Q & A Session Sunday April 25 at 1:15

 

I will be there at 1:15 to try to answer your questions.

Sixth Circuit Upholds Ohio's Ban on Eugenic Abortions

Mark Joseph Stern reports: "By a 9–7 vote, the 6th Circuit lifts an injunction that had blocked an Ohio statute prohibiting doctors from terminating a pregnancy because of Down Syndrome. The decision effectively defies Roe by upholding a total ban on certain abortions pre-viability." Sort of true. Roe & Casey did not evaluate laws prohibiting eugenic abortions, so this is not a case that directly conflicts with SCOTUS caselaw.

Here is the Link

This is not a First Amendment issue. I am sharing this only for those of you who might be interested.

This Friday (April 16)

 I will schedule an optional Q & A session for this Friday, April 16. Also, the Dean's Office has scheduled that time for evaluations. So, I will join the Zoom session late (at about 1:30 PM) to give you time to fill out the evals.

More of CLS Decision

 

 Now consider this passage in the CLS case at p. 4: 

"Third, this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out."

So, if CLS renounced its identity as the "Christian" Legal Society in favor of the "All-Comers" Legal Society, it could [receive its funding for playground safety surfaces]....um...I mean it could receive the generally available funding and access benefits of official recognition. No big deal!

Any cases we read this semester come to mind?

Another way of thinking of this is that CLS has two rights: 1. the right to participate in a limited public forum, and 2. the right of expressive association. And Hasting told them to choose one right or the other but not both.

Is this like a prosecutor saying "if you want the right to counsel you must waive the right to be protected against unreasonable searches and seizures. You choose!" Or "if you wish to continue receiving welfare benefits for the baby you have you must agree to abort the baby you are carrying. You choose."

What a Time We Are Living In!

 You picked a great year to study the First Amendment because you are witnessing the law develop before your eyes in the present time. 

Espinoza, Guadalupe, compelled pronouns and wedding cakes/videography, Covid cases galore, Fulton v. Philadelphia, k-12 speech, and much more. 

I hope you enjoyed this fast-moving journey through the First Amendment. I hope to see some of you (in person, unmasked and unafraid) in the Con Law Seminar come Spring 2022.

California Covid Ban on Home Worship Enjoined by SCOTUS: Tandon v. Newsom

 Amy Howe of SCOTUSblog reports:

"By vote of 5-4, #SCOTUS blocks California's COVID-related restrictions on in-home prayer meetings and worship. Opinion & Kagan's dissent are here: https://supremecourt.gov/opinions/20pdf  

Here is an important excerpt:

"The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. 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. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4). It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue. Id., at ___–___ (KAVANAUGH, J., concurring) (slip op., at 2–3).

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. Id., at ___ (per curiam) (slip op., at 3) (describing secular activities treated more favorably than religious worship that either “have contributed to the spread of COVID–19” or “could” have presented similar risks). Comparability is concerned with the risks various activities pose, not the reasons why people gather. Id., at ___ (GORSUCH, J., concurring) (slip op., at 2).

Third, the government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk factors “are always present in worship, or always absent from the other secular activities” the government may allow. South Bay United Pentecostal Church v. Newsom, 592 U. S. ___, ___ (2021) (statement of GORSUCH, J.) (slip op., at 2); id., at ___ (BARRETT, J., concurring) (slip op., at 1). Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too. Roman Catholic Diocese, 592 U. S., at ___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 3)."

And from Justice Kagan's dissent:

 "California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons....

In ordering California to weaken its restrictions on at-home gatherings, the majority yet again “insists on treating unlike cases, not like ones, equivalently.” South Bay, 592 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 5). And it once more commands California “to ignore its experts’ scientific findings,” thus impairing “the State’s effort to ad-dress a public health emergency.” Ibid. Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision."

