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45195 *45195-P.-10-1* 45195Institution Harvard Law School Course / Session Parker- Con Law 1st Amend

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Extegrity Exam4 > 11.3.8.0 45195-P.-10-1 Section All of 10

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Institution Harvard Law School

Course Parker- Con Law 1st Amend

Instructor NA

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Exam ID 45195

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

Section 1 2498 13581 16051

Total 2498 13581 16051




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Answer-to-Question-_1_

Introduction

The student is correct that the First Amendment is not always the

haven for oppressed minorities that many envisage it to be.

However, contrary to the student's assertions, in most areas of

First Amendment law one can find a coherent approach taken by at

least some members of the Court which would support protecting

minority and outsider rights. However, the issue is that this

approach ultimately derives its critical power from a conception

of democracy and equality not shared by all members of the Court,

and as a result it cannot always be dominant across cases. Thus,

the First Amendment either already is or can be, at least in

part, about protecting minority rights; but whether it should be

will depend on which conception of democratic equality espoused

by the Court one chooses to embrace. In this essay, I will

demonstrate this by examining how the Court could possibly treat

four minority or outsider groups that are likely to come before

it in the future: atheists, terrorists, the average citizen, and

internet activists.

Before beginning, I should note that one could argue that my

claim that a theory of democratic equality underlies any approach

to First Amendment law smacks of ex post justification. This may

be; but ultimately I think that at some level, any Court opinion

will be based in part on a conception of how the results of that

decision will play out in our democratic processes. For this

reason, I believe that this approach to analysis is legitimate

and worthwhile, if, at times, artificial.

Atheists: the Establishment and Free Exercise Clauses

A growing number of Americans now identify as "unaffiliated" with

any religion. In fact, according to Pew Research atheists and

agnostics now outnumber Jews, Jehovah's Witnesses, and Mormons

combined. How will the Court treat future First Amendment claims




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brought by atheists and agnostics?

The Court has taken two dominant approaches to religion. The

first approach sees religion as the social foundation for

American civic life. From Reynolds through Van Orden, numerous

Justices have espoused a view that "we are a religious people

whose institutions presuppose a Supreme Being" (Zorach). On this

view, the establishment clause does not erect an impregnable wall

of separation, but instead government can aid religion to provide

for free exercise by leaving some "play in the joints." Thus, aid

to religion in general is a permissible accommodation, as is any

aid with a general secular purpose and with only the effect of

supporting religion (see, e.g., Braunfeld, Everson, Zelman).

Religions which contribute to this social foundation, such as

peaceful proselytizing Jehovah's Witnesses (Cantwell), the quaint

self-reliant Amish (Yoder), or pious Seventh-Day Adventists

(Sherbert, Hobbie) are viewed favorably under the free exercise

clause, while the claims of those who do not are suspect, like

those of violent polygamous separatist Mormons (Reynolds) or

obnoxiously proselytizing Jehovah's Witnesses (Prince).

A second approach sees religion as a basis for persecution and

divisiveness which will lead to the "unanimity of the graveyard"

if not kept in check (Jackson in Barnette, Black in Everson).

This approach fears the majority directing its righteous rage at

perceived apostates through coercive means (Barnette, Hobbie,

Weisman) and is suspicious of any ostensibly "secular" policy

which significantly aids religion (Jackson in Everson, Souter and

Breyer in Zelman). In fact, such secular purposes are oftenmerely shams (see the school prayer and creationism cases). Thus,

the establishment clause must take on exceptional critical power,

which will have the added benefit of saving religion from its own

corruption (Souter in Zelman).

While these competing approaches may appear to be based on a




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subjective evaluation of religion, they are in fact based on

differing conceptions of democratic equality. The first is rooted

in a fundamentally majoritarian view of democracy which believes

legislative processes result in little hostility to particular

religions (Scalia in Smith, Kennedy in Boerne), and where the

relevant dimension of equality is that amongst religions. The

second is undergirded by a libertarian-pluralist view of

democracy, where majoritarian legislative determinations must be

counteracted by civil rights safeguards, and where the relevant

dimension of equality is that between religion and irreligion

(Stevens in Boerne). Unless underpinned by these views of how

democratic processes tend to work, these differing views of

religion would have no constitutional meaning.

