Early Thoughts on Summum

I was re-reading Summum recently for my Seminar. And here is something that struck me about Justice Alito's opinion.

He starts off giving a tribute to the essential nature of government speech. He says:

-- "the Free Speech Clause... does not regulate government speech"

-- "a government entity has the right to speak for itself"

--government is "entitled to say what it wishes"

--government may "select the views it wants to express"

--"It is the very business of government to favor and disfavor points of view"

--"it is not easy to imagine how government could function if it lacked this freedom"

--"To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question."

Yet, without missing a beat or apparently even being aware of the contradiction, Alito goes on to say that of course "government speech must comport with the Establishment Clause."

Why should this be so? Why should the Court be so ready to accept a "heckler's veto" against passive government speech--such as a nativity display in a public park acknowledging the fact of the Christmas holiday? Why should we think that the government's critically important right to say what it wishes and to express the viewpoints it chooses is subject to being enjoined at the whim of any citizen who is offended by the government's message acknowledging a religious holiday? How could the doctrine of incorporation, which protects only "liberty interests" against state deprivations, give a citizen the right to restrict government from "saying what it wishes" by means of a passive display that restricts the liberty of no one, since all one need do if one is offended by a passive display recognizing a religious holiday is to avert one's eye? Is the "endorsement test" a liberty-protecting test, or is it a structural limitation on government that somehow was mistakenly incorporated as a "liberty" under the 14th Amendment?

Are hecklers' vetoes bad except when they are good?

These are the questions that keep me up late at night pondering the inconsistencies of the Court's treatment of government speech.

I sent this post of mine to a First Amendment Law Prof listserv and it generated the following debate:

Part One

Prof. Brownstein replies to me:

Just a few quick points.

1. There is nothing in Justice Alito's comments that limit his remarks about government speech to "passive" government speech. Government can say what it wants to say actively or passively. If government has unlimited discretion in communicating its own messages and that power is not limited by the Establishment Clause, why can't government proselytize in favor of particular faiths.

2. You could substitute spending for speech in most of Alito's comments. Government has tremendous discretion in deciding how it will spend its money. This power is not limited by the Free Speech Clause. But many of us would argue that the Establishment Clause constrains the government's power to subsidize the religious activities of particular faiths and not others.

3. Government may express passive messages in places other than public property. Suppose the government purchased a large cross and requested permission to locate it on the grounds of a particular church that it favored. Would that violate the Establishment Clause? If the government can single out a particular faith community's religious message and adopt it as its own and dedicate public property as the site for the communication of that message -- all in the name of unrestricted government speech -- why can't the government create its own religious display and exhibit it on private property that it selects (with the owner's permission)?

4. While I certainly appreciate the argument that government attempts to influence the religious beliefs of the community through government speech implicate religious liberty interests, I would have thought that the obvious value at issue in the Summum case was religious equality. The government adopts the religious message of one faith community and rejects the religious message of a different faith community. The analogy here would be a city that adopts religious displays to celebrate Christian holidays, but refuses to accept displays celebrating the holidays of other faith communities. The question raised by Summum that the Court alluded to -- but did not directly address -- is the extent to which the Establishment Clause limits this kind of government preferentialism. I suspect some of Rick's students may raise this point even though it is is not suggested by his comments.

Alan Brownstein

Part Two

I reply to Brownstein:

I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes.

My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom.

Certainly, religious equality is important, but so is cultural equality and political equality.

Imagine two passive displays in a public school--one is a nativity scene recognizing the fact that many in the community are celebrating Christmas, and the other is a gay pride display which says "support gay equality and stop homophobia."

Both of these displays are challenged by students who find them offensive--the nativity display by student A who is offended by the schools "endorsement of religion" and the gay pride display by student B, a conservative Christian who is offended by the school's endorsement of the message that his religious belief about human sexuality is wrong and must be "stopped."

Many of you would agree with Justice Alito that the government has a right to take a position denouncing "homophobia" and that we would deny an essential part of government's power if we allow student B a heckler's veto enjoining the government's right to express its message. So long as the government does not coerce student B into affirming his support for the government's viewpoint, his remedy is to avert his eye rather than to silence the government and those who wish to receive the government's message about gay rights.

But not so with student A and his objection to the Christmas display. Even though his liberty is in no way deprived by a passive display recognizing a religious holiday being celebrated by many in the community, he has the right to censor government speech endorsing religion. Suddenly, government speech is not so essential and is subject to a heckler's veto by anyone who takes offense.

If Alito is right and the essence of government is to speak out and take the viewpoints of its choice on issues that come up in the marketplace of ideas, why should the EC be interpreted as protecting a non-liberty interest of hecklers to censor religious viewpoints expressed by state and local governments?

Because student A feels like an outsider as a result of the state's nativity display? But doesn't student B, the religious "homophobe," feel even more like an unwanted outsider when the state endorse the gay pride display and the message that "homophobia" such as his religious beliefs must be stopped?

We all cover the issues Alan raises. But I suspect many of us do not point out the contrast between those offended by the government's secular speech and those offended by the government's religious speech. And even if you accept that the EC is properly incorporated as a "liberty" interest under the 14th Amendment, what explains the Court's many cases protecting non-liberty claims under the judicially-created endorsement test. The endorsement test is a structural test, not a liberty-protecting test.

I think it makes teaching the EC far more interesting when you ask some of these hard questions about the endorsement test as applied via incorporation to the states, and point out the contrast between what Alito's says about government speech in general and what he says only a sentence or two later about the EC as a limitation on the government's power to choose its messages.



Rick Duncan

Part Three

Prof. Laycock joins the debate:

Actually, I raised Rick's question in class today. Not with respect to Summum, which we haven't gotten to yet, but with respect to the difference between the remedy in Barnette and the remedy in Engel and Schempp. Students pretty quickly decided that government couldn't govern if it couldn't try to influence public opinion on political issues. Political issues require a collective decision; we debate and lobby and hold elections and eventually, the people or their elected representatives vote.

