EC & Compelling Interest: Right to Receive Speech as Compelling

[Rick Duncan]

I wrote:
      In the case of a holiday display, one could view this as a case
 involving a willing speaker (the county govt) and a willing audience
 (those who wish to enjoy the holiday expression) who are being censored
 by a heckler's veto under the EC. I think it is important that govt
 speech be available to those who wish to receive it. Is it
 "extraordinarily important?" 
   
  Doug Laycock responded:
   
    The trouble with Rick Duncan's examples is that the alleged compelling interests are simply negations of the clause.  Folks here really really want government support for their religion, and that desire is a compelling interest that justifies an exception to the rule against government support for religion.
   
  I think the state interests I proposed are more than mere negations of the EC; rather they are independent First Amendment rights recognized by a decisive plurality of the Sct in Pico. In Pico, we had a case of govt sponsored speech (books in a public school library) that some in the community didn't like and complained about. The govt removed some of the books to satisfy the complainers. The Pico plurality held that the Free Sp Cl includes a right of a willing audience to receive govt speech in the form of books in the school library.
   
  Now maybe Pico is wrong and there is no such right to receive. But if Pico is right, then what we have, when a Nativity display is challenged undeer the EC, is a viewpoint based attack on the right to receive govt sponsored expression (not govt support for religion, but a govt sponsored message recognizing a holiday that some in the community are celebrating).
   
  The problem with the EC is that it is not really a liberty interest like most other incorporated rights. Rather, it is a structural limitation on the power of state and local govt that somehow got incorporated by the Due Process Clause in Everson. As a structural limitation on govt power, there is nothing to balance once something is found to amount to an endorsement of religion. Govt simply lacks power to endorse religion. There is no compelling interest test, no balancing; govt is without power to endorse religion and the case is over. Period.
   
  I think this makes a lot of sense given the caselaw, and explains why the Ct never (hardly ever) even discusses balancing and possible justification in EC cases. They are not cases in which a liberty interest conflicts with govt power; rather, they are cases in which a structural limitation on govt power absolutely denies govt the ability to endorse religion even when there would otherwise be a compellingly important interest--under the Fr Sp Cl--of a willing audience to receive govt speech recognizing the origins of the Christmas holiday.
   
  Any further thoughts? Or has this topic run its course?
   
  Rick Duncan
   
   
   
  

 


  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.


       
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