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May 8, 2015

The (Limited) Utility of State Religious Freedom Restoration Acts (RFRAs): Part Two in a Two-Part Series of Columns

Cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

As we noted in a column for this site two weeks ago, state religious freedom restoration acts, or RFRAs, such as the recently amended Indiana religious liberty statute, have been criticized on the ground that they are intended to permit discrimination against gays, lesbians, and same-sex couples in the provision of goods and services. Given the intensity of this national controversy, we think it would be useful to take a step back-indeed, to take several steps back-and look at the historical background and evolution of the RFRA device. In this column, we focus not on any particular state statute but rather on three general topics: (1) the purpose of the earliest state RFRA laws and how that purpose relates to the goals of the more recently enacted and proposed legislation; (2) the virtues (and drawbacks) of enacting a general religious liberty statute as opposed to adopting religion specific accommodations on a case-by-case basis; and (3) the best way, in light of the current controversy about the conflict between state RFRA laws and anti-discrimination principles, to move forward when state legislatures consider these laws.

The Purpose of Early State RFRAs and What It Tells Us About the Recent Legislative Efforts

As we discussed in Part One, the Supreme Court, in 1990, decided the case of Employment Division v. Smith, a dispute involving the right of Native Americans to use the proscribed substance of peyote in their religious rituals. The Court ruled that neutral laws of general applicability are not subject to any rigorous scrutiny even when these laws have the effect of burdening religious practices. Unless the state targets religion-think of a law prohibiting Catholics from attending Mass-the Free Exercise Clause of the First Amendment simply does not require the state to explain or justify a law that has the effect of prohibiting religiously mandated practices or requiring the performance of religiously prohibited conduct.

The Smith decision came as a surprise to many, perhaps most, constitutional scholars. Based on prior cases, the parties to Smith had assumed that the Free Exercise Clause required, even in the context of neutral laws of general applicability, the government had to justify burdens on religious practice by showing that laws creating such burdens were narrowly tailored to accomplish compelling governmental interests. It is true that the Supreme Court, in applying this "strict scrutiny" narrow tailoring/compelling interest test had very rarely actually ruled in favor of a plaintiff asserting a free exercise claim against a general law. But it had often reached its conclusion by nuanced application of strict scrutiny, rather than rejection of the need for meaningful governmental justification altogether. Prior to Smith, lower courts could not summarily dismiss free exercise claims. After Smith, the door to the federal courts was, in effect, locked tight against free exercise claimants.

The Smith decision drew fire both from legal scholars and advocacy groups. In 1993, Congress enacted the federal Religious Freedom Restoration Act (RFRA), essentially to reinstate, as a matter of federal statute, the strict scrutiny religious liberty rights regime that individuals and institutions had previously understood to emanate from the Constitution itself. But in 1997, in City of Boerne v. Flores, the Supreme Court held that Congress exceed its enumerated powers in enacting RFRA insofar as RFRA applied to and regulated state and local governments. After Boerne, RFRA could be constitutionally applied only to burdens on religion created by the federal government.

This was the legal and political background against which several states considered the enactment of the first wave of state RFRA laws. It is important to recognize three conditions that characterize the consideration of state RFRA laws during this initial period in the late 1990s. First, support for or opposition to these laws did not correlate tightly to party affiliation. There was no doubt concern by some liberals about the application of state RFRAs to civil rights laws, but this concern was only part of the debate and did not cause legislators to be divided along party lines in their ultimate views on state RFRAs. In California, for example, in 1998, a state RFRA law passed both houses of the Democratic legislature, only to be vetoed by Republican Governor Pete Wilson.

Second, general concerns about the correctness of the Smith holding fueled the movement toward state RFRAs. Religious liberty proponents continued to believe and argue that free exercise rights should count for something if they were substantially burdened even by a neutral law of general applicability.

Third, the arguments in favor of state RFRAs were not grounded just in abstractions; they were nested in actual cases and real-world narratives. A pair of real-life settings received particular attention. One was land-use regulation. Religious congregations, it was argued, often found it extremely difficult to develop land to construct new houses of worship because of restrictive state and local zoning laws. Many towns didn't seem to want new venues of worship in residential areas, or commercial districts, or even in agricultural zones. And minority faiths seemed to bear the brunt of these regulatory restrictions. The other narrative involved the religious freedom of prison inmates. It was widely believed that state prison authorities imposed relatively arbitrary burdens on the ability of inmates to engage in worship or other religious activities.

The first and third of these conditions no longer exist today. As to the first, religious liberty legislation is far too often a partisan political issue at this moment, with Republicans favoring state RFRAs and Democrats opposing them.

And, importantly, as to the third, the pair of persuasive narratives for adopting a state RFRA-the burdens created by state and local land use regulations on congregations trying to develop land for a new house of worship and the difficulties state prison inmates experienced in engaging in religious worship and exercise-were effectively dealt with by federal legislation. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA requires state and local governments to justify under rigorous review land use regulations or decisions that substantially burden the use of land for religious purposes and prison regulations and decisions that substantially interfere with the ability of inmates to engage in religious worship or otherwise follow the dictates of their faith. Because RLUIPA invokes Congress's Spending Clause power to attach conditions to federal funding-and because virtually all state and local governments and prisons depend on federal funding-RLUIPA has been upheld and applied by countless lower federal courts and (in the context of the prison provisions) the Supreme Court.

Recent state RFRA laws and proposals can still be justified by the second backdrop condition animating the first generation of state RFRAs-the abstract idea that Smith created a gap in the protection of religious liberty, and that religious activity deserves to be protected to some extent against even neutral laws of general applicability. But because, other than the land-use and prison settings, there are no easily described categories of state regulatory activity that burden religion in ways most people find problematic, a modern state RFRA might seem like a solution in search of a problem. Indeed, the only unifying narrative that describes a general problem, as opposed to isolated cases, to which modern RFRAs might be directed is the narrative grounded in religious objections to same-sex marriage and the claims for exemptions from civil rights regulations that prohibit discrimination on the basis of sexual orientation.

This is the crux of the problem. Legislators and governors who argue that they support a state RFRA law today for reasons that have nothing to do with discrimination related to same-sex marriage have a difficult time persuading anyone of their position because there are no religious liberty narratives involving significant real-world areas of concern other than civil rights laws. The original, principled basis for enacting state RFRA laws still exists, and state RFRAs certainly may be of value to religious individuals or institutions in occasional varied circumstances-religious burdens do arise outside of land-use and prison contexts as we demonstrated with some hypothetical examples at the end of Part One of this series-but there is no well-organized storyline here that can be easily understood and valued. In other words, because, after RLUIPA, the contexts in which state RFRAs might provide needed protection do not fall into any easy-to-define or easy-to-predict categories of regulation, avoiding antidiscrimination laws is the primary narrative that is still left standing. It is the one that most people see. And, to be frank, it certainly appears to be the primary motivation for the introduction of new RFRA bills in state legislatures these days.

A General Religious Liberty Statute Versus Religion-Specific Accommodations on a Case-by-Case Basis

Assuming that some exemptions for religious activity outside of the land-use and prison arenas may be worthwhile, the question becomes whether a state statute (e.g., a RFRA) is the best way to facilitate them. Another way of framing the issue is, given that some religious exemptions will be recognized by government, whether we are better off determining when exemptions should be granted by having the more political branches of government evaluate practice- or sect-specific requests for accommodation, or whether it would be preferable to enact a general religious liberty statute, like a state RFRA, and shift the task of determining when an exemption is appropriate to the judiciary. We think general religious liberty statutes have some important virtues over religious practice- or sect-specific accommodations.

First, the general religious liberty statute is, by definition, general. It seeks formally to apply the same standard to all faiths. Thus, a religious person's ability to obtain an exemption will not, in theory at least, depend on his or her ability to influence the political branches of government. It is true that judges, like legislators, may also be unfamiliar with or unsympathetic to religious minorities. Still, under a general religious liberty statute, a minority faith with insufficient muscle to achieve an accommodation through political channels has an additional forum where its claims can be heard-a court of law.

Second, the business of obtaining sect- or practice-specific accommodations has other serious drawbacks. Restricting religious exemptions to the political branches of government politicizes religion. The freedom to practice one's faith becomes a benefit controlled by the government. Accordingly, religious groups have to organize politically as religious groups to obtain the exemptions their faith requires.

Third, and related, a system in which all accommodations are political actions requires religious individuals and groups to spend their political capital on freedoms that should be theirs as of right. This system operates like a political tax on religion.

Fourth, if the ability to practice one's faith depends on a religious group's political power in a jurisdiction, we create an incentive for religious people to live in communities where there are a sufficiently large number of co-religionists to influence the government. A legal regime that promotes the segregation of communities along religious lines is problematic and much less desirable than a regime that facilitates the religious integration of our communities.

Of course, there are problems with general religious liberty statutes as well. The standard of review to be applied by courts in these laws is intrinsically subjective, value-laden and unpredictable. No one can really be sure how a given court will interpret and apply the law to the facts of any given case. Accordingly, the protection provided to religious liberty may turn out to be much narrower or much broader than the community anticipated when it enacted the law. In theory these statutes can be amended to cure wrongly decided cases, but there is no guarantee that the political branches of government will be capable of effectively monitoring and responding to errant RFRA decisions by courts.

