April 18, 2022

The Problem with 'Gotcha' Textualism

[Cross-posted from The Hill]

By Alan Brownstein

During Judge Ketanji Brown Jackson’s confirmation hearing, Sen. Marsha Blackburn (R-Tenn.) seemed triumphant when she confronted the Supreme Court nominee with the fact that the word “abortion” is not mentioned in the Constitution’s text. You could almost imagine her thinking “Gotcha.” While Blackburn’s comment about abortion is true, it has to be placed in context. There are a lot of words reflecting long accepted constitutional doctrines that are not in the text.

The term “federalism” isn’t mentioned. Nor are the phrases “separation of powers” or “checks and balances.” Rights such as freedom of association or the right to marry or have children aren’t there either. Key judicial concepts such as standing, ripeness, and mootness can’t be found in the text. Nor can metaphors beloved by conservatives such as a “colorblind” constitution. As the federal reserve bank is raising interest rates to combat inflation, it is worth noting that the authority to create a national bank like the federal reserve isn’t listed as a congressional power.

If we want to carry the commitment to textualism to its logical, but absurd limit, the Marines and the Air Force aren’t recognized either — just the Army and the Navy have constitutional recognition.

The point isn’t, of course, that the text is irrelevant; rather, its utility in dispositively resolving constitutional questions can be uncertain and complicated. Plain meaning textualism often can’t do the job standing alone.

Let me suggest some key ideas to keep in mind in discussing how to think about the lack of plain language in the Constitution’s text on important issues.

First, some ideas require a lot of interpretative maneuvering that goes far beyond the literal text. For example, the First Amendment states that “Congress shall make no law … prohibiting the free exercise [of religion] or abridging the freedom of speech …” But doesn’t the Constitution also prohibit states and local governments from suppressing these fundamental rights? It does. The Supreme Court has interpreted the 14th Amendment to incorporate most of the Bill of Rights and to make those rights applicable to the states. However, the 14th Amendment doesn’t say anything explicitly about incorporation. It is difficult to ground the incorporation idea on textual language alone.

Or consider another example. Does the Constitution prohibit the federal government from discriminating on the basis of race? On its face, the Equal Protection Clause (the provision which prohibits racial discrimination) of the 14th Amendment only applies to state and local government. There is no provision explicitly prohibiting the federal government from denying racial groups the equal protection of the laws. Here again the Court has held that the federal government cannot engage in race discrimination. But it is a rocky road to get there by looking at the text alone. 

Second, both conservative and liberal jurists make constitutional arguments that lack explicit textual support. Consider the text of the 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does anyone see any language in this text that prohibits federal courts from adjudicating cases brought by citizens against the government of the state in which they reside? (Focus on the word “another” in answering this question.) However, that is how conservative justices on the Court have interpreted this provision. The Court’s explanation for this deviation from the text is that the 11th Amendment was intended to protect a state’s sovereign immunity against suits by citizens of any state. That argument about historical intent is sharply disputed. More importantly, if we are focusing on the text, it is absolutely clear that neither the 11th Amendment, nor any other provision of the Constitution mentions “sovereign immunity.” Like abortion, it just isn’t there.

Third, expansive reading of the text to overcome the lack of literal support for a constitutional interpretation isn’t some new-fangled aberration of judicial activism. Consider this language from a Supreme Court opinion adjudicating the scope of congressional power: “[The constitution] by its nature, therefore, requires that only its great outlines should be marked, its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves … we must never forget that it is a constitution we are expounding … [This is] a constitution intended to endure for ages to come, and consequently to be adapted to the various crisis of human affairs.”

That language has a powerful historical pedigree: It’s from John Marshall’s opinion in McCulloch v. Maryland decided in 1819. In McCulloch, the Court upheld Congress’s power to incorporate a national bank notwithstanding that neither establishing a bank nor creating a corporation are listed among the enumerated powers of Congress.

Fourth and finally, the text of the Constitution contemplates non-enumerated powers and non-enumerated rights. Congress did not have an enumerated power to incorporate a bank. But Article I, Section 8, Clause 18 did provide it with the extended authority “To make all laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and all other powers vested in the national government. With regard to non-enumerated rights, the text of the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Freedom of speech is an enumerated right. Abortion is not. But the enumeration of freedom of speech and other rights should not be construed to deny or disparage other rights, not similarly enumerated — such as the right to have an abortion.

August 9, 2021

Race, History, Guilt and the Olympics: Real-World Experience in the Classroom

[Cross-posted from The Hill]

By Alan Brownstein

If one looks behind some of the criticism directed at the teaching of Critical Race Theory, it appears that there is a particular objection to the idea that white students should be taught that they bear guilt or responsibility for past and/or present racism in our society.

As a professor of constitutional law, I do not teach Critical Race Theory. Still, when I teach about the Equal Protection Clause, the issue of guilt and responsibility is unavoidable. My focus is not on white normative accountability — It is on American guilt and responsibility. And in beginning the discussion, I find it useful to talk at least initially about the Olympics.

My first question to students is whether they ever experience pride for some achievement they had no role in bringing about. I offer the success of USA athletes at the Olympic games as an example. Most students agree that they experience considerable pride in the effort and success of USA Olympic athletes even though they had nothing to do with these results. It seems entirely natural and reasonable for Americans to take pride in the achievements of other Americans.

My second question is this: If it is reasonable and acceptable to experience pride when individual Americans or our country does something praiseworthy, is it also reasonable and acceptable to experience shame or guilt when individual Americans or our country engages in shameful or blameworthy conduct?

A follow-up question extends the issue beyond pride or blame: I ask whether students have received significant benefits as a result of their living in the United States? Did students directly bear the costs incurred by earlier generations in providing the political freedoms and material advantages the students enjoy today? Most students agree that they are the blessed beneficiaries of the work and courage of their forebears. The follow-up is whether it is fair and just to expect the students to pay the debts incurred by prior generations to provide the political and material goods the students experience and value today.

In its simplest terms, we would find it entirely reasonable to expect Americans today to pay the principal and interest on bonds the government sold to finance the construction of public bridges and dams.

But not all debts are so easily identified or quantified.

Still, we can ask and open the issue for discussion whether current generations may be reasonably expected to take into account the harms America has inflicted on minorities, such as Blacks and Native Americans, in deciding public policy issues today. This accountability is not based on the students’ race, but rather on their national identity. This is American accountability, applicable to our society because we are — and are privileged to be — Americans.

The classroom discussion will move on to evaluate American decisions relating to race and the treatment of racial minorities. Typically, these issues are less controversial. While there may be debate about particular events or policies, there is usually a strong consensus that, historically, American conduct toward racial minorities has been blameworthy. The hard question raised by my earlier inquiries is what that realization of blameworthiness means for public policy and constitutional law decisions today.

Of course, not everyone will agree with the analogies suggested above between pride and shame or benefits and debts. There is a difference, though, between raising a difficult issue for students to confront and demanding that everyone agree to a particular response.

Nor do I think that presenting these issues in the way I have described isolates or stigmatizes more conservative students — at least that has not been my experience.

Several years ago, I was privileged to be invited to visit and teach Constitutional Law for a semester at the law school at Brigham Young University (BYU). BYU law students are smart, thoughtful, religious, and generally conservative. They did not find the way I conducted the discussion of equal protection issues to be insulting or indoctrination. Indeed, one of the most rewarding teaching evaluations I have ever received was written by a student in that class. As a religious school, BYU asks students to evaluate whether a professor’s class was spiritually strengthening. Because I am Jewish and the overwhelming majority of BYU students are Mormons, I was not sure what to expect from students in response to this question on the evaluation.

One student’s response described my presentation on equal protection issues this way: “His sincerity in fairly articulating the constitutional interests of racial minorities, women and LGBT individuals was a supreme example of what we would deem Christ-like. Seeing his reverence toward these issues and the real-world consequences for those most affected by them was more powerful than any explicit discussion of religion in the lectures could have been.”

I doubt I deserve such high praise. But I am confident that the anonymous student who wrote this evaluation was neither insulted nor indoctrinated by my teaching.