There is no need for a collective decision on religion. We don't have to vote to determine what religion we are; we can be a lot of different religions. Election campaigns and voting about what religion we really are would be a wholly unnecessary source of conflict. And letting the self-presumed majority, or noisiest minority, seize control of the government's religion without a vote is no better.

We protect individual liberty by maximizing individual choice, and with respect to religion, there is no reason to limit individual choice even to the extent of permitting government persuasion -- or government propaganda.

Part Four

I respond to Laycock:

I agree with Doug that unlike political issues, "we don't need to vote to determine what religion we are."

But much govt speech is not about political issues and elections. A lot of government speech "endorsing" religion has to do with govt recognizing religious holidays and recognizing religious cultural subgroups in the community or as part of the community's history.

If the EC endorsement test only prohibited government speech taking an official position on religious doctrines such as the doctrine of election or the divinity of Christ, I would not be too concerned (although I might still wonder how anyone has a liberty interest to justify such a claim under the incorporated EC). And frankly, the political process is almost always a sufficient check on govt endorsing specific religious doctrines.

But, of course, much govt religious speech is of the cultural type--Christmas displays or Ten Commandment displays and the like. In other words, it is not about elections, but about recognizing we are a nation of many different communities with many different cultures, including religious subgroups and religious cultures, and religious history.

Religious subgroups are part of the culture as well--if a public school may celebrate Gay Pride Week and Black History Month and Earth Day and Cinco de Mayo, there is no reason to forbid it from recognizing Christmas. Those who are offended by any of these displays can avert their eyes. There is no liberty to silence govt speech recognizing religious holidays and religious subgroups as part of a pluralistic community.

Liberty is best served by protecting the right of the govt to recognize that religion is part of the culture and by protecting the right to receive govt speech of those who wish to view religious displays as part of the govt's recognition of our culture and pluralism. The heckler's veto created by the endorsement test is a liberty-restricting, not a liberty-protecting, interest. It is a right to control what kind of govt expression a willing audience can view, even though the only burden on the Pl is the burden of averting the eye.

This is the kind of issue I love discussing in class. And my students understand that the solution is not as simple as saying that religious speech is different from secular speech under the First Amendment. Sometimes it is, and sometimes it isn't.

Part Five

Prof. Chip Lupu enters:

Rick likes to call the restriction on government religious speech a "heckler's veto," because that's a pejorative. And I must say that the "endorsement" approach, and a focus on "offense" taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be "under God," not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S.

Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical).

Chip

Part Six

I respond:

Chip asks me:

"Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical)."


Okay. I'll play. If we assume that the EC is not incorporated--or is only incorporated to the extent of protecting substantial burdens on liberty interests (i.e., to protect against forced participation in religious practices or prayer)--then the cross on the lawn of City Hall does not violate the EC (because the EC does not apply at all). But not everything that is bad is constitutionally forbidden and not everything that is good is constitutionally required.

Indeed, the best check on this kind of practice is a combination of state constitutional law and democratic self government.

What about a city that puts up a large "no homophobes allowed" sign on the lawn of city hall. Is that unconstitutional? Does it make many citizens--and almost all conservative religious citizens--feel unwanted in the halls of government? Why should we allow govt to express such hurtful opinions?

The point is that all kinds of government speech is offensive to some citizens, and makes some citizens feel like political and cultural outsiders.

The Court and the law prof community exaggerate the harm caused by governmental religious speech and minimize the harm caused by governmental secular speech. When a citizen seeks to enjoin hurtful secular speech by government, we say we can't allow a heckler's veto to silence govt and the rights of the willing audience. When a citizens seeks to enjoin hurtful religious speech by govt, we say he has a right to silence the govt under the EC.

I guess, to return to my hypothetical (which is more typical than Chip's example), I think the Gay Pride and Nativity displays should be treated the same under the law--either they are both subject to being silenced by an offended passerby, or they both may stand and we tell offended persons to avert their eyes.

Perhaps the First Amendment should be read as a whole (FS, FE, & EC) to forbid government from endorsing any idea that offends anyone's sincere beliefs and conscience. No one should be told that he or she is a political, cultural or religious outsider as a result of the govt's speech. Of course, public schools may have to close and public parks may have to be stripped of most displays if we decide to respect everyone's beliefs from the harm of offensive govt endorsements. But that is the price we pay for a society that respects the hurt feelings of everyone.

Rick Duncan

Part Seven

Prof. Volokh joins:

Chip Lupu writes:

> Rick likes to call the restriction on government religious speech a
"heckler's veto,"
> because that's a pejorative. And I must say that the "endorsement"
approach, and
> a focus on "offense" taken by viewers, feeds that way of framing the
issue. But
> there are far more powerful and persuasive arguments against
permitting
> government to express religious sentiments, especially highly
sectarian ones.
> First, there is the age-old problem of destructive fights over whose
sentiments will
> prevail. (In which American cities will Allah be praised? In which
ones will
> officials pray only in the name of Jesus?)

I appreciate this concern, but let me ask: Since the Court
started viewing the Establishment Clause as a restraint on government
speech, we've seen lots of pretty divisive fights over religion in
public life (school prayer, the Pledge of Allegiance, creationism, and
the like). It's possible that these fights are less divisive and
destructive than the fights that would have happened over these subjects
if the Establishment Clause weren't enforced by courts as a restraint on
government speech. But what reason do we have to be confident of that?
What if Establishment Clause has proven more divisive than the problems
it was supposed to solve?

Eugene

Part Eight

I re-enter:

I think Eugene makes a great point about the divisiveness caused by the endorsement test.

When you enjoin a governmental religious display (such as the Nativity scene I keep "harping" about), you don't merely silence the govt. You also impose silence on the willing audience (private citizens who wish to see the display). These are many of the same people who were told to avert their eyes when they were offended by the Gay Pride display. This adds insult to injury, and results in people reasonably feeling like outsiders who must play a "heads you win tails we lose" game with their secular counterparts in the marketplace of ideas.

Rick Duncan

Part Nine

An exchange between Anthony Decinque and me:

Anthony Decinque writes:

Let's go back to the hypothetical from earlier, the one about the "anti homosexual" sign versus the "Christians welcome" sign. I thought that was a strong hypothetical that really hit to the heart of the issue. Why can the government do A but not B?