Moreover, the indeterminacy inherent in these laws means that, at least initially and in all cases of first impression, they will provide little guidance either to potential defendants or to plaintiffs. In the context of anti-discrimination laws, uncertainty imposes serious burdens on all the relevant parties. Service providers do not know if they are permitted to deny services for same-sex weddings, for example, because of their religious objections to such ceremonies. And same-sex couples lack the security of knowing that they cannot be denied the services they seek when they attempt to patronize a provider of wedding services.

While we recognize that reasonable people can disagree on this point, we think on balance there are legitimate reasons for a state to consider enacting a state RFRA law. But that does not mean that we think the RFRA law should operate to provide exemptions in all cases in which religious exercise is substantially burdened by law.

What is the Best Way for State Legislatures to Balance State RFRAs and Anti-Discrimination Principles?

Church-state scholars generally agree that most RFRA challenges to civil rights laws governing for-profit economic activity will and should be unsuccessful. The state has a compelling state interest in protecting members of particular classes against discrimination in the workplace and in places of public accommodation. And conventional civil rights laws are the least restrictive means available to accomplish this egalitarian goal. Still, no one is certain that all RFRA claims against regulations prohibiting discrimination will fail. Nor is there agreement as to which claims, if any, deserve to succeed.

Because RFRA laws are unlikely to provide any kind of expansive protection to discrimination in employment or public accommodations based on religious beliefs, an obvious solution to the controversy surrounding these laws would be to enact a civil rights carve-out that limits the scope of the RFRA legislation. Indiana amended its RFRA law to provide explicitly that the law does not authorize, or establish a defense for, discrimination in employment or places of public accommodation. Such a civil rights carve-out would make the RFRA law available to protect religious liberty in in various idiosyncratic circumstances in which general laws unnecessarily burden religious practice, but would preclude any possibility that the law would undermine the enforcement of anti-discrimination regulations.

The argument against a civil rights carve-out is that it could carve out too many RFRA claims. Many proponents of state RFRAs argue that there are at least a limited number of situations in which religious exemptions to some civil rights laws are justified, and yet these claims would be excluded from protection under a general civil rights carve-out. These arguments often focus on caterers, bakers, florists and photographers who provide goods and services for wedding ceremonies and receptions, but the arguments are not limited to these commercial activities.

We think the appropriate response to these concerns is straightforward. In addition to adopting a broad civil rights carve-out from the state RFRA, the state could negotiate explicit exemptions-exceptions to the carve-out, if you will-to cover the limited number of situations in which faith-based discrimination might deserve to be protected against civil rights laws. From a policy perspective, this approach would have several advantages. It would provide more clarity than a generic state RFRA. It would guarantee religious exemptions to civil rights laws in specific circumstances where they were thought to be particularly justified. It would avoid any concern that the law would be interpreted too broadly to protect discrimination in inappropriate circumstances. And it would allow a state RFRA to be adopted to protect religious liberty in all of the situations that do not involve discrimination in violation of civil rights laws.

Our suggested course of action may be challenged, however, by the argument that such negotiations in the legislature about the particular exceptions to a civil rights carve-out would be futile. The two sides debating religious liberty and gay rights issues are so polarized that they would never agree on explicit limited exemptions. We are unconvinced that this will always be the case-particularly if states that currently do not protect gays and lesbians or same-sex couples from discrimination bring legislation prohibiting discrimination based on sexual orientation and identity to the bargaining table. Working out what the specific exemptions for religion-based discrimination will undoubtedly be hard political work. But that is no reason not to engage in the attempt.

April 24, 2015

How Best to Understand State Religious Freedom Restoration Acts (RFRAs)

Cross-posted from Justia's Verdict. Part one in a two-part series of columns. Co-authored with Alan Brownstein.

Over the past month or two, religious accommodation laws that have been enacted or proposed by states have attracted much attention in the media and among legal analysts. Such state laws are often called Religious Freedom Restoration Acts, or RFRAs-named and patterned after the federal RRFA adopted by Congress after the Supreme Court's 1990 decision in Employment Division v. Smith, where the Court interpreted the First Amendment free exercise protection narrowly to reject a claim by Native Americans to use the prohibited drug peyote for religious purposes. RFRAs require that before government is allowed to impose a substantial burden on the practice of someone's religion, the government must have a compelling objective that cannot be accomplished by any narrower means for doing so. State RFRAs have been around in some states for a few decades, but this spring saw a new round of state legislative activity in places like Indiana and Arkansas, presumably triggered by the anticipated tension between the tenets of some religions and the ruling most analysts expect the U.S. Supreme Court to render this summer making clear that the legal institution of marriage cannot be denied to same-sex couples.

Other Verdict columnists have already offered insights and arguments about the best way to understand and interpret state RFRAs. In this two-part series, we offer our own take on the state RFRA movement and how best to incorporate it into a nation dedicated to free religious exercise and separation of church and state at once. In Part One, in the space below, we offer some reactions to the doctrinal analyses presented in a recent essay by Verdict columnist Michael Dorf. In Part Two, in a few weeks, we widen the focus to examine more fundamentally how and when state RFRAs came about and what their origin should mean for how they should be implemented.

Mike Dorf's Analysis of State RFRAs in the Context of Private Litigation

Mike Dorf's elegant doctrinal analysis of state RFRAs focuses on whether these laws "should apply in private litigation [i.e., litigation in which neither party is a government entity] if the statute is silent on the matter." Mike offers a couple of arguments for why state RFRAs perhaps ought not to apply to private lawsuits altogether. His first argument begins with a reminder that RFRAs are designed to "restore" the "constitutional right to free exercise of religion that was weakened by the U.S. Supreme Court in its 1990 peyote decision. Because a RFRA restores a constitutional right that applies only against the government, it is natural to assume that a RFRA should be available only in litigation against the government."

But, as Mike rightly points out, oftentimes constitutional rights are at stake and vindicated in cases in which the government is not a party, but in which a party is using some law or policy the government has adopted as the basis for its legal position. So, for example, when a public-figure plaintiff sues a magazine under the state tort law of defamation, the defendant can properly invoke the First Amendment as a defense, even though the plaintiff is a private individual rather than the government, because the plaintiff is relying on state-adopted tort law for his claim. It is the state, through the creation of its tort law, that is effectively burdening the defendant's speech.

Or, as in another example Mike offers, if a state passes an alimony law that treats men and women unequally, such a law can be challenged in a lawsuit between a divorcing husband and wife, even though the state is not a party, because one of the parties is so directly invoking the state law as the basis for asking a court to do something.

Mike properly acknowledges that even in the context of religion, a state's fingerprints can be all over a burden imposed on someone's religion, even if the state is not doing the litigating. So, for instance, if a state gives a landowner's neighbor a right to veto the landowner's decision to expand his building, and a church that wants to expand is blocked by a vetoing neighbor, the church might seek to invoke the free exercise of religion as a basis for resisting the veto, even if the opposing party in the lawsuit is the neighbor to whom the state has given the veto right instead of the state agency itself.

Does Private Litigation Under a RFRA Implicate State Action in a Way Different From Cases in Which Government Is a Party?

After all this, however, Mike argues that the state's involvement in RFRA cases is distinct in a way that perhaps argues against allowing state RFRAs to be invoked in private litigation. Says Mike, about the examples he offered earlier: "When [a defamation defendant] invoked the freedom of the press against [the defamation plaintiff], it objected that the [state] tort rule was defective in permitting a public figure to prevail [under a standard] that afforded insufficient protection for free speech. . . [And] [w]hen [a husband] resisted his alimony obligation, he complained that the [state] statute favoring women over men denied him equal protection of the laws. In these, and many other situations, the party invoking a rights provision in private litigation argues that some legal rule or standard violates his, her or its own rights. In contrast, a RFRA claim does not challenge any rule or standard."

Here is where we think we disagree with Mike. A RFRA claim does challenge a rule or standard-the rule or standard on which the private party opposing the religious claimant is relying in the private litigation. The fact that the right a RFRA claimant seeks to invoke is a statutory (RFRA-created) right to religious accommodation, rather than a constitutional right (such as the right to free speech or equal protection), is beside the point; remember, RFRAs are designed to "restore," by statute, the liberties previously recognized under the First Amendment's Free Exercise Clause. The RFRA claimant has been conferred a right, just as much as a free speech or equal protection claimant has been. And state law, it is alleged in RFRA cases, is protecting the other party's ability to violate that right-by substantially burdening the religious claimant's exercise of his or her religion.

Mike's instinct that a RFRA claimant is not alleging that any state law creating a burden is "defective" is understandable but, we think, wrong. A law challenged by a RFRA claimant is indeed "defective" in the legally technical but important sense that it (allegedly) fails to adequately accommodate religion, which is what the RFRA seeks to guarantee. In the defamation case alluded to above, state tort law wasn't defective in any a priori sense; it was defective only in the sense that it failed to sufficiently accommodate free speech. And RFRA claimants make the same claim as to religion.