May 3, 2021

Exploring the Meaning of and Problems With the Supreme Court’s (Apparent) Adoption of a “Most Favored Nation” Approach to Protecting Religious Liberty Under the Free Exercise Clause: Part One in a Series

[Cross-posted from Justia]


By Alan E. Brownstein and Vikram David Amar

About three weeks ago, in a per curiam (that is, unsigned) opinion in a case that was not fully briefed and argued at the Supreme Court, a majority of Justices (Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett) announced a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations, but it does mandate that government not target or discriminate against religion. The Court’s decision earlier this month in Tandon v. Newsom provides some powerful evidence about what constitutes impermissible discrimination against religion in the eyes of the new Court majority.

In Tandon, religious individuals challenged California’s COVID-inspired rule that limits all gatherings in homes to no more than three households. The challengers argued that since in other places, such as hair salons, retail stores, movie theaters, private suites at sporting events and concerts, and indoor restaurants, more than three households were allowed to come together at a time, in-home religious gatherings were being treated in an inferior and discriminatory manner. Accordingly, they argued, California’s rule could survive only if the inferior treatment of in-home religious gatherings were narrowly tailored to further a compelling government interest. In validating this challenge, a five-person majority ruled that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise” (emphasis in original). For purposes of our analysis here, we call the Court’s major innovation in Tandon “Most Favored Nation” (MFN) reasoning, drawing from international trade lingo, in which some nations are entitled to be treated at least as well as any other nation is being treated, and borrowing from the work of other scholars who have suggested this language and advocated for an MFN approach in free exercise cases.

As Justice Kagan’s powerful dissent (for herself and Justices Breyer and Sotomayor — Chief Justice Roberts dissented without opinion) pointed out, an MFN-style analysis always requires deciding what the relevant “comparators” are — just like in traditional MFN arenas we always need to understand how other entities are being treated for trade purposes in particular, and whether those entities are indeed nations. For Justice Kagan, the case for upholding California’s rule was strong and clear: “California limits religious gatherings in homes to three households [but if] the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.” Justice Kagan went on to point out (as the lower courts had) that commercial gatherings are qualitatively different from in-home gathering in several respects, including the length of time people sit or stand near each other talking, the size and ventilation of the buildings, and the ease of enforcing social-distancing and mask requirements. At a minimum, the problem Justice Kagan identifies about deciding whether another activity is a fair comparator for determining whether religion is less favored is challenging (something we take up at various points in this series of essays.)

Given the practical and doctrinal difficulty courts implementing an MFN approach will encounter, we first need ask from where in prior cases this MFN notion might have emerged and what is behind it.

One possible explanation is that MFN reasoning is a plausible extension and extrapolation of Justice Scalia’s majority opinion in Employment Division v. Smith, the 1990 case we adverted to earlier, in which the Court first held that under the Free Exercise Clause, government is generally not required to grant religious accommodations to neutral laws of general applicability. But the notion that MFN reasoning is simply an explication of what Justice Scalia’s majority opinion had in mind as to the meaning of “neutral” and “generally applicable” is unpersuasive. The primary rationale the Smith majority offered to support its holding was that alternative approaches to free exercise were, as a practical and doctrinal matter, untenable. If courts applied strict scrutiny with full rigor to all laws that substantially burdened religious exercise and conferred accommodations whenever judges honestly concluded this rigorous test was not satisfied, society would devolve into anarchy as religious individuals could avoid complying with any law that allegedly interfered with their beliefs or practices. And if strict scrutiny was applied more leniently, judges would have to engage in a subjective, indeterminate balancing of interests; a task for which the judiciary is ill suited (and which lies outside its proper institutional role) and which, accordingly, is better assigned to the political branches of government.

But an MFN approach creates, indeed exacerbates, the very problems that Scalia and the four other Justices joining his opinion in Smith were trying to avoid. Interpreted and applied broadly, MFN reasoning requires rigorous strict scrutiny review of any law that includes at least one secular exemption. Under this analysis, the scope of rigorous review required by an MFN test is at least as broad as existed in the pre-Smith free exercise doctrine—the very problem the Court was trying to remedy in making the major doctrinal shift it did in Smith. And If an MFN approach is applied narrowly by aggressively limiting the scope of relevant secular comparators, courts will be engaged in the kind of subjective indeterminate quagmire Scalia wanted so much to avoid.

Whatever one thinks about merits of the Smith decision, and one of us has been harshly critical of its holding for 30 years, it is inconceivable that the majority in that case intended that the concept of general laws of neutral applicability be interpreted in a way that completely undercut the goals that the Court was trying to achieve.

Perhaps a more likely doctrinal predecessor of Tanden is not found within Supreme Court case law, but instead in a Third Circuit opinion Justice Alito authored when he sat on that court prior to being elevated. In Fraternal Order of Police v. City of Newark, about two decades ago, then-judge Alito wrote for a Third Circuit panel applying heightened scrutiny and requiring the Newark Police Department to grant an accommodation from its no-facial-hair grooming policy for police officers to an individual officer who wanted to maintain a beard for religious purposes. The fact that the Department granted exemptions to officers for whom facial hair was medically beneficial (i.e., for whom regular shaving created skin or other health problems) meant, to the Third Circuit, that religious requests for exemptions also had to be granted. Religious claims for exemption could not be treated less favorably than secular claims for exemption, when both claims interfered with the goals of the Department’s grooming standards — in this case uniformity of appearance — unless the Department could satisfy a heightened-scrutiny standard of review. More on this case a bit later.

Moving beyond case law foundations, what theoretical arguments are there to support an MFN approach? The substantive justification offered by some jurists and scholars supporting an MFN analysis is that the MFN principle is grounded on the notion that government cannot devalue religion by treating any secular interest, including public health and access to medical care, more favorably than an allegedly comparable religious belief or practice. This idea that for a right to be taken seriously its exercise can never be devalued in a relative sense—that is, can never be afforded less value than some other activity — is not generally recognized, partly for commonsense reasons. Applied to free exercise of religion in an energetic way, MFN analysis can often seem counterintuitive in the extreme. Assume a court upholds a city ordinance requiring private parades traveling through city streets to obey traffic rules and stop at stop signs and red traffic lights. Assume also that the court has recognized that ambulances driving patients to the hospital are not subject to these limitations. Certainly the Free Speech Clause would not require that a caravan of car protestors receive the same favored traffic-law treatment provided to ambulances. Yet under a MFN approach, if the caravan consisted of religious worshippers—say, on the way to a funeral—would we conclude that unless the hearse and other mourners were allowed to speed through red lights that their religious liberty would be constitutionally disrespected and impermissibly demeaned on account of the relatively superior treatment of emergency medical vehicles?

It’s easy to imagine one’s own parade (no pun intended) of horribles. But the problem with the MFN principle extends far beyond counterintuitive examples of its application. The MFN analysis in many ways fundamentally misunderstands and mischaracterizes the very nature of constitutional religious liberty. There are, to be sure, some fundamental rights that we protect because we value the social utility of the exercise of the right. Voting is an obvious example. But it is far less clear that the free exercise of religion fits securely within this category of protection on account of clear social utility. Instead, we protect the free exercise of religion because we do not want the state, and that includes judges, to interfere with religious choice and the voluntary association—the autonomy, if you will—of religious individuals. As a constitutional matter, we protect religious exercise because we do not trust the state to make judgments about religion. The reason that religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over and above the wide range and majority of secular interests the state may deem worthy of protection.

This key distinction becomes particularly clear when we try to account for why religious majorities commit themselves to constitutional doctrine that protects minority beliefs the majority considers false and even dangerous. As one of us has explained this phenomenon in academic writings:

Religious individuals who support religious liberty for adherents of faiths they believe to be false do not do so because they believe that the faith communities receiving protection are moral or correct. The justification for protecting false faiths does not depend on the accuracy or value of what is believed. At its core, religious liberty recognizes the deeply felt need of individuals to determine religious truth for themselves and the right to live one’s life authentically in accordance with one’s religious identity.