The answer, I think, is the one given by Madison. Government might be able to decide whether homosexuality is bad or good. In reality, this question seems too tied up in religion and innate response for government to do very well, but government could take an empirical (Enlightenment!) approach to the issue.

Turning to religion, however, government doesn't seem to have the same ability. The framers were standing at the end of centuries of religious strife that had settled nothing. Instead, there had just been decades and decades of bloody majority-rule. Religious questions do not lend themselves to earthly resolution.

I think the framers decided that religious endorsement by government would never be anything more than thinly-veiled majoritarian oppression. That's certainly a debatable proposition, but I think it was a conclusion that was well informed by history.

Based on that conclusion, religion was ruled off limits.

Duncan responds:

I don't disagree that at least as far as "Congress" is concerned, it has no business legislating whether a particular religion is good or bad. Of course, that is a structural limitation on the power of the Federal Govt to act. The issue for incorporation is how that structural limitation translates into a liberty interest when it is incorporated under the DPC.

But even if govt has no business acting as a Theocracy and legislating good and bad religious doctrines and official prayers, it is certainly the business of govt to adopt policies recognizing that in a pluralistic society many different groups are welcome in public schools and at city hall. My hypo involving the respective challenges to a Gay Pride Display and a Nativity Display in a public school or public park goes to the very essence of state and local governmental power to embrace diversity and pluralism.

What is the message the law sends to religious families in the public schools when it ignores their complaints about a Gay Pride Display but forbids a Christmas Display under the endorsement test? This is not a case of govt taking an official position on religious truths and religious untruths. It is a case of govt exercising its clearly legitimate power to recognize that in a pluralistic society many different groups come together in the public schools and they are all welcome; and those who are offended must avert their eyes, because we don't give them a heckler's veto to enjoin the Welcome Wagon.

Under the endorsement test, the message is very different. Those offended by a display recognizing a religious holiday are empowered to enjoin the welcome sign.

Doug Laycock is certainly correct that religious students are not completely silenced, in the sense that they can go home and put up their own nativity displays in their living rooms. But they are silenced when in school. They must walk through the halls seeing displays recognizing Gay Pride, and Cinco de Mayo, and MLK Day, and Earth Day, and (ironically) Diversity Day, but they must stand by and watch religious displays be torn down at the behest of any offended member of the community. It is literally a game of heads you win, and tails we lose. And they know it. And it hurts. And it harms the cause of public education and community.

I think it was Chip who said I used the term"heckler's veto" because it is a negative word that scores points without further reasoning. But the term "heckler's veto" was used in Summum by Justice Alito to describe those who wish to enjoin govt speech merely because it offends them. Those who attack a Gay Pride display because it offends them are rightly turned away, because they are trying to exercise a heckler's veto. The same is true of those who seek to enjoin Nativity Displays and similar religious displays that offend them. They are trying to silence their fellow citizens who are a willing audience for the welcoming message of these displays.

The law treats one group of hecklers one way; and the other group of hecklers another way. And the message of inequality is clear to religious subgroups who are part of our pluralistic society.

Additional Assignment For Honors Class

In addition to the materials handed out by Dean Gloden, please read Zelman v. Simmons-Harris at this link.

Also be prepared to discuss all posts on this blog posted during February 2009 (just scroll down from here--the last post you are responsible for is called Religious Liberty: Behind the Veil of Ignorance).

Please feel free to post comments on any of the blog posts that follow.

Evolution or Creation

Now that Barack Obama has become the judicial-nominator-in-chief, we can expect to hear a lot more about the "living, breathing, evolving Constitution." Of course, the Constitution is not really alive. Nor does it breathe. But does it at least evolve? And if so, how so?

Some commentators reject an "original meaning" theory of interpreting the Constitution in favor of a theory that views the Constitution as a living, breathing, evolving organism. For example, Prof. Erwin Chemerinsky says that "nonoriginalists believe that the Constitution's meaning is not limited to what the framers intended; rather, the meaning and application of constitutional provisions should evolve by interpretation."

Is this really a theory of evolution? Or is it more honestly a theory of creation? How does the Constitution "evolve" into a new species in so brief a time? Surely, the sudden appearance of new constitutional rules in the fossil record is best explained by a theory of intelligent design, of Creation if you please, by shifting Supreme Court majorities. Thus, when Prof. Chemerinsky says that new constitutional rights "evolve by interpretation" what he means is these new constitutional species are called into being by judicial decisions (intelligent design) written by a Creator consisting of no fewer than 5 unelected lawyers serving lifetime appointments on the Supreme Court.

When the Court speaks of the Constitution evolving is this really an attempt to mask or conceal "what's really going on" as Marvin Gaye might have put it? Why doesn't the Court simply admit that it is making up new constitutional provisions when it calls into being some new rule never intended by the Framers?

Judge Robert Bork once made the following observation:

The hard fact is, however, that there are no guidelines outside the Constitution that can control a judge once he abandons the lawyer's task of interpretation. There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case....The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.

Some proponents of the "living" Constitution criticize originalists as supporting a "dead" Constitution. But Justice Antonin Scalia likes to respond by saying that originalists view the Constitution not as "dead" but rather as "enduring."

"The Constitution", says Scalia, "is not a living organism, it is a legal document. It says some things and doesn't say other things." Proponents of an evolving constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

But isn't this view too inflexible, too resistant to change and reform? Again, consider what Justice Scalia has to say about this:

My Constitution...is a minimalist Constitution. It means what it meant when it was written.

But it is a flexible Constitution. In my Constitution, you want the death penalty, pass a law. You don't want the death penalty, pass a law the other way. How more flexible could you be?

You want a right to abortion? Adopt it the way most rights are adopted in a free society, pass a law. You don't want a right to an abortion? Pass a law the other way. You want a right to die? And so forth, right down the list of all of the social issues that are brought to the Supreme Court....

A Constitution is not for flexibility. A constitution is for rigidity. And those people who would insert one after another new right into the document are not eager to bring us flexibility. They are eager to have us do it their way from Coast to Coast without the possibility of democratic change.

