RFRA and free speech

[A.E. Brownstein]

        I was recently asked a question about the operation of RFRA or a state
RFRA that I had a difficult time responding to. Is there a simple answer to
this problem that I am missing?

        Assume a governmental entity adopts a content neutral speech regulation
restricting expression in a public or non-public forum. It could be a law
against residential picketing, a law banning the use of loudspeakers in
residential neighborhoods, a regulation prohibiting soliciting on the
interior sidewalk in front of a post office or in an airport, or a
regulation restricting soliciting at the state fair to assigned booths. All
of these rules have been upheld against constitutional challenge under a
standard of review that is less rigorious than strict scrutiny.

        Under federal or state RFRA, could a speaker engaged in religious speech
claim that he must be exempted from these neutral laws unless the state can
justify refusing to grant the exemption under strict scrutiny. If RFRA
requires the granting of the exemption because the state's justification
can not meet strict scrutiny, does the First Amendment's prohibition
against content and viewpoint discrimination require that similar
exemptions must be made available to secular speech as well? And if that is
the case, has the RFRA statute effectively made it impossible to adopt
content neutral speech regulations unless they can be justified under
strict scrutiny.

        I can think of two alternative arguments. First, the state might argue
that the First Amendment's prohibition against content or viewpoint
discrimination constitutes a sufficiently compelling state interest to
justify denying the exemption for religious speech. But is denying the
exemption the least restrictive alternative? The state could also avoid
discrimination by repealing the regulation (granting an exemption to
everyone.) Second, the state might argue that it has a compelling state
interest in being able to adopt content neutral speech regulations under
some standard of review that is more lenient than strict scrutiny.

        Does either of these arguments work, or is there another response to this
issue that I am missing?

                                                                                        Alan Brownstein
                                                                                        UC Davis