Laws of general applicability in Free Exercise Clause and Free Sp eech Clause context

[Volokh, Eugene]

         I agree that laws of general applicability do sometimes violate the
Free Speech Clause.  But I'm not sure that it follows from this that Smith
is necessarily mistaken, because I don't think the Free Speech Clause and
the Free Exercise Clause are necessarily congruent in this respect.

        Let me suggest two situations in which I think most would agree the
two Clauses must be treated differently; obviously, this won't prove that
Smith is right, but I hope it will rebut at least one of the arguments
against it.

        First, consider the situation where a generally applicable law
unconstitutionally restricts speech based on its communicative impact:  For
instance, Larry Flynt someone inflicts emotional distress on Jerry Falwell
by publishing a nasty cartoon about him, or Eugene Debs interferes with
draft registration by giving a speech that praises draft resisters.  The
courts would conclude that such speech is constitutionally protected from
the generally applicable law.  But say that Larry Flynt feels a religious
obligation to inflict emotional distress on Jerry Falwell by, say, spitting
on him or using loudspeakers outside his home, or Eugene Debs feels a
religious obligation to interfere with draft registration by blockading
draft offices.  Even supporters of Sherbert / Yoder would agree, I think,
that these religious exemption claims should lose.

        Second, consider the much harder situation where a generally
applicable law unconstitutionally restricts speech based on its
noncommunicative impact.  There are fewer such examples, I think, but it
seems to me the strongest one is if Title VII is used to bar a movie or
theater director from intentionally consider only black actors to play
Othello and only white actresses to play Desdemona.  (Recall that race is
conspicuously omitted from Title VII's BFOQ provisions, so Title VII on its
face does bar such behavior.)  I would assume that here the First Amendment
does give the director a constitutional defense.  But even supporters of
Sherbert / Yoder would agree, I think, that the Free Exercise Clause does
*not* generally give a similar defense to employers (other than churches)
who believe they have a religious obligation to discriminate based on race.

        So this suggests, it seems to me, that the Free Exercise Clause /
Free Speech Clause analogy doesn't necessarily work.  I do think, as earlier
posts have suggested, that the analogy is helpful when limited to the
special context of religious organizations selecting their clergy, deacons,
and the like, which I do think is analogous to expressive organizations
selecting their leaders and spokespeople.  But I don't think the analogy
extends to the general Free Exercise Clause claim that is based solely on
the perceived religious duty of the claimant.




