Assignment for Monday November 1

 3. Casebook p. 1447-1468; Mahanoy School District

 

We will also finish our discussion of McCullen and Phelps.

Unborn Lives Matter (ULM) and the First Amendment

Suppose that in late 2020 tens of thousands of pro-life citizens decided to take to the streets to protest the 60 million unborn lives that have been taken since Roe v. Wade was decided in 1973. The protesters took over the major streets of every major city in America, and some participants engaged in massive looting, arson, and other acts of violence after dark. Abortion clinics and police departments were burned to the ground, and at least a few people were murdered.

Now suppose that in response to the violence a number of cities imposed two restrictions on protests:

1. An adoption of an 8 PM curfew on all demonstrations on the streets, sidewalks, and parks of the cities.

2. A restriction on the blocking of traffic on major commuter routes.

Does enforcement of these restrictions violate the First Amendment rights of the fiery but  mostly peaceful ULM protesters?

Wise Words from Madison

 As we begin our discussion of free speech, let's remember the words of Madison:

 "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."

Frisby: Some Questions

First, the rules for Traditional Public Forum (p.1462):

“In these quintessential public for[a], 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. . . . 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.”

 The Court says that "a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood." p. 1461

So TPF rules apply. This ordinance is content neutral because it bans all focused residential picketing.

But suppose it prohibited only "picketing focused at the home of a health care provider."

See Carey v. Brown *(p. 1461):

Striking down a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition "the peaceful picketing of a place of employment involved in a labor dispute." Carey held that this ordinance "discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication." 447 U.S. at 460.

Or, during the Vietnam way era, "picketing focused at the home of an employee of a chemical company that manufactures napalm?"

Does the ordinance advance a "significant government interest?"

Is it narrowly tailored? What does that mean?

Does it leave open "ample alternative channels of communication?"

Traditional Public Forum Theory

 

Take a quick look at page 1460 and the two competing views of Justice Holmes and Justice Roberts.      

Justice Holmes believed that title to the public streets and parks gave government the right “to forbid public speaking” – just as I have the right to forbid you from picketing or protesting in my living room.      

Justice Roberts  believed that public streets and parks “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.”      

Which of these views do you think is the better?  Why?

 Should the City of Boston have the power to ban picketing and public demonstrations on the Boston Common in order to protect the interests of people who go there to play frisbee, sunbathe and enjoy peace and quiet?

 Should students have the right to conduct a tuition protest meeting in the Dean’s office?  Why or why not?

What is the difference between the Dean’s Office and Boston Common?

Public Forum Doctrine: The Rules

Consider this excerpt from the Krishna case:

These cases reflect, either implicitly or explicitly, a “forum based” approach for assessing restrictions that the government seeks to place on the use of its property. Under this approach, regulation of speech on government property that has traditionally been available for public expression is subject to the highest scrutiny. Such regulations survive only if they are narrowly drawn to achieve a compelling state interest. The second category of public property is the designated public forum, whether of a limited or unlimited character-property that the State has opened for expressive activity by part or all of the public. Regulation of such property is subject to the same limitations as that governing a traditional public forum. Finally, there is all remaining public property. Limitations on expressive activity conducted on this last category of property must survive only a much more limited review. The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view.

Madsen Case: Free Speech and the "Abortion Distortion"

 Notice that the injunction in Madsen is directed at certain named pro-life defendants as well as “all persons acting in concert or participation with” the named defendants.       

It then goes on to enjoin these individuals “at all times on all days” from “congregating, picketing, patrolling, demonstrating, or entering” within a 36-foot buffer zone in front of the abortion clinic.

In his dissent in Madsen, Justice Scalia says (P.1469): "Today's decision...makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion...."

What do you think Justice Scalia means by this statement?

Is the injunction in Madsen a viewpoint-based restriction on free speech? Notice that the injunction applies not only to the named defendants, but also to "all persons acting in concert or participation
with [the named defendants], or on their behalf." 512 U.S. 759. The casebook edits out some very important facts about how the trial judge interpreted this language from his injunction.

Consider this excerpt from Justice Scalia's dissent in Madsen:

 Following issuance of the amended injunction, a number of persons were arrested for
walking within the 36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge who issued the injunction, the following exchanges occurred:

Mr. Lacy: "I was wondering how we can-why we were
arrested and confined as being in concert with these people
that we don't know, when other people weren't, that
were in that same buffer zone, and it was kind of selective
as to who was picked and who was arrested and
who was obtained for the same buffer zone in the same
public injunction."