Indeed, the example Mike offers concerning the neighbor's veto over land-use decisions seems to illustrate our point. If a church's plans to expand are blocked by a zoning board, clearly the church could invoke both the First Amendment prior to 1990, and a state RFRA nowadays. The same should be true if the opposing party is not the zoning board, but the vetoing neighbor. The law giving the neighbor veto power is defective not in a generic sense, but only in the sense that it may have the effect of frustrating religious freedom. Yet it ought not to matter whether the opposing party is the government or the neighbor himself, or whether the claim is brought under the First Amendment (before it had been watered down) or a RFRA (that seeks to reclaim the undiluted religious right).

We think our analysis makes sense in part because a state can (and often does) elect to have a lot of different kinds of laws enforced through private causes of action-and when it chooses to do so we often find there to be "state action" in the enforcement. The Supreme Court's willingness to find state action involves several factors and seems to vary depending on the particular freedoms that are at issue. We note that the Court has taken a particularly expansive approach to state action in interpreting the Establishment Clause, and it would not be unreasonable to argue that a similarly expansive understanding of state action should apply Free Exercise values. And if there is state action, if the burden would be sufficient to trigger free exercise review if the state itself enforced the law, why should it make any difference if the law is enforced by a private party?

What About Third-Party Burdens?

Mike's second argument for perhaps not applying state RFRAs to private litigation arises from the fact that in all private litigation, accommodating religion creates "the potential for substantially burdening a third party." And the Supreme Court, in the recent Hobby Lobby decision and elsewhere, has given indications that accommodating religion when such accommodation takes the form of inconveniencing government is one thing, but religious accommodations that impose on third parties may be another thing entirely.

Like Mike, we think third-party burdens ought to figure prominently in any application of state RFRAs. But we are not sure a prophylactic rule prohibiting invocation of a RFRA in all private litigation is necessary to properly take account of third parties. Because state law may allow private individuals who don't suffer much, if any, injury to be in litigation against religious adherents (remember that state courts are not limited by the Constitution's Article III standing rules), and because some third-party injuries may be of such a nature that avoiding them cannot reasonably be thought to be a compelling government interest, we think the better course is not to categorically reject RFRA claims in private litigation, but to examine any third-party burdens on a case-by-case basis. When racial or gender discrimination is at issue, the third-party costs will justify denying the accommodation. But imagine the following two hypotheticals:

  1. Suppose a municipal stadium district has a rule that says no one can wear hats taller than 5 inches to sporting events, because people's views get blocked, and allows for a private right of action in small claims court by aggrieved persons. Suppose someone wears a turban to a football game, and gets sued for $500 by another fan seated behind him who had to stand up more often to see the action.
  2. Or suppose a City bans discrimination in the provision of goods and services against people who openly display tattoos. A religious small businessperson who runs his business out of his home declines to serve a patron because the patron refuses to cover up a sexist tattoo on his upper arm, and display of such an image in the home violates the religious tenets of the businessperson. The aggrieved customer sues.

In both of these examples, accommodating religion does create some state-recognized burdens on third parties. But are they the kinds of burdens that would justify a flat, prophylactic rule prohibiting invocation of a RFRA in all private litigation? We are not yet sold on that. Thus, if a state RFRA does not by its terms prevent its application to private litigation (and, of course, every RFRA must be interpreted in light of its own language, read in the context of the entire statute), we think the better course may be to examine each such private litigation case on an individual basis, to look carefully at the extent of state action and third-party burdens.

In Part Two of this series, we locate state RFRAs in a larger historical and doctrinal context, and offer some thoughts on how to give meaning to state RFRAs while avoiding some of the externalities and complications with which Mike is properly concerned.

April 10, 2015

Some “Teachable” First Amendment Moments in the Supreme Court’s Oral Argument About Confederate Flags on Texas License Plates

Cross-posted from Justia's Verdict.

In today's column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas's regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as "HOTSTUFF," a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called "specialty" license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law "may refuse to create a new specialty license plate if the design might be offensive to any member of the public" (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

Applicants who seek approval of specialized plate designs must pay thousands of dollars to have their designs considered, and people who use the already approved designs pay for the privilege, the proceeds going to various state agencies.

The Texas Sons of Confederate Veterans (SCV) is a nonprofit organization dedicated to preserving the memory and reputation of Confederate soldiers. SCV applied for a specialty license plate that featured the SCV logo, "which is a Confederate battle flag framed on all four sides by the words 'Sons of Confederate Veterans 1896.'"

When this design was rejected by the Motor Vehicles Board (one of only a dozen or so designs that have been rejected), SCV sued, arguing (successfully in the lower court) that the State's decision to reject the design on the ground that the content of the design-in particular, the depiction of the Confederate flag-might be offensive to some observers constituted impermissible content- or viewpoint-based regulation of expressive activity insofar as the specialty license plate, while State property, is akin to a forum for speech that the government has created and opened up to people to use to express themselves. Texas, for its part, argues that because the State owns all license plates, and because the State of Texas name appears on all plates, including specialty plates, any expression on license plates constitutes "government speech" or at the very least a hybrid of government speech and private speech. Because the government is a (if not the) speaker in this setting, Texas argues, it necessarily has the authority to accept and reject whichever messages it chooses.

The case raises many fascinating and complex constitutional issues-far too many to meaningfully address in a single column. But in the space below, I use three particular kinds of questions that Justices asked at oral argument to illuminate important and often misunderstood aspects of First Amendment doctrine.

Less Can Be More (Important) Under the First Amendment

Let us first consider Justice Kennedy's questioning of the SCV lawyer. One of the things Justice Kennedy pointed out is that if Texas is not permitted to exclude Confederate flags (or Swastikas, or other potentially objectionable material) from license plates, it will almost certainly choose to abandon the specialty (and also the vanity) license plate design program altogether, and simply use old-fashioned, plain vanilla license plates. The result, said Justice Kennedy, is that we would end up with less, rather than more, speech, because individual expression that is currently taking place on specialty or vanity plates would no longer be permitted, and people would be forced to resort to things like bumper stickers, which they may not like or make use of as much as specialty plates. "If you prevail," Justice Kennedy asked SCV's lawyer, "you are going to prevent a lot of Texans from conveying a message. . . . So in a way, your argument curtails speech?"

Justice Kennedy's question is actually a profound but rarely explored one, in that the First Amendment's aversion to content- and viewpoint-based laws may indeed sometimes lead government to enact content-neutral counterpart laws that, quantitatively speaking, restrict far more speech. For example, a law that says "no pro-life rallies in the park after 6pm" is clearly unconstitutional, because it regulates speech on a matter of public concern in a traditional public forum in a viewpoint-based way. But if such a law is replaced with a law (that very well might be upheld) that simply prohibits all rallies in the park after 6pm-a so-called content-neutral regulation of time, place or manner-the result could be an even greater overall reduction in speech.

Of course, it is possible that by forcing government to regulate in a content-neutral way, we may actually make it harder for government to regulate speech at all, so that the end result could actually be an increase in the aggregate level of speech. In the example I gave above, perhaps it would politically difficult to pass a law prohibiting all rallies in the park after 6pm (because many kinds of groups may want to hold rallies, and overcoming the political opposition of all of these groups-as opposed to the merely the pro-life advocates-may not be feasible). If that is true, then striking down the law prohibiting pro-life rallies after 6pm will, in fact, increase rather than reduce the amount of speech.

But oftentimes (as in the SCV case) striking down a law on First Amendment grounds may in fact lead to less speech, but it still can be the right constitutional thing to do. The fact that sometimes we invalidate laws in ways that will create less speech overall tells us that maximizing the aggregate quantum of private speech is not the only thing the First Amendment is concerned with. Preventing the government from distorting the debate, by disabling some points of view, or by locking in majoritarian preferences (as is often the case when "offensive" speech is disfavored) is also an important objective. So too is making individuals feel that government respects them and does not act paternalistically and treat them the way parents treat children by telling them what topics they should be focusing on.

What's Good for the Goose. . . .

A second line of questioning of SCV's lawyer, this time by Justice Sotomayor, concerned whether the State should be given the same kind of free speech respect as individuals enjoy. Justice Sotomayor pointed out that that in the Court's most famous license-plate case to date, Wooley v. Maynard, the majority struck down a requirement that New Hampshire drivers make use of a state-issued license plate bearing the State's message "Live Free or Die." Justice Sotomayor then asked: "In Wooley we said we can't compel the individual[s] to put something on their plates that they disagree with . . . Why isn't the reverse true for the government [if it doesn't want to be associated with the Confederate flag]?"

Justice Sotomayor's symmetry instinct (which assumed arguendo that the Texas specialty license plate regime represents at least a hybrid of government and private speech) is very interesting but ultimately unpersuasive, to me at least. There are lots of constitutional rules that protect individuals that do not protect government in a symmetrical way. For example, a criminal defendant is entitled to have access to all exculpatory evidence in the government's possession, but the government is not entitled to all incriminating evidence in the defendant's possession, even though both sides are trying equally hard to prove their case.

