feldman con1st 2011s exam h

7/30/2019 Feldman Con1st 2011S Exam H

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39408 *39408- F. - 9- 1* 39408Institution Harvard Law Schoo l Course / Session Feldman- Con Law 1st AmendExam Mode TAKEHOME NAExtegrity Exam4 >11.2.8.0 39408-F.-9-1 SectionAll Page 1 of9

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Institution Harvard Law School

Course Feldman- Con Law 1st Amend

Instructor NA

Exam Mode TAKEHOME

Exam ID 39408

Count ( s) Word( s) Char ( s) Char( s) ( WS)

Sect i on 1 999 6255 7252

Sect i on 2 498 3200 3700

Sect i on 3 500 3099 3610

Tot al 1997 12554 14562


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Answer-to-Question-_1_

Exercise:

Claimants will object that Ames regulates religious beliefs, foresworn in Reynolds. The hybrid claim (but

no individualized exemptions - Smith) is not neutral (Smith) nor RLUIPA implicating. Under Sherbert,

their central beliefs (establishing emirates) are substantially burdened by Ames proscribing their

advocacy. Ames' interest-suppressing minority religious belief-is not compelling. That only first

amendment conduct is restricted, despite harm of the same sort's nonrestriction, further demonstrates this.

Lukumi. Claiming "doctrine" is "criminal" and proscribing all advocacy, even without imminent threat

(see free speech) indicates over-breadth. Moreover, religious exercise need not be implicated; overthrow

and its means could be prohibited, better effectuating the desired result. Under Lukumi, animus motivated

laws, where indicated by statutory text (separating claimants from parent religion, denouncing as

criminal) and effects (prison) are neither neutral nor (usually) compellingly interested. Finally, despite

claims otherwise, their "doctrine[s]" are religious, rooted in an interpretive theistic, prescriptive Islamic

tradition. If legislatures can decide what counts as religious belief, free exercise is dead.

Response: the statute regulates advocacy, not belief. 3. Even if "offensive Jihad" (OJ) is religion,

adherents' actions may be regulated if harmful. Reynolds. If Sherbert applies, the compelling interest is

preventing violent overthrow (e.g. Whitney) and the statute is well tailored-directly addressing the most

prominent contemporaneous threat, proscribing only its relevant aspects (advocating overthrow).

Sherbert may not apply-the law is neutral toward religion (either OJ is not religion or Ames is neutral

toward OJ qua religion and non-neutral toward violence advocacy). If so, Smith applies, preempting

exercise protection. Also, since OJ is not religion, religion remains unburdened; Lukumi and the First


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Amendment are is inapt. Even if religion, Lukumi is inapt; there, similar, likely harms (animal

slaughter) were statutorily ignored. Ames regulates the entire class; OJ has no comparably dangerous

peers.

Speech:

Claimants will claim heightened scrutiny applies (see Sherbert above); their advocacy is no incitement

exception. Most OJs do not intend immediate overthrow (no plausible "collective effort" to join),

indicating no intent for imminent lawless action. Brandenburg. Additionally, given millions of OJs and

comparatively few attacks, it is extremely unlikely that lawless action will follow OJ advocacy

(Brandenburg, and implicating over-breadth (much OJ does not correlate with violence, as with most

ignored revolutionary ideologies)).

Finally, the statute is content-based; the incitement exception does not apply. RAV. Ames doesn't

proscribe all violent overthrow advocacy; it singles out OJ.

Response: OJ is archetypal incitement. Given past deference to legislative findings (Gitlow) and to the

political branches during war (e.g. Froehwerk), the court should defer to legislative judgment.

Nonetheless, OJ's intend overthrow and violence (lawless action). Brandenburg.

Terrorism (lawless action) is employed to this end today, answering any immance question. Brandenburg.

Claimants argument that overthrow is unlikely is inapt; likeliness modifies "lawless action", not "the

success of OJ's ambitions". Because terror sometimes follows in response to OJ advocacy

("participat[ing] in any collective effort" (1(a)), OJ teachings incite, and hence are unprotected.