These differing approaches to democracy could translate into

radically different treatments of atheists under the First

Amendment. Under the first approach, atheists and non-believers

would be placed beyond the pale of the First Amendment. An

aggressive supporter of this approach would say that their

"trendy disdain" toward clergy (Scalia in Locke) and toward faith

in general is not deserving of constitutional protection because

it is based merely on "subjective evaluation" and informed by

"secular values" like those of Thoreau (Burger in Yoder ). As the

First Amendment is concerned with "religion" only, atheists are

therefore entitled to no greater First Amendment protection than

proponents of other secular views, and holding otherwise would

make conscience a "law unto itself" (Smith).

But under the second, pluralistic-libertarian approach, theirreligious would be seen as no different than individuals with

unorthodox religious beliefs (Lukumi, Cutter ), and thus deserving

of protection. The government could therefore be kept from

"sending a message to nonadherents that they are outsiders"

(O'Connor in Lynch) by forcing them to pledge allegiance to a

nation "under God." Without such safeguards, democratic processes




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left to their own devices would result in outright coercion,

perhaps with a well-meaning intent to publicly honor God.

Thus, the First Amendment clearly does provide at least some room

to protect minorities and outsiders under the establishment

clause and free exercise clause, but the scope of its ability to

do so will ultimately depend on the conception of democratic

equality underlying one's decision.

Terrorists: Subversion and Incitement

Anyone glorifying or supporting terrorism can perhaps be labeled

the "ultimate outsider" in America. Such a person is perhaps the

outsider which challenges the student's statement the most: if

the First Amendment should be about protecting minorities, why

should it protect this one, who seeks to bomb the marketplace of

ideas to pieces? The reason that we should care, of course, is

that our treatment of one hated minority's constitutional rights

can affect more marginal cases (like Holder ) and social attitudes

toward those who superficially resemble them (e.g., Muslim men).

How would the Court treat incitement to or glorification of

terroristic violence?

The first approach, moored by Chaplinsky , sees incitement to

violence as a form of speech with no value. Indeed, so long as

there is a clear and present danger of a violent conflagration,

the Court is obligated to act (Schenck, Frohwerk, Gitlow ) and we

need not wait until "the putsch is about to execute...and the

signal is awaited" (Dennis). After all, we face not a choice

between "order and liberty" but rather one between "liberty withorder and anarchy without either" (Jackson in Terminiello). In

fact, merely belonging to or otherwise aiding a dangerous

organization might itself suffice (Whitney , Holder ).

The second approach, by contrast, is fearful of censorship,

drawing a crucial distinction between "advocacy and incitement,




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between preparation and attempt" (Brandeis in Whitney ).

Deliberation and debate is far better than "silence coerced by

law," (Id.) and so we must raise the bar the imminence and

likelihood of the harm must reach before we intervene

(Brandenburg ). This approach devalues intangible "what-ifs," and

is especially vigilant for evidence of viewpoint discrimination

on the part of the government, even if well-intentioned (c.f.

R.A.V., Snyder ).

It may seem that these two approaches are based merely on a

differing assessment of the likelihood of tangible harm, or on

the importance of intangible harm, or both. But digging deeper

reveals both are anchored by a theory of democratic equality. The

first approach is grounded in a majoritarian view of democracy

wherein courts should give deference to the legislature with

respect to threats, and wherein only those who respect the rights

of others are entitled to equal rights themselves. The second

approach believes that a pluralist democracy is robust enough to

withstand danger from within, and that there are no prerequisites

for equality before the law; holding otherwise would invite

majoritarian crushing of dissent even in less dangerous times.

Under the first approach, the choice the terrorist faces is to

renounce either violence or their First Amendment rights. By

contrast, the second approach argues that the First Amendment

should not be a haven for prosecutors, and fears overzealousness

will extend to relatively innocuous speech activities, such as a

teenager posting a careless message on an online message board.

The point here is not to show that terrorists would be treatedwell by the Court under the second approach. Far from it;

admittedly, it seems the only time the Court had the courage to

stand against popular opinion regarding a "dangerously violent

minority" was in Brandenburg , where the defendant was relatively

hapless. Instead, what this shows is that even an argument for

terrorists' "freedom" can find some basis in First Amendment law,




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depending ultimately on whether the Court adopts a conception of

democratic equality conducive to this.

Average Citizens: Campaign Finance

Although the student's email seems to be concerned more with

small, vulnerable minorities than with majority rights, one could

also assume based on the tone of their email that they would also

be worried about the average citizen being shut out of the

political process and made into an "outsider." Indeed, this could

happen as a result of the superior spending power and access of

corporations, unions, and the wealthy. Suppose the average

citizen wants back in - what then?

