Teachers (private and private, high school and college), ministers, psychotherapists, and lawyers

[Brownstein, Alan]

Good questions, Eugene. Quick answers because I'm writing an exam.

I have no problem viewing teaching as a First Amendment activity, but I don't think we can base that conclusion on the fact that it involves talking. My point was simply that we will draw different conclusions about whether and how the First Amendment protects an activity (that involves talking) based on various considerations. What those considerations are isn't that easy to answer. But the fact that teachers, doctors and members of the clergy all talk a lot doesn't tell me much about how government regulations of their activities should be evaluated under the free speech clause.

When we get to sermons from the pulpit specifically, the problem with a free speech paradigm is that it doesn't only operate to protect the person preaching from the pulpit. The focus of free speech doctrine is to prevent the government from engaging in content and viewpoint discrimination. That means that treating the preacher from the pulpit differently (more or less favorably) than other speakers requires rigorous review. If you believe that there is nothing distinctive about the religious expressive activities that occur in a house of worship that warrants special constitutional consideration, then a free speech model works. But if you believe that there is something distinctive about these religious activities (and I do), then the equal treatment which underlies free speech doctrine is a significant problem.

I think both of the religion clauses require religious activities (including some activities involving expression) to be treated differently than non-religious activities (including some activities involving expression) in some circumstances. If I'm wrong about that and free speech doctrine applies to all of these religious and non-religious activities, then we ought to be able to see the consequences of that determination. One consequence would be that religious exemptions and accommodations for religious activities with an expressive dimension to them would have to be justified under strict scrutiny review. Another consequence would be that government could fund religious proselytizing, worship, and associations in any situation in which it funds secular advocacy, activities and associations.

Since I don't see that happening, I conclude that the idea that the regulation and funding of religious expressive activities should always be evaluated under free speech doctrine doesn't work -- at least it doesn't work yet. It doesn't explain how the courts decide cases or how government treats religion. Normatively, I also think it would be a bad idea.

Alan Brownstein 





________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Monday, May 04, 2009 7:04 PM
To: Law & Religion issues for Law Academics
Subject: Teachers (private and private, high school and college), ministers,    psychotherapists, and lawyers

        Alan:  I'm a bit puzzled here.  First, is there really much in
common between teachers (at least what they say in the classroom, as
opposed to one-on-one career counseling or some such) and doctors or
psychotherapists?  If teachers are to be treated as similar to doctors
and psychotherapists, then presumably the government would have vast
authority not only over public education and publicly-funded private
education, but purely privately funded private education as well, yes?
I would have thought that professional-client speech restrictions,
whatever First Amendment problems they might provide, are at least
separate from the mainstream of First Amendment doctrine, and the speech
of teachers is well within that mainstream (though subject to
restriction in some measure when the teachers are government employees).
Am I mistaken on that?

        Second, why is "analyzing regulations of" "sermons from the
pulpit" "under a free speech paradigm" not "going to work"?  Even if
ministers have extra rights under the Free Exercise Clause (which I
doubt), surely they have Free Speech Clause rights, and rights that are
the same as those of other speakers, no?

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Monday, May 04, 2009 5:03 PM
> To: hamilton02 at aol.com; Law & Religion issues for LawAcademics
> Subject: RE: Bowman v. U.S.
>
> Marci has to be right here. Deciding what is speech for first
amendment purposes
> has to involve more than just the fact that an activity involves a lot
of talking.
> Sermons from the pulpit are talking, so is the practice of
psychotherapy, most of
> what lawyers do, and a lot of what doctors do. Analyzing regulations
of all these
> activities under a free speech paradigm isn't going to work.
>
> Alan
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
> Sent: Monday, May 04, 2009 4:51 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Bowman v. U.S.
>
> While speech is involved in the classroom, career preparation is more
involved
> than just speech.  The state is not simply handing out funds for the
sheer joy of
> learning or enriching discourse. The state funding of ministers or
rabbis for that
> matter is a direct and knowing benefit to  religious institutions.
That is different
> from the abstract treatment of learning as nothing but a discourse of
speech.
> Marci
>
> ------Original Message------
> From: Volokh, Eugene
> Sender: religionlaw-bounces at lists.ucla.edu
> To: Law & Religion issues for Law Academics
> ReplyTo: Law & Religion issues for Law Academics
> Sent: May 4, 2009 7:41 PM
> Subject: RE: Bowman v. U.S.
>
>     What exactly is it about government-funded education directed at
> future careers that keeps it from being "pure speech"?  It presumably
> wouldn't just be the government funding, since that was at issue in
> Rosenberger as well.  I take it the theory must be that "education" is
> somehow more than just "pure speech," in constitutionally significant
> ways.  But why, especially when we're talking about education that
> basically just involves talking, rather than science labs, football
> games, and the like?
>
> Marci Hamilton writes:
>
> > In any event, this is not pure speech -- it is government funding
> education directed
> > at future careers.
>
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