The Court: "Mr. Lacy, I understand that those on the
other side of the issue [abortion-rights supporters] were
also in the area. If you are referring to them, the Injunction
did not pertain to those on the other side of the
issue, because the word in concert with means in concert
with those who had taken a certain position in respect
to the clinic, adverse to the clinic. If you are saying
that is the selective basis that the pro-choice were
not arrested when pro-life was arrested, that's the basis
of that selection ... ." Tr. 104-105 (Appearance Hearings
Held Before Judge McGregor, Eighteenth Judicial
Circuit, Seminole County, Florida (emphasis added)).

(512 U.S.  795-796)

 Here is something to be thinking about:

Suppose I went down to Florida and approached this abortion clinic. I have come by myself to protest against abortion. I know nothing about the defendants subject to the injunction; I have never met or spoken to any of them.

As I arrive, I see a number of pro-choice demonstrators standing in front of the clinic and some pro-life pickets standing across the street. I decide to stand directly in front of the clinic with my sign announcing "abortion kills babies." I stand there peacefully and silently. Have I violated the injunction?

Now think about this one:

Suppose this case were set circa 1962 in Selma, Alabama. A trial judge has issued a 36-foot buffer zone in front of a segregated lunch counter that had been the scene of sit-ins and blockades. It contains similar language restricting named defendants plus persons acting "in concert or in participation" with the named defendants.

During Spring Break 1962, you and two of your classmates go down and silently hold up a picket sign calling for passage of civil rights laws. You are arrested (although a group of segregationist speakers was allowed to remain without a hassle).

Is Madsen underprotective of Free Speech? Or is it about right?

Free Speech Article to Read Over Fall Break

Here is Bari Weiss's incredible article, We Got Here Because of Cowardice, We Get Out With Courage, from the November Commentary issue:

 https://www.commentary.org/articles/bari-weiss/resist-woke-revolution/?fbclid=IwAR0eb7Lm76QdUcfCCGqFNqjuTWFbZtAPDSOrOzkI6RT5pt5YHF2TMtz5JMs

 

Money Quote about Woke Ideology:

"Ideas are replaced with identity. Forgiveness is replaced with punishment. Debate is replaced with de-platforming. Diversity is replaced with homogeneity of thought. Inclusion, with exclusion.

In this ideology, speech is violence. But violence, when carried out by the right people in pursuit of a just cause, is not violence at all. In this ideology, bullying is wrong, unless you are bullying the right people, in which case it’s very, very good. In this ideology, education is not about teaching people how to think, it’s about reeducating them in what to think. In this ideology, the need to feel safe trumps the need to speak truthfully." 

Read the whole thing as we get ready to study freedom of speech and thought.

Class Schedule

  Just a reminder that we will not be meeting for the next two weeks.

1. Monday and Tuesday October 11 and 12--I am speaking at BYU Law

2. Monday October 18--Fall Break

3. Tuesday October 19--You voted to cancel this one.

Enjoy your well-earned break! Relax a little and get some work done (exams are around the corner). 

 So here is what the syllabus says about our schedule this semester:

"This class will meet this Fall on Monday and Tuesday from 1:30 p.m. until 2:55 p.m. Notice that this class meets for an extra 10 minutes each session. In addition, I am assigning videos of my teaching many of the cases we will read this semester. This will allow us to cancel 6 to 8 classes during the Semester without the need for make-up sessions. I will need to cancel some classes due to my being out of town speaking at other law schools. If possible, I will try to end this course one week early to give you extra time to prepare for exams."

 So, here is what I know so far. I will be speaking at BYU law school on October 12 and traveling to Provo on October 11.  Thus, there will be no classes on Monday October 11 and Tuesday October 12.

Are there any classes that y'all would like to cancel as part of our 6 to 8 days off? For example, perhaps the Tuesday before Thanksgiving? Think about it and let me know.

You chose Tuesday October 19 as an off day.

So, you will have a 2-week break for the weeks of October 11 and October 18!

Assignment for Monday October 25

 Assignment for Monday October 25. We will be starting Free Speech:

 1. Reed v. Town of Gilbert (link); Casebook p.1389-1394. 

 

We will start class by discussing Holt v. Hobbs and City or Boerne from last time.

