FIRST AMENDMENT LAW: FREEDOM OF EXPRESSION AND FREEDOM OF RELIGION Third Edition 2016 Supplement ARTHUR D. HELLMAN Sally Ann Semenko Endowed Chair University of Pittsburgh School of Law WILLIAM D. ARAIZA Professor of Law Brooklyn Law School THOMAS E. BAKER Professor of Law Florida International University College of Law ASHUTOSH A. BHAGWAT Martin Luther King, Jr. Professor of Law University of California Davis School of Law Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Copyright © 2016 Carolina Academic Press, LLC All Rights Reserved Carolina Academic Press, LLC 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.caplaw.com Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. PREFACE The Third Edition of our casebook, First Amendment Law: Freedom of Expression and Freedom of Religion, was sent to the publisher in the fall of 2013. In April 2014, the Supreme Court handed down the first of the 2013 Term’s decisions on the First Amendment. By the time the Term ended, the Court had handed down three additional free speech decisions, an important ruling on legislative prayer, and a highly controversial decision interpreting the Religious Freedom Restoration Act of 1993 (RFRA). In the Term that followed, the Court decided three more free speech cases and another statutory religious-freedom case. This Supplement provides coverage of those decisions — seven as principal cases, the others as the subject of Notes. In the most recent Term, the passing of Justice Scalia resulted in an eight- member Court which took something of a hiatus from deciding First Amendment issues. The High Court’s avoidance behavior was illustrated in two widely- discussed cases about which the remaining Justices ultimately had little to say. Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016), ended in an affirmance by an equally-divided Court, postponing indefinitely a direct challenge to the public-sector “agency shop” arrangement of requiring employees to pay union dues attributable to collective-bargaining activities. After requesting supplemental briefing, the Court vacated and remanded Zubik v. Burwell, 136 S. Ct. 1557 (2016), a RFRA challenge to the contraceptive mandate of the Affordable Care Act, with a per curiam work-around suggestion of how the case might be settled by the parties. We can expect a return to “business as usual” whenever Justice Scalia’s successor is confirmed, but that will be covered in the next annual supplement. In five of the seven cases in this Supplement, the Court sustained the First Amendment claim: • In Harris v. Quinn (Chapter 5 Note), the Court held that Illinois violated the rights of personal home care providers by requiring them to pay “agency fees” to a union after the state designated the caregivers as state employees “solely for the purpose of coverage under the Illinois Public Labor Relations Act.” The Court found “an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Four Justices dissented, arguing that the 1977 decision in Abood v. Detroit Bd. of Ed. foreclosed the constitutional challenge. • In McCullen v. Coakley (Chapter 7), the Court struck down a Massachusetts law that made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Although the Court was unanimous in its result, four Justices sharply criticized the Court’s opinion for rejecting the petitioners’ argument that the Massachusetts law discriminated on the basis of both content and viewpoint. We think that McCullen can replace Hill v. Colorado (2000) (Casebook p. 412) as a principal case, although there is certainly value in studying the two decisions together. i Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. ii PREFACE • In Reed v. Town of Gilbert (Chapter 8), the Court held that a sign ordinance violated the First Amendment. The Court was unanimous in result, but the opinions revealed sharp disagreement over a fundamental question of First Amendment law: the treatment of content-based regulations. The majority took the position that any “facially content based” restriction must satisfy strict scrutiny. Three Justices argued for a more flexible approach, saying that as long as there is no realistic possibility that a regulation has “the intent or effect of favoring some ideas over others,” the Court should “relax [its] guard.” • In McCutcheon v. FEC (Chapter 11), the Court struck down the “aggregate limits” on campaign contributions — restrictions on how much money a donor may contribute in total to all candidates or committees — in the federal campaign finance statute. Four Justices dissented, arguing that the decision, in tandem with Citizens United v. FEC (2010) (Casebook p. 695), “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” • In Lane v. Franks (Chapter 12), the Court unanimously agreed that the Eleventh Circuit had read Garcetti v. Ceballos (2006) (Casebook p. 730) “far too broadly.” The Court held that “the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.” And that is so “even when the testimony relates to his public employment or concerns information learned during that employment.” Two decisions rejected free-speech claims, both by a vote of 5-4. First, in Williams-Yulee v. Florida Bar (Chapter 11), the Court upheld a Florida canon of judicial ethics that bars candidates for elected judgeships from “personally solicit[ing] campaign funds.” A five-Justice majority conceded that the canon constituted a content-based speech restriction, but concluded that it satisfied strict scrutiny. Second, in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Chapter 13), the Court held that specialty license plates authorized by Texas law constitute government speech and thus are not subject to First Amendment constraints. In both statutory religious-freedom decisions the claimants prevailed. First, in Burwell v. Hobby Lobby, Inc. (Chapter 17 Note), the Court held that regulations of the Department of Health and Human Services implementing the contraceptive care mandate under the 2010 health care law violated RFRA as applied to closely- held for-profit corporations whose owners hold sincere religious beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. Four Justices, in dissent, saw the decision as one of “startling breath.” The case neatly illustrates the significance of bringing a challenge under the statute as opposed to the Constitution. Second, in Holt v. Hobbs (Chapter 17 Note), the Court unanimously ruled in favor of a prisoner who sought a religious exemption under the Religious Land Use and Institutionalized Persons Act (RLUIPA) from