On reflection, I realize that the Texas Monthly lineup can't be dispositive of the book club vs. Bible study group issue, but I still wonder about the Free Speech Clause issue

[Brownstein, Alan]

I appreciate Doug's point but I'm not sure that I'm persuaded by it. To begin with it is not clear to me that high value speech can be preferred to lesser protected speech like commercial speech -- particularly if both kinds of speech cause the same kind of a problem. In the Cincinnati case (I forget its full name) where the city prohibited commercial news racks, but not news racks for traditional newspapers, the Court invalidated the discriminatory burden imposed on commercial speech. I'm not sure that if an Amway meeting and a Bible study group both equally caused a lot noise in a residential neighborhood that a city could prohibit the former but not the latter (in the interest of maintaining a quieter neighborhood). 

But my primary concern is that a state RFRA doesn't discriminate between high value speech and low value speech. It discriminates between one viewpoint of high value speech, religious speech, and all other speech -- whether it is high value, low value, or somewhere in between. Why isn't this the exact flip side of a zoning ordinance that permits all kinds of house meetings except Bible study groups? The answer can't be that in one case a viewpoint is favored and in the other case it is discriminated against because the Court has been clear that favoring or disfavoring a viewpoint is equally unconstitutional. To put it another way, it seems to me that an exemption for religious speech alone is intrinsically viewpoint discriminatory and could be challenged on its face -- without regard to the value of the speech expressed by the complaining party. Does anyone think that Texas Monthly should have come out differently if the suit challenging the tax exemptions for religious publications or periodicals was brought by Playboy magazine?

Let me be clear here that I have serious concerns about the apparent ease with which the Court has determined that religious speech constitutes a viewpoint of speech and its willingness to treat religious expressive activities as speech for free speech purposes rather than as religion for free exercise purposes. But having taken those steps, I don't think the Court can easily avoid the consequences of those decisions.

Alan Brownstein

Alan Brownstein
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [laycockd at umich.edu]
Sent: Saturday, June 20, 2009 6:45 PM
To: religionlaw at lists.ucla.edu
Subject: RE: On reflection, I realize that the Texas Monthly lineup     can't   be dispositive of the book club vs. Bible study group issue, but I      still   wonder about the Free Speech Clause issue

High value speech can and is given more protection than low value speech.  Religious and political speech get more protection than commercial speech (which can be regulated as misleading, whether or not false); commercial speech gets more protection than pornographic speech (which almost certainly can be kept indoors and away from nonconsenting audiences); pornographic speech gets more protection than child pornography or obscenity.

So suppose the Supreme Court of Texas implements its rule giving special protection to religious speech -- more protection than other high value speech gets.  But the plaintiff who wants to challenge that special treatment is a commercial advertiser, or a pornographer.  I don't think that plaintiff wins.  There may be viewpoint discrimination, but it is not discrimination within a relevant category.  It is not religious preferred over political, or nonracial fighting words preferred over racial fighting words.  It is a preference for one category of high value speech being challenged by one category of low value speech.  And I think the judicial reaction would be that of course religious speech can be given more protection than commercial or pornographic speech.

I don't think these problems affect the book club, but some judges might; the book club is a marginal example.  But I think a book club is speech about serious ideas (we surely don't want judges saying it depends on the quality of the books), and therefore high value speech and entitled to complain about getting less favorable treatment than other high value speech.  I can also well imagine courts being troubled by the viewpoint discrimination claim; we have a favored viewpoint but no apparent disfavored viewpoint.  But I don't think that should change the result either.

But if I were going to challenge the special protection for religious speech, I would try to find a better plaintiff than a book club.  Maybe on Justice Hecht's hypothetical, I would have to make do with the book club, but it doesn't seem to me to be the most appealing plaintiff.  That's all I meant to say.







Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:

> I'm not sure I understand Doug's reference to high-value speech and
> the lack of a viewpoint associated with the book club's speech. The
> viewpoint at issue is that of the Bible study group. The Court has
> repeatedly held that discrimination against religious clubs and
> meetings constitutes viewpoint discrimination so discrimination in
> favor of those same clubs and meetings has to constitute viewpoint
> discrimination as well. And once we are dealing with viewpoint
> discrimination, strict scrutiny applies regardless of the "low" value
> of the speech at issue. Viewpoint discrimination is prohibited within
> categories of unprotected speech, while regulating speech in a
> non-public forum, and with regard to what would be constitutional
> time, place, and manner regulations of expression except that the
> regulation singles out a particular viewpoint for favorable treatment.
>
> Am I missing something here?
>
> Alan Brownstein
> ________________________________________
> From: religionlaw-bounces at lists.ucla.edu
> [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
> [laycockd at umich.edu]
> Sent: Friday, June 19, 2009 8:59 AM
> To: religionlaw at lists.ucla.edu
> Subject: Re: On reflection, I realize that the Texas Monthly lineup
> can't       be dispositive of the book club vs. Bible study group
> issue, but I still        wonder about the Free Speech Clause issue
>
> That example troubled me too.  The book club doesn't have the
> strongest free speech claim; it's hard to identify a viewpoint
> associated with a book club; it's may be neither political nor
> religious; it has no historical status as an institution of
> particular First Amendment concern.  But it involves serious speech,
> and there is a lot of appeal to a rule of neutrality among all
> high-value speech.
>
> Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
>
>> On reflection, I realize that the Texas Monthly lineup can't be
>> dispositive of the book club vs. Bible study group issue (given that
>> the Brennan/Marshall/Stevens opinion distinguished
>> removal-of-substantial-burden cases), but I still wonder about the
>> Free Speech Clause issue.
>>
>> Eugene
>>
>
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713