Brandenburg retreated from Dennis's adoption of Hand. Here, likeliness is required. There likeliness

discounted gravity, (thus) overcome-able by extreme gravity. Overthrow is unlikely but unimaginably

grave. Terrorism is likely and also incredibly grave. Also, Hand's standard for advocacy was higher: duty


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or interest must be suggested. Masses Publishing. Ames requires this. (1(b)) Thus, Ames satisfies both

aspects of Hand's more rigorous formula. A fortiori, it satisfies Brandenburg. Finally, claimants content

analysis is incomplete. OJ is relevant to proscribable conduct as its pseudo-theological approach

incomparably motivates its adherents; only OJ advocacy of overthrow is sufficiently dangerous for

prohibition. RAV. Further, the secondary effects (violent overthrow) make it a worthwhile target, similar

to treason. RAV. If wrong, see interest/tailoring above.

Establishment

Claimants will argue the state cannot "pass laws which aid [or] prefer one religion over another" Everson.

Ames favors government approved Islam ("GI") over OJ, and since profession of OJ is advocacy, Ames

punishes professing. The statute fails the first Lemon prong; it purposefully favors GI over OJ,

specifically disfavoring OJ. If the purpose is broader (avoiding insurrection) the statute is poorly tailored

(supra). Ames violates prong two because its primary effect is inhibition of OJ, and because it possibly

advances GI, (without the intervention of privately aggregated choices). Lemon, Mueller. For prong

three, displaying statutes that preach on theological (il)legitimacy Islamic iterations is paradigmatic

entanglement. Also (Kitzmiller), under endorsement, the reasonable observer, will see theological

boundary pronouncements, OJ bashing, and legislative favoritism of GI over OJ as unabashed

endorsement and exclusion.

Response: The legislature found OJ is not religion, ergo, not a disfavored religion.

Regarding Lemon, the purpose is decidedly secular: protecting citizens (tailoring implications addressed

above). Nor will the primary effect inhibit religion (OJ isn't religion). Alternately, if it is religion, the

primary effect will be inhibition of associated incitement, not the religion qua religion. Finally,

preferring peacefulness over overthrow is not entanglement; neither Mosque nor State is mutually

involved. For endorsement, the reasonable observer of this law will not see state endorsement of Islam in


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any form because (Christian) context (Lynch) and history (McCreary) will inform otherwise. And the

un-endorsement of OJ is either not regarding a religion, or it is merely the un-endorsement of violent

overthrow qua violent overthrow, not qua religiosity.

If the above implicates association, it does so only indirectly; interest/tailoring would remain relevant, and

were discussed. Group libel would be a specious claim (government libeling?, and Collin).

Our policies, implicating as-applied challenges should avoid the biggest pitfalls above.

Focus only on advocacy likely producing imminent effects. Brandenburg. Equally target (under other

law) non-advocacy actions in the causal chain leading to lawless action (regulating conduct, not belief

(Reynolds)). Because statute displays will be government speech, they must be contextualized. Lynch.

For un-endorsement, if OJ is religion, the displays should be paired with terrorist history by OJs and other

historic laws prohibiting advocacy of overthrow. Regarding GI, the Christian context should be sufficient,

but perhaps disclaimers, or examples of other laws celebrating peaceful protest could be included. Their

prominence should be minimized (Alleghany County), and done constitutionally the first time (McCreary

County).

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Answer-to-Question-___

Given their prominence in the class, I will primarily discuss the marketplace and civic republicanism,


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viewing the romantic view only briefly. In addition, I will assume that government speech regulation is a

correlary to government speech, further illustrating the role collective speech (or speech regulation) plays

under prominent theories.

Holmes' marketplace of ideas, introduced in his Abrams dissent, initially might appear uncomfortable

with government speech. Establishment clause jurisprudence, especially endorsement and Kennedy's

coercion analysis, indicates concern regarding the monopolistic power of the government speaker.

Fortunately, for Holmesians, establishment limits this particularly pernicious ideological megaphone.

On the other hand, market participants face collective actions problems. Sometimes acting collectively

maximizes utility (paralleling "winning" ideas in pragmatism) but incentives are misaligned without a

central administrator. Government speech is that administrator. Collective bargaining improves teacher's

lots; to avoid free riding, the government forces contributions. Abood. Similarly, the government can

decide to tax and speak, although seemingly on behalf of the group it taxes, presumably under the belief

that it maximizes group interest (Johanns).

The government also acts as an employer or organization. Avoiding handicapping it in the market means

it can control employee speech, qua employees (Connick, Garcetti), and with some balancing, qua

citizens (Pickering). Government speech may simply effectuate majoritarian will (fewer abortions,

preserving taxpayer conscience (Rust)). By choosing to speak in some ways and rejecting others, it may

protect majority opinion (Summum), but since minorities are allowed to share their ideas (UVA, RAV),

the market remains.