a state prison regulation Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. PREFACE i ii prohibiting beards. The opinion for the Court applied a very strict scrutiny under the federal statute. In contrast, in Town of Greece v. Galloway (Chapter 16), the Court rejected an Establishment Clause challenge to a town’s practice of opening its monthly board meetings with a prayer, even though many of the prayers included sectarian references and the prayers were mostly Christian. Four Justices, dissenting, argued that the Town’s practice “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” This new principal case reveals the views of the current Justices about religion in public settings. We recognize that some of the decisions that loom large on first reading may fade in importance as time goes by. Still, there is pedagogical value in studying recent cases that highlight current issues and reveal philosophical divisions among the Justices now on the Court. We have therefore opted to err on the side of inclusion. This Supplement includes several additional Problems, some of which focus on the implications of recent Supreme Court decisions for preexisting circuit precedents. The year 2016 marks an important development for this casebook: the addition of a new co-author for our next edition, Professor Ashutosh A. Bhagwat, Martin Luther King, Jr. Professor of Law at the University of California at Davis School of Law. Professors Hellman, Araiza, and Baker welcome Professor Bhagwat as a collaborator on the forthcoming Fourth Edition and future supplements. * * * The authors express their appreciation to the staff of the University of Pittsburgh School of Law Document Technology Center for their dedicated efforts that made it possible to produce this Supplement under a very tight deadline. As with the Casebook, we welcome comments and suggestions from users and readers. Arthur D. Hellman: [email protected] William D. Araiza: [email protected] Thomas E. Baker: [email protected] Ashutosh A. Bhagwat: [email protected] Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. TABLE OF CONTENTS CHAPTER 5. COMPELLED EXPRESSION ............................................................. 1 B. Compelled Subsidy ................................................................................................... 1 Note: Further Limitations on Abood ........................................................... 1 CHAPTER 7. REGULATING THE “TIME, PLACE, AND MANNER” OF PROTECTED SPEECH ............................................................................................ 4 B. Applications of the Doctrine .................................................................................... 4 McCullen v. Coakley ...................................................................................... 4 Note: Restrictions on Anti-Abortion Speech ............................................ 18 Problem: Buffer or Bubble? ........................................................................ 20 CHAPTER 8. CONTENT NEUTRALITY: THE PRINCIPLE AND ITS PROGENY......................................................................................................................... 21 A. The Principle ........................................................................................................... 21 Reed v. Town of Gilbert ............................................................................... 21 Note: A Narrower View of Content Neutrality? ...................................... 31 CHAPTER 10. ADAPTING DOCTRINE TO NEW TECHNOLOGIES .............. 33 A. Different Media/Different Standards? ................................................................ 33 Problem: Net Neutrality ............................................................................. 33 CHAPTER 11. TESTING THE BOUNDARIES OF DOCTRINE ........................ 34 B. Judicial Campaign Speech ..................................................................................... 34 Williams-Yulee v. Florida Bar .................................................................... 34 Note: “The Appearance of Strict Scrutiny” and the Perception of Fairness ........................................................................................... 49 C. Campaign Finance .................................................................................................. 50 McCutcheon v. Federal Election Commission ......................................... 50 Problem: Too Many Large Contributions? ............................................... 66 Problem: Amending the First Amendment .............................................. 67 CHAPTER 12. BEYOND REGULATION: THE GOVERNMENT AS EMPLOYER AND EDUCATOR .................................................................................. 68 A. First Amendment Rights of Government Employees ....................................... 68 Lane v. Franks .............................................................................................. 68 Note: A Return to Pickering? ..................................................................... 74 Problem: The Police Chief Versus the Mayor .......................................... 74 v Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. vi TABLE OF CONTENTS CHAPTER 13. BEYOND REGULATION: WHOSE MESSAGE IS IT? .............. 76 B. When Is the Government the Speaker? .............................................................. 76 Walker v. Texas Division, Sons of Confederate Veterans, Inc. ............. 76 Note: Expanding the Government Speech Doctrine ............................... 90 CHAPTER 15. THE HISTORY AND PURPOSES OF THE RELIGION CLAUSES ...................................................................................................................... 92 B. History and Tradition ............................................................................................ 92 Note: What Are the Values Underlying the Religion Clauses? ............. 92 CHAPTER 16. THE ESTABLISHMENT CLAUSE ................................................ 98 E. Legislative Prayer .................................................................................................. 98 Town of Greece v. Galloway ........................................................................ 98 Note: Past and Present Precedent ........................................................... 117 Problem: “Thinking Like a Justice” . . . About Religion ....................... 118 CHAPTER 17. THE FREE EXERCISE CLAUSE ............................................... 