I think there is asymmetry here as well. Even though the government can operate as a speaker, it is not a specific beneficiary of the First Amendment, and certainly shouldn't enjoy all the same First Amendment protections individuals (like the individuals who litigated in Wooley) do. Ultimately, the reasons the drivers in Wooley could not be forced to bear the State's message were rooted in individual dignity and autonomy aspects of the First Amendment. Institutional and organizational actors, as opposed to individuals, can be forced to be a vehicle for government messages and are relegated to engaging in counter-speech as a way of distancing themselves from any government message they don't like. This was true in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), a case last decade that upheld (9-0) a federal law that required law schools to allow military recruiters onto campus facilities to recruit students, notwithstanding the law schools' opposition to the then-existing policy of the military to discriminate against gays and lesbians ("Don't Ask, Don't Tell"). Like law schools, the State of Texas does not have the same kind of dignity and autonomy attributes that individual motorists have, and so (even granting that Texas has the authority to act as a speaker) requiring Texas to live with the private message on specialty plates and disclaim any endorsement of the message or design on a specialty plate by adding something like "Views on this license plate do not reflect the views of the State" does not violate the Constitution the same way requiring individuals to promulgate such disclaimers would.

The Relevance (or Not?) of a Profit Motive

A third interesting exchange involved the overridingly important question of whether the specialty plates can properly be thought of as pure (or at least hybrid) government speech at all. The State's lawyer argued that the fact that the government has retained the right to veto all specialty designs from the get-go makes this a government speech case, but that factor standing alone surely cannot be dispositive. If a public airport withheld for itself the power to ban any leaflets whose message it found unattractive, that would not justify its excluding leaflets in favor of affirmative action while permitting leaflets against it. Control is, as many Justices pointed out, a circular kind of argument about government power. Deciding what is and is not government speech is much more complicated than that.

One potential factor was mentioned by Chief Justice Roberts a few times, and that is the profit motive by the State. Why, he asked, should we view these specialty plates as government expression at all when government's real goal here was not to raise awareness (about anything) but to raise money? This, too, is an interesting instinct. As with Justice Sotomayor's question, if we analogize to private individual speech, the government fares better; the fact that a private individual or corporation is motivated by a desire to make a profit does not make his/its expression any less constitutionally valuable: the New York Times newspaper represents classic First Amendment speech even though it is published in order to make money.

But as was true for Justice Sotomayor's symmetry argument, here too I am not sure we should treat the government the same as individuals. It does seem a bit untoward that the State would raise revenue by charging people thousands of dollars for the privilege of submitting license plate designs, and then reject those whose content it doesn't like. The idea that the State was (mis)using the specialty-design applicants, and the moneys they paid, for its own monetary gain was one of the most sympathetic aspects of the SCV's case, which was otherwise not very sympathetic given that the Confederate flag has historically been tightly associated with slavery and insurrection (not to mention the fact that SCV's lawyer took the position that the State could not, consistent with the First Amendment, reject designs with swastikas on them.)

The opinions that emerge from this case in the coming months could be very interesting.

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

October 10, 2014

The Supreme Court to Consider When Threats Can Be Punished Consistent with the First Amendment

Co-authored by Professors Vikram Amar and Alan Brownstein. Cross-posted from Justia's Verdict.

'Tis the season to begin looking carefully at the Supreme Court's 2014-2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called "true threats" that fall outside First Amendment protection and thus are subject to punishment. Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons, and his convictions were upheld by the U.S. Court of Appeals for the Third Circuit.

Background Facts of the Dispute

Mr. Elonis allegedly posted threats on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis wrote:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?"

In posts about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . "

Throughout his prosecution, Elonis has challenged the definition of a threat to be used by the jury, namely, that "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argues under the First Amendment (and also under the federal criminal statute he is charged with violating) that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. Elonis does not (and could not) argue that the government must prove a defendant intended to carry out the threat, but he does assert that the government must prove that he intended to place the victim in fear of bodily harm or death.

The Third Circuit (along with a large number of other circuits) rejected this kind of subjective intent requirement. Instead, it held that statements that are reasonably construed as threats by the listener can be punished under the First Amendment. Conversely, the Ninth Circuit (and a number of state high courts) has required the subjective intent to threaten as a predicate to a prosecution for threatening speech. The courts that do require subjective intent often rely on the Supreme Court's 2003 ruling in Virginia v. Black, where the Court upheld the major portions of a Virginia statute making intimidating cross burning illegal. While the Court upheld the ban on threats expressed through cross burning, however, it also struck down a part of the Virginia law that made burning a cross itself prima facie proof of intimidation and relieved the state of having to offer any other evidence as to the meaning of the accused's symbolic expression. In reaching its decision, the Court observed that "'true threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals . . . [whether or not] the speaker . . . actually intended to carry out the threat." The Court noted that prohibitions on threats protect individuals from the fear of violence and the disruption that fear creates, and not just from the likelihood of actual violence. The Court also observed that "intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person . . . with the intent of placing the victim in fear. . . ." Many of the arguments in Elonis focus on what this language from Black means.

The Issues Elonis Presents

Initially, we offer some relatively modest observations about First Amendment doctrine and Supreme Court practice illustrated by Elonis. First, this is a less-than-ideal vehicle to decide whether intent to threaten is statutorily or constitutionally required, since a reasonable jury might easily conclude that the evidence against Elonis establishes such intent in this case in any event. In other words, if Mr. Elonis wins at the Supreme Court, and the case is sent back for a new trial, a new instruction would be given to the jury but a conviction seems likely in any case. Certainly, the Court can (and will likely) reach the merits in Elonis if it wants to, but this is arguably not the best case for resolving the constitutional issue in dispute.

Second, the Court might avoid the constitutional question by reading a subjective intent requirement into the federal statute. If it does so, then it would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)

Third, notice that much of the debate in this case revolves not around core First Amendment principles, but rather what the Court meant in Virginia v. Black. The Third Circuit's reading of the words in Black certainly seems plausible; the Court's description of "intimidation" as including the intent to instill fear could, as the Third Circuit held, refer to a subset of true threats, rather than a definition of the entire category of true threats. And we think the Ninth Circuit misreads Black to the extent that the Ninth Circuit believes that the Court's result in Black necessarily implies the existence of a subjective intent requirement. Whether or not there is a subjective intent requirement, the Virginia statute that made cross burning prima facie evidence of a threat would be constitutionally problematic because it would relieve the government of having to show, in a case where the defendant exercised his right not to present a defense, that a particular cross burning was, in context, something a reasonable person would perceive as threatening (which is certainly true of many but not all cross burnings).

But more generally, we are not sure the Court in Black was offering a general answer to the question of whether subjective intent in a necessary element the government must prove to convict someone for expressing a true threat. Indeed, we think that assigning so much weight to the precise words Justice O'Connor used in her Black opinion misses the forest for the trees. Determining whether subjective intent is a constitutional prerequisite to punishing a speaker for expressing a true threat is an issue the Court needs to discuss and evaluate on its own terms, not as a derivative discussion of the meaning of ambiguous language in a case where the question was never explicitly raised and thus may not have been on the minds of the Justices whose language is being parsed.

Comparing Threats to Other Types of (Potentially) Harmful Speech

Our fourth, larger point goes to the heart of the matter. If subjective intent is required to hold a person liable under a threat statute when a reasonable person would understand the accused's expression to constitute a serious threat, the speaker who places a victim in fear of bodily harm or death will escape sanction when the government cannot prove beyond a reasonable doubt that the speaker intended to instill fear. But the First Amendment does not give speakers a right to cause, whether intentionally or not, this kind of fear and apprehension. The key free speech issue raised by this case is: When does the First Amendment prevent government from protecting people from speech that undeniably causes real harm because government action jeopardizes other important free speech interests?

We think the best way to analyze this question is to compare the treatment of threats with the treatment of other kinds of potentially harmful speech, such as incitement, defamation, and offensive speech. Threats are proscribed not just because they might lead to action, but because they inflict injury in themselves. Unlike, say, incitement, where the evil to be regulated is the possibility that a listener may be influenced to act on the speaker's words, threats wound by their very utterance. In this respect, laws banning threats are more akin to laws sanctioning defamatory speech. In providing civil sanctions for defamation, at least as to private figure victims, no subjective intent is required before government can regulate such expression, whereas in the former setting (of incitement), the First Amendment does seem to require intent to incite before punishment can be imposed. What accounts for this difference in treatment? The answer cannot be that society thinks incitement is necessarily less dangerous than defamation; the costs of incitement have always been recognized as significant.

One explanation for this difference in treatment is that the government's interest in punishing speech because such speech may influence the thoughts and actions of the audience goes to the very core of why we have a First Amendment. The foundation of free speech doctrine is the right to use speech to persuade others of the merits of our ideas. Thus, when speech is dangerous because it might be acted upon, we are more reluctant to regulate it, and we add the extra layer of a subjective intent requirement as protection against government overreaching. Where speech is dangerous because it causes harm directly, however, (as it does in defamation cases) the government's interests do not conflict directly with foundational free speech principles. Accordingly, we allow the civil sanctioning of defamatory speech without the extra buffer requirement of subjective intent.

Using this comparative analysis, we would ask whether speech that causes a reasonable person to fear that he or she is threatened with bodily harm or death is of sufficient constitutional value to justify courts adding the additional buffer of protection provided by a subjective intent requirement. We are not at all convinced that the value of such speech can justify allowing the harm it causes to go unsanctioned.

Another comparison-this one between threats, incitement and so-called offensive speech (use of vulgar and insensitive words, etc.)-may also be instructive. In the incitement realm we require government to prove intent and immediacy notwithstanding the harm that incendiary speech may cause not only because of our commitment to shielding persuasive speech from government prohibitions. We also recognize that there is a slippery slope with regard to punishing incitement. Every idea expressed with passion risks inciting its audience. And, accordingly, every idea that is critical of the government and its policies risks inciting anti-government behavior and violations of law. If we provide inadequate protection to incitement, all speech critical of government could be subject to sanction.