> -----Original Message-----
> From: Larry Tribe [SMTP:larry at TRIBELAW.COM]
> Sent: Monday, June 12, 2000 9:28 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      RE: Reasoning of Jaycees case
>
> Without expressing a firm conclusion about Dale, I wanted to add a point
> to
> the one Marty Lederman makes here about the nature of New Jersey's
> interest.
> Not only is it the case that the state's interest in Dale in enforcing its
> anti-discrimination rules across the board bears little resemblance to the
> interest in Hurley in altering the message of the paraders (setting aside
> a
> possible level-of-generality problem), but it also seems to be the case
> that
> Dale involves the application of what Smith would call a neutral rule of
> general applicability with a merely incidental effect on first amendment
> expression. If Justice Scalia is right in his Barnes concurrence --
> discussing the fact that the O'Brien test has never been invoked to strike
> down the application of neutral rules about conduct simply because those
> rules happened to be applied to expressive behavior, cf. Clark v. CCNV,
> and
> urging that the test should never be invoked to that effect -- then,
> although Dale isn't exactly parallel to Arcara v. Cloud Books, where the
> event triggering the neutral rule was itself non-expressive and not even
> arguably protected, Dale certainly bears a family resemblance to Arcara
> (and
> Barnes) and would appear to be the speech analogue of the free exercise
> case, Smith. Of course, those who think Smith was wrongly decided and
> should
> be overruled may argue that, especially given precedents like O'Brien and
> indeed Roberts, the Court should feel free to apply some version of
> heightened First Amendment scrutiny to the Dale application of the New
> Jersey law. But there is the awkward fact that Smith has not in fact been
> overturned, either by the Court or by a congressional enactment upheld by
> the Court, see City of Boerne v. Flores. And, even if, as I believe,
> Boerne
> was wrong, I doubt that the distinction between a rule against drug use
> and
> a rule against discriminatory exclusion is capable of resolving the
> resulting tension -- a tension that I think should create a serious
> jurisprudential knot for the Justices to untie. -- Larry Tribe.
>
> -----Original Message-----
> From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
> Sent: Monday, June 12, 2000 7:45 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Reasoning of Jaycees case
>
>
> Brian Wildenthal writes:
>
> "govt plainly has a compelling interest (indeed, a duty) to eradicate
> state-action discrimination, and it has a compelling interest in
> eradicating
> discrimination in non-FA-protected private commercial conduct ('business
> activities,' broadly speaking).  But it has not even a *legitimate*
> interest
> (under the FA) in "eradicating" discriminatory attitudes, beliefs,
> expressions, or associations for the purpose of propagating same."
>
> I agree with Brian's premise.  And Brian, I too, am what you describe as a
> "certified Hurley enthusiast"!  Accordingly, *if* New Jersey's interest in
> applying its public accommodations law to BSA's treatment of Dale were
> simply
> to change BSA's expression, or to forcibly enlist BSA in the state's
> campaign
> to "eradicate discriminatory attitudes," I agree that strict scrutiny
> probably would (and should) apply, as it did in Hurley, and application of
> the law in this case would be invalid.  As the Court in Hurley explained,
> the
> Massachusetts law in that case was applied to expressive activity in a way
> that "its apparent *object* [was] simply to require speakers to modify the
> content of their expression to whatever extent beneficiaries of the law
> choose to alter it with messages of their own."  515 U.S. at 578.  This
> governmental aim was itself impermissible, because the state's objective
> was
> "merely to allow what exactly what the general rule of speaker's autonomy
> forbids."  Id.  For that reason, the compelled speech was automatically
> invalid, without regard to any inquiry concerning the precise effect on
> the
> parade organizer's specific expression.
>
> Thus, if the object of the New Jersey law in Dale were to require the BSA
> to
> send a symbolic message about the legitimacy of homosexuality, its
> application to BSA would be per se impermissible for precisely the reasons
> the Court explained in Hurley.
>
> But New Jersey's interest in Dale, as in the ordinary application of a
> state's antidiscrimination laws, is not the "alteration of speech," id. at
> 577, but is, instead, simply "the object both expressed and apparent in
> its
> provisions, which is to prevent any denial of access to (or discriminatory
> treatment in) public accommodations on proscribed grounds, including
> sexual
> orientation."  Id. at 578.  Thus, even if there is some risk that certain
> observers would perceive BSA as conveying the "message" that homosexuality
> -
> or the principle of nondiscrimination itself - is consistent with BSA's
> ideals and values, nevertheless it is not the object of the law to require
> the organization to convey that message.  New Jersey's law, for instance,
> is
> indifferent to any message that might be perceived concerning the BSA's
> attitude toward homosexuality.  The New Jersey law would forbid the Scouts
> from taking Dale's sexual orientation into account regardless of whether
> his
> presence would convey any message at all - indeed, even if all observers
> were
> unaware of Dale's sexual orientation.  It would also apply, in full force,
> to
> "public accommodations" that involve no expression, and no question of
> "role
> models" - indeed, the vast majority of its applications will apply in
> situations having nothing to do with expression and having no incidental
> effect on speech.
>
> The statute states that "[a]ll persons shall have the opportunity to
> obtain
> .
> . . all the accommodations, advantages, facilities, and privileges of any
> place of public accommodation."  The New Jersey Supreme Court held that
> Boy
> Scout membership is both a "privilege" and "advantage," *not* because such
> membership entails "speaking," or expression on behalf of BSA, but because
> "[t]he organization provides its members with numerous benefits, including
> opportunities to participate in group activities and to develop a variety
> of
> skills, e.g., camping, cooking, first aid, lifesaving," and "Boy Scout
> leaders are given the 'advantage' of numerous training courses that teach
> valuable lessons in leadership and management. Scouting indirectly
> benefits
> its members through the 'advantage' of a large influential network,
> including
> Air Force Academy, Annapolis and West Point graduates, Rhodes Scholars,
> astronauts, United States Presidents and Congressmen, as well as
> businessmen
> and community leaders."  734 A.2d at 1218.  The state's interest here, in
> other words, is in eliminating barriers to those privileges and advantages
> -
> and not in altering BSA's speech on matters of homosexuality.  As the
> Hurley
> Court explained, 515 U.S. at 572, public accommodations antidiscrimination
> "[p]rovisions like these are well within the State's usual power to enact
> when a legislature has reason to believe that a given group is the target
> of
> discrimination, and they do not, as a general matter, violate the First or
> Fourteenth Amendments."  (Citing Roberts and Heart of Atlanta Motel.)
> "Nor
> is this statute unusual in any obvious way, since it does not, on its
> face,
> target speech or discriminate on the basis of its content, the focal point
> of
> its prohibition being rather on the act of discriminating against
> individuals
> in the provision of publicly available goods, privileges, and services on
> the
> proscribed grounds."  Id.
>
> The Court in Hurley made clear that where, as in Dale (but in contrast to
> Hurley itself), the state's interest is "not the alteration of speech, but
> "go[es] beyond abridgement of speech itself," id. at 577, the governmental
> object is not itself suspect, and therefore any incidental impact on the
> organization's expression should be analyzed under a framework, such as
> the
> Roberts test, that is sensitive to, and depednent upon, the particular
> incidental impact of the law on protected expression and the
> countervailing
> legitimate government interest.  Id. (citing the balancing tests applied
> in
> Turner Broadcasting; O'Brien).
>
> Marty Lederman (in my private capacity)
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