The difference between protecting religion because of the value the state assigns to its exercise and protecting religious liberty to prevent the state from having any meaningful say in what religion requires or the importance of religiously grounded beliefs and practices is further demonstrated by the way courts define and identify religion for constitutional purposes. If we protect religion because of its relative and high value, one would think courts would carefully define what religion is so that they would be only protecting those interests that deserve special constitutional attention and protection. But that is not the case. There is no working operational definition of religion in free exercise jurisprudence. The lack of a definition reflects the courts’ concern that by attempting to identify and distinguish religion from non-religion, judges would get impermissibly caught up in involving themselves with the nature, value, and meaning of religion. That this is forbidden territory reinforces the idea that we protect religion by keeping it free from state involvement, not by assigning relative value to its exercise.

Even if one were to support the idea that we protect the free exercise of religion because the Constitution requires government to value religion at least as much it not more than secular interests the state deems worthy of protection, the lack of a working definition of religion, indeed the intrinsic fluidity of religious belief in a pluralistic society, makes the kind of comparison envisioned by MFN jurists and scholars particularly challenging. Exemptions from legal requirements may be extremely desirable because they free claimants from burdens they would find to be especially disturbing or because in obtaining the exemption the claimant receives something of secular material value. Consider, for example, that being exempted from the military draft might enable someone to avoid a crisis of religious conscience, but it also confers a material benefit—freedom from the risk of getting killed in a war zone—that many would desire. Or consider that the entitlement to be free from work on the Sabbath (either Saturday or Sunday) permits more than the freedom to go to religious services in the morning; it also allows someone the latitude to spend more time with their family and to engage in whatever non-vocational activities their faith permits. These secular-benefit externalities also figured prominently in the decision made by the Court in Smith, and they could easily bedevil courts seeking to undertake an MFN approach.

One reason for this has to do with how, as a matter of evidentiary sincerity, claims for religious accommodations are asserted. Claims for secular exemptions can often be grounded on objectively verifiable evidence. Medical issues experienced by people receiving vaccines or complying with facial shaving requirements or seeking 4F exemptions from conscription can be clinically evaluated. The evaluation of religious claims for exemption have no such basis for objective evaluation and depend on a subjective determination of the claimant’s sincerity. This means that there are risks of sham claims when religious claims of secular value are asserted, a concern that the state may not need to be as worried about when secular exemptions are granted.

It is not clear how the potential for sham claims should be taken into account in engaging in an MFN analysis. What should happen when the state explains that it grants a secular exemption but not a religious exemption because there is much less risk of false assertions for medical exemptions than for religious ones? The problem here is not simply the difficulty of drawing comparisons, a problem that confuses and undermines MFN analysis as a general matter. When constitutionally mandated religious exemptions result in secular benefits being made available to virtually all religious claimants, and only a few secular claimants are equally eligible for such benefits, the MFN framework can be challenged as unfairly privileging religion.

There is a deeper concern here that also must be addressed. When the courts require the granting of religious exemptions that also have secular value, they not only might be thought to improperly privilege religion, they create an incentive for individuals to affiliate with a faith and to use that as a basis for asserting the right to an exemption. The creation of such incentives is anathema to the constitutional mandate that religion should be a matter of voluntary choice without state action promoting individual beliefs and practices. Unless MFN analysis can respond to this concern, it raises problems that deserve serious attention.

We see no evidence that MFN is up to the task. In the Fraternal Order of Police case described earlier, for example, what would prevent a police officer who thought he was much better looking with facial hair to assert a sham religious liberty claim grounded on the exemption provided to officers who suffered medical consequences if they complied with the Police Department’s grooming standards?

We want to be clear here. The possibility of free exercise claimants asserting sham claims should not preclude the development of free exercise jurisprudence recognizing the legitimacy of free exercise exemptions in appropriate circumstances. But the risks of sham claims are not immaterial.  And if the MFN framework has legs in the eyes of a majority of Justices, this framework would need to innovate doctrinal tools for evaluating them.

One final example involving secular externalities and fluid religious commitments further illustrates the complexity involved here. If conscription was reinitiated, individuals who were otherwise eligible to be drafted might be granted a secular deferment because of medical limitations that interfered with their ability to participate effectively in combat, a status historically called 4F. Under accepted law, religious pacifists whose beliefs would interfere with their ability to participate effectively in combat would also be granted conscientious objector (CO) status. It has long been recognized, however, that the beneficiaries of CO status can be required to perform alternative service. This requirement operates as a check on sham claims for exemption and it places some civic obligation on claimants who avoid the serious burden of military service.

If we now add MFN analysis to the mix, does it become unconstitutional to impose alternative service on CO beneficiaries if we require no comparable civic obligation from individuals receiving medical deferments? Obviously, the CO beneficiaries (who are required to perform alternative service) are receiving exemptions of lesser value than individuals receiving medical deferments (who are not). Does that constitute the devaluing of religion? Or is it simply the state’s recognition that religious exemptions and medical exemptions are sufficiently different (in terms of proof of validity and necessity) for constitutional and public policy purposes that they do not need to be treated the same way — even if that seems inconsistent with MFN analysis.

In our next installment, we continue to try to locate an MFN approach in the larger constitutional context to permit careful analysis.


April 26, 2021

Analyzing the Recent Sixth Circuit’s Extension of 'Academic Freedom' Protection to a College Teacher Who Refused to Respect Student Gender-Pronoun Preferences

[Cross-posted from Justia]

By Vikram David Amar and Alan E. Brownstein

A few weeks back, in Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit issued a broad First Amendment ruling in the area of so-called “academic freedom” enjoyed by university teachers. The case involves a philosophy professor (Nicholas Meriwether) who was punished by the public university he works for (Shawnee State University in Ohio, or University) for failing to comply with a University policy requiring teachers to address students by the students’ preferred pronouns. More specifically, Meriwether, a devout Christian who had a practice of using formal titles (Mr. or Ms.) in class when leading Socratic discussions to “foster[] an atmosphere of seriousness and mutual respect,” objected to having to use “feminine titles and pronouns” in addressing and referring to a student (described in the opinion merely as “Doe”) whom Meriwether described as someone “‘no one . . . would have assumed . . . was female’” based on . . . outward appearances. . .”

In response to complaints by the student, the University, after various back-and-forths with Meriwether, formally reprimanded him for failure to comply with the salutation policy, and warned that future violations would bring “further corrective actions” that could include pay reductions and termination. En route to the written reprimand, the University rejected at least two resolutions Meriwether proposed: (1) that Meriwether refer to Doe simply by her last name (even though, presumably, Meriwether would continue to use “Mr.” and “Ms.” in conversing with all other students); and (2) that Meriwether comply with the school’s policy and use students’ preferred pronouns but add a disclaimer in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.”

After a faculty union grievance process (the faculty at Shawnee State apparently is unionized) did not bring him satisfaction, Meriwether filed suit in federal court bring claims under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the University.

The federal district court dismissed all of Meriwether’s federal claims and declined to exercise jurisdiction over the supplemental state-law claims. The Sixth Circuit reversed as to the First Amendment causes of action, holding that Meriwether had stated a valid claim under both the Free Speech and Free Exercise Clauses of the First Amendment. In resolving the Free Speech issue (the only one we have space to address in this column), the Sixth Circuit panel held that although Meriwether is a public employee, the framework the Supreme Court has erected to govern, as a general matter, free-speech claims by government employees, spelled out 15 years ago in Garcetti v. Ceballos, does not apply because the Court in Garcetti explicitly declined to decide whether its framework should be used for “speech related to scholarship or teaching.”

Instead, said the Sixth Circuit, older cases from the 1950s and 1960s, involving the imposition of McCarthy-era loyalty oaths on all public employees, including public educators, spoke grandly about the importance of preserving academic freedom for people who teach and write in American universities, and thus suggest that the Garcetti framework (under which the category of on-the-job speech by public employees, in which Meriwether’s teaching would fall, would ordinarily receive little First Amendment protection) ought not be used in this setting.

Instead, the court applied the pre-Garcetti case of Pickering v. Board of Education, under which even on-the-job speech by public employees is protected if it involves a matter of public concern, unless the speech would impair a sufficiently strong interest the public employer has in the operation of the public entity in question. In ruling for Meriwether, the court, in grand fashion, observed:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

In our view, this was an unfortunate ruling in two important respects: it may have reached the wrong outcome on the facts, and in doing so it made some unnecessary and arguably questionable law on a big decision — the extent to which Garcetti should or should not apply to the public higher education setting.