A similar analysis applies to the full protection we provide to offensive speech. Here too we recognize that offensive speech may cause its victims real harm and anguish. No one doubts that the grieving mourners at a soldier's funeral who were subjected to the disparaging speech of Westboro Baptist Church protestors suffered psychological torment. Yet in Snyder v. Phelps, the Court protected the protestors' right to express their hateful and hurtful message free from civil sanction. But here again we also recognize that tolerance of offensive speech is essential to the maintenance of a free speech regime. Every challenge to orthodoxy may offend some people who are comfortable with the status quo. We must vigorously guard against allowing speech to be punished simply on the ground that it offends people because restricting speech to serve this interest risks swallowing up a substantial part of the First Amendment.

Threats are arguably quite different. Unlike state interests justifying restrictions on incitement or offensive speech, the state's interest in protecting people from threats of physical violence that would instill fear in reasonable people seems more cabined and focused. We do not worry that core free speech principles would be undermined if speech that places reasonable people in fear of serious bodily harm or death is prohibited, whether or not the speaker intends his message to have such a frightening effect.

How Will the High Court Rule?

Some analysts predict the Court will reverse the Third Circuit and add a subjective intent requirement to the test for constitutionally proscribable threats. They say this because the current Court has been extremely protective of expression (even odious expression) in a variety of settings, and because so much speech today (especially in rap music and other popular forms of entertainment) is coarse and uses provocative and sometimes violent language. The notion would be that true threats should not be defined so broadly as to sweep too much of what people actually say in the real world within a category of unprotected speech. (Indeed, Mr. Elonis argues that the rap style of his Facebook postings makes his speech less threatening.)

We understand this argument, but aren't persuaded by it. The prevalence of violent imagery in music and other cultural venues in today's society should already be taken into account by the requirement (on which everyone agrees) that a listener's fear must be reasonable in context, and not based simply on some hypersensitivity to ugly, disturbing language. Unless there is a reason to fear that juries won't already factor changes in speech patterns into the definition of what reasonable people would experience as a threat, it is not clear, at least to us, that an extra element of subjective intent is needed here.

Before we conclude, we do note (circling back to our comparative analysis) that in the defamation setting, constitutional doctrine does require subjective intent (in the form of knowledge or recklessness as to falsity) when the victim is a public official. The case law is more protective of speech critical of our government officials than it is with respect to negative speech concerning private individuals. Perhaps the same should be true for threats; because we want citizens to be free to vent anger against their representatives, maybe we should allow them to engage in threatening speech except when they mean to instill fear. On the other hand, the requirement that a victim/listener feel reasonably threatened might itself be sufficiently flexible to protect vociferous ranting against officials, in that officials are less likely to be reasonable in feeling fear than are ordinary folks because officials should know that citizens may exaggerate their anger and rhetoric when it comes to government. In this regard, we emphasize that a reasonable-victim standard does not give juries carte blanche to punish speech whenever they desire; judges are perfectly capable of ruling that, as a matter of law, certain provocative words cannot, in modern and specific context, be understood by listeners as actual threats that put the listeners in reasonable fear of harm.

May 23, 2014

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

Cross-posted from Justia's Verdict. Co-authored with Prof. Alan Brownstein.

Earlier this month, in Town of Greece v. Galloway, a closely divided (5-4) Supreme Court upheld a practice in Greece, New York (located upstate) of starting town board meetings with a short prayer. Under the practice (which goes back around fifteen years) the Town has invited local clergy to offer an opening prayer after the presentation of the Pledge of Allegiance. Prayer givers deliver their words over the Board's public address system, and many clergy have asked members of the audience to bow their heads, stand, or join in the prayer recitation. Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

In upholding the Town's actions, the Court rejected both equality-based and liberty-based arguments that had been raised by the plaintiff challengers. The U.S. Court of Appeals for the Second Circuit had invalidated the Town's policy largely on the basis of equality concerns-because the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. As we made clear in an earlier column, we agreed with this reasoning, but we also felt that the plaintiffs had good arguments that the prayers at board meetings implicated liberty concerns and were coercive, insofar as nonbelievers or persons of non-Christian faiths might feel compelled to participate (or feign participation) in a town's prayers, lest these minorities risk being viewed by the audience and, importantly, by the town board members themselves, as "outsiders" whose needs and interests might get less respect from local government on that account. For us, the coercion argument was much stronger here than it was in Marsh v. Chambers, a 1983 case in which prayers offered at sessions of the Nebraska state legislature that were upheld against an Establishment Clause challenge. Importantly, because persons who attend local government sessions are likely to be participants rather than just spectators, the pressure to conform and participate is significantly higher here than in the state or national legislative arenas. Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council/town board meetings. In the setting of a city council, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

In the paragraphs below, we offer our reaction to the reasoning employed by the Court in resolving these equality- and liberty-based arguments. Given space constraints, we necessarily focus only on the principal opinion in the case, but we recognize that other Justices expressed significant observations and analyses that we hope at some future point to explore.

Should the Town Practice Have Been Viewed as Discriminatory?

Justice Kennedy's opinion-which announced the judgment of the Court and which was joined in full by the Chief Justice and Justice Alito and in part by Justices Scalia and Thomas-was to us quite surprising and disappointing. As we read and reread it, we feel it does not adequately address and respect the core constitutional values of religious liberty and equality, and often characterizes factual matters in strained ways. The analysis ignores critical legal distinctions or assigns substantive meaning to facts that should not matter. And perhaps most problematically, Justice Kennedy's apparent understandings of social reality do not accord with our sense of human behavior, cultural meaning, and proper institutional functioning. In that respect, our disagreement is not just with Justice Kennedy's interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

Justice Kennedy begins by characterizing the Town's prayer practice as nondiscriminatory, which explains his conclusion that the policy does not violate constitutional principles of religious equality. But as the Second Circuit found, the Town's policy is glaringly discriminatory. The Town reaches out and calls congregations listed in local directories, and invites them to provide someone to offer a prayer at meetings. True, the Town asserts that it would permit individuals not affiliated with these congregations to offer prayers at meetings if such individuals asked permission to do so, but the Town acknowledges that it takes no affirmative steps to notify anyone in the community that such requests would be granted. Reaching out to some religious adherents in particular, and ignoring others who may not be affiliated with established congregations, hardly seems neutral.

Nor is the equality problem limited to unaffiliated religious persons; other Town residents may be affiliated, but with congregations located outside yet nearby Greece. Justice Kennedy observes that the Constitution does not require a town "to search beyond its borders for non-Christian prayer givers," but it is common in modern America (especially outside big urban areas) for religious minorities in one town to worship in a congregation in a neighboring community. To formalistically ignore such persons is to deny them the same respect afforded to the members of established local congregations; the Town is simply not treating all of its denizens equally in this regard.

Justice Kennedy's focus on the latitude the government-invited clergy should enjoy to say what they want without constraint also seems to us to completely miss the unequal respect issue, and also the liberty of conscience problem. He observes that once the government "invites prayer into the public sphere . . . it must permit a prayer giver to address his or her own God or gods as conscience dictates." But in the Town of Greece, prayer givers generally have not been expressing purely personal prayers. Instead, they have claimed to be leading a prayer made by the audience and the community. When government invites a prayer giver to speak on behalf of others, more than one individual's conscience is at stake, and the consciences of all of the people in whose name the prayer is offered must be given equal respect.

It is far from respectful to say, as Justice Kennedy does -- in response to concerns by audience members that they are being asked to stand and bow their heads and join in prayers -- that the clergy in question are used to "directing their congregations in this way." The key point is that the audience at a town board meeting is not a congregation -- a group of self-selected worshippers who decided to attend the prayer giver's church because they adhere to his beliefs and practices. Instead, audience members are a diverse group of citizens attending the board meeting on government business to address their representatives. They deserve to be treated as citizens, not congregants. Clergy who cannot distinguish between parishioners in the pews and the audience at a government meeting need to be reminded of this difference. The decision to attend a board meeting is not a decision to attend a church.

Justice Kennedy's Treatment of the Coercive Aspects of Town Prayers

Perhaps even more unconvincing and undeveloped is Justice Kennedy's response to the plaintiffs' contention that the prayer practice adopted by the Town of Greece is inherently coercive in nature because attendees will feel pressure to conform and participate in this religious exercise. Here, he argues that a town's practice must be understood in terms of the historical tradition of having legislative prayers, a tradition recognized and upheld in Marsh. But, as even Justice Kennedy curiously concedes, there is almost no evidence in the record establishing a long tradition of state-sponsored prayer at local government meetings. And this lack of tradition makes sense because, as noted above, Marsh is distinguishable insofar as citizens have no right, opportunity, or expectation to participate in state legislative or congressional sessions or to petition their representatives from the visitors' gallery the way they do at the local government level. Since passive spectators at state legislative and congressional sessions are not petitioning government, they could hardly complain that they feel compelled to join in state sponsored prayer out of concern that their petitions would be denied. Active participants at local government meetings, to the contrary, are attempting to influence their representatives and will be subject to pressure to conform to avoid alienating the very decisionmakers they are addressing.

