RFRA and free speech

[LoAndEd]

Eugene is, of course, correct that an exemption for religiously *motivated*
speech would not necessarily be viewpoint-based, and hence not automatically
invalid under established Free Speech Clause doctrine.  But I have little
doubt that the Court would view such an exemption -- or virtually any other
"motivation-based" exemption from a speech restriction -- as, in effect,
"viewpoint discriminatory," or impermissible for some other, related, reason.
Consider, for instance, if the restriction in Rosenberger had been "no funding
for religiously motivated speech," rather than "no funding for speech
primarily reflecting an ultimate view on the existence of a deity."  (Again, I
apologize for not having the exact quote handy.)  Whereas the Court split 5-4
on whether the latter was impermissible viewpoint discrimination (banning, as
it did, funding of views on *all* sides of the "existence of a deity"
question), I'm confident that the entire Court would have considered a "no
religiously motivated speech" restriction even *more* objectionable than the
restriction actually at issue in Rosenberger.  The Court would, I think,
conclude that there's a much greater likelihood that such a motivation-based
restriction would in fact be motivated by an attempt to restrict certain
viewpoints (just as certain content-based restrictions are invalidated because
of the substantial risk that viewpoint discrimination is lurking).  Speaker-
based exemptions are not as problematic where, as in Regan, it's obvious that
the preference is unrelated to the preferred speakers' viewpoints.

Eugene might reply that such concerns about latent viewpoint discrimination,
while generally reasonable, are unfounded here, since we know that the RFRA
legislature(s) meant to prefer religiously motivated conduct of all kinds, and
not specifically religious "viewpoints" in the speech context.  True enough,
but I doubt that would make a difference:  the Court would, I think, be
heavily influenced by the "skewing" of the forum (where there is something
resembling a forum), and by the fact that competing secular speakers, as well
as O'Connor's "reasonable observers," would (reasonably?) perceive the
preference as viewpoint-based.  Accordingly, I think the Court would find, not
only a Free Speech violation, but, in certain contexts, perhaps also an
Establishment Clause violation, where the religiously motivated speech turns
out to be speech of a religious character.  Critical to the E.C. decisions in
cases such as Widmar, Mergens, Pinette, etc., is the fact that objective
observers (such as students) would *not* perceive the state as having
preferred religious expression to nonreligious expression.  But what if the
student group in Widmar had been given a preference over other groups because
it was religiously motivated?  If the Klan, professing a religious motivation,
had been the only group permitted to place semi-permanent structures in front
of the state capitol?  Is there really a chance that the Court would have
found no E.C. violation *and* no Free Speech violation in such cases?

Eugene raises some interesting "line-drawing" cases, such as the claim of
someone who wants to conduct religious worship in an area zoned only for
single-family homes, and historical preservation laws as applied to changes in
regulation of communicative components of religious buildings (murals, stained
glass windows, friezes, etc.).  These cases seem very different to me from a
Free Speech perspective, although I'm not yet precisely sure why.  At least
two distinctions appear to stand out:  First, the state's zoning regulation
was, in the first place, wholly unrelated to private speech (unlike, e.g.,
time, place and manner restrictions in the public forum context).  Second, the
state, in granting the religious exemption, is entirely indifferent to whether
the religiously motivated conduct is expressive.  The cases, therefore, seem
more analogous to O'Brien-like "incidental speech restriction" cases (here,
"incidental speech preference"), and under the O'Brien test the state
typically should prevail.

By the way, does anyone on the list know of any reported speech cases in which
the state's distinctions were expressly based on motive?  If so, is my
confidence warranted that such distinctions would be disfavored?

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)

Eugene writes:

> [W]hy 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"?