Notice that Justice Kagan believes that the free exercise clause treats home prayer meetings no better and no worse than home gatherings for poker games, cocktail parties, and football games. But those secular activities are not the subject of an express amendment protecting poker, cocktail socials, and football-watching parties. This is her view even if other secular gatherings--at factories, Hollywood studios, and big box stores--are treated much better than home worship meetings.

What are your thoughts?

A Man For All Seasons: Film About Compelled Speech Concerning Marriage

 

You might enjoy the great religious liberty/free speech movie, A Man For All Seasons, next week on Turner Classic Movies. Friday April 16 at 7 PM.

Last Class: Wednesday April 14

Here is the assignment:

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

 

Zoom discussion as usual.

NAACP v. Alabama (p.1525)

Why does the First Amendment protects the right of expressive association?

The idea is that effective advocacy of a particular point of view is “undeniably enhanced by group association.”  Thus, the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech. A, B, and C have the right to speak as individuals as well as the right to come together and speak as a group.

 Why is member anonymity critical to the right of expressive association? What might happen to NAACP members in Alabama in 1958?

Casebook p. 1525-1526:

" Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that  compelled disclosure of petitioner’s Alabama membership is likely to affect adversely  the ability of petitioner and its members to pursue their collective effort to foster beliefs
which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure."

 

Is a Custom Wedding Cake Speech?

 Was the custom wedding cake in Masterpiece "speech" or merely a commercial product? 

Here are a some facts to consider:

1. When Craig and Mullins visited Masterpiece Cakeshop, they "requested that Phillips design and create a cake to celebrate their same-sex wedding." 

2. The Colorado Civil Rights Commission ordered Phillips to “cease and desist from
discriminating against . . . same-sex couples by refusing to sell them
wedding cakes or any product [he] would sell to heterosexual
couples.” In other words, the order mandated that Phillips must
create custom wedding cakes celebrating same-sex marriages if he
creates cakes celebrating traditional marriages between one man and
one woman.

3. At Supreme Court oral argument in this case, Justice Ginsburg asked the gay couple’s
lawyer, David Cole, what would happen if Phillips would design a
wedding cake “that said: God bless the union of Ruth and Marty.”
Cole replied: “[T]hen he would have to say God bless the union of
Dave and Craig” because otherwise it would constitute
discrimination on the basis of sexual orientation. Thus, the
Commission’s order was so broad as to require Phillips to include
religious blessings on cakes celebrating same-sex marriages.

So did Colorado compel Phillips to speak via his custom wedding cakes? To quote Prof. Amar, are Phillips' wedding cakes symbols "that represent ideas, events, persons, places, objects, and so on."

If so, was this a content-based or a viewpoint-based compulsion of speech?

If you don't believe that wedding cake artistry is protected expression, what about the abstract paintings of great artists like Jackson Pollock. Is Pollock's  Number One, 1950 (Lavender Mist) protected expression under the Free Speech Clause?

 Here is how he painted this beauty:

"Pollock's method was based on his earlier experiments with dripping and splattering paint on ceramic, glass, and canvas on an easel. Now, he laid a large canvas on the floor of his studio barn, nearly covering the space. Using house paint, he dripped, poured, and flung pigment from loaded brushes and sticks while walking around it. He said that this was his way of being "in" his work, acting as a medium in the creative process. For Pollock, who admired the sand painting of the American Indians, summoning webs of color to his canvases and making them balanced, complete, and lyrical, was almost an act of ritual. Like an ancient cave painter, he "signed" Lavender Mist in the upper left corner and at the top of the canvas with his handprints."

 

The Right Not To Speak (Speaker Autonomy)

From Barnette (flag salute case): "To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." p.1608

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.

For a powerful essay  on the right not to speak, see Alexander Solzhenitsyn's  "Live Not By Lies" reprinted here: Link

Do you see how the idea of speaker autonomy extends to the right of an expressive association to decide to exclude unwanted members from the group?

In Dale, here is how the Boy Scouts argued their case:

"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 who are associated with] ideas and beliefs the organization does not wish to endorse."