As to the first question (the correctness of the ruling on its facts), we believe the Sixth Circuit erred for several reasons. For starters, even under the Pickering balancing test the court purported to apply (which protects public employee speech more than does the Garcetti framework), the University should have prevailed. The Sixth Circuit rejected as insufficient the University’s argument that its policy helped it steer clear of a hostile learning environment that might itself violate federal law.

But whether or not respecting students’ preferred pronouns is itself required by federal anti-discrimination law, isn’t it obvious that a university has a strong interest in promoting a sense of equal treatment and dignity among its students so that the learning environment in the classroom liberates students to focus on the content at hand without having to simultaneously process difficult feelings of exclusion or disrespect? And if that interest is important, one can see how Professor Meriwether’s proposed “compromises”—of using the last name only for Ms. Doe but using “Mr. and Ms.” for everyone else (thus singling Ms. Doe out for different treatment in a way the whole class sees and hears), or of noting his objection to the university’s pronoun-use policy in the syllabus that students like Ms. Doe must look at every class day of the semester —do not address the problem.

Indeed, if the Sixth Circuit were correct, would a faculty member have a First Amendment right to refer to women students by their first names and men by using “Mr. [last name]”? Or calling Blacks by their first name but Whites by “Mr. or Ms [last name]”? Certainly providing equal salutation treatment without regard to race or gender identification no doubt constitutes an important pedagogical interest as to which universities are entitled to significant deference. (It might be a more difficult question if the University had punished Meriwether for his private social media posts in which he railed against the policy’s unwisdom, since that would be one step removed from the classroom learning environment itself.)

Moreover, it is far from clear that a salutation—the way that students are addressed or called on in class or elsewhere — itself constitutes the kind of distinctive academic-speech activity that may ever justify significant First Amendment protection at all when undertaken by a public employee, regardless of the applicable doctrinal framework. Certainly and importantly, the Sixth Circuit never explained what is distinctive about salutations at a university that implicates the development of new knowledge or intellectual debates. Salutations are generic and are utilized throughout public institutions, including K-12 public schools, courtrooms, and the myriad situations where public employees address their clients or the general public. In all these circumstances, government would have substantial discretion in regulating the scope and form of salutations, without regard to an employee’s conscientious reluctance to abide by the state’s requirements. Special constitutional protection for academics engaged in activities that are functionally indistinguishable from the conduct of all other public employees and which bear no relationship to the reasons why academic freedom and freedom of speech at public universities might merit unique free speech treatment requires more of an explanation and defense than the court’s opinion provided.

Another way to put the point is this: Meriwether’s objection to following the school’s salutation policy was based on its conflict with his personal politics, not a conflict with the content or viewpoint of the class he was trying to teach. Indeed, if he were trying to make a pedagogical point about philosophy (his field) by using the way he addressed students as an example or illustration of a particular philosophical viewpoint, important questions would be raised about whether it is appropriate to enlist students as props, or unwilling performance artists, for professorial demonstrations. (Certainly in med school, for example, a professor could be prohibited from incorporating his unwilling students as subjects of experiments he were trying to demonstrate to the class.)

Pulling back the lens, as a general matter it may not make sense to construe salutations to be pure, content-based speech rather than essentially conduct-infused interactions in which speech plays the same relevant but non-substantive role that “speech acts” do in so many social interactions. When a teacher takes attendance to determine which students are present in the classroom, that seems more like a mechanical exercise than the expression of substantive content germane to the course curriculum. Similarly, when a teacher calls on students who raise their hand to speak, this avoids the conundrum of too many students trying to speak at the same time, but this practice itself contributes little if anything to the substantive subject matter of the course.

We recognize that there is an expressive dimension to salutations, but that is hardly dispositive. The question is whether the salutation is in essence a form of interaction that allows decisionmakers to identify and distinguish one person from another (a rather mechanical goal) rather than convey a substantive, much less viewpoint-based, message. Putting Garcetti aside, when the DMV finally calls your name to come forward to renew your driver’s license, would we remotely think the salutation there is protected speech for First Amendment purposes?

Finally and relatedly — and this may be among the most difficult question raised by this case and not addressed by the Sixth Circuit — how do we differentiate speech from identity discrimination for constitutional purposes? As suggested above, if a professor calls on White male students by addressing them as “Mr.” followed by their last names and calls on Black men and all female students using only their first names, the university would be permitted to punish that practice. One could argue that the university’s rules do impinge upon the professor’s freedom of speech and academic freedom liberties but that this infringement is justified by the public university’s strong state interest in prohibiting race and gender discrimination. (As noted above, if this is the right way to analyze the problem under a Pickering balancing framework, the Sixth Circuit gave no reason why the university’s interest shouldn’t prevail in the present case as well.)

But there is an alternative way to understand this conflict, that needn’t even require resort to compelling university interests. It is often the case that distinctions drawn between protected classes, even if expressive in nature, are construed to be discriminatory conduct that does not implicate free speech guarantees at all. For example, Title VII prohibits employment discrimination on the basis of religion. It does not prohibit employment discrimination based on secular belief systems. From a speech perspective, this statutory scheme constitutes viewpoint discrimination. The Court has repeatedly held, after all, that religion is a viewpoint of speech. But no one argues that Title VII abridges freedom of speech in this way. For the purposes of this civil rights statute, religion is understood to constitute an identity (protected against discrimination) not a subject or viewpoint of speech.

The same analysis could apply to the terms used to address a student. To the extent that ignoring students’ professed genders when calling on them in defiance of university regulations is construed to be a form of identity discrimination, that determination could displace free speech review of the university’s requirements — just as prohibiting discrimination against students on the basis of their religion when calling on them could be understood as legitimate enforcement of civil rights principles rather than an abridgment of the professor’s freedom of speech.

For these reasons, we think the court should have ruled for the University in any event. And if it had seen things this way, it would have had no occasion to address the big and vexing question whether the government-protective Garcetti framework applies in the education setting. There are certainly arguments cutting both ways on this. In Garcetti, the Court ruled that as long as “public employees [are] mak[ing] statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” even if the matters on which they are speaking are of public concern.

To be sure, applying Garcetti to all academic settings would have pronounced effects in that no public educators would be protected by First Amendment academic freedom with regard to on-the-job speech. And deciding what is on-the-job speech is not always easy. The scope of what constitutes employee, as opposed to citizen, speech can be unclear. With regard to K–12 instructors, perhaps all of a teacher’s statements during class can be viewed as part of the job, but what of conversations with students out of class, during lunch period, or before the school day formally begins? More problematically, how do we determine the job parameters of university professors who are often expected — as part of the scholarship and service components of their job — to speak to government, the press, professional associations, and other audiences, and to publish articles and books for diverse dissemination?

Yet if Garcetti doesn’t apply, where does special First Amendment protection for public professors come from? Just as the Press Clause of the First Amendment has never been construed to give the institutional media special speech protections (and that is a good thing since the very idea of the institutional media has broken down due to the internet), so too it might be problematic to try to define and confer special protection on “professors.” (What about independent scholars at think tanks, and conspiracy theorists who purport to do scholarly research?)

The Sixth Circuit leaned a lot on cases from public educational institutions in which the Court rejected anti-subversive laws from two generations ago. But these cases should not be overread. The Government in these cases lost (and should have lost) because it failed to make any specific showings of disruption to government operations that the laws were addressing; instead, it was arguing that all civil service should be free of anyone who holds dangerous beliefs — not that a particular person’s belief, because of his or her particular job, was in fact or in all predictive likelihood going to interfere with government operations. Even the Garcetti framework and the leeway it affords government to regulate speech qua employee does not necessarily permit the government to use its employer status to “silence discourse, not because it [has any effect on] public functions but simply because superiors [in the government department or office] disagree with the content of employees’ speech” — precisely what government was trying to do during the early Cold War. So with or without application of Garcetti, those cases would have come out the way they did, and thus they don’t really offer much clear support for an academic freedom exception to generic First Amendment doctrine.

