Fascinating case

[Vance R. Koven]

At 05:39 PM 8/8/01 -0700, Volokh, Eugene wrote:

>Straight out of a hypo that has been mentioned on this list several times
>before:  Axson-Flynn v. Johnson, 2001 WL 881043 (D. Utah. Aug. 3), rejects
>a university drama student's Free Speech Clause and Free Exercise Clause
>claim based on her curriculum requiring her to use God's name in vain.

I haven't seen any further discussion of this case on the list, so I
thought I'd bring it up, because it really is a fascinating case.

There are aspects of the court's reasoning that seem pretty solid, such as
the distinction between what the student is compelled to say qua student
and what she would be compelled to say qua actor. Unfortunately, there are
some rather disturbing and, I think, erroneous statements by the court and
some problems associated with ignoring some significant facts.

In the discussion of the "exemption exception" relating to whether a law or
policy is neutral and of general applicability, the court foolishly tries
to get out of considering whether the drama department's allowing a Jewish
student to get out of class on Jewish holidays qualifies as an
individualized exemption by saying that the policy itself did not contain
such an exemption. Seems to me that a policy as applied is every bit as
much a policy as one that's on paper.

Even in the question of whether the student's speech could be considered
coerced (indeed, even implicated) by reciting lines that were personally
offensive, the court's sound instincts were marred by failing to consider
the facts, recited in the introduction, that the department itself did not
endeavor to make the distinction to the student between what *she* could be
considered  as saying and what the *character* she plays is saying. In
fact, the ham-fisted department made it clear that it wanted her to "get
over" her silly Mormon beliefs and just say (among other things) words that
our moderator would not be happy to see appear on this listserv. If, for
example, in a literature class the teacher asked a student to read a
particular passage, and it contained words the student didn't want to
speak, I find it hard to imagine that the teacher would force the student
to say them, rather than, for example, "expletive deleted." Another point
the court neglected was the effect of the department's allowing the student
to enroll in the class after she had clearly said, in answer to specific
questions, that she would not do or say certain things (she said, for
example, that she wouldn't disrobe on stage--since the department didn't
appear ever to have required her to do so, can this be taken as a kind of
secular exemption to the policy?). If the rationale for forcing her to say
them nevertheless is based on the distinction between the student and the
character, shouldn't they have said so up front?

The rest of the court's reasoning strikes me as mostly makeweight. The
hybrid rights discussion, though one can sympathize with a court's dilemma
in applying an essentially incoherent rule, hinges on whether either the
free speech or free ex claims were "colorable," and therefore is largely
result-driven. Ditto the qualified immunity discussion. It will be
interesting to see if the case goes up on appeal.


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