Parker Con1st 2009S Exam H

13912 *13912-P.-10-1* 13912 Institution Harvard Law School Course / Session Parker - Con Law-First Amend Control Code TAKEHOME Instructor NA Extegrity Exam4 > 9.3.23.1 13912-P.-10-1 Section All of 10 __________________________________________________________________________________________ Institution Harvard Law School Course Parker - Con Law-First Amend Instructor NA Control Code TAKEHOME Exam ID 13912 Count(s) Word(s) Char(s) Char(s) (WS) Section 1 999 Section 2 1992 Total 2991 0 0

13912 *13912-P.-10-2* 13912 Institution Harvard Law School Course / Session Parker - Con Law-First Amend Control Code TAKEHOME Instructor NA Extegrity Exam4 > 9.3.23.1 13912-P.-10-2 Section All of 10 __________________________________________________________________________________________

Answer-to-Question-_1_

Prohibiting loud noise making

This proposal should be found unconstitutional as violating the Establishment Clause. First, the

stated purpose of the legislation is to protect religious practices from being disturbed by non-religious

activities happening outside the church, which would violate the purpose prong of the Lemon test. Even if

the purpose was found to be secular, the legislation would still have impermissibly benefited religion in

its effect in violation of the effects prong of the Lemon test. Under this legislation, religious activities

would be free from interference from loud noises in a way that other similarly situated activities, such as

classroom activities or legislative activities, both of which have as good a claim to desire freedom from

disruptive noise-making, do not. This compares unfavorably to Everson, where both religious and

non-religious private school students who needed subsidized transportation would have received the

benefits of the provided transportation.

Proponents of the legislation might argue that under Smith, so long as the benefit granted to

religion is the incidental effect of an acceptably secular purpose, the legislation should stand. They would

compare the proposed legislation to the one upheld in Amos, which allowed the legislature to "alleviate

significant governmental interference with the ability of religious organizations to … carry out their

religious missions." However, this case can be distinguished from Amos because the interference to be

alleviated here is one of private rather than governmental interference, and as such the government

purpose is not to reduce the burden that it is placing on religion, which is permissible, but to "advance

religion through its own activities" vis a vis other private groups, which is impermissible even under

Amos.

Prohibiting activities designed to punish

This proposal should be found unconstitutional. The government interest at stake, which is

advocating the freedom of speech without private retribution, is substantial. (O'Brien) However, as this


interest is aimed at curbing "counter-speech" which could be considered punishment for advocating a

certain view point, it would not be unrelated to the suppression of free expression (O'Brien). Even if it

was, the proposal would still be too vague and overbroad to be considered narrowly tailored towards

furthering this governmental interest. (O'Brien) The term "activity", in particular, could conceivably apply

to a range of behaviors from imprisoning advocates, which is unrelated to speech, to protesting against

certain advocated views, which is protected under Terminiello ("a function of free speech … is to invite

dispute.")

Proponents could make several counterarguments. First, they could compare this