Finally, we note another way in which the federal courts in this case perhaps needlessly waded into this thicket. The district court declined to address Meriwether’s claims under the Ohio constitution or his contract with the University. We recognize that federal courts may not feel they are the best institutions to forge new state-law paths. But federal courts can make use of devices like certification of questions of law to state supreme courts. And in many respects these non-First-Amendment sources of law — especially state-law definitions of tenure and the like — may be better and more durable fonts of academic freedom protections than First Amendment doctrine. If public universities want to recruit and retain top-flight academics, they will likely have to promise certain expressive leeway (something implicit in the Sixth Circuit’s reference to the tradition of intellectual diversity and freedom in American higher education) and should be held to their promises. But if other public educational institutions choose not to make such promises, it is not clear that federal courts should be fashioning First Amendment law to force them to so do. Finally, judges need remember that rules empowering faculty members against administration rules can cut both ways. If more progressive administrations can’t rein in more conservative faculty practices, neither can conservative legislatures and boards of governors rein in more progressive professors.

September 20, 2020

Constitutional basic values and the religion clauses

[Cross-posted from Canopy Forum]

By Alan Brownstein

The meaning of the religion clauses in judicial opinions has changed dramatically over the past 150 years. Doctrine has shifted, sometimes precipitously. The case law has been convoluted and unpredictable. The Free Exercise Clause, for example, was initially interpreted to protect religious belief, but not religious practice.  Many decades later, the U.S. Supreme Court shifted direction and held that any law that substantially burdened religious practice would receive rigorous judicial review. In theory, the Court appeared to reject the minimal protection provided by the early case law and substituted maximum protection in its place. But that theory was rarely reflected in judicial decisions. Time and again religious liberty claims were rejected because the Court found some rationale for declining to apply strict scrutiny review.

Less than 30 years later, free exercise doctrine shifted yet again. In 1990, in Employment Division v. Smith, the Court held that only laws that targeted religion or a specific faith would receive close judicial scrutiny. All other formally neutral and general laws, no matter how seriously they interfered with religious practice, would be upheld under very deferential review. 

Establishment Clause doctrine has been similarly fluid and equally convoluted. Consider just one area of dispute, whether religious institutions, such as religious schools, should be equally eligible to receive state aid provided to nonreligious institutions, such as public schools or secular, private schools. For many years the Establishment Clause was interpreted to sharply restrict such subsidies. Although the case law was often muddled, funding religious institutions was usually recognized to be problematic and frequently struck down. Today, under recent Supreme Court decisions in Trinity Lutheran Church v. Comer and Espinoza v. Montana, not only is the state funding of religious institutions permissible, it is unconstitutional for a state to refuse to provide subsidies to religious institutions that are available to their secular counterparts. 

Notwithstanding  these continuing shifts in interpretation, the Court, often, but not always, managed to advance religious liberty and equality in our country. Frequently, however, it failed to connect key values and basic principles to the holdings of particular cases. The resulting case law seemed incoherent and difficult to justify.  

The Supreme Court today appears to be on the verge of reinterpreting the religion clauses once again. In doing so, it may create more consistent doctrine. The risk, however, is that this doctrinal coherence will come at the cost of the Court ignoring basic principles and values that need to be taken into account to protect religious liberty and equality in a religiously open and pluralistic society.  Going back to basics may not resolve all or even many disagreements about the meaning of the religion clauses.1 Church-state disputes are often complex and difficult to resolve. But at least it may provide us a better understanding of what is at stake and how much we have to lose if the Court fails to connect its decision-making to the basic values in play in religion clause decisions.

Constitutional Law and Democratic Self- Governance

The foundational issue underlying all constitutional questions is the relationship between constitutional law and democratic self-government. Constitutional law displaces political decision-making.  Thus, a basic question about the meaning of the religion clauses is whether there are persuasive reasons for assigning the resolution of church-state disputes to constitutional adjudication rather than political deliberation. Advocates of rigorous and expansive interpretations of the religion clauses must explain why the conventional default process of political decision-making by popular majorities should be superseded  by  judicial decisions when religion is at issue.

At a high level of generality, one answer to this question is that the political branches of government often do a bad job when dealing with religion. The state simply cannot be trusted to make  decisions involving religion. This is a power that will too often be abused. Minority faiths, in particular, will be vulnerable to insensitivity to their interests at best and far too often will be victimized by discrimination and oppression. The immense power and resources of government should not be used to influence religious choice, by regulation or proselytizing. Americans of different faiths and those who hold secular rather than religious beliefs should be treated with equal respect by their government. We don’t trust  political majorities and the branches of government they control to do that.2

Core Religion Clause Values

A corollary to this lack of trust is the conviction that religion is an inalienable interest in the most basic sense. It is inherently a matter of individual conviction and voluntary association, not state authority. This is not an area of decision-making that is vested in government or majorities. What constitutes religious truth on transcendent matters or spiritually meaningful modes of worship should not be debated in the halls of the legislature or determined at the ballot box. Government does not need the power to decide religious issues to do its job and religion does not need the government to thrive in a free society.

If we focus on specific values, we see that the religion clauses implicate three basic rights; personal liberty and institutional autonomy, group equality, and freedom of speech. Religious liberty and autonomy is essentially a dignitary interest. It is intrinsic to human dignity for individuals to be able to make personal choices that define their identity and form the foundation of much of their lives. Accepting and abiding by a religious faith is the kind of self-defining decision that belongs, as of right, to the individual, not to the state. his liberty interest also includes the decision to not adopt a religious faith. Accordingly, protecting the freedom to exercise religion cannot impose undue costs on those who do not adopt a religious faith.

Religious liberty also further instrumental goals. If religion can be kept sufficiently separate from government, it can operate as a monitor and moral check of government abuses of power. Many of the most important movements for social change in American history were based on religious ideas and promoted by religious associations.

Religious equality requires equality of treatment and equality of respect. The latter value, grounded in an equal protection perspective, is directed at status as well as material discrimination. There is no state hierarchy of faiths according to which the government promotes or proselytizes in favor of certain religious communities and disparages or disfavors others.

Concern for freedom of speech precludes government from distorting the marketplace of ideas through the exercise of regulatory power in favor of certain viewpoints and against others. Many aspects of religious exercise are expressive in nature: proselytizing, sermons, songs and hymns, books and pamphlets, and prayer. Religion is a major voice in our society. Protecting expressive religious exercise, but not the expressive activities of secular individuals and institutions, or vice versa, raises free speech concerns. 

How do these various independent but overlapping values relate to contemporary doctrinal disputes about the meaning of the Free Exercise Clause and the Establishment Clause? In this brief essay, I cannot come close to discussing all of the church-state issues being debated and litigated today. I hope, however,  to demonstrate the importance of connecting basic values to the development of doctrine by examining three categories of cases.

Regulations That Burden Religious Exercise

Obviously, laws directed at the suppression of a particular faith conflict with the most basic principles of religious liberty and equality and are presumptively unconstitutional, a clear violation of the Free Exercise Clause. There are no legitimate purposes served by singling out religious practice or a particular faith for discriminatory regulatory treatment. Thankfully, state action of this kind is relatively rare in the United States today, in part because it would immediately be challenged and in most cases struck down.  

A much more complex question involves neutral laws of general applicability. These laws incidentally require religious individuals to engage in activities that their religion prohibits or prohibit individuals from engaging in conduct that their religion requires. The effect of the law is deemed incidental because the regulation governs both religious practice and secular activity. It is not designed to burden religious exercise. 

These are the most common kinds of laws that are challenged on free exercise grounds. A law that prohibits the possession and use of peyote is a neutral law of general applicability which prevents Native American faiths from using this drug in their religious rituals. Similarly, civil rights laws that prohibit discrimination in places of public accommodation on the basis of sexual orientation have been challenged by wedding cake bakers and wedding photographers on the grounds that they are required to facilitate and celebrate same-sex weddings, making them complicit with conduct that their religion prohibits.

Clearly, these neutral laws of general applicability may conflict with religious liberty values. Imposing civil or criminal sanctions on religious practice, even incidentally, substantially burdens the ability of individuals to abide by the dictates of their faith. Religious groups may request, and the political branches of government have the discretion to grant, discretionary religious exemptions from these general laws in order to avoid burdening religious liberty.  If we accept the basic principle that government cannot be trusted on matters relating to religion, however, depending on the political system to provide adequate protection of religious liberty is unlikely to provide a fair or adequate response to these requests. Constitutional law is a necessary alternative for protecting religious liberty when the political branches of government fail to do so.

