scheduled religious activity." Is that content neutral?

Here is how the Court describes its rule([See Perry Education Association v. Perry Local Educators’ Ass’n, 460 U. S. 37 (1983) quoted in part at p. 1332 of casebook):

“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. (P. 209) Carey v. Brown, 447 U.S. 455, 461 (1980). The state may also enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . .”

See also Krishna case infra.

New Muslim Police Officer Case

From the Volokh Blog:

Court Rejects Muslim Police Officer’s Demand for Accommodation of His Religious Practice of Wearing a Full Beard

Eugene Volokh • May 11, 2010 10:23 am

The case is Wallace v. City of Philadelphia (E.D. Pa. Apr. 26). The court’s reasoning:
1. Because the police department didn’t allow anyone to wear a full beard, it had no obligation under the Free Exercise Clause to carve out an exemption for religious objectors.
2. Under FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (Alito, J.), the city does generally have an obligation to provide a religious exemption when it provides the same exemption for secular reasons, such as for people who have medical problems that make shaving inadvisable. But because Philadelphia’s medical exemption applied only to beards that were no longer than 1/4 inch, Wallace was entitled only to to this exemption (which he concluded was inadequate for his religious reasons) and nothing more.
3. The city doesn’t have to accommodate the religious objection under Title VII’s “reasonable accommodation” test, either, because (quoting Webb v. City of Philadelphia (3d Cir. 2009)), “what is at stake is the Philadelphia Police Department’s perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of [the uniform rules], the essential values of impartiality, religious neutrality, uniformity and the subordination of personal preference would be severely damaged to the detriment of the police department.”
4. My favorite quote: A police inspector testified that, when she examined Wallace, she “said to herself ‘that you could hide like a dwarf in the beard or something.’”

Another Heckler's Veto Case

Here is a link to an NBC story and video.

Assignments and Handouts

For next Thursday's class, be prepared for the first two Fr Ex assignments:

1. Linder Introduction (Link); Reynolds case (Link)


2. Casebook p. 1702-1708; Goldman case (Link); Lyng case (Link)

Also, the Handouts for Friday's class are now available in the kiosk outside the South Faculty offices.

Greetings from Panem, The Capitol

I am in The Capitol for a talk at Catholic Law School. This morning, I visited the Lincoln Memorial and read the Gettysburg Address on the Walls of the Memorial. Here is what is carved there:

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."


Obviously, I thought of the Newdow case and the "Wall of Separation" and Con Law II as I observed the Memorials.

See y'all next week!