Justice Kennedy offers precious little by way of substantial response to this crucial distinction. And what he does offer is so unrealistic, it is hard to accept that he truly believes these arguments himself. He begins this part of his opinion with the unlikely assertion that "the principal audience for the[] [Town Board] invocations is not, indeed, the public but lawmakers themselves." How can that be his interpretation of the facts? The individual clergy member offering the prayer generally faces the public audience with his or her back to the lawmakers. The clergy member asks the members of the public to stand, bow their heads, and join in prayer. The public -- obviously understanding the prayer as being directed at them -- stands and responds to the prayer giver's requests. The prayer giver often asserts that the prayer is being made on behalf of the audience and the community. Yet in Justice Kennedy's understanding, these prayers are primarily directed to the lawmakers and not to the public.

What's more, Justice Kennedy believes that there is a sharp distinction between the town board members asking the audience to stand and pray, and the invited clergy member who is offering the prayer telling the audience to do so. To us, this distinction has no significant relevance to the key question, namely, whether audience members reasonably feel pressure to join in state-sponsored prayers lest they offend or alienate the town board decisionmakers they will be petitioning a short time later. If a judge, employer or teacher were to invite clergy to offer a prayer in court, on the job, or at school, respectively, and then invited all persons in attendance to pray, the coercive nature of the circumstance would not be significantly mitigated by the fact that the prayer directive came from the invited clergy rather than the judge, employer or teacher.

Justice Kennedy also suggests that the fact that coercion may be intrinsic to these contexts is constitutionally insignificant as long as board members do not explicitly assert that they will take a person's refusal to pray into account in deciding matters before them, and so long as the citizens have no direct proof that board members have discriminated against residents who decline to pray. But basic constitutional law principles recognize that power is subject to abuse, including (perhaps especially) at the hands of petty functionaries. We structure many aspects of our system prophylactically to minimize the opportunities for abuse, particularly First Amendment abuse. Unfortunately, we simply cannot share Justice Kennedy's almost naïve sense that "should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy." For better or worse, in the real world, culture wars, friction between members of different faiths, and acrimony and retribution (whether conscious and unconscious) between religious and non-religious individuals and groups is very real. There is a reason Establishment Clause claims are sometimes brought by John or Jane Doe litigants.

Contested Views Regarding the Religious Nature of Prayer and the Relative Coercion in Different Settings

Most surprising and problematic of all is Justice Kennedy's seeming understanding of the nature of prayer and its meaning to the religious individual. To Justice Kennedy, public prayer at a town board meeting does many things and serves many functions, most of which are largely ceremonial in nature. He never suggests or even really acknowledges that prayer might be something else-that it is a personal, meaningful expression of the individual to G-d. But for many Americans that is precisely what prayer is, and its expression in a public meeting does not alter its fundamental nature. Indeed, the reason so many of the prayers offered before town board meetings in Greece are explicitly sectarian is that the person offering the prayer understands prayer as a meaningful communication to G-d and an expression of heartfelt faith.

Justice Kennedy's dismissal of the impact of these prayers on members of minority faiths or those who are not religious can be reasonably understood only if one accepts a watered-down definition and understanding of prayer. It is only in this sense that he can argue that if religious minorities and nonreligious citizens remain in the meeting room and stand along with everyone else for the prayer, no serious harm is done. He believes that their conduct would not "be interpreted as an agreement with the words or ideas expressed." But this argument presupposes that these town board prayers do not serve the function of true prayer, and that the people standing and bowing their heads are not engaging in a meaningful religious act. If the majority of individuals participate in these collective prayers as authentic expressions of prayer, of course a nonreligious individual or member of a religious minority engaging in the exact same behavior would necessarily be perceived as engaging in a similarly authentic religious exercise. Why would anyone interpret that individual's conduct differently?

In the past, Justice Kennedy has been more attuned to the real-world position in which non-majority persons find themselves when dealing with religion in the public sphere. Justice Kennedy wrote the majority opinion in Lee v. Weisman, where the Court struck down state-sponsored prayers at public middle and high school graduations. His sensitivity to context and to the coercive burden on students in that case stands in stark contrast to the ungrounded analysis that permeates his opinion in Town of Greece. Justice Kennedy asserts that the offering of state-sponsored prayer at a middle school or high school graduation is more coercive than the offering of prayers at a town board meeting. But in doing so, once again, his analysis misses the crux of the coercion argument in Town of Greece. Because they have completed their studies, graduating seniors at public school graduations no longer risk the exercise of discretionary authority by teachers and principals who might be offended if students refused to stand during a benediction. They are no longer subject to the control of school authorities. Residents seeking to influence town board members on one or more matters involving their personal needs and interests experience far greater coercion because they are subject to the discretionary decisions of the board that has orchestrated the offering of a prayer in which they publicly refuse to participate.

Nor was the challengers' claims in Lee stronger than those raised in Town of Greece simply because minors were involved in the former case. While it may be true that adults are more capable of standing their ground than are children, pressure is pressure whether or not someone gives in to it. For that reason, the fact that many adults might simply refuse to participate in town prayers and risk the alienation of the board-rather than sacrifice their religious principles-does not make their First Amendment claims any the weaker; coercion is impermissible because it violates the Constitution for the state to force someone to choose between adherence to one's religious beliefs or the risk of harm or loss, without regard to how the victim responds to the illicit pressure.

It seems that the world -- or at least Justice Kennedy's view of it -- has changed since Lee was decided.

April 25, 2014

What Will the Supreme Court Do in the False Campaign Speech Case, Susan B. Anthony List v. Driehaus, Argued This Week?

Cross-posted from Justia's Verdict.

In the space below, I offer analysis of a campaign regulation case in which the U.S. Supreme Court heard oral arguments this week, Susan B. Anthony List v. Driehaus. The case involves a challenge brought by a pro-life organization, the Susan B. Anthony List (SBA List), against an Ohio statute that imposes criminal liability on persons or organizations that make "a false statement concerning a candidate [for any public office] knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination or defeat of the candidate." The lower appellate court in the case, the United States Court of Appeals for the Sixth Circuit, held that SBA List did not present a "ripe" controversy concerning the constitutionality of the statute, and thus dismissed the lawsuit for lack of jurisdiction. The Supreme Court will likely focus its ruling on the "ripeness" question as well, but-as I will explain below-questions of standing and ripeness are often tied up in complicated ways with the substantive question of whether a plaintiff has a winning constitutional claim on the merits.

How the Ohio Law Works and the Lower Court's Rejection of SBA List's Challenge

A little background on the way the Ohio statute operates is necessary to understand the issues before the Court. Under the Ohio law, if someone-anyone-complains that somebody has made a false statement within the meaning of the statute during an election campaign, a panel of the Ohio Elections Commission (an independent agency charged with implementing the State's campaign regulations) must make a prompt, preliminary determination of whether there is "probable cause" (i.e., some reasonable possibility but not necessarily a 50+% likelihood) to think that a statutory violation has occurred. If no probable cause is found, the Commission takes no further action. But if a panel concludes that probable cause exists, the case is referred to the full Commission, which then is charged with determining whether "clear and convincing" evidence supports the conclusion that a violation has in fact occurred. If it so finds, the Commission refers the case to the state prosecutors, who then have ordinary prosecutorial discretion (possibly overseen by the State Attorney General) to initiate a prosecution or not. If a prosecution is brought and a conviction (presumably requiring proof of guilt beyond a reasonable doubt) is obtained, a penalty (in the form of a fine or jail time) is imposed.

In the 2010 election cycle, SBA List sought to put up a billboard criticizing then-Congressman Steven Driehaus, who was running for reelection. The billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Driehaus filed a complaint with the Ohio Commission, and a panel of the Commission found probable cause to suspect a violation of the statute and thus referred the Complaint to the full Commission. SBA List then filed suit in federal court challenging the Ohio scheme. After Driehaus lost the election, he withdrew his Commission complaint, so the full Commission never assessed the billboard message, and nothing involving this incident was ever referred to a prosecutor. But SBA List continued to press its federal lawsuit, asserting that it intended to engage in substantially similar conduct in the future and that Driehaus may run for Congress again. Driehaus then moved to Africa to work for the Peace Corps, and has not indicated any present intention to run for office again anytime soon.

Based on this record, the Sixth Circuit ruled that SBA List no longer has a ripe claim against the Ohio statute, for two reasons. First, there is insufficient reason to think that anyone will complain about SBA List under the statute in the future. As the Sixth Circuit put it, "SBA List does not say that it plans to lie or recklessly disregard the veracity of speech. Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat-that [Obamacare] allows for taxpayer-funded abortions-is facially true." Because SBA List plans to speak only the truth, reasoned the Sixth Circuit, it hasn't shown that it is particularly likely to get ensnared by a statute regulating falsity.

Second, even if the Ohio statute is likely to be invoked against SBA List again, no criminal prosecution-let alone conviction-is sufficiently likely to ensue. Given all the steps that must precede conviction, it is simply too speculative to think that SBA List is in any real danger of having criminal sanctions imposed upon it.

What Will the Supreme Court Do?