Assignment for Tuesday October 26

Snyder v. Phelps (link);  casebook p. 1394-1412

Holt v. Hobbs

 

                                        Abdul Maalik Muhammad (Petitioner Gregory Holt)

 

So Hobby Lobby won the case—it seems to me that this case is easy under RFRA—and no one really loses because Hobby Lobby’s employees will still get free contraceptive coverage under the less restrictive accommodation.

But now think about Holt v. Hobbs. 

 

Relevant texts of RLUIPA:

 

 

SEC. 3. <> PROTECTION OF RELIGIOUS

                    EXERCISE OF INSTITUTIONALIZED PERSONS.

 

    (a) General Rule.--No government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an

institution, as defined in section 2 of the Civil Rights of

Institutionalized Persons Act (42 U.S.C. 1997), even if the burden

results from a rule of general applicability, unless the government

demonstrates that imposition of the burden on that person--

            (1) is in furtherance of a compelling governmental interest;

        and

            (2) is the least restrictive means of furthering that

        compelling governmental interest.

 

 

 

     (g) Broad Construction.--This Act shall be construed in favor of a

broad protection of religious exercise, to the maximum extent permitted

by the terms of this Act and the Constitution.

 

 

 

  (7) Religious exercise.--

                    (A) In general.--The term ``religious exercise''

                includes any exercise of religion, whether or not

                compelled by, or central to, a system of religious

                belief.

 

 

Hobby Lobby was a 5 to 4 decision. But Justice Alito’s opinion in Holt v. Hobbs is unanimous.

Holt v. Hobbs concerned RFRA’s sister law, RLUIPA (the Religious land Use and Institutionalized Persons Act), which provides that government may not substantially burden the religious exercise of an imprisoned person unless the government demonstrates that the burden “constitutes the least restrictive means of furthering a compelling state interest.”           

Justice Alito explicitly points out how RLUIPA was designed to expansively protect religious liberty (p. 2):

Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “religious exercise” capaciously to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”  Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”

Basically, the facts were that the prisoner, Gregory Holt also known as Abdul Maalik Muhammad, is a devout Muslim who wished to grow a one-half inch beard based upon his sincerely held religious beliefs.

Arkansas prison regulations prohibited beards based upon concerns involving prison security.

Noting that the RLUIPA standard mirrors RFRA, the Supreme Court unanimously held that Holt was entitled to a religious exemption from the no beard prison grooming policy.

The Court held that Holt had “easily satisfied” his burden of establishing a substantial burden on his religious freedom, because the regulation required him to shave his beard or face serious disciplinary action.                      

Thus, the burden shifted to the Government to demonstrate that the grooming policy as applied to religious beards was the least restrictive means of advancing a compelling governmental interest.

Justice Alito emphasized that the compelling interest test is a “rigorous standard,” that is difficult to meet. And that in any event, the requirement of least restrictive means is “exceptionally demanding.”

To make a long story short, the Court held that the prison’s interest in forbidding short beards was probably not compelling, and that, in any event, there were less restrictive means of ensuring that no razor blades or illegal drugs were hidden in one-half inch beards. For example, prison guards could require prisoners to run a comb through their beards to ensure that no weapons or drugs were concealed there.

Also, even if a clean-shaven photograph was necessary to protect security interests concerning easy identification of prisoners, a less-restrictive means would be to take the photograph when the prisoner was first admitted to the prison (p. 5). Or I would argue, take the picture with the beard and photoshop a clean-shaven prisoner.

Thus, the Court unanimously struck down the prison beard policy “insofar as it prevents [Holt] from growing a one-half inch beard in accordance with his religious beliefs.”

I suggest that the legal analysis in Hobby Lobby and Holt are identical, and that the difference in the two cases is simply that Hobby Lobby is a battle in the culture war over abortion and contraception, whereas Holt concerns a Muslim prisoner in a battle with prison officials.

All culture war cases, cases involving abortion or contraception or gay rights, are ideologically divisive and thus usually end up as 5 to 4 decisions even when the legal issues are easy.

Strategically, it is best to bring religious liberty cases involving politically-correct claims and plaintiffs. Imagine if Masterpiece Cakeshop had involved a gay cake artist who was ordered to bake a cake with a religious message condemning same-sex marriage as a serious sin?

Same case? Sure, but now the progressive Justices might find the gay baker’s First Amendment claims more sympathetically.