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 an LGBT youth organization be free to exclude an opponent of gay rights from a leadership position because of his conservative beliefs about the sinfulness of homosexuality?

What about a Christian photographer who does not wish to use her artistic expression to express celebration of a same-sex wedding?  Even if she has no Free Exercise claim, does she have a Free Speech "right not to speak" claim?

What about a Muslim cake baker who does not wish to write "Congratulations on their marriage to Bob and Joe" on their wedding cake? Right not to speak?

Notice this can be seen as compelled expression of viewpoint.

How should these cases come out?

Must both Free Exercise and Free Speech be toppled in the service of a narrow view of "tolerance?" Or does real tolerance require tolerance of different points of view about the meaning of marriage and human sexuality?

First Amendment Myths

Discussion topic for Thursday's class:

What myths about the First Amendment have we uncovered this semester?

"Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers"

 Religion Clause blog has this post:

Tuesday, April 06, 2021

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

Wednesday April 7: Update (Correction)

For tomorrow's class, we will focus only on Rust & Rosenberger.  

We will get to CLS v. Hastings next week.

Corporate Free Speech vs. Corporate Extortion

 I strongly support freedom of speech and of the press for everyone, including for-profit corporations such as the New York Times. But there is a difference between corporate speech and corporate extortion.

Basically, MLB just told the state of Georgia: "It's a nice state you have here, it would be a shame if someone destroyed the city of Atlanta during the All Star Game." This sounds like Don Corleone saying to the movie producer: "That's a nice horse you have there. It would be a shame if it gets decapitated and you wake up next to its bleeding head." 

To Georgia's credit, they refused the "offer you can't refuse." 

Con Law II Spring 2021 Eleventh Week Wednesday April 7, Thursday April 8 & Friday April 9

Wednesday: Casebook p. 1468-1479;

Thursday: Casebook p.1509-1516

Friday: Casebook p.1521-1536; Telescope Media (8th Cir. 2019) ; my article on Telescope Media (link); video CLE on compelled speech doctrine:

CLS – Non Compelled Speech Doctrine:

https://use.vg/rqmKFE

Ignore the q & a after the compelled speech talk--it does not focus on the First Amendment.

 

We will meet on Zoom (join from Canvas recurring zoom page for this course) on Wednesday, Thursday, and Friday to discuss the issues raised in our materials.

 

Hazelwood: Important Passage

"The question whether the First Amendment requires a school to tolerate particular
student speech—the question that we addressed in Tinker—is different from the
question whether the First Amendment requires a school affirmatively to promote
particular student speech. The former question addresses educators’ ability to silence a
student’s personal expression that happens to occur on the school premises. The latter
question concerns educators’ authority over school-sponsored publications, theatrical
productions, and other expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school. These activities
may fairly be characterized as part of the school curriculum, whether or not they occur
in a traditional classroom setting, so long as they are supervised by faculty members
and designed to impart particular knowledge or skills to student participants and
audiences.

 Educators are entitled to exercise greater control over this second form of student
expression to assure that participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be inappropriate
for their level of maturity, and that the views of the individual speaker are not
erroneously attributed to the school. . . .

Accordingly, we conclude that the standard articulated in Tinker for determining
when a school may punish student expression need not also be the standard for
determining when a school may refuse to lend its name and resources to the
dissemination of student expression. 

Instead, we hold that educators do not offend the
First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.. . . It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment . . . require[s] judicial intervention to protect students’
constitutional rights." Casebook at p.1461-1462

Baseball is Back!

 

Today is MLB opening day. With fans in the stands (alas, masked fans, even though baseball is played OUTSIDE!) After a lifetime of being part of Red Sox Nation, I have decided to change rooting preferences. This year I watch the most exciting team in baseball, the Padres! As soon as class is over today, I will head for the tv to watch baseball and listen to the best play-by-play man in the game, Don ("Don Diego") Orsillo.