121 B. Modern Cases ........................................................................................................ 121 Note: RFRA and the Contraceptive Mandate ....................................... 121 Note: RLUIPA Resolves a Prisoner’s Dilemma to Grow a Beard for Religious Reasons .......................................................... 125 Problem: Snakes in a Church ................................................................... 131 Problem: Banning Sex Offenders from Attending Church .................. 132 CHAPTER 18. INTERRELATIONSHIPS AMONG THE CLAUSES .............. 134 A. Definition of Religion ........................................................................................... 134 Problem: What Do the Cards Reveal? — Is Fortunetelling Protected by the First Amendment? ............................................. 134 B. Tensions Between the Religion Clauses ............................................................ 135 Problem: Religious Holy Days or School Holidays? .............................. 135 C. Religious Speech ................................................................................................... 138 Problem: Protesting to the Congregation ............................................... 138 Problem: Football Helmet Decal Controversy ...................................... 139 Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. Chapter 5 COMPELLED EXPRESSION B. COMPELLED SUBSIDY Page 350: add before the Note: NOTE: FURTHER LIMITATIONS ON ABOOD 1. In Knox v. Service Employees International (2012) (Casebook p. 347 Note) the Court struck down a public-sector union’s procedure for collecting supplemental assessments from non-members for the purpose of funding political speech beyond that paid for by the union’s regular annual collection. Limiting the scope of the Court’s previous understanding that “dissent is not to be presumed,” Machinists v. Street, 367 U.S. 740 (1961) (Casebook p. 346 Note), Knox ruled that dissenting non-members in an agency shop workplace have a constitutional right to not have such supplemental funds collected from them unless they affirmatively opt in to that collection. Two years later, in Harris v. Quinn, 134 S. Ct. 2618 (2014), the Court questioned at length a more foundational premise of Abood, which allows unions to collect from non-members fees to pay for the union’s collective bargaining activities. However, rather than overruling Abood, the Court distinguished it, thus preserving that precedent, at least for the time being. Harris considered an Illinois law allowing a union of government-funded home health-care workers (“personal assistants” or “PAs”) to collect fees from non-members to defray the union’s cost of performing certain activities, including collective bargaining. PAs who objected to paying those fees sued. The Seventh Circuit ruled for the state, applying Abood. On a 5-4 vote, the Supreme Court reversed. Writing for the majority, Justice Alito (who also wrote the majority opinion in Knox) distinguished Abood on the ground that the employment status of personal assistants is “much different” from that of the “full-fledged public employees” in Abood. Relying on Illinois law, the Court concluded that PAs are essentially private-sector employees of the individual clients to whom they are assigned. According to the Court, the personal assistants’ status as something other than “full-fledged public employees” altered the union’s role in representing the interests of non-members in ways that rendered inapplicable Abood’s justifications for allowing mandatory collection of agency fees to defray collective bargaining expenses. An important part of the Court’s refusal to apply Abood appeared to be its skepticism about the correctness of that case’s analysis. The Court explained its concerns: The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. . . . Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues 1 Copyright © 2016 Carolina Academic Press, LLC. All rights reserved. 2 COMPELLED EXPRESSION CH. 5 such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. . . . Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective- bargaining and political advocacy and lobbying are directed at the government. Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes”) or nonchargeable (i.e., expenditures for political or ideological purposes). In the years since Abood, the Court has struggled repeatedly with this issue. See [e.g.] Teachers v. Hudson (1986) [Casebook p. 347 Note] . . . . Abood likewise did not foresee the practical problems that would face objecting nonmembers. Employees who suspect that a union has improperly put certain expenses in the [chargeable] category must bear a heavy burden if they wish to challenge the union’s actions. Because of the open­ended nature of the . . . test, classifying particular categories of expenses may not be straightforward. . . . Finally, a critical pillar of the Abood Court’s analysis rests on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop. . . . [This] assumption is unwarranted. What the Court described as “Abood’s questionable foundations,” when combined with the Court’s conclusion that “the personal assistants are quite different from full-fledged public employees,” led the Court to “refuse to extend Abood to the new situation before us.” Applying “generally applicable First Amendment standards” to this new situation, the Court held that the agency fee provision at issue in Harris failed the “exacting scrutiny” Knox required. In particular, the Court concluded that there was no “inextricable link” between “the union’s status as exclusive bargaining agent and the right to collect an agency fee from non-members.” Even if there were, the Court concluded, “features of the Illinois scheme would still undermine the argument that the agency fee plays an important role in maintaining labor peace.” For example, the Court noted that “any threat to labor peace [was] diminished because the personal assistants do not work together in a common state facility but instead spend all their time in private homes.” Justice Kagan dissented in an opinion joined by Justices Ginsburg, Breyer, and Sotomayor. She began by disputing the majority’s characterization of the state’s role in employing PAs and the significance of the extent to which individual clients rather than the state supervise PAs. She concluded that the details of the Copyright © 2016 Carolina Academic Press, LLC. All rights reserved.