Somewhat puzzling D.C. Cir. follow-up on the Henderson T-shirt ...

[Lederman, Marty]

Peter Eliasberg accuses the DC Circuit of making a "blithe assumption that giving away T-Shirts is a viable alternative form of communication."

Without getting into the question whether giving away t-shirts (as opposed to selling them) is a "viable" form of communication, I would note that the question under RFRA is whether the particular Park Service Regulation in question "substantially burdens" plaintiffs' religious exercise.  That regulation prohibits all sales of t-shirts on the National Mall.  Even assuming, as they allege, that plaintiffs have "a religious vocation to communicate by all available means the message of the Gospel," nevertheless the Park Service reg merely restricts them from doing so in one discrete, and quite limited, manner.  As the original panel opinion notes, "[b]ecause the Park Service's ban on sales on the Mall is at most a restriction on one of a multitude of means, it is not a substantial burden on their vocation. Plaintiffs can still distribute t-shirts for free on the Mall, or sell them on streets surrounding the Mall. See Weir v. Nix, 114 F.3d 817 (8th Cir. 1997) (considering alternatives in determining whether burden was "substantial"); Bryant, 46 F.3d 948 (no "substantial burden" where alternatives were available)."   Peter's point, I take it, is that plaintiffs cannot be expected to give the t-shirts away for free.  Even so, they can sell the t-shirts in numerous other public places, including (I suspect) areas adjoining the Mall, and they remain free to communicate the message of the Gospel *on the Mall* in other significant ways that one would suspect are much more effective than selling t-shirts -- e.g., by preaching it, or by wearing the t-shirts in question.

I would add that, even if the regulation can be said to substnatially burden plainitffs' religious exercise, plaintiffs would read RFRA to give them a right to engage in religious speech in a context where others may not engage in analogous or comparable nonreligious speech.  Such a preference for religious speech over nonreligious speech would violate the Free Speech Clause, and possibly the Establishment Clause, as well.  See, e.g.; Heffron; ACLU v. Allegheny; Prince v. Massachusetts; Scalia's opinion in Pinette, 515 U.S. at 766.  That's why the Senate and House Reports on RFRA indicate that RFRA should not be construed to provide any preferences to religious expression with respect to reasonable time, place and manner restrictions on speech.

[Please note that, although in the course of my work I often deal with RFRA
and RLUIPA issues at the Department of Justice, I was in no way involved in
the U.S. Attorney's handling of the Henderson case; I have no idea whether
the views expressed above are consistent with those advanced by the United
States in the case; and the views I express do not necessarily reflect the
views of DOJ, the Park Service, or the United States.]


Marty Lederman (in my personal capacity)

-----Original Message-----
From: Peliasberg at AOL.COM [mailto:Peliasberg at AOL.COM]
Sent: Friday, October 05, 2001 1:39 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Somewhat puzzling D.C. Cir. follow-up on the Henderson
T-shirt ...


As always, the Court's blithe assumption that giving away T-Shirts is a
viable alternative form of communication, seems to me incorrect.  But that is
not the first time the DC Circuit, or other other courts, have made that
misguided assumption.
Peter