As always, two approaches are possible. The first approach is

that taken by Conservative members of the Court in McConnell,

Wisc. Right to Life, and Citizens United . They are especially

concerned about any chilling effect on core political speech, and

worry about forcing some, but not all, citizens to bear special

burdens in order to exercise their right to speak. After all,

American citizens are not ill-informed ignoramuses. Thus, this

approach is clearly grounded in a view of American democracy that

sees private ordering as the basis for our political processes

and which aims to establish a thriving free market society. In

this society, First Amendment rights flow from a conception of

equality that gives everybody the same right to speak, and which

rejects equalizing the resources at their disposal for doing so

because it would disrupt the private ordering undergirding the

system.

The second approach, one which has admittedly failed to carry the

day so far, takes the opposite view that the possibility of

corruption, favoritism and cronyism caused by "corporate money in

politics" is palpable, and that "corporate domination" of the

airwaves before elections will "drown[] out" other citizens'

voices (Stevens in Citizens United ). This view sees pure private




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ordering as a danger to our democracy, not a foundation, because

the wealthy and powerful can further their self-interest through

democratic processes. Thus, the one-person one-vote ideal of

equality should apply throughout all stages of the political

process; equality is meaningless without a realistic opportunity

to be heard.

The average citizen could fare quite differently depending on

which two of these approaches the Court adopts. Under the first

approach, the average citizen is not even an "outsider" at all,

as they enjoy the same speaking rights as everybody else; the

student's fears are thus unfounded because the Constitution

ensures that all members of society enjoy the same freedom.

However, under the second approach, one wealthy individual's

ability to spend infinite amounts of money at any point in the

election cycle can result in a lessening of democracy for

everyone else. Thus, who the "outsider" is and whether the First

Amendment "is about" their freedom will depend on one's

conception of democratic equality.

Internet Activists: Public Forums and Time/Place/Manner

Restrictions

The final archetypal outsider I will consider is the Internet

activist. Their treatment under the First Amendment will surely

become important in the coming years, given the increasing

importance of the Internet in social life. How will the Court

handle actions by the government or private parties to limit an

individual's access to and ability to use the Internet?

The answer to this question will depend on which approach to

public forums and TPM restrictions the Court takes. One approach

focuses on property "ownership," and is best exemplified by the

Third Period cases in which Justice White took the lead (e.g.,

Metromedia). Under this view, any owner of property (including

the government) can restrict the use of property to that use for




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which it was intended (though if the government does so, it must

satisfy an intermediate scrutiny test). Traditional public forums

like sidewalks and parks must remain open to all comers;

otherwise access can be restricted even for such trivial concerns

as aesthetic interests (Metromedia). The second approach is less

deferential to those who would restrict access. Instead, its

concern is for maintaining access to the low cost modes of

communication "essential to the poorly financed causes of little

people" (Struthers) like leafletting (Schneider ), handbills

(Struthers), door-to-door solicitation (Watchtower ), and sound

trucks (Saia).

Each approach is grounded in a conception of democratic equality

that mirrors one of those seen in the campaign finance cases. The

first sees private ordering as a foundation of our democracy, and

sees leveling the playing field in the name of "equality" an

unfair intrusion on property rights. The second approach, by

contrast, is rooted in a conception of democracy that stresses

active, meaningful popular participation which holds the

government accountable wherever it operates, and where equality

is not merely a matter of voting, but also of access.

But is the Internet a public forum? And whose "ownership rights"

are implicated - the website, the service provider, the domain

registrar, the content creator, or all of them? Furthermore, how

can one restrict TPM on the Internet in the first place? The

first approach gives little guidance, which perhaps leaves some

headway for democracy. With respect to the second approach, the

Internet is surely a low-cost way of reaching many people. Butcouldn't it also be used to drown out the speech of the "little

people?" How would the First Amendment deal with the privacy

concerns that unfettered access would raise? We know that some

privacy rights are protected by the First Amendment, while others

are not (compare Stanley with Florida Star and Bartnicki). But

how could the Court justify protecting online privacy under the




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First Amendment given its strong stance favoring disclosure in

campaign finance cases? Regardless, it is clear that internet

activists could find some basis "for freedom" grounded in the

conceptions of democracy underlying existing Court opinions.

Conclusion

As the above analysis demonstrates, one who is concerned about

"freedom" must first ask themselves what role they believe

freedom plays in our democracy. The First Amendment clearly can

already be a force for protecting minority rights; but it is up

to us to advocate for the form of democracy that makes that

outcome desirable for the Court

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