feldman con1st 2010s exam h

7/30/2019 Feldman Con1st 2010S Exam H

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Q1

SCAGs first claim would parallel the oldest Establishment claim in the US: thegovernment is forcing us to pay money that supports religious causes in which we do not believe,

thereby invading our liberty of conscience. SCAG will point out that the Red Lion Fund does

not allow groups to earmark their contributions or apply for an exemption. And regardless, theFirst Amendments broad language was specifically intented to prohibit even this type of

nonpreferential establishment. As Justice Blackmun acknowledged inAllegheny County,

simultaneous endorsement of several religions is still establishment. To bolster their argument,SCAG might argue that not only is the Fund coercion of the worst kind (the pocketbook), it

occurs in the most vulnerable context (the school). True, participation is voluntary and the

students involved are university- not elementary-school-aged. However, as Sante Fe

demonstrates, the Court has been willing to find peer pressure to conform even among olderstudents, at voluntary school functions, when initiated by fellow students like the student

committee here, and when the stated purpose was not religious.

In response, the University will rely onRosenberger. Under a combination of theLemonand endorsement tests (Lynch, OConnor concurring), the university would state its secular

purpose of creating a vibrant student body, its policys neutrality toward all religions, and itsprovision of a generally available good with only an incidental benefit to religion. No

reasonable, objective observer would think the University was favoring religion. Even under a

coercion analysis the University could respond that registration and therefore contributions to theFund where wholly voluntary and thus even less coercive than in Rosenbergerwhere all students

were obliged to contribute a portion of their tuition. Furthermore, in the voucher cases (Mueller

andZelman) secular schools were eligible for funds; likewise secular student groups are funded

here. Overall, the University will assert that the neutrality of the program distinguishes thestudent fees from a tax levied for the direct support of a church or group of churches

(Rosenberger). Given the strong parallels toRosenbergerand the Courts general trend towardnonpreferentialism, I believe the Universitys argument is stronger, showing just how farEstablishment clause jurisprudence has diverged from its original underpinnings.

Second, SCAG might make a Free Exercise claim paralleling Sherbert: the University iscoercing us to practice my religion in violation of my conscience because of the threat of losing

benefits. SCAG would argue that Sherbertshould apply because the registration process for

student groups is already a system of individualized exemptions, and that it should be given

deference regarding their beliefs and burdens (cf.Smith). However, the University could easilydefeat this claim at the final stage of the Sherbertanalysis because it has a compelling interest in

ensuring the viability of the Fund in order to foster a vibrant student body. This response finds

strong precedent in US v. Lee where the Amish were not granted an exemption from SocialSecurity because mandatory contributions were indispensable to the fiscal vitality of the system.

See alsoLyng(exemptions not appropriate when impairment of government operations results).

Moreover, the University would assert that strict scrutiny is not warranted because their policy isneutral and generally applicable (Smith). The Universitys arguments are clearly stronger here.

A Free Association claim would be equally weak for SCAG. UnderAbood, the Fund

impermissibly compels SCAG to support ideological causes as a condition of being officially


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recognized. Also, distinguishing Glickman, SCAGs freedom to communicate its own message

is restrained since it will not have email access, etc. However, the University would simply

point to Southworth in which the Court held thatAboodis unworkable in a university contextwhere its impossible to define what is germane to higher learning. The appropriate remedy is

viewpoint neutrality in the allocation of funding(see also Rosenberger), and the criteria here that

funds go to worthy causes is not viewpoint discrimination, but a generic, hortatory means ofdispersing limited funding (Finley). Also, the University is not forcing SCAG to admit any

members, and theres no worry that other groups messages will be attributed to SCAG

(Rumsfeld v. FAIR). The University should easily win here.

Finally, SCAG might try to make a Free Speech claim parallelingRed Lion, in which the

government required that licensees (here, official group recognition) share resources (here,

funds, email, advertising space, etc.) in order to ensure a free market of ideas. However,SCAGs situation lacksRed Lions essential characteristicscarcity. And moreover, subsequent

cases like Tornillo clarified that while the government may promote access, it is not required to.

Approaching Free Speech from a different angle, SCAG might argue that by requiring itto register and pay the fee, the University has created an impermissible barrier to speech in a

public forum. If it does not register and pay, SCAG will not be permitted to advertise in classicpublic spaces or distribute emails (todays pamphlets). As Justice Stevens proclaimed in

Watchtower Bible, it is offensive to the First Amendment and free society that citizen must

inform the government of their desire and obtain a permit to speak. See also Lambs Chapel(religious speakers must be permitted to use generally available facilities).

The University would respond that its requirements are content neutral and objective and

therefore are permissible time, place, and manner restrictions (Cox). This response justifies theregistration requirement, but it is less convincing with regard to the fee, depending on what the

Funds money pays for. For example, if the money is used to service the email network, or for

janitorial services to keep school rooms used by student organizations clean, this supports thetime, place, and manner response. If the only purpose of registration and the fee are Fund

eligibility and financial support, these restrictions are not narrowly tailored. SCAG could

register and access to the public forum without paying into the Fund, grants from which it wouldthen be ineligible. This is a worthy compromise that balances SCAGs First Amendment rights

and the Funds purposes.


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Q2

The purpose of the Free Speech Clause is the fostering of individual dignity. This isessentially the romantic justification, but in selecting the word dignity instead of autonomy or

expression, I intend to modify the typical romantic arguments. I take this position for two

reasons. First, emphasizing individual dignity creates a common theme amongst all of the FirstAmendment rights. Second, emphasizing individual dignity avoids the shortcomings of the

marketplace, republican, and conventional romantic justifications.

Individual dignity is the ability to pursue personal truth. I agree with Holmes that there

is no truth out there in the world waiting to be found. Especially in diverse and populous society,

we must agree that there is no one truth (Cohen). But I disagree with Holmes further assertion

that there is no truth at all. To deny that we each come to individual truths is to deny the humanexperience. Each person forms guiding principles for his or her life. Holmes would tell me that

I can never be certain that my family really loves me or that global warming is real. But if I

structure my life around these principles, they are true for me and become true in the world

through my speech and expressive actions. We live by symbols (Gobitis), but what aresymbols other than expressions of personal truths to the world?

Moreover, it through speech that we each find our own identities. It is not enough to

merely think. As social creatures, political creatures (Aristotle), we must interact with others.

Ability to speak and persuade others is essential to forming ones own enlightened opinion(Cantwell). Our interactions with others are our experiments at creating meaning (Abrams,

Jaycees).

My legal education has convinced me that the Founders truly believed in the sovereigntyof the people. In our democracy, the body politic is nothing more than the individuals, the

people, who make it up. As part of a political document, the First Amendment is a deliberate

attempt for those sovereign individuals to unite as a means to furthering the collective good life.So like Holmes, I agree that we form consensus. I just believe they are formed based on

individual, but real, truths. Even when we unite as a political unit, authority for discovering truth

remains with the individual. In other words, democratic legitimacy depends on individualdignity (Cohen, Whitney concurrence).

This focus on the individuals relation to the government creates a common bond with the

First Amendments other religious and expressive freedoms, whcih are all about the one thing wecannot delegate to the governmentour individuality. Locke said we cannot delegate our

salvation, thus creating the separate spheres of secular and the spiritual. In the same way Locke

thought it was hypocritical to give away authority for ones own salvation because it could not beseparated from the individual, it is impossible to give away your identity. For this reason I agree

with Justice Souters dissent inJohanns where he explains that the government can and should

speak for the collective community, but it cannot speak for individuals.

The importance of this question can be seen through the shortcomings of the other

justifications of Free Speech and the incorrect case outcomes they have produced. The typical

version of the romantic justification focuses on individual autonomythe solitary figure alone


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with his inner thoughts on a mountaintop. I disagree with this notion in principle because it

ignores our interpersonal nature, and I disagree with it because it is not pragmatic in our

populous, diverse world. By focusing on the solitary individual, the typical romantic fails tobalance liberty with equality. Cases relying on this typical rational note the emotive power of

words but on one hand, but deny the possibility of psychic injury on the other (Cohen). Cases

invalidating antidiscrimination statues in the name of free speech are the worst examples of thetraditional romantic justification at work (R.A.V.,Hudnut,Dale). Thus I choose the word

dignity to indicate the existence of othersmy dignity must be balanced with yours. In this

way, equality is an element of Free Speech itself, and it also ensures that other constitutionalvalues are not subordinated to it.

The republican justification is somewhat compatible with my conception of individual

dignity because it respects the process of self-discovery. However, in that theory, self-discoveryis undergone in the name of political participation (Whitney), and this requires a prioritization of

speech based on social value with which I am uncomfortable. Political discourse should not be

elevated above all other speech. Accordingly, I disagree withRoth andMillers attempt to cabin

topics of social value to the literary, artistic, political, and scientific. But I agree with Gertzsextension ofSullivan to include public figures who inform out community valuesthat is, they

inform our collective truth.

I have already discussed one problems with the marketplace analogyits premise on the

nonexistence of truth. In addition, the marketplace analogy only allows for regulations of marketfailures. This is internally inconsistent. It is impossible to identify market distortions without

making a judgment on what the outcomethe truthshould be. I do agree with Holmes that the

character of actions depend on their circumstances, and that speech cause more than the

acceptance or rejection of ideas (Schenck). But since I reject Holmes premise about theexistence of truth, I can state that inequality should be the externality that we care most about.

This brings me to the opposite conclusion inR.A.V. I do not see the governments regulation

through antidiscrimination laws as a market failure, but the hate speech itself. On the other hand,I agree withBeauharnais outcome but would justify the result based upon the states compelling

interest in preventing antidiscrimination rather than by finding group libel outside the scope of

the First Amendment.

I believe the First Amendment aims to balance liberty with equality. This is what it

means to be a progressive American today, and is the truth to which I aspire.

feldman con1st 2010s exam h

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