While it is likely we cannot know the outcome of this case for a few months, a few observations are in order even now. Most important, the Supreme Court will probably reverse the Sixth Circuit. I say this in part because the Sixth Circuit's reasoning is open to serious question, and more so because the Court decided to grant review in the first place. The Sixth Circuit's opinion is unpublished, which means it can do no mischief in other lower court cases, yet still the Court granted review. To me that suggests a strong desire (by at least four Justices-the number needed to grant review) to correct error by the Sixth Circuit.

Why do I find the Sixth Circuit's reasoning troubling? Let us take the Sixth Circuit's first point, that SBA List is unlikely to be burdened by the Ohio law because SBA List disclaims any intent to lie. As Chief Justice Roberts sarcastically observed at oral argument: "[S]urely you don't expect them to come in and say, 'I'm going to say something totally false and I'm afraid I might be prosecuted for that." To put the Chief Justice's point more generally, a person challenging a statute for unconstitutionally restricting his speech should be able to do so provided he professes a specific intent to engage in speech that is reasonably likely to trigger punishment, regardless of whether punishment is actually warranted under (one interpretation of) the terms of the statute.

The second rationale of the Sixth Circuit-that criminal sanction is a remote possibility because of the number of steps involved-is on firmer ground, and is actually supported by the reasoning of recent ripeness cases by the Court such as Clapper v. Amnesty International USA (although I acknowledge that the 5-4 ruling in Clapper itself is in some tension with other cases, where the fact that there are multiple steps in a causal chain leading to enforcement is found not to be an insurmountable barrier to federal judicial review). But in any event, this "remote possibility of actual prosecution" argument it is undercut significantly by SBA List's assertion in its briefs that a probable cause determination by a panel of the Commission, all by itself, inflicts injury, whether or not any criminal prosecution is later brought. By making the probable cause finding, the government causes SBA List to suffer reputational injury, and harms the campaign that SBA List may be waging in favor of or against particular candidates. Because, SBA List argues, a probable cause determination was found with respect to the Driehaus billboard, it will also likely be found with respect to "substantially similar" speech that SBA List intends to utter. This kind of injury is cognizable and may indeed be ripe (as the Court seemed to suggest in Meese v. Keane), but as I will explain later, it raises its own complexities.

What Should the Court Do?

I suggested above that I expect the Court to reverse the Sixth Circuit. But is that the right result? Perhaps not. Though the Sixth Circuit's reasoning was flawed, its result may nonetheless have been correct. Even assuming that a probable cause determination by a panel of the Commission can cause injury that may be redressed in a federal lawsuit, there remains the question of precisely what speech SBA List plans to utter that might trigger such a determination. As the lawyer for Ohio pointed out at oral argument, the only forward-looking contention in SBA List's complaint is its statement that "it plans to engage in substantially similar activity in the future, but they don't identify any other candidates" whom they intend to criticize. If this is true, the vagueness of this statement should be a problem for SBA List. In past cases, the Supreme Court has said a generally stated intention to engage in some activity, without more details about the when, where, and how, can create ripeness problems. So, when a scientist who wanted to challenge under-enforcement of the Endangered Species Act contended that he desired to study a species that might be threatened by the under-enforcement, without indicating precisely where, when, and how he planned to conduct the study, standing/ripeness was denied (in Lujan v. Defenders of Wildlife). And when a leafletter who was punished for distributing anonymous leaflets criticizing a Congressman sued to enjoin future enforcement of the law because he intended in subsequent elections to distribute in the same place "similar anonymous leaflets" even though the particular Congressman who was the target of the prior leaflet had since left Congress for a judicial post, the Court said (in Golden v. Zwickler) there was not a ripe controversy because the likelihood of a future conflict between the leafletter and the statute was too uncertain.

To me, the facts of these cases-and the plaintiffs' vague statements of future intentions-sound somewhat like SBA List's assertions regarding "substantially similar" speech in which it plans to engage. What, precisely, does "substantially similar" mean, especially in a setting where SBA List in 2010 did not criticize all Congresspersons who voted for Obamacare in 2010, but rather (as Ohio's lawyer pointed out in oral argument) only a small subset of them-Democrats who first opposed but then voted for the healthcare law? Since Mr. Driehaus himself is not running again anytime soon, it remains to be identified against whom SBA List plans to speak out.

I found it interesting that the Justices didn't seem to focus on these points when the Ohio lawyer mentioned them. The liberal Justices generally don't agree with high standing and ripeness hurdles, so they can be expected to be open to SBA List's arguments. But the conservative Justices-who in other cases do set the standing/ripeness bar pretty high-should have been interested in this line of argument advanced by Ohio's counsel. Maybe when the opinion issues they will embrace this route, or maybe they will find ripeness because they are so troubled by the Ohio law and want to permit the federal courts to adjudicate its merits.

A Few Observations on the Merits

Let us turn, then, to the merits, although any remotely complete discussion of the First Amendment claims here will require one or more additional columns. For starters, it is somewhat troubling to me that a panel of the Commission found probable cause to think a billboard stating that Congressman Driehaus voted for taxpayer-funded abortions was false. Incomplete, no doubt. Misleading, perhaps. But factually false? Even granting that executive regulations under Obamacare (and the Hyde Amendment law that may or may not apply to the Affordable Care Act) limit taxpayer-funded abortions to those involving rape, incest, or life of the mother, it's hard to say the law (for which Driehaus voted) does not, technically, involve some (albeit very limited) taxpayer-funded abortion procedures. And the concept of criminal falsity, to have any chance of surviving a First Amendment challenge in an election contest, will have to be assessed technically.

I should conclude by linking the ripeness and First Amendment merits questions. It may be that SBA List's best argument for ripeness focuses on the injury caused not by (somewhat speculative) prosecution, but by the specter of a probable cause determination, as discussed above. But if this is so, then-when the case is remanded to the Sixth Circuit-arguably the only ripe question is whether the probable cause aspect of Ohio's law (rather than the imposition of criminal sanctions themselves) violates the Constitution. And although an argument on the merits can be made that a state Commission's power to make a probable cause finding in a campaign-speech setting is itself problematic under the First Amendment, that seems a somewhat tougher argument than one challenging the imposition of criminal liability (because if the government is not imposing fines or jail terms, but only uttering its own view that someone's speech is or may be false, the government can claim to be more of a speaker itself). In other words, if the relevant injury is not the (real) threat of criminal liability, but the reputational harm caused by a government's (preliminary) characterization of possible falsehood, then the First Amendment challenge is itself harder to maintain. I will likely explore more of these merits questions in later columns.

April 11, 2014

The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor

Blog entry cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

The Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.

 

February 28, 2014

Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side

Co-authored with Professor Alan E. Brownstein. Cross-posted from Justia's Verdict.

In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act's requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn't yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs' religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)

The "Liberal" and "Conservative" Take on the Two Lawsuits

Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.

We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs' claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs' claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.

Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women's rights concern. For them, protecting religious liberty in a situation that creates even small risks to women's health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.

But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.

The Dismissive Attitude of Opponents to the Religious Claimants in Each Case 

Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs' rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That's the way the system works. Learn to live with it.

But when we ask "What can they possibly be complaining about?" in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager's religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.

The Inconsistency in the Treatment of Risk-Based Arguments

Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer's worry can hardly be characterized as mere speculation.

Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants' refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants' not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.

We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.

Inconsistency in the Treatment of Attenuation and Misattribution Arguments

A separate criticism of plaintiffs' claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of "scandal." Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit's publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.

A similar problem with misperception-indeed, we suggest an arguably more powerful example of it- also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a "we" prayer rather than an "I" prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one's head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.

Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government's requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.

We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don't hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.

There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs' claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.

December 20, 2013

The Question of Disparate Speech Impact in the Supreme Court’s Upcoming McCullen v. Coakley Case

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

Today we analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics.  The statute in question makes it a crime to "enter or remain on a public way or sidewalk adjacent to" a reproductive rights clinic within 35 feet of "any portion of an entrance, exit or driveway" of the facility.  The statute exempts from this prohibition persons who are entering or leaving the facility, employees or agents of the facility acting within the scope of their employment, emergency and utility personnel doing their jobs, and people who are using the sidewalk or public way to reach a destination other than the facility.  The law's challengers-individuals who seek to communicate with women who may, at that place and moment, be contemplating abortion-allege that the law violates the First Amendment.  The challengers lost in the U.S. Court of Appeals for the First Circuit, and in June the Supreme Court granted review.

The case raises many important constitutional issues.  Indeed, this is not the first time the Supreme Court has agreed to review, under the First Amendment, judicial or legislative attempts to regulate protest activity taking place outside medical facilities and abortion clinics, and among the questions presented in McCullen is whether the Court should overrule Hill v. Colorado, one of its important earlier cases relating to these matters.

Content/Viewpoint Based vs. Content-Neutral:  A Crucial Distinction

In the space below, we do not attempt to address all the significant constitutional issues the McCullen case presents.  Instead, we limit ourselves to the relatively confined question of whether a law like this one should be characterized as a "content-neutral" regulation of the "time, place or manner" of speech or conduct, or instead whether the law should be viewed as one that discriminates on the basis of the content or viewpoint of speech (or speakers).

This question is profoundly important, because under well-established First Amendment doctrines, if a law is content- or viewpoint-based, it is subject to the strictest judicial scrutiny, and will almost always be struck down. Content-neutral regulations of speech, by contrast, are reviewed under a more lenient, intermediate level of review and are often, although not always, upheld.  (We take no position in this column on how the Massachusetts law in question, or other situations we examine, should fare under the intermediate scrutiny test.)