What are your thoughts? Should Supreme Court Justices feel free to amend or change the written Constitution whenever they feel it needs to keep up with the times? Or, in a free society, does this power to change the law to reflect modern values belong to the people acting through the democratic process?

Do you agree with Justice Scalia that the "Living Constitution" is about rigidity, not flexibility? Do you understand the point Justice Scalia was making?

For example, when the Supreme Court decides to create a new Constitutional right, such as the right to abortion or to same-sex marriage, how is this "rigid" rather than "flexible?"

Heritage Memo To Obama

Here is a post from The Center Blog:

Ryan Messmore and Thomas M. Messner have authored "Protecting and Strengthening Religious Freedom: A Memo to President-elect Obama" on behalf of the Heritage Foundation.

The memo begins with a quotation from candidate Obama's much-discussed keynote address at the Call to Renewal conference back in June 2008. The quotation includes Sen. Obama's statement that "[s]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square."

Teasing out the natural implications of that statement, Heritage recommends that President Obama:

• "Protect the ability of faith-based social service providers to honor their religious identity and integrity by maintaining their right to make employment decisions based on religious ideals"
• "Ensure the availability of federal conscience protections that free physicians and other medical professionals to serve patients without violating their religious beliefs"
• "Call on all citizens to respect the ability of religious citizens to participate in public policy debates--including debates about marriage--without fear of intimidation and reprisal"

All three of these are excellent recommendations. We hope and pray that President-elect Obama and his adsvisors will follow them.

Interesting Religious Speech Case

From the Religion Clause blog:

In Burritt v. New York State Department of Transportation, (ND NY, Dec. 18, 2008), a New York federal district court issued a preliminary injunction preventing the state of New York from enforcing its regulations relating to highway signs against a businessman who displayed a large religious sign on his property adjacent to US Route 11 in northern New York. Daniel Burritt believes he has a religious duty to communicate the Gospel of Jesus in all aspects of his life, including his business. At issue was a sign displaying a religious message placed on the side of a semi-trailer parked on Burritt's property.

Under the New York regulations, a sign on the premises of a business identifying the business can be displayed without a permit even adjacent to a highway, but a special permit is needed where the sign visible from the highway carries a different message. In enjoining enforcement while litigation on a permanent injunction is pending, the court said in part:

The State has not demonstrated a compelling interest for the Sign Laws' restriction on "off-premises" signs.... Plaintiff's trailer sign is apparently adjudged an "illegal sign" not because of its location on his property or its dimensions, but because of its content. It seems that a sign containing the same physical characteristics as Plaintiff's trailer sign but announcing the name of his business, "Acts II Construction, Inc.: Building Bridges for Jesus," would be allowed under the regulations. The Court cannot see how aesthetics and traffic safety are protected by a sign that displays the name of business, but are jeopardized by a sign of the same size and location that contains a religious message.... [T]he regulations are not narrowly tailored to achieve the ends that the regulations are intended to achieve.

Alliance Defense Fund yesterday issued a release discussing the decision, including a photo of the disputed sign. (See prior related posting.)

Religious Liberty in Fiction

Religion Clause has an interesting post about a recent children's Christmas book. Here is a link about the book.

Here is the story from the Arlington Heights, Illinois Daily Herald:

Fictional book retells Wauconda water tower cross controversy

By Madhu Krishnamurthy | Daily Herald Staff

Published: 12/21/2008 12:02 AM

A roughly 20-year-old controversy over two crosses that once graced Wauconda's water towers hasn't yet made history books, but it's now immortalized in a fictional children's Christmas tale produced by area teenagers.

The book, aptly named "The Cross and the Water Tower," retells the 1989 story of how Wauconda officials were forced to remove the illuminated crosses from the towers under threat of a lawsuit by prominent Buffalo Grove atheist Robert Sherman.

Sherman backed some area residents who objected to the village displaying a religious symbol on a public structure. It stirred a debate that made national headlines.

The village ultimately replaced the roughly 10-foot-high crosses with a star.

Yet, in protest of the village's move, crosses started cropping up everywhere in town, on residents' front yards and in shop windows, many of which exist to this day.

"It was a fun memory growing up," said 17-year-old Rita Weiss of Lake Zurich, who helped research the book. "I always thought it was a beautiful story, and I always wanted to go look for the crosses in Wauconda. We would take special trips to see them."

Weiss and her cousins decided their favorite bedtime story made the perfect Christmas fable to pass on to future generations.

Researched, written and illustrated by the children of Wauconda area residents who lived through the episode, the book is being distributed through Amazon.com and several area churches. Soon, it is expected to be available in area book stores. It also can be ordered through the Web site thecrossandthewatertower.com.

"We interviewed dozens of residents," Weiss said. "We went to a lot of local shops and asked them what they thought about it, talked to a lot of local churches and pastors. It was just neat to hear their different memories and what they thought about it and stuff. I'm really happy about how it turned out."

The book is dedicated to the 1989 residents of Wauconda for being an example.

Longtime Wauconda resident Rosemary Mers, formerly the owner of Mers Restaurant now called Docks Bar & Grill off Route 176, is acknowledged in the book's foreword. One of the original lighted crosses removed from the tower was placed on the roof of the family's restaurant.

Mers said the replacement star is a victory for the town's Christians.

"The star is a symbol of Christ's birth and that's what Christmas is all about," said Mers, 76. "It was a hard thing for all of us to take. But we didn't feel we lost any battle. We really felt like in the long run Wauconda won."

Sherman, now 55, sees the star on Wauconda's water towers as a triumph for atheists, too. The five-pointed star to atheists and other secular groups represents the birth of the sun, he said.

Sherman said the residents' protest with crosses was "a festival of religious freedom."

"By me forcing the government to stop doing religion for the Christians, the Christians did it by themselves," he said. "That's the way it's supposed to be in the United States."

Yet, Sherman doesn't agree with the children's book's depiction of what happened.