Courts recognize the impact of these neutral, general laws on religious liberty. The reason why they  have been reluctant to take on the responsibility of protecting religious exercise against such laws is because  of the perceived difficulty of adjudicating these cases. No constitutional right is absolute. Freedom of speech and association, the right to keep and bear arms, and freedom of religion are all subject to being overridden by sufficiently important or compelling state interests. Unlike laws designed to suppress religion, neutral laws of general applicability that incidentally burden religious practice typically further legitimate and sometimes extremely important state interests. When religious liberty and these governmental interests are in conflict, how exactly are courts to evaluate and balance the competing interests at issue in a particular dispute? The problem here is not so much about the basic values underlying the religion clauses. The primary concern is whether courts can engage in principled judicial decision-making in adjudicating these cases as opposed to engaging in the subjective and arbitrary balancing of interests, a task more appropriately assigned to the political branches of government than the courts.

The weighing and comparison of religious liberty and state interests in these cases can certainly be difficult. There are real risks that judges will be influenced by their own personal values in reaching their decisions. But these costs can be overstated. Courts engage in balancing in many areas of constitutional law. The risks created by their doing so typically do not require displacing judicial review and assigning fundamental rights disputes to the legislature for resolution.

Moreover, the difficulty courts experience in adjudicating  these cases to some degree is a self- inflicted wound. Religious belief and practice, like speech, is pervasive in our society. When the exercise of a right is so broad and extensive, it will necessarily conflict with state interests in myriad circumstances. To deal with these inevitable and varied disputes, courts must develop nuanced, multi-factor doctrine to inform judges as to the appropriate standard of review to apply in particular cases. The courts have created a sophisticated doctrinal framework to do this for free speech cases. In interpreting the Free Exercise Clause, however, they have resorted to a simplistic, inadequate framework that applies only one of two standards, either extremely rigorous review or highly deferential review. Until courts develop complex doctrinal guidelines for free exercise rights, as they have done for free speech rights, it is hardly surprising that they worry that the outcome of free exercise cases may be arbitrary and unpredictable.3

Putting concerns about courts exceeding the proper role of judges aside, basic values have a role to play in deciding some free exercise cases. Many religious practices provide little in the way of secular material benefit to the religious individuals obeying the dictates of their faith and impose no harm on third parties. Exemptions from laws to permit such religious exercise provide no special advantage to religious individuals.

Some religious convictions and practices, however, have substantial secular value entirely removed from their faith-based motivation, or they impose costs on third parties. Protecting the exercise of religion in these situations raises two basic value concerns. First, freeing individuals from costly regulatory burdens has the potential to influence religious choice by providing secular, material benefits to those who receive such exemptions. Second, and similarly, the exemption in question may shift a material burden from religious believers to third parties. From the perspective of the individuals who must now bear the shifted burden, they are being penalized because they do not adhere to the protected faith.

Two examples are sufficient to illustrate this concern. Individuals avoiding military service on religious grounds as conscientious objectors obviously receive an exemption of secular value. And equally obviously, someone else must serve in their place. Similarly, if less dramatically, if Sabbath observers are given precedence for a weekend day off over secular employees who want weekend days off to spend with their family, the accommodation of the religious individuals has secular value and imposes a cost on third parties. Recognizing that protecting religious liberty has these secular consequences does not determine how cases should be decided. It should influence their adjudication, however. 

Another example of a clash of basic values involves exemptions from regulations for religious institutions that are substantially, albeit not exclusively, expressive in nature. Religious schools would be one example. Houses of worship serve important expressive functions as well. If these religious institutions are exempt from costly regulations that secular expressive institutions must obey, religious liberty values conflict with free speech values. Here, religious institutional voices are relieved of burdens that limit competing secular voices. For example, religious schools, but not their secular counterparts, may be shielded from the federal Americans with Disabilities Act or from state and local zoning regulations. If avoiding distortions of the marketplace of ideas in favor or against religious expression is a basic value, then exempting only expressive religious institutions from costly burdens may further religious liberty values but at the price of sacrificing free speech values. Indeed, from a formal legal perspective this conflict could not be more stark. A long line of Supreme Court authority has characterized religion as a viewpoint of speech. Further, it is black letter law that viewpoint discriminatory laws must receive strict scrutiny, the most rigorous standard of review the courts apply. Surely, exempting secular expressive institutions from costly regulatory burdens that their religious counterparts had to obey would be challenged as viewpoint discrimination. Providing favorable treatment to expressive religious institutions but not expressive secular institutions should be equally problematic.

State Sponsored Religious Symbols and State Directed Prayer

The church-state issues in this category of cases involve two types of disputes. In one, the government is challenged for sponsoring, directing, or expressing prayers to, or on behalf, of the community.  In the other, the government funds, maintains, or otherwise sponsors physical displays communicating a religious message. 

The government expressing or directing prayer clashes sharply with numerous basic values. If the government asserts that it is offering a prayer on behalf of, essentially in the name of, the community, as it commonly does when an official or invited guest offers a prayer to begin a city council meeting or other public event, doing so conflicts directly with a basic principle. The government is not vested with the power to speak to G-d in the name of the people. Speaking personally, I choose the words I express to G-d in prayer. The government usurps my inalienable right to determine when and what I say in prayer by claiming the authority to pray as my representative. Similarly, when students are directed to recite a prayer in public school, the state in essence is asserting the authority to decide what children express as their own religious sentiments. Yet surely, the basic value of the inalienable right of religious liberty precludes substituting the religious instruction offered to children by their faith communities with state mandated prayer.

Also, state prayer obviously and blatantly is in conflict with the principle that government should not  directly influence religious belief or worship. By placing the imprimatur of state approval and support on specific religious messages and modes of worship, the state can hardly claim even the pretense of neutrality. State prayer always reflects religious favoritism. These prayers almost routinely express the beliefs of larger faiths and ignore the religious sentiments of religious minorities. Just as we do not trust government or the majority to protect the free exercise rights of minority faiths or those faiths out of step with secular orthodoxy, we cannot trust government or political majorities to protect the religious equality of minorities when the power and resources of the state are used to promote religious beliefs and identity. 

State prayer conflicts with the basic principle that people of all faiths are entitled to be treated with equal respect. Religious minorities are denied equal respect when the government acts as if they do not exist or are unworthy of recognition when it chooses prayers to express or promote. One of the consequences of such discrimination is status harms, a commonly recognized result of violations of equality values. Minorities are injured in their “hearts and minds” by decisions that demonstrate the state’s commitment to religious hierarchy through the favoring of faiths with the political power to command the state’s attention and the promotion of their beliefs. This harm is also described as treating religious minorities as outsiders, as individuals who are not fully recognized members of the community.

It is important to understand that no one is arguing that there is anything intrinsically alienating about exposure to the prayers of other faiths. Many of us attend religious life cycle events, such as a wedding or Bar Mitzvah, of friends and neighbors of different faiths and experience no lack of respect when we are asked to stand, for example, when prayers are offered during the ceremony. In these circumstances, we appreciate that we are outsiders, invited guests who respect the religious practice of our hosts. 

The crucial distinction, of course, is that we are not invited guests in the communities in which we live and work. We belong here as of right and expect to be treated by the government with the same recognition and respect as other members of the polity. The measure of equality in a diverse and pluralistic society is the understanding that the majority does not own the public life of the community —  to which minorities are only welcomed as invited guests, if they are welcomed at all.

State sponsored or directed prayer conflicts with religious liberty as well as religious equality values. This argument is grounded in the coercive nature of these events and the nature of that coercion varies depending on context. The most obvious and incontrovertible scenario is one in which individuals are subject to explicit state sanctions if they do not attend or join in government organized worship and prayer. These circumstances are relatively rare.

Much more pervasive are situations involving implied threats of sanction or the loss of benefits. Put simply, whenever a government official exercises considerable discretionary authority over the benefits to be received by private individuals or the burdens imposed on them, the relationship between the official and individual is intrinsically coercive in nature. If government officials invite people over whom they exercise authority to join them in prayer, the invitees will experience the officials’ request as coercive whether it is intended to be or not.

