RFRA and free speech

[Eugene Volokh]

    I'm not sure the matter is quite as simple as Marty suggests.

    1)  The S Ct case law:  To begin with, Heffron held only that the
Free Exercise Clause requires no more protection for religiously
motivated speech than for other speech vis-a-vis time, place, and
manner restrictions.  It did not hold that such a greater exemption
would violate the Free Speech Clause.

    2)  Statutory construction:  The Senate and House Reports may
have said quite a bit, but I'm not sure to what extent they can
undercut the flat rule set forth by RFRA -- strict scrutiny for all
restrictions on religious liberty, with no exemptions in sight for
religiously motivated speech.  This is *not*, I believe, the rule
under Heffron, and it leads me to think that here as in some other
contexts (e.g., prisons) RFRA provided greater protection than the
pre-Smith caselaw provided.  Furthermore, even if one can read the
Senate and House Reports as qualifying RFRA, I doubt that they can do
the same as to the state RFRA lookalikes.

    3)  Strict scrutiny:  This leaves one with the argument that
there's a compelling government interest in treating religiously
motivated and nonreligiously motivated speech equally.  As Alan
pointed out, if one takes strict scrutiny seriously, this would
require that there be no less restrictive but pretty much equally
effective means of serving the interest.  Why not, as Alan suggests,
allow religiously motivated speech *and* the secularly motivated
speech?

    Well, there might be a compelling interest at stake in not
allowing the secularly motivated speech, but the very point of lower
levels of scrutiny for certain speech restrictions --
time/place/manner restrictions, non-public-forum restrictions,
government-as-employer restrictions, and so on -- is that often we
want to allow restriction of speech even when the government interest
is not "compelling."  It's far from clear that there's a *compelling*
interest in preventing secularly motivated targeted residential
picketing, or secularly motivated speech that creates an eyesore
(Taxpayers for Vincent), or secularly motivated speech that obstructs
traffic at a county fair (Heffron).  So given this, it seems to me
that RFRA, taken seriously, would require that religiously motivated
speech in these contexts be allowed; and if there's a compelling
interest in treating religiously motivated speech and secularly
motivated speech similarly, this would just require that secularly
motivated speech in such contexts be allowed, too.

    4)  What the Free Speech Clause requires:  But why are we so
quick to assume that there's a compelling interest in treating
religiously motivated speech and secularly motivated speech
similarly?  I take it that such an interest could be present only if
the Free Speech Clause requires such equality; otherwise, I can't
see why this equality interest would be "compelling" rather than
merely legitimate.

    Does the Free Speech Clause really require such equality?  I
want to say that it does, but the doctrine is far from clear on
this.  Certainly *content*-discrimination is generally forbidden, but
this isn't necessarily so for discrimination based on who the speaker
is, see Taxation with Representation v. Regan; Turner Broadcasting v.
FCC; cf. Widmar v. Vincent (endorsing, in a particular context,
discrimination in favor of student groups and against outsiders).
The test is whether the discrimination "is justified with reference
to the content of speech."  Here, the discrimination is based on the
*motivation* of the speaker, and motivation that's not necessarily
connected (though probably in practice to some extent correllated) to
the content of the speech:  Religiously motivated proponents and
opponents of abortion, the draft, race discrimination, and so on all
win; the losers are the secularly motivated proponents and opponents
of the very same views.  RFRA on its face protects all religiously
motivated (or perhaps compelled) speech and conduct, not just
religiously themed speech or religious advocacy.

    So why is this discrimination any more or less troublesome than
the standard RFRA preference for religiously motivated conduct over
identical conduct that is not religiously motivated?  I think
this standard RFRA preference is itself bad, but I know that
most people -- apparently including Congress and perhaps the
Court, see Amos -- disagree.  True, the preference in the speech
context *in effect* probably skews in some measure the marketplace of
ideas, but this is generally not enough unless the discrimination is
"justified with reference to content," something I think is not
present here.

    5)  Finally, if there's a lesser standard of scrutiny for
regulation of religiously motivated speech than for regulations of
religiously motivated conduct, we have to draw some rather odd lines.
For instance, consider the claim of someone who wants to conduct
religious worship in an area zoned only for single-family homes:  Is
this religious worship "speech," cf. Widmar v. Vincent, so that the
law is subject only to the time/place/manner scrutiny applicable to
content-neutral zoning laws generally?  Or is it "conduct," so that
the zoning law is subject to strict scrutiny?

    Likewise, are historical preservation laws, as applied to changes
in regulation of communicative components of the building (murals,
stained glass windows, friezes) to be treated as laws that in this
instance regulate "speech" (the creation of a new mural) or
"conduct"?

Marty Lederman writes:

> Exemption for religious expression almost certainly would violate the Free
> Speech Clause (see, e.g., Heffron v. ISKCON), and avoiding such a
> constitutional violation would, of course, be a compelling interest that the
> state could successfully interpose against the RFRA claim.  (Similarly, in the
> course of defending the outcome in Smith, Bill Marshall argued that many
> exemptions that would have been required by the Free Exercise Clause under
> Sherbert/Yoder would have violated the Free Speech Clause.)    For this
> reason, both the Senate and House Reports on RFRA indicated, in effect, that
> in the context of expression, RFRA was only intended to ensure that religious
> expression be treated no worse than nonreligious expression -- i.e., that RFRA
> rights be coterminous with the protection provided religious expression by the
> Free Speech Clause itself.  (I don't have the cites or exact language at
> hand.)  Similarly, in his recently promulgated Religious Expression in the
> Federal Workplace Guidelines, the President indicated that -- except where the
> Establishment Clause would prohibit it -- federal employees' religious
> expression in the workplace should be treated no worse *and* no better than
> secular expression that has a comparable effect on the efficiency of the
> agency's mission.
>
> As Alan Brownstein suggests, however, a RFRA plaintiff might -- instead of
> seeking an exemption -- ask the court to invalidate the speech restriction
> (e.g., a time, place or manner restriction) altogether ("grant[] an exemption
> to everyone").  If there were any real teeth in the "compelling state
> interest" test under Sherbert, such a tactic might work occasionally, since
> many governmental restrictions on speech are imposed for something less than
> "compelling" reasons.  But under the Sherbert test as we know (knew?) it, it's
> hard to imagne the state ever failing to persuade a court that it has a
> "compelling" need for the speech limitation *generally*.
>
> Marty Lederman -- DoJ Office of Legal Counsel
> (writing in my personal capacity -- nothing herein should be attributed to
> OLC, the Department of Justice, or the U.S. Government)
>
> Alan Brownstein writes:
>
> >      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?
>

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
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