Usually the Court determines whether a law is content- or viewpoint-based by looking at how the law is written.  For example, a law that prohibits all picketing in an area but exempts labor picketing is content-based, because the exemption from the regulation is defined on the face of the statute in terms of a particular topic or subject matter of speech.  Similarly, a law that explicitly makes it a crime to burn a flag "in order to show contempt" for it, but that does not prohibit burning as a means of respectfully disposing of a damaged flag, would be viewpoint-based. These laws would be subject to very high scrutiny.

Formal Neutrality and Disparate or Discriminatory Effect

The plaintiffs in the Massachusetts case would have to concede that the law they are challenging does not, as a formal matter, single out or even mention any identifiable speaker or particular subject or viewpoint of speech. The plaintiffs argue, however, that this law should be understood as a content- or viewpoint-discriminatory regulation because by restricting speech in a particular place, in front of reproductive health clinics, the state is burdening only one side of a debate. They contend that although the law may be neutral on its face, it is discriminatory in its effect.  And this discriminatory or disparate impact should lead courts to be skeptical of the law and strike it down for that reason.

In making their argument, the plaintiffs rely on the commonsense fact that speech in front of reproductive health clinics is overwhelmingly, if not exclusively, speech that is opposed to abortion.  As their brief argues:  "Massachusetts has . . . taken care to frame an Act that as a practical matter affects speech on only one issue-and, indeed, on only one side of that issue.  The Act's lack of generality or neutrality is demonstrated both by the specific locations at which it applies and by the specific speakers whom it affects." (Some of the amicus briefs in favor of the challengers also argue that the law should be viewed skeptically because the legislature's actual motive was problematic, but we defer discussion of so-called motive analysis under the First Amendment to another day, focusing here on whether the disparate effect of a law justifies treating it as a disfavored content- or viewpoint-based law.)

We do not deny that a law that singles out particular places for speech restrictions may often have a disparate effect on speech and debate.  People on one side of a debate often use particular places to express their message much more frequently and aggressively than do people on the other side(s) of the same debate.  But allowing courts to look behind the actual content of the statute and determine what standard of review to apply based on disproportionate effect could radically undermine settled doctrine, require the implicit overruling of many judicial decisions, and lead to the invalidation of laws that are already on the books, or that are likely to be enacted without controversy, because they are considered to be content-neutral regulations.

How Disparate Effect Analysis Would Disrupt the Case Law and Statutory Landscapes

The reality is that many of what today are generally considered to be content-neutral speech regulations were adopted in response to a problems created by identifiable classes of speakers with distinct messages or viewpoints. Under current law, we respond to that reality by requiring a statute to apply to all would-be speakers, not just those whose speech activity raised the legislature's consciousness about the need for regulation. Thus, a limitation on residential picketing, or a buffer zone in front of medical clinics, may be created in response to anti-abortion protests, but the laws responding to this problem must, as a formal matter, apply to labor picketing and other protests as well.   If the Court were to go beyond this current insistence on formal content- and viewpoint-neutrality, and begin subjecting all laws that have predictable disparate effects to the strict scrutiny that applies to content- and viewpoint-based laws, then  significant past Court cases  might require reconsideration.

For example, in the seminal case of United States v. O'Brien, the Court upheld a law that made it a crime to destroy government-issued draft cards, even if the cards were burned for expressive purposes as a form of political protest.  Could anyone doubt that the overwhelming majority of people who destroyed draft cards (and who were thus subject to the law) did so in order to express a particular anti-draft, anti-war, or anti-government point of view?  Or take Frisby v. Shultz, a case in which the Court upheld a ban on residential picketing, as applied to protesters who wanted to picket outside an abortion doctor's home.  Certainly, this ban had meaningful effect only on people expressing critical messages in front of a resident's home; people don't tend to picket in front of your house if they like what you're doing. Honesty compels the acknowledgement that the ban on residential picketing was prompted by, and in the real world most directly affected, anti-abortion activists.

Also, a disparate effect analysis might very well require the invalidation of other laws that current doctrine would tend to permit. To give but two (out of many possible) examples, facially neutral buffer zones around foreign embassies might be unconstitutional because pro-embassy supporters obviously tend to be less affected by (and less likely to be prosecuted under) such regulations than anti-embassy protestors.  And virtually all laws that try to regulate activity near funeral proceedings would be open to question. Over forty states have recently adopted such regulations. It is common knowledge that the vast majority of people today who want to assemble and demonstrate near funerals are members of an identifiable religious group with a distinctive, somewhat bizarre, and extremely unpopular message and point of view.

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

In addition to requiring the overruling of some past cases and the invalidation of laws that are currently deemed constitutional, a change in doctrine emphasizing disparate impacts would add considerable subjectivity and indeterminacy to free speech cases. There will always be questions about both the extent of a predictable or expected disproportionate impact that is created by a law, and just how much of an impact is required to compel a conclusion that the law is content- or viewpoint-based.   For a court that eschews subjective standards (as this Court does, as evidenced by its unwillingness to recognize free exercise of religion claims against neutral laws of general applicability), it is hard to understand why increasing subjectivity and indeterminacy would be appropriate here. Free speech doctrine is complicated enough without blurring established, albeit complicated, categories.

Further, a Supreme Court decision holding that a locational regulation will, by virtue of disparate effects, be considered content- or viewpoint-based and thus trigger strict scrutiny would be anomalous and hard to reconcile with the way in which the Court considers disparate impact in other areas of constitutional law.  For instance, we can compare free speech doctrine to equal protection doctrine.  Under the Equal Protection Clause, government cannot discriminate against racial minorities (just as, under the First Amendment, it cannot discriminate against particular viewpoints.)  But in the equal protection context, a law that is formally race-neutral on its face, but that generates predictable disparate impacts along racial lines (such as a requirement of a high school diploma to be eligible for a government job) is not subject to strict scrutiny, notwithstanding that, in the real world, it tends to disadvantage racial minorities more than white persons. The Court, in the famous Washington v. Davis case in 1976, rejected strict scrutiny based on disparate racial impact, to avoid a slippery slope that would undermine the validity of far too much legislation. Think of all the laws-like flat sales taxes and bridge tolls-that have predictable disproportionate effects on poor persons, and thus on racial minorities (because of the unhappy correlation that persists between the two). All such laws would be subject to strict scrutiny under a disparate impact approach.

And in one important sense, the case for strict scrutiny for racially disparate laws is actually stronger than it is for laws that generate disparate speech effects. In the equal protection setting, if a racially disparate law is not subject to strict scrutiny, it is subject to a very deferential rationality review, which in many cases operates like a rubber stamp upholding the law. In the free speech arena, however, even laws that are not considered content- or viewpoint-based are still subject to a meaningful intermediate level of judicial scrutiny that often has real bite to it that can result in the invalidation of the law.

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

Moreover, a focus on disparate speech effects would create a range of doctrinal conundrums under the First Amendment itself.  Content-neutral regulations of speech serve important social functions. A particular location may be a very useful place to express a message, but it also may be a place where speech imposes serious burdens on third parties (including particularly vulnerable audiences such as patients at medical clinics or mourners at funerals), such that the speech needs to be regulated.  A multi-factor balancing test (the intermediate standard that currently governs content-neutral laws) may be the best way to take all of the relevant values and interests at stake in these cases into account. Yet the Court's heightening of review based on disproportionate impact would tend, in effect, to read the state's interest in restricting speech out of the picture because almost nothing passes strict scrutiny.

Another problem with increasing the rigor of the Court's review of locational or other regulations because of their foreseeable disparate effects on speech is that this approach would send conflicting and confusing messages to lawmakers. On the one hand, under the intermediate scrutiny that is currently applied, content-neutral speech regulations are not supposed to burden substantially more speech than is necessary to further the state's interests. This suggests that content-neutral laws should be drawn narrowly to cover as limited a time, place, or manner of speech as possible to serve the state's goals. But if a disproportionate effect approach makes narrow laws vulnerable to receiving heightened review precisely because their narrowness generates disparate effects, then legislatures are going to broaden laws as a matter of course:  The broader the scope of the law, the harder it is to find that the law disproportionately burdens any particular subject or viewpoint of speech. Thus, with courts emphasizing disproportionate effects, the state is forced to walk a constitutional tightrope and may violate the First Amendment if it deviates even a bit in either direction; if the state adopts a narrow law, the likelihood increases that the law will receive rigorous review because the law disproportionately burdens one subject or viewpoint of speech more than others, but if government broadens the law, the law is more likely to be struck down under the intermediate scrutiny test that will apply, because the law will inevitably restrict more speech than is necessary to further the state's interests. This means that a focus on disproportionate speech effects will do more than make judicial decisions in this area more subjective and indeterminate; it will also undermine legislative discretion and flexibility in drafting and adopting laws.

We are not suggesting that there are no possible answers to any of these seeming dilemmas, or that disparate effect should never factor into any well-conceived First Amendment analytic framework.  Rather, what we are saying is that before the Court begins to travel down this road, it needs to think carefully not just about clinic-access cases, but also about a much larger swath of free speech and larger constitutional doctrine.