Numerous examples illustrate this kind of implied coercion. If a judge requests the attorneys and litigants appearing before her to join her in prayer before a trial begins, the directed prayer is coercive. Judges exercise far too much discretion in conducting trials for attorneys and litigants not to fear they risk alienating the person whose decisions control their destiny by rejecting such a request. Nor does the request to participate in prayer lose its coercive nature in a more political setting. Town residents  attempting to influence city council members about some issue of importance to their family or neighborhood will experience coercion if they are asked to stand and join in prayer before public comment to the council. Most contested matters before a city council involve considerable political discretion. Residents planning to petition their representatives during public comment will not want to alienate the very officials whose decision they are trying to influence by refusing a request to stand and join in an offered prayer. These directed prayers are intrinsically coercive even if residents accept the implicit risk of antagonizing the decision-makers they plan to address by refusing to participate in the religious exercise.4

Concerns about implicit coercion also provide one of the strongest foundations for striking down teacher or administrator directed prayer in public schools. State sponsored religious exercises are impermissible violations of the Establishment Clause in part because of the impressionability of young children. Coerced participation in religious exercise is equally invalid, however, whether the victim is likely to succumb to state pressure or has the fortitude to resist it. A stronger argument recognizes the very substantial discretionary power that school teachers and administrators can wield over their students. Students who challenge a teacher by refusing to stand and recite a prayer as they are directed to do may find themselves penalized in myriad ways because the scope of teacher discretion in grading, classroom discipline and other aspects of a student’s life is so broad. 

The least direct, but not inconsequential, form of coercion involves the unavoidable pressure to conform to beliefs and activities that the state promotes as deserving of public support. The Court in Engel v. Vitale, a case invalidating a state directed prayer to be recited by public school students as a violation of the Establishment Clause, made this point explicitly clear. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”5

State support of religious displays, such as a Ten Commandments monument, a Latin Cross, or a Nativity Scene, create many, but not all of,  of the same conflicts with basic values that render state prayer constitutionally problematic. Here, the state’s physical imprimatur of support for majoritarian religious messages is flatly inconsistent with the principle that the state should not be influencing religious belief or affiliation. Similarly, the state’s favoring of certain faiths but not others communicates a hierarchy of religious status  and a lack of respect for those whose beliefs are not deemed to be worthy of recognition. The same mistrust of political majorities that supports protecting religious liberty under the Free Exercise Clause supports protecting religious equality under the Establishment Clause.

True, there is no direct or implied coercion created by these passive displays. But the indirect coercion which the Court described in Engel v. Vitale remains a concern. Further, the duration and magnitude of religious displays and monuments may amplify the message of religious influence and favoritism much more than an isolated and situation specific state prayer.

Some religious displays acknowledge the religious diversity of America, avoid favoritism, and communicate the message that Americans of all faiths and those who hold no religious beliefs are worthy of equal respect. The Department of Veterans Affairs provides the families of eligible American military veterans who have died a headstone for the decedent and the choice of a belief symbol to be engraved on it. Currently, 74 symbols are available, representing myriad religious faiths and nonreligious beliefs as well.6 The message of this display system is clear. Americans who serve their country under arms hold a broad range of beliefs about religion. Each veteran is entitled to equal respect from the country he or she served. If we compare this tribute to religious diversity and equality to a war memorial exhibiting a single religious display such as a large Latin Cross, the dissonance between the two displays exemplifies the inconsistency of the later memorial with basic values of religious equality and neutrality.

State Funding of Religious Institutions Engaged in Programs of Secular Value

There are a range of church-state issues implicated by the state funding of religious institutions providing services of secular value, such as schools, hospitals, and various social welfare programs. Given space constraints, I will focus on two generic disputes. First, should the government subsidizing of these programs be sharply restricted by establishment clause doctrine as the Court frequently ruled in cases prior to the mid 1980’s? Second, should religious institutions be able to demand free exercise exemptions from conditions on government funds that limit the way these institutions operate government supported programs.

With regard to the first dispute, basic values can be asserted to support both sides of this issue. For example, families seeking to have their children receive a secular education in a religious environment argue that a denial of state support burdens their religious liberty. They pay substantial taxes for the secular education of their children and they lose the entire benefit of those payments if they send their children to religious schools that receive no support for the secular part of the curriculum these schools provide. Alternatively, the religious schools themselves may claim their religious liberty is burdened if they must isolate or eliminate the religious component of their programs in order to receive state funds.

Religious liberty values also support significant limits on state subsidies of religious institutions, however. Religious institutions may assert the right to engage in faith-based discrimination and deny access to publicly funded jobs or publicly funded benefits to individuals of different faiths or who are not religious. Prospective employees or applicants for benefits argue that their religious liberty is seriously burdened when they are excluded from jobs or benefits to which they would otherwise be eligible solely because they hold the “wrong” religious or nonreligious beliefs. Equally problematic for religious liberty purposes, religious institutions may require employees  in, and beneficiaries of, state funded programs to engage in organized prayer or other religious activities. 

There is also a structural religious liberty problem created by government subsidies. The distinctive instrumental justification for religious liberty is grounded in the independence of religion from government. It is this separation of church from state that allows religion to operate as a moral check on potential abuses of government power. If religious institutions receive substantial support from the state, they risk becoming dependent on government largess, a dependency which will undermine the authenticity and commitment of their critical voice to counter government wrongdoing.

In addition to dependency, government financial support often comes with conditions and strings attached to it. As the old adage recognizes. “He who pays the piper calls the tune.” What the government funds, the government will seek, not unreasonably, to control. These controls may impose serious constraints on the religious liberty of subsidy recipients. The government may, for example, prohibit discrimination on the basis of various characteristics including race, gender, and sexual orientation by institutions receiving state support. Some of these requirements may conflict with the tenets of various faiths.

These structural religious liberty concerns segue into the second religious liberty dispute: whether religious institutions should be able to demand free exercise exemptions from contract conditions and other regulatory requirements that limit the way they operate government funded programs. If the Constitution required rigorous review of conditions on government funds  provided to religious institutions, some of the concerns about religious liberty risks associated with government support would be reduced. Much would depend on how courts applied rigorous review to government conditions limiting the use of state funds by private entities which receive subsidies to further state purposes. For example, the government may assert a compelling state interest in enforcing anti-discrimination requirements in hiring employees or providing services to beneficiaries in government funded programs. Courts may conclude that while religious institutions merit protection from state interference with the use of their own resources, they cannot commandeer state resources intended to benefit the general public with discriminatory limitations required by their faith.

While protection against direct government control of subsidized programs will alleviate religious liberty concerns for religious institutions receiving state support, including institutions of minority faiths, it will, simultaneously, exacerbate the religious liberty interests of those individuals denied access to employment or benefits because of their beliefs. A job training program operated by a government agency or secular nongovernmental provider, for example, will not discriminate on the basis of religion, race, gender, and sexual orientation in its hiring decisions. The work force is integrated, including employees with all of these characteristics. The hiring practices of religious institutions permitted to impose faith-based restrictions on employees in state funded programs based on religion, gender, and sexual orientation, may result in starkly different consequences.

The burden on the religious liberty of employees denied jobs because of their beliefs is apparent. To the extent that we recognize as a basic value that there must be some limitations on the costs and harms that religious liberty exemptions can impose on third parties, the loss of government funded job opportunities because of a person’s gender or sexual orientation would implicate this concern as well. 

Religious equality principles are also relevant to disputes about government funding of religious institutions. Under current establishment clause doctrine, state funding can only be provided under formally neutral, secular criteria. It would be unconstitutional to offer subsidies to Christian, but not Muslim institutions. While this mandate resonates with equality values, it is far from sufficient to adequately protect minorities against discrimination. Any first year law student could draft formally neutral eligibility criteria that will predictably divert funds to larger faiths and away from minority institutions. Consider a private school funding scheme that restricts subsidies to only those schools with an enrollment of over 100 students that have been in existence for over 5 years. It is formally neutral, but minority faiths are far less likely to be able to satisfy this requirement than larger faith communities.

This brief essay is intended to be illustrative of the importance of evaluating religion clause doctrine through the prism of first principles and basic values. It certainly does not come close to being comprehensive. It does suggest that a great deal is at stake when the Court interprets the religion clauses to resolve church-state disputes. There is much to be lost if the Court’s decisions ignore the core foundations of the religion clauses and the liberty, equality, and speech values that should be considered in deciding Free Exercise and Establishment Clause cases.

