Religious speech and Finley-like "excellence" criteria

[Volokh, Eugene]

                Marty raises an excellent question, but I think there's a
pretty simple answer to it:

                1)  The Free Speech Clause doesn't interfere with government
content- and even viewpoint-discrimination when the government uses
"excellence" criteria to decide which speech is included.  I think the
Scalia solution to Finley is therefore more sound than the majority's.  (Of
course, under the majority's approach, one would have to ask whether the
exclusion of, say, religious viewpoints is "invidious viewpoint
discrimination" or permissible viewpoint discrimination; quite a mystery to
me.)

                2)  The Free Exercise Clause, however, bars the government,
even when it's running such an excellence-based subsidy program, from
discriminating against religious speech -- just as the Establishment Clause
bars it from discriminating in favor of religious speech.

                3)  So long as the speech is treated equally without regard
to its religiosity (which I realize can pose some tough factual issues in
some situations, but which I think is ultimately a feasible analysis, just
as one can feasibly decide whether artists' proposal were treated equally
without regard to the artist's race or for that matter religion), there's no
Establishment Clause violation.

                These, of course, are just abstract principles, and to make
them concrete, let me pass along a problem from my forthcoming First
Amendment textbook, which I think raises exactly this issue (at least as to
the Establishment Clause, but I think it can be used to teach the Free
Speech Clause and the Free Exercise Clause issues, too):

Problem:  NEA and Religious and Antireligious Art

The National Endowment for the Arts, as you may recall from reading NEA v.
Finley, administers an arts funding program.  People submit grant
applications, and NEA panels decide whether to fund the proposed projects,
based primarily on the fairly vague criterion of "artistic excellence."
Noted artist Lenny DaVinci wants to get an NEA grant to paint a painting on
the Christian theme of the Last Supper, inspired by his Christian faith.  An
NEA panel has concluded that his work is likely to be artistically
excellent, but Donna Wells, the Chairwoman of the NEA, wants to make sure
that giving the grant wouldn't violate the Constitution.  She asks you, her
legal advisor, your opinion.
1.  How would you answer if you were to apply the Rosenberger majority
opinion?
2.  Given that Justice O'Connor's vote was necessary to make up the
majority, her concurrence may be seen by lower courts as influential.  How
would the case come out before a judge who is indeed inclined to follow her
concurrence?
3.  Let's say that the Court revisits the question and adopts Justice
Souter's dissent.  How would the case come out under that approach?
        4.  In your own view, which of these results do you think makes the
most sense, and why?

        Does anyone on the list think that the Establishment Clause requires
the NEA to have a "no religious art" criterion?  (By the way, if no such
criterion is required, then isn't that further evidence that the "no
taxpayer money may flow to religious uses" theory is mistaken?)  Does the
Free Exercise Clause allow the NEA to have such a criterion?

        I await the resulting discussion with bated breath, especially since
I haven't yet written the solution to the problem in the Teacher's Manual,
and would love to have the benefit of list members' insights on it.

        Eugene

Marty Lederman writes:

> The problem, as I'm sure Eugene is aware, is that the contexts for
> "private" speech in the school context (and in numerous other
> state-provided settings) do not break down neatly into (i) fora where the
> government wishes "to favor a few particular kinds of speech," on the one
> hand, and (ii) settings where the government has established the
> equivalent of an open, "we don't care what you say" forum, on the other.
> To be sure, these two "extremes" describe virtually all of the cases that
> have been considered by the Supreme Court.  I suspect that much more
> frequently, however, the government -- for example, with respect to the
> school newspaper, the graduation speaker, or the homework assignment --
> gives the "private" students an extraordinarily wide berth of discretion
> (perhaps, but not always, confined to certain "topics"); and even
> "disclaims" any endorsement of the student speech; but nevertheless
> reserves the right to exclude a very small percentage of private
> "viewpoints" tha!
> t the school disfavors.  (And I think that NEA funding of private art is
> actually quite similar.  As is a government-sponsored lecture program; a
> state university's decision to subsidize or publish certain faculty
> speech, etc.)  At least in the elecmentary school setting, cases such as
> Hazelwood and Bethel arguably support the government's right to do just
> that.  (Of course, at one point cases such as Tinker and Pico pushed in
> the other direction; but regretably those cases appear to be outliers
> these days.)
>
> So, for example, imagine a very likely case in which a graduation speaker,
> chosen by lot, is permitted to give *virtually* whatever speech she likes,
> but with certain prohibitions and limitations at the extremes.  (E.g., no
> advocacy of racial hatred; no discussion of topics A, B, and C; no insults
> or criticism of teachers or fellow students).  In that case, what, if any,
> obligations does the EC impose with respect to religious speech?  What
> protections of religious speech do the FEC and FSC provide?
>
> Marty Lederman
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
> Sent: Thursday, June 14, 2001 12:26 PM
> To: RELIGIONLAW at listserv.ucla.edu@inetgw
> Subject: Re: Free Speech v. Free Exercise
>
>
>         Actually, I think a pretty similar nondiscrimination rule should
> be
> applied here as to speech as the one that should be applied to religion.
>
>         If the government really wanted to favor a few particular kinds of
> speech, for instance saying that students can get up in assembly to speak
> out against drugs and violence, or by allowing student anti-drug clubs but
> no other clubs to meet, I don't think it would then have a constitutional
> obligation to allow other speech (though it might in some such situations
> have a statutory obligation under the Equal Access Act).
>
>         In such a situation, the government hasn't created a designated
> public forum -- rather, it's really more engaging in the creation of its
> own
> favored speech, but by using other speakers to whom it gives a benefit in
> exchange for certain kinds of speech.  Here, the rule is more like Rust v.
> Sullivan; and the Free Exercise Clause analogy would be bans on race or
> sex
> discrimination that provide exceptions for a limited range of favored
> secular conduct (e.g., small employers, BFOQs, owner-occupied housing with
> few units, and the like).
>
>         However, when the government says "We will allow a wide range of
> speech, but we will exclude speech with viewpoints A or B," then we have a
> designated public forum, but one that unconstitutionally discriminates
> based
> on viewpoint.   Nor can the government speech doctrine come to the
> government's rescue, since the speech in such a forum wouldn't plausibly
> be
> the government's own, since it's hard to see the government endorsing such
> a
> large set of disparate and often conflicting messages; in fact, the
> government will often disclaim any such endorsement, precisely so it can
> get
> some distance in case some people disagree with the message.  This, I
> think,
> is what happened in Widmar, Lamb's Chapel, Rosenberger, and now Good News.
> And this singling out of religious speech for special prohibition
> viewpoint
> discrimination is thus much more like Lukumi Babalu Aye, where religious
> conduct is singled out for special prohibition.
>
>         I do not believe that Free Speech Clause analysis and Free
> Exercise
> Clause analysis must necessarily be identical in all cases.  In fact, as
> Alan Brownstein has pointed out in another context, it's often not clear
> how
> one can in fact "treat one right as all other rights," since rights of
> necessity differ in various ways that make particular doctrines as to one
> right hard to transfer to other rights.  I've talked at times about some
> of
> the differences here.  For instance, one has a Free Speech Clause right to
> use the communicative impact of speech to inflict emotional distress on a
> public figure (Hustler v. Falwell), to interfere with business relations
> (NAACP v. Claiborne Hardware), or to interfere with the draft, so long as
> one's conduct doesn't reach the level of intentional incitement of
> imminent
> and likely illegality (the rejection of Schenck and Debs).  But few people
> would think that one therefore has the right to infliction emotional
> distress on Jerry Falwell by shouting loudly outside his windows at 3
> a.m.,
> to interfere with an abortion clinic's business relation by blocking it,
> or
> to interfere with the draft by blocking the entrances to draft offices,
> even
> if one feels a religious obligation to do so.  The two rights must differ
> in
> this respect.
>
>         But as to the Good News situation, I think the Free Speech and
> Free
> Exercise nondiscrimination rules are pretty similar.
>
>         Eugene
>
> > -----Original Message-----
> > From: Jim Oleske [SMTP:j_oleske at YAHOO.COM]
> > Sent: Thursday, June 14, 2001 7:17 AM
> > To:   RELIGIONLAW at listserv.ucla.edu
> > Subject:      Free Speech v. Free Exercise
> >
> > In the free speech context, Eugene wrote:
> >
> > "If at a student assembly the school let any student
> > get up and explain why people should agree with his
> > philosophy -- again, be it environmentalism or
> > feminism or capitalism or what have you -- then it
> > should let students explain why people should agree
> > with their religious philosophy, be it Protestantism
> > or atheism or Islam or what have you.  On the other
> > hand, if the school doesn't like the idea of letting
> > students using assemblies to 'proselytize,' 'convert,'
> > or 'evangelize' people, it can simply say that it
> > won't let students do that, either as to political
> > views or religious ones."
> >
> > Eugene's position in the free speech context reminds
> > me of the position he rejects in the free exercise
> > context (i.e. if the government allows any secular
> > exemptions, it should allow religious exemptions; the
> > government can simply avoid the issue by eliminating
> > all exemptions).
> >
> > If, in Eugene's view, the government can favor a
> > particular secular exercise over religious exercise
> > despite the Free Exercise Clause, why can't the
> > government favor a particular secular speech over
> > religious speech despite the Free Speech Clause?
> >
> > Put another way, why can't a school that endorses a
> > particular philosophy (i.e. charity is good) let one
> > student stand up and promote that philosophy without
> > being accused of discriminating against the countless
> > other philosophies that other students might promote
> > if they were allowed to speak, just as Eugene (I
> > believe) maintains that the government can endorse a
> > particular practice by making an accommodation without
> > being accused of discriminating against the countless
> > other practices for which it does not provide
> > accommodations?
> >
> > - Jim Oleske
> >
> > __________________________________________________
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