"The reason that it is a book of utter fiction is that it does a complete role reversal because at that time it was the atheists and our supporters who were polite, courteous, pleasant but firm," he said. "And it was the Christians who were rude, arrogant, nasty and hostile. It completely reverses the behavior and character of the key players, and of the debate. It's a good piece of reverse psychology."

Equal Access Case

From the Religion Clause blog (link):

In Idaho, six students have filed suit in federal district court against Boise State University challenging University rules that preclude student religious organizations from receiving funding from student activity fees. The University contends that the exclusion is required by the provision in Idaho's Constitution (Art. IX, Sec. 5) barring state monies from going to religious institutions. Plaintiffs, represented by the Center for Law and Religious Freedom, say that the University policy amounts to viewpoint discrimination in violation of the free expression provisions of the U.S. Constitution. The complaint in Cordova v. Laliberte, (D ID, Dec. 17, 2008), and plaintiff's brief in support of motion for preliminary injunction are available online. Yesterday's Deseret News reported on the lawsuit.

The Rabbi's Tale: Ideas Have Consequences

Let me close out this course on Religion and the Constitution with a story told by Rabbi Daniel Lapin in his book The Severed Flower. I am quoting Rabbi Lapin:


". . . let me tell you what happened to one of my teachers, a great rabbi. On a trip to Israel he found himself seated next to the head of the Israeli socialist movement. As the plane took off, my teachers’ son, sitting several rows behind, came forward and said, ‘Father, let me take your shoes; I have your slippers here. You know how your feet swell on the airplane.’ A few minutes later, he came and said, ‘Here are the sandwiches Mother sent; I know you don’t like the airline food.’

This went on in similar fashion for some time, and finally, the head of Israel’s socialist movement turned to my teacher and said, ‘I don’t get this. I have four sons. They’re grown now. But in all my life I don’t recall them ever offering to do anything at all for me. Why is your son doing all of this?'

And the rabbi said, ‘You have to understand. You mustn’t blame yourself. Your sons are faithful to your teachings, and my sons are faithful to my teachings. It’s simple, you see. You made the decision to teach your sons that they are descended from apes. That means that you are one generation closer to the ape than they. And that means that it is only proper and appropriate that you acknowledge their status and that you serve them. But, you see, I chose to teach my sons that we came from God Himself. And that puts me one generation closer to the ultimate truth, and that means it’s only appropriate that they treat me accordingly.'"


Somehow, I think this story is a good capstone for this course because its about the power of ideas and the liberty to transmit those ideas to your children.

Good luck on your exams and have a great Christmas (or other winter holiday).

Final Exam Info

The Final Exam is a three hour (closed book) exam that counts for 300 points. The exam consists of two medium/longish essay questions (approximately 2000 words) and one medium essay question (1000 words). Here are some things you need to know:

1. All answers must be typed on a computer using Extegrity Exam 4 software. Check with Vickie in the Dean's Office with any questions about procedures.

2. If you need a lab computer, make sure Vickie knows.

3. Be sure to observe the maximum word limits for each question. If you go beyond the word limit, it will adversely affect your grade for that question. If I say "answer the question in approximately 2000 words or less" that means what it says. I use "approximately" to be flexible, so you don't have to stop in the middle of a sentence. 2025 words is okay;2100 words is not okay. Please don't abuse the flexibility that I give you by using the word "approximately."

Debate On Conlawprof List:County bans clothing with "disruptive or inflammatory language or content" in County buildings

Post One (Prof. Volokh):

Greene County, Missouri is banning "all individuals" from "wearing clothing, apparel, or other accessories containing disruptive or inflammatory language or content" in County buildings. Constitutionally permissible regulation in a nonpublic forum, or unconstitutionally viewpoint-based or vague?

Post Two (Prof. Wasserman):

Is Cohen v. California still good law? If so, this cannot be valid, at least in the main run of cases. Granted, that case analyzed outside the public forum doctrine, which had not yet assumed its central place. But it seems to be identical--disruptive or inflammatory language in a county building. This actually seems more blatant, since it is a direct regulation of speech, rather than a neutral law applied to speech.

Post Three (Prof. Volokh):

But Cohen rested on the law's being a general criminal law,
applicable everywhere. "Cohen was tried under a statute applicable
throughout the entire State. Any attempt to support this conviction on
the ground that the statute seeks to preserve an appropriately decorous
atmosphere in the courthouse where Cohen was arrested must fail in the
absence of any language in the statute that would have put appellant on
notice that certain kinds of otherwise permissible speech or conduct
would nevertheless, under California law, not be tolerated in certain
places." I would think that the nonpublic forum rules would be more
government-friendly, though perhaps not government-friendly enough to
authorize this restriction.

Thoughts? Vagueness issue? Is it reasonable in light of the purpose of the non-public forum?

"German Homeschoolers Seek Political Asylum In U.S."

From the Religion Clause Blog:

In Germany, children are required to attend public school and home schooling is banned. Uwe and Hannelore Romeike who homeschool their children recently left Germany for the United States in order to avoid fines, jail and possible loss of custody of their children. HSLDA reported yesterday that a petition for political asylum has been filed by the Romeikes who refuse for religious reasons to send their children to Germany's secular public schools. The Romeike family currently lives in Tennessee where they are free to homeschool. Asylum is available where individuals in the U.S. have a well-founded fear of actual persecution because of their race, religion, nationality, membership in a particular social group or political opinion if they return to their home country. Homeschool Legal Defense Association is supporting the unusual asylum application.

Seven Aphorisms Case

Here is an analysis of the case from the First Amendment Center.

Here is a link to the transcript of today's oral argument.

Here is a NYT article on this Term's religious display case. Here is an excerpt:

Across the street from City Hall here sits a small park with about a dozen donated buildings and objects — a wishing well, a millstone from the city’s first flour mill and an imposing red granite monument inscribed with the Ten Commandments.

Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals.

In 2003, the president of the Summum church wrote to the mayor here with a proposal: the church wanted to erect a monument inscribed with the Seven Aphorisms in the city park, “similar in size and nature” to the one devoted to the Ten Commandments.

The city declined, a lawsuit followed and a federal appeals court ruled that the First Amendment required the city to display the Summum monument. The Supreme Court on Wednesday will hear arguments in the case, which could produce the most important free speech decision of the term.