July 10, 2020

Down with Confederate monuments, 'up with the stars'

[Cross-posted from The Hill]

By Alan E. Brownstein

During the national debate about American symbols and monuments, Donald Trump makes two claims: He argues it is an affront to our heritage to take down Confederate monuments and rename military bases honoring Confederate generals, and he also demands that everyone — including athletes and others protesting racial injustice in our society — must act in ways that are properly respectful of our flag.

The first argument makes little sense. The second is starkly inconsistent with the first.

Monuments memorialize individuals and events that deserve to be honored. They do more than describe the past. They assign value to it. To put it simply, all individuals who played a role in American history, every event of any magnitude, is part of American history. But it is absurd to suggest that all such aspects of our heritage deserve to be honored with monuments.

During the American Revolution, 15 percent to 20 percent of the colonists were loyalists who maintained their allegiance to the British Crown. They supported British forces. Thousands took up arms against the patriots fighting for our independence. These loyalists are part of our heritage. Should we memorialize and erect monuments to them?

During the early 1900s, millions of Americans were members of the Ku Klux Klan. They are part of our heritage too. Should we erect monuments to Klan leaders as well?

Playing a part in American history, standing alone, doesn’t justify erecting monuments to people or naming military bases after them. To deserve this kind of recognition, historical figures have to have done and stood for things worthy of our admiration over time. What did the leaders and generals fighting for the Confederacy do? What did they stand for?

First, they fought to dehumanize and enslave an entire race of people. That cause deserves our contempt. It should receive no badge of honor.

Second, they took up arms against our flag. If Donald Trump demands respect for and allegiance to the American flag, why in the world does he insist on protecting monuments to, and honors for, those who disgraced it?

Trump’s apparent commitment to the flag is so great that he wants flag burning criminalized. The Supreme Court held in Texas v. Johnson in 1986 that it violates the First Amendment to punish protestors who burn the American flag as symbolic speech. This was a 5-4 decision emotionally argued by the justices on both sides.

Then-Chief Justice William Rehnquist wrote a particularly passionate dissent. In it, he quoted in its entirety a poem titled “Barbara Frietchie” by John Greenleaf Whittier. Supreme Court justices do not typically recite poetry, much less entire poems, in their opinions. But Texas v. Johnson was a special case because the flag is a special symbol. The poem recounts an allegedly true story of how during the Civil War a Confederate army invaded the northern town of Frederick, Md. Seeing the American flag flying from the attic of Barbara Frietchie’s home, the rebel troops stopped and fired on it, and “rent the banner with seam and gash.” The elderly woman, Barbara Frietchie, took up the flag before it could fall and dared the soldiers below to shoot her, but to spare the flag.

Most law school case books do not include this poem when they publish the highly edited text of Texas v. Johnson. But for the many years I taught the First Amendment as a constitutional law professor, I always read the entire poem to my classes. I wanted my students to know not only the doctrine, but also the passion stirred by this case, and by the American flag.

I doubt Donald Trump has read either the Texas v. Johnson case or Whittier’s poem. If he did, he might think for a moment about who it was that fired on the American flag and “rent the banner with seam and gash.” It wasn’t Black athletes kneeling during the national anthem, calling for our country to live up to the ideals represented by our flag. It was the Confederates whom Trump wants to honor with monuments and the naming of military bases.

And this is the key point: If you demand respect for the flag, you cannot at the same time honor the Confederate leaders and generals who turned traitor against it. The flag was on only one side in the Civil War. It flew in the ranks of the Union troops under assault by Confederate rebels.

Loyal Americans rallied to the colors. In a popular song of the time, they marched to war singing:

Yes, We’ll rally round the flag, boys, rally once again,
Shouting the battle cry of freedom.
We will rally from the hillside, gather from the plain.
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We are springing to the call of our brothers gone before
Shouting the battle cry of freedom
And we'll fill the vacant ranks with a million free men more
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We will welcome to our numbers, the loyal, true and brave,
Shouting the battle cry of freedom,
And although they may be poor, not a man shall be a slave,
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

For those who respect both our flag and our history, the issue of taking down monuments to Confederate leaders and generals and renaming military bases honoring them should be an easy one.

As Americans we should rally round the flag, shouting the battle cry of freedom.

Down with the traitors and up with the stars.

That means taking down the monuments and renaming the bases.

Down with the traitors and up with the stars.

June 10, 2019

Supreme Court rulings come at a cost in public confidence

[Cross-posted from The Hill]


Costs cumulate. Not only insofar as their separate consequences add up, but also in the sense that often the cumulative effect of independent actions is greater than their sum total might suggest.

This is true of regulation; indeed, the classic conservative critique of big government holds that while each one of several regulations may seem justified when examined under a cost-benefit analysis in isolation, government often substantially underestimates the total burden the regulatory state imposes on individuals and businesses. The concern here is not simply that individual compliance costs add up — although they surely do. It is that, cumulatively, too much regulation is stifling and drains energy and initiative from the private sector.

But what is true for legislative regulation is also true for constitutional adjudication. This is a basic issue the Supreme Court needs to consider as it decides important cases this term that seek federal judicial intervention to police the excessively partisan gerrymandering of congressional district lines by elected officials. In short, the Justices need to focus not only on these cases in isolation, but on the cumulative consequences of the court’s decisions in recent years on public confidence in American democracy.

In 2010 in Citizens United v. Federal Election Commission, the court ruled that government was powerless to prohibit corporations and unions from making independent expenditures to endorse or oppose candidates running for electoral office. According to the court, these expenditures, however massive they might be, and however substantial the access and influence such donors received in return, would not “cause the electorate to lose confidence in our democracy.” That prediction seems dubious in hindsight. It seems clear that these now-permissible expenditures, combined with other factors, have convinced many voters that the electoral game is rigged in favor of wealthy and powerful interests in our society.

But Citizens United is just one debit in the public-confidence-in-the-electoral-process side of the ledger. In 2013, in Shelby County v. Holder, the court essentially eliminated the pre-clearance element of the Voting Rights Act of 1965, a provision that required certain states and local governments, because of their history of race discrimination, to seek clearance from the federal government before they made changes to their electoral practices. Because of that ruling, numerous laws and executive decisions that would have been blocked by the pre-clearance requirement have been implemented and have made voting more difficult. Again, the impact of the decision is to further erode public trust in the political system.  

The court’s willingness to uphold Voter ID laws in recent years is yet another withdrawal from the public confidence bank. 

The merits of each of these decisions can be debated in isolation. But the aggregate, compounding impact of these cases, and the private and public conduct they permit, is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.

Foundational principles are at stake here. The legitimacy of government depends on the consent of the governed. For many Americans, purported consent based on what appears to be an unfair, undemocratic electoral process conveys no such legitimacy.

It is not difficult to appreciate the court’s reluctance to wade into the districting thicket, and to try to develop judicially manageable ground rules for reviewing the drawing of district lines. But if the court doesn’t try — if it continues to refuse to adjudicate challenges to gerrymandered districts — and allows grossly politically manipulated district lines to stand, no matter how egregiously unfair and undemocratic they may be, it risks reaching the tipping point where no national governmental institution, including the court itself, will be able to command the respect of the polity.

Chief Justice Roberts once famously analogized the role of the court to that of a baseball umpire calling balls and strikes. In all sports, referees and umpires — in addition to policing garden-variety violations of the rules — must be willing to call out conduct that compromises the essential nature and spirit of the game. Permitting egregious gerrymandering in a democracy is like allowing the home team to throw bean balls at opposing players. If umpires allow home teams to engage in foul play without sanction, we should not be surprised when neither the umpire’s credibility nor the outcome of games commands respect.

January 27, 2018

The Constitutional Issues Driving the Events in the Hit Movie, The Post

By Vikram David Amar and Alan E. Brownstein


[Cross-posted from Verdict Justia]


The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.


Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.


In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.


Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.


The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.


The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.


The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.

Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.


To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.

Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.


The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.


But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.


What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.


The So-Called Collateral Bar Rule

The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.


Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.


According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”


Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.

Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.


But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.


Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?


Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.


Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.