Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 10

By Miller Moreau
Professor Wallace - 2020

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Free Speech Analysis 1. Restriction Imposed by Government?

a. If no government action, 1A does not apply

2. Speech/Expressive Conduct OR Pure Conduct? (See Spence Test)

a. 1A generally does not apply to restrictions on pure conduct

• Spence Test (when conduct is speech (expressive))
  1. Is there intent to convey a particular message
     • Subjective
  2. and the likelihood the message would be understood by those who viewed it
     • Objective

3. Speech protected by First Amendment?

a. Not protected? → restriction permissible,

1. unless based on viewpoint—RAV

4. Special Rules Apply? (If so, Use Those Rules)

a. Government acting as non-sovereign

1. Ie- property owner, educator, employer, librarian, arts patron, military commander, or prison warden—e.g., public forum doctrine, student speech, etc. (generally more leeway to regulate)

b. Compelled speech

c. Expressive association

5. Restriction Content Based or Content Neutral?

a. Content Neutral → Intermediate Scrutiny

1. Expressive Conduct : O’Brien test
   • O’Brien Test (what to do w/ regulations that restrict expressive conduct)
     1. Does law further an important or substantial government interest?
        • (intermediate scrutiny)
     2. Is government’s interest unrelated to the suppression of free speech?
        • Is government regulating conduct for non-speech reasons or speech purposes?
          • If it was for speech purposes → strict scrutiny would apply
          • Conduct purposes → intermediate (when this test applies)
        • Gov. int. Strong here b/c have to keep up with draft information etc. (legit non-speech purpose, no computers back then)
          • But Wallace- looks at legislative timing, conveniently placed right during Vietnam protests
            • “Gov. can always make a non-speech purpose”
     3. Is law (means) substantially related to furtherance of that interest (end)?
        • Can’t be too over or under-inclusive
2. TPM Restriction: Use TPM test (Clark)
   1. Must be content neutral!
      1. Same as saying must be aimed at conduct component under O’brien
   2. TPM Analysis:
      1. Law must be content-neutral
         • Same as saying must be aimed at “conduct” component from O’Brien
         • If not content neutral → Strict Scrutiny applies
         • Clark, was content-neutral b/c applied no matter why people were wanting to sleep in the park → universally applied
           • Time: at night
           • Place: at the park
           • Manner: Sleeping
      2. Narrowly tailored to further a substantial government interest
      3. And leaves open ample alternative channels for communication

b. Content Based → Strict Scrutiny unless:

1. Content based but aimed at secondary effects: Renton test
2. Content based commercial speech: Central Hudson test

…

Freedom of Religion Free Exercise Clause Analysis

1. Does the law significantly burden a sincerely-held religious belief?

1. Looking for dilemma of people having to choose between religion and obeying the government
   1. Ie- red lights on way to church probably not a substantial burden
2. Courts can inquire as to whether or not the religion is sincerely held by the claimant
   1. BUT not whether the religion is legit

2. Is the law burdening religion generally-applicable and neutral or does it single out religion for discriminatory treatment?

1. First think- facially neutral w/ hidden purpose to suppress religion?
   1. Look for selective enforcement, bad motive
      1. Ie- Yick Wo
   2. Church of the Lukumi Babalu Aye v. City of Hialeah: held that ordinance prohibiting animal sacrifice was neither “neutral” nor “generally applicable”
   3. Gonzales v. O Centro (2006): prohibited federal government from prosecuting small religious sect for use of hallucinogenic sacramental tea
      1. (singled out these people)
2. Generally Applicable and Neutral → Generally no Free Exercise claim
   1. Smith Indian man fired from work, doesn’t get unemployment b/c was smoking peyote → neutral generally applicable unemployment law
      1. Court: No Free Exercise claim if burden on religion is from generally applicable, religion-neutral law
   2. Statutory Exceptions:
      1. Religious Freedom Restoration Act: Statute that restores strict scrutiny test for federal laws. Required the government to justify a burden on religious exercise by showing that imposition of the burden “on that person” was the “least restrictive means” of furthering a “compelling governmental interest”
      2. Religious Land Use and Institutionalized Persons Act (RLUIPA): applies RFRA standard to state and local laws regarding land use and prisoners
   3. Constitutional Exceptions:
      1. Ministerial Exception to Civil Right laws: Government may not interfere with church’s ability to select its own ministers
         1. Hosanna-Tabor church wouldn’t allow women to be pastors. Woman was terminated from her position in church for disability, sues under Discrimination Act claiming the exemption for ministers is unconstitutional
            1. Court unanimously upholds ministerial exception
      2. Hybrid Cases: Exercise + Another Fundamental Right, examples:
         1. Parental Control
            1. Pierce, Yoder
         2. Religious Speech
         3. Association
      3. Religious Belief: Absolute Protection
         1. Meaningless though
            1. Ie- dad says to sit down and i sit down but inside my head i am standing up
      4. System of Secular Exceptions: When government employees exercise discretion about granting exemptions, religious groups should have access to those exceptions, or they could be discriminated against
         1. Ie- unemployment compensation cases
         2. Idk wtf this means
3. Discriminatory Treatment APPLY STRICT SCRUTINY!
   1. Q: Does government have a compelling interest?
      1. Eliminating race discrimination
         1. Bob Jones prohibition on interracial dating not allowed
      2. Conducting internal government affairs
         1. Lying government logging on its own land near Native American burial ground → fine
      3. Functioning of social security system
         1. Lee Amish had to pay social security
   2. Q: Least restrictive means to achieve that purpose?
      1. Exception: Exclusion of religion from government benefit programs (ie- Davey gov. Scholarship couldn’t be given to one pursuing a degree in theology but still let him go to Christian school etc.)
         1. But- might not be good law anymore. Trinity Lutheran v. Comer (2017): State cannot deny public funds to churches or other religious organizations if those funds are part of public benefit program that is available to wide range of secular organizations (=religious discrimination)
      2. Church of the Lukumi Babalu Aye v. City of Hialeah : Court held that ordinance prohibiting animal sacrifice, w/ exception for slaughterhouse, was neither “neutral” nor “generally applicable”
         1. Singled out religion
      3. Look for government hostility towards religion
         1. Ie- Masterpiece Cakeshop, commissioners statements showed that enforcement was towards the baker’s religious faith, regardless of if the law was generally applicable (basically was animus doctrine)

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