The justices will consider whether a public park open to some donations must accept others as well. In cases involving speeches and leaflets, the courts have generally said that public parks are public forums where the government cannot discriminate among speakers on the basis of what they propose to say. The question of how donated objects should be treated is, however, an open one.

Inside the pyramid, sitting on a comfortable white couch near a mummified Doberman named Butch, Ron Temu, a Summum counselor, said the two monuments would complement each other.

“They’ve put a basically Judeo-Christian religious text in the park, which we think is great, because people should be exposed to it,” Mr. Temu said. “But our principles should be exposed as well.”

Su Menu, the church’s president, agreed. “If you look at them side by side,” Ms. Menu said of the two monuments, “they really are saying similar things.”

The Third Commandment: “Thou shalt not take the name of the Lord thy God in vain.”

The Third Aphorism: “Nothing rests; everything moves; everything vibrates.”

Michael W. Daniels, the mayor here, is not the vibrating sort.

Sitting with the city attorney in a conference room in City Hall, Mr. Daniels deftly drew several fine lines in explaining why the city could treat the two monuments differently.

Only donations concerning the city’s history are eligible for display in the park as a matter of longstanding policy, he said, and only when donated by groups with a long association with the city. The Fraternal Order of Eagles, a national civic organization, donated the Ten Commandments monument in 1971.

The donations, Mr. Daniels went on, are transformed when the city accepts them. “Monuments on government property become government speech,” he said.

Under the First Amendment, the government can generally say what it likes without giving equal time to opposing views; it has much less latitude to choose among private speakers.

Asked what the government is saying when it displays the Ten Commandments, Mr. Daniels talked about law and history. He did not mention religion.

Pressed a little, he retreated.

“The fact that we own the monument doesn’t mean that what is on the monument is something we are espousing, promoting, establishing, embracing,” Mr. Daniels said. “We’re looking at, Does it fit with the heritage of the people of this area?”

Brian M. Barnard, a lawyer for the Summum church, said the city’s distinctions were cooked up after the fact as a way to reject his client’s monument. The local chapter of the Eagles, Mr. Barnard added, had only been in town two years when it donated the Ten Commandments monument.

“We have a city that will allow one organization to put up its religious ideals and principles,” Mr. Barnard said. “When the next group comes along, they won’t allow it to put up its religious ideals and principles.”

Last year, the federal appeals court in Denver sided with the Summum church and ordered Pleasant Grove City to erect its monument.

Although the case appears to present questions under the First Amendment’s ban on government establishment of religion, the appeals court said the case was properly analyzed under the amendment’s free-speech protections. That distinguishes it from most cases concerning the display of nativity scenes and the like on government property.

Here is another NYT piece, this one an editorial:

Displays of the Ten Commandments have long been a lightning rod in constitutional law, and so they are again today. The Supreme Court is hearing arguments in a challenge to a city’s decision to allow the Ten Commandments to be placed in a public park, while refusing to allow a different religion’s display. The court should rule that that city’s decision violates the First Amendment prohibition on the establishment of religion.

Pleasant Grove City, Utah, has a city park, known as Pioneer Park, that includes various unattended displays. These include historical artifacts from the town, a Sept. 11 memorial, and a Ten Commandments monument that was given to the city by the Fraternal Order of Eagles, a national civic group.

A religious organization called Summum, which was founded in 1975 and is based in Salt Lake City, applied to install its own monument in the park. The monument it proposed would include the group’s Seven Principles of Creation (also called the Seven Aphorisms), which it believes were inscribed on tablets handed down from God to Moses on Mount Sinai.

Pleasant Grove City rejected Summum’s application. It told the group that it had a decades-old practice of only accepting displays that directly related to the city’s history, or that were donated by groups with longstanding ties to the community. But this was not a firm policy at the time. It was only later that the city adopted a written policy enshrining these criteria.

Summum sued, arguing that the rejection of its monument violated its right to free speech under the First Amendment. The United States Court of Appeals for the Tenth Circuit in Denver agreed. In allowing monuments in its park, the court ruled, Pleasant Grove City had no right to discriminate on the basis of the content of those monuments. The city was free to ban all unattended displays if it wanted to. But once it decided to allow such displays, the court ruled, it had no right to permit the Ten Commandments but bar the Seven Principles of Creation.

The federal appeals court reached the right result, but regrettably, it ducked the issue at the heart of the case, which turns on the Establishment Clause of the First Amendment. The real problem is that Pleasant Grove City elevated one religion, traditional Christianity, over another, Summum. The founders regarded this sort of religious preference as so odious that they included a specific provision in the First Amendment prohibiting it. The United States Court of Appeals for the Tenth Circuit has a bad record on Establishment Clause cases, which made it easier for all of the parties to treat the case as a simple speech case.

But as the American Jewish Committee, Americans United for Separation of Church and State and other groups argue in a friend-of-the-court brief, the Supreme Court should not make this mistake. It should squarely confront the religious discrimination underlying Pleasant Grove City’s rejection of Summum’s monument and make clear that the city violated the Establishment Clause.

There is no shortage of churches, synagogues and private parcels of land where the Ten Commandments could be displayed without the need to include the credos of alternative faiths. Public property like Pioneer Park must be open to all religions on an equal basis — or open to none at all.

What do you think? Suppose the Park accepts a donated display praising civil rights from the NAACP. Must it also accept a display denouncing racial equality from the KKK? Must all community groups have access to the park or "none at all?"

Prof. Amar on the R.A.V. Decision

Prof. Amar says R.A.V. is important for many reasons. He says the Court “reaffirmed at least five basic First Amendment principles.”

Let’s look at these principles:

First, symbolic expression – burning a flag, displaying a swastika – is fully embraced by the First Amendment. We will discuss this later when we get to Texas v. Johnson, the flag burning case. But some have argued that symbolic speech, such as burning a flag, can be regulated as “conduct.”

Second, government may not regulate the physical medium with the purpose of suppressing the ideological message. So you can ban public burning for environmental reasons, but not disrespectful burning of the American flag.

Third, political expression – especially expression critical of government – lies at the core of the First Amendment.

Four, courts must guard against attempts by government to suppress disfavored viewpoints

Five, exceptions to these principles must not be “ad hoc” – i.e. “Flag burning is different.” or “Hate speech” is different. [“seditious libel” is different” or “dirty words are different” or “sexual expression is different”]

Child Pornography

Ashcroft v. Free Speech Coalition (P. 108)

Distinguish child pornography that depicts actual children in sexually explicit images with pornography produced without using actual children.

For example, a movie called “Sex In Junior High” is produced using 18 year old actors who appear to be 13 or 14 or by using computer generated imaging.

Now assume same movie is produced using actual 13 year old actors in sexually explicit scenes.

Under New York v. Ferber child pornography is not protected by the First Amendment - - even if not obscene under Miller - - because the state has an interest in protecting “children exploited by the production process.” (P. 108)

Imagine a very artistic version of the movie Lolita using a 12 year old girl appearing nude in sexually explicit scenes. Obscenity under Miller? No. Artistic and literary value protected.

Probably not protected under Ferber because it exploits a young child actor.

Now same movie, but it stars an 18 year old girl who looks about 12 (she is small, her hair is done in pig tails, she wears youthful clothing, carries a Barbie doll, etc.). No actual child is harmed, so the reasoning of Ferber (protecting child actors from sexual abuse by the production process) does not apply. This movie is neither obscene under Miller nor child pornography under Ferber.

Miller v. California

Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity. He said:

“I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Jacobellis v. Ohio 378 U.S. at 197.

If it makes me blush, you can ban it! That’s the best Justice Stewart could come up with. Is this test just a wee bit vague?

Did the Court do any better in Miller v. California? (p. 105)

Miller comes up with a three-part test for non-protected obscenity:

1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.

Whoa! Let’s stop here?

What does “prurient interest” mean?

The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex. It does not include a normal interest in sex.

What does that mean?

In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.

The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication. The publisher’s clear intent was to appeal to the prurient interest of potential readers.

O.K. Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?

Take a look at the beginning of Roman Numeral III on page 106 – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”

Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi). Really a question addressed to the common sense of the jury. An average jury pool in New York may have a different sense than an average jury in Mississippi.

O.K. Part two of the Miller test.

Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” (p. 105)

What does that mean? Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors. (p.106)

Page 105: “[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”

So what happens in Jenkins v. Georgia (p.106) when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?

The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.” (p.108)

Why not?

It’s not “hard core”? P. 107

What is “hard core”?

Justice Stewart knew it when he saw it and so, apparently, does the Court.

Five thumbs up for Carnal Knowledge – it’s a “must see”! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.” [Nowak at 1137.] Or is this simply an elitist standard of what is offensive? If it’s a movie someone I know from the yacht club might go to, then it’s not obscene.

O.K. Third part of the test.

A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 105) “Taken as a whole.”

This was the stumbling block a few years ago in the Mapplethorpe trial – pictures of one man urinating into the mouth of another man, one man inserting his fist into the anus of another man might very well be considered prurient and patently offensive in Cincinnati. Pete Rose was offering 2-1 odds on that issue.

The third part of the test is not judged by local community standards. Rather, it supposedly is to be decided on an objective basis (i.e. whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole).

The Mapplethorpe photos were being exhibited in a major art museum and numerous art professionals testified as to the artistic value of the photographs.

What about Playboy and Penthouse magazine? Apply Miller to these publications?

Do they appeal to the prurient interest (judged by Nebraska community standards)?

Do they depict patently offensive sexual conduct or lewd exhibition of the genitals?

Do they have “serious literary, artistic, political, or scientific value?”

[Remember the famous Playboy interview with Jimmy Carter discussing his personal struggle with the Sermon on the Mount]

The Miller test is very protective of pornography. Is it overprotective, underprotective, or just about right?

What about an extremely violent movie? The test only covers patently offensive displays of sexual conduct.

Suppose a law professor screened an otherwise obscene film in class in order to conduct a discussion of First Amendment law. Could he be charged with a violation of the state’s obscenity law? Would the screening have serious “scientific” value (i.e. educational value)?

[See Prof. Smolla at 325:]

“The reality is that “obscenity” is currently limited to genuinely “hard core” pornographic expression and that relatively little falls within the category as it is presently defined.”


What about child pornography? New York v. Ferber (p. 108)

Obscenity and the "Green" First Amendment

Should consenting adults have the right to view or read whatever movies or books they wish?

Or does society have a strong interest in abating cultural pollution by regulating distribution of obscene and pornographic films and books? What good are clean rivers and air if we live in a disgustingly polluted culture?

Consider Chief Justice Burger's observation in Paris Adult Theatre (p. 100): "If we accept the...well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?"

Or as Leon Kass likes to say, even if there is no empirical data to support the notion that obscenity is socially debasing, much of what is freely available today in our society is certainly repugnant and "repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it." See prior post here.

But who decides which expression is obscene or repugnant and which is not? Do you trust government officials to decide which is which?

This Week

Thursday Nov. 6

We will finish up our discussion of libel and then move on to discuss the 1A and obscenity/pornography. We will not spend a lot of class time on obscenity--we will focus primarily on Miller v. California (p.103) and American Booksellers v. Hudnut (p. 117).

Don't worry too much about Ashcroft (p. 108), Playboy Entertainment (p. 122) and Ashcroft v. ACLU (p. 129).

Friday Nov. 7

Assignment 6 p. 139-160.

Overbreadth and Vagueness Doctrines

Here are some observations from Profs. Ides & May on these doctrines:

1. "The overbreadth doctrine creates a special First Amendment exception to the normal rules of standing, which bar a litigant from asserting the constitutional rights of third parties. The overbreadth doctrine allows an individual as to whom the application of the law may be constitutional to challenge the constitutionality of a law on the theory that as applied to other persons or under other circumstances the law violates the First Amendment. The essence of an overbreadth argument is that even though the challenged law may have some constitutional applications, its broad sweep encompasses protected speech activities and chills First Amendment rights of persons not before the Court to such an extent that the entire law must be struck down."

2. "The void for vagueness doctrine requires that all criminal statutes adequately describe the activities they prohibit. The doctrine is premised on two due process concerns--that persons potentially subject to the proscription be given fair notice of that which is proscribed and that officers charged with enforcing the law not be vested with arbitrary enforcement discretion. In the context of statutes that may tread on First Amendment rights, these due process concerns take on special significance. A vague statute that may include protected speech activity within its amorphous scope potentially runs afoul of the overbreadth doctrine by chilling protected speech. Under such circumstances, the overbreadth and void for vagueness arguments are essentially identical--the vagueness creates the overbreadth. Next, a vague statute that may be applied to speech activity and that vests enforcement officers with arbitrary authority to define the scope of the proscription runs a risk of permitting discriminatory enforcement on the basis of the favored or disfavored content of the speech. [What doctrine does this remind you of from our study of free exercise?] The vesting of such authority is itself unconstitutional."

Vagueness and Overbreadth

Coates v. Cincinnati (p. 44)

A Cincinnati ordinance makes it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” What do you think of that ordinance?

Suppose Sean Lennon, Madonna, and Neil Young get together on the corner of 14th and O Streets and, to protest the war in Iraq, start singing “Give Peace A Chance” a capella as I walk by. Does this annoy me?

Is it protected speech?

On the other hand, suppose 3 or 4 skinheads get together and as I walk by scream insults and obscenities at me. Is this protected speech?

Maybe not (the Court has held that so-called “fighting words” are not protected by the First Amendment--abusive, insulting words that are likely to produce a violent reaction).

So one problem with this statute is that it is overbroad i.e. it sweeps beyond punishing unprotected activities and includes within its scope activities which are protected by the First Amendment.

Let’s assume that the law is enforced against the skinheads (and remember we are assuming that the language they used constitutes fighting words not protected by the first amendment).

Can the skinheads attack the statute as being unconstitutional “on its face” because it sweeps very broadly so as to cover both protected and unprotected speech?

Do they have standing to raise the claims of persons who might be prosecuted for engaging in protected speech that annoys someone?

You could view this as a third party standing issue, but I think the First amendment overbreadth doctrine is based more on First Amendment concerns than on justiciability concerns.

From a First Amendment perspective, why should we allow these skinheads, whose abusive speech is unprotected, to attack this law as unconstitutional on its face.

What effect does this kind of law have on protected speech? Assuming you knew of the existence of the law, would you be more likely or less likely to get together with 2 or 3 friends to protest against the war, or abortion, or high taxes, or police brutality?

The law has a chilling effect on constitutionally protected speech and there is also a danger that it will be selectively enforced against unpopular speakers.

[As one scholar explains: “The central rationale is that a special exemption from the usual standing rules is warranted in the free speech context because of the risk that overbroad laws will chill the exercise of first amendment rights.”]

[Another insight from the same scholar: “In effect, then, the overbreadth doctrine is an exception both to the traditional ‘as applied’ mode of judicial review and to the general rule that an individual has no standing to litigate the rights of third persons.”]

What do you think about the overbreadth doctrine? Do the benefits of the doctrine outweigh its costs?

The vagueness doctrine is closely related to the overbreadth doctrine.

Vagueness deals with the clarity of a challenged law. Generally, under procedural due process requirements, a criminal law must be drawn with sufficient clarity so as to provide fair notice to persons before making their activity criminal.

When laws regulate activities protected by the First Amendment, such as speech, assembly or association, the requirement of fair notice is of special importance. Do you agree? Why?

Again, a vague law restricting speech might chill protected speech. For example, what effect would the Cincinnati ordinance have on your decision to assemble with a few friends for the purpose of constitutionally protected (but perhaps offensive) speech?

In order to ensure that protected speech is not chilled and that there be clear guidelines to govern law enforcement, a statute will be declared void for vagueness if it is so vague as to bring protected speech into the prohibition or if it leaves citizens without clear guidance as to the nature of speech for which they can be punished. The Cincinnati ordinance in Coates violated both of these guidelines.

The idea is that the First Amendment needs “breathing space.” [413 U.S. at 611 – Broderick v. Oklahoma].

A law that is overbroad but not vague – A law prohibiting “all speech on public sidewalks.”

Vague but not overbroad – A law prohibiting “all speech not protected by the First Amendment.”

"11th Circuit Upholds County Legislative Prayers With Sectarian References"

Here is a report from the Religion Clause blog:

In Pelphrey v. Cobb County, Georgia, (11th Cir., Oct. 28, 2008), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, upheld the practice of the Cobb County Commission and the Cobb County Planning Commission to open their meetings with a prayer offered by local clergy or other members of the community, now invited randomly. The clergy have represented various faiths, and sometimes include in their prayers sectarian references. However the vast majority of clergy offering invocations have been Christian. Relying on the Supreme Court's decision in Marsh v. Chambers, the majority of the court held that county boards are not limited by the Establishment Clause to non-sectarian invocations so long as the prayers are not "exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The appellate court, however, agreed with the district court that the prayer policy of the Planning Commission during 2003-04 was unconstitutional because it excluded certain faiths from the list of potential invitees. It agreed that nominal damages could be awarded for the violation. The majority opinion was written by Judge William Pryor who, before joining the court, was attorney general of Alabama. In that role he was part of a high profile church-state controversy involving the removal of Alabama's Chief Justice Roy Moore.

Judge Middlebrooks dissenting argued that the prayer policies of the county violate the Lemon test because they have both a religious purpose and effect and involve excessive entanglement of the state with religion. He argued further that the Marsh exception for legislative prayer should be limited to "invocations before the United States Congress and the state legislatures." He added:

I concur with the majority that judges, as representatives of the government, have no business editing or evaluating the content of prayer. However, I also believe that sponsorship of prayer by these commissions presents a similar, although less direct, danger. When state sponsored prayer is a perfunctory and sterile exercise marking the beginning of a commission agenda, religion becomes the casualty.

Americans United issued a press release criticizing the decision. Yesterday's Columbus (GA) Ledger-Enquirer reported on the decision.