Brandeis' civic republicanism (CR) celebrates participatory democracy through political discussion.

Although Brandeis feared the curse of "bigness", he believed the polity was central in fomenting speech.

Insofar as government speech or government influenced speech augments people's ability to engage in


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political discussion, CR will support it.

As with the marketplace, when the collective wishes to speak with one voice but is thwarted by

incentives, CR supports aiding that speech. Government speech may be the only means for beef growers

(Johanns) or teachers (Abood) to speak effectively. Public school curricula (government speech) enable

future speech; they are limited by establishment (Edwards), possibly because establishment discourages

diverse participation. Importantly, the government may favor equal time laws (Red Lion) so that the

speech afforded the few frequency holders does not stymie the speech of the many. Limiting exclusive

associations (Jaycees) or speech-disabling speech (Sullivan, Curtis), and stronger limitations for greater

disablement (Gertz), paradigmatically represents CR. Perhaps, viewing Easterbrook's analysis (Hudnut),

CR would respond that ideas or nonideas in pornography effectively disable too much speech.

Finally, the cultural/romantic view celebrates individual speech autonomy, in part a strange bed-fellow

for collectivist government speech. But, similarly to CR, it will support government speech and

regulation that promotes individual speech. Where the government can enable individual speech through

government speech (Summum, public education), public forums (UVA), regulation of speech (Red Lion,

Hudnut discussion above) or fund it without discrimination (Finley)-the romanticists will accept it. But

inevitably this will encroach on individual speech (e.g. Rust, Summum, Minersville), and some resistance

will follow.

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Answer-to-Question-___

The case for reconciliation is difficult, but plausible, if less than completely compelling.

Endorsement, which makes no obvious space for opt-outs (Santa Fe), concerns itself with

marginalization. Whether or not someone can avert their eyes to the crche on the courthouse steps in

Alleghany County, they experience their own "otherness". Simply knowing the religiously motivated

history of the diverse display that includes a Decalogue violated endorsement norms. McCreary County.

Barnette's opt out provides a means to avoid state mind control. But does the objector avoid the

marginalization contemplated by endorsement simply by opting out? The government speech (the pledge)

seemingly marginalizes in parallel fashion. This may even be the goal of forced collective speech.

But religious establishment is conceptually distinguishable from ideological establishment. Ideological

establishment may foster de-marginalization through public schooling or avoiding collective action

problems (Abood). Whatever its utility, we treat establishment differently. Through the modern

endorsement lens, the constitution prohibits established religion either because it marginalizes to a greater

degree or in a different manner than other "establishments." Given the immense power of religious norms

and sanctions or the nature of much religious judgment (not, "we disagree", but "you will rot in hell"),

religious establishment may marginalize particularly perniciously.

Hence, the nature of established church is different than the nature of established ideas, probably in both

degree and kind. A democratic state that establishes certain ideals is unlikely to quash liberal diversity,

in part because there will always be motivated political opponents. Established ideals may necessarily

enhance liberal democracy (valuing diversity, equality). But a state establish/endorsed church may not.


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The nature of liberal democracy is the key. It cannot be neutral toward itself and by nature should

remain neutral toward (Rawls' "reasonable") religions. Ergo, the state must be able to establish ideals

(particularly supporting liberal diversity and freedom) but should not establish religion. Liberalism does

not fear that state ideologies coupled with free speech will quash democracy. Hence we protect

affirmative citizen actions (speech) but not from receipt of government action (establishment).

Conflicting ideology underpins democratic involvement, as any civic republican knows. But conflict in

the religious realm erodes liberal democracy ideologically and in fact, and thence we proscribe

government action (establishment).

History cautions against religious hegemony through state machinery. Establishment and exercise law

are particularly solicitous of religious minorities because of concern that the mechanisms of the state,

when used to effectuate religion, even through endorsement, are a danger to the state (Jefferson), religious

minorities and even the religious majority (Williams).

The difference extends to less conceptual matters: text and remedy. Barnette's opt outs are allowed while

establishment opt outs are not because the constitution prohibits an established church, giving us

constitutional reason to distinguish it from other established or endorsed and marginalizing ideas. Also,

insofar as Barnette was a free speech case (which is only affirmatively protected, not negatively from

establishment, it is textually distinguishable. And, because opt-out is unavailable for establishment, in

part because of historical problems with taxation and conscience, the remedies differ.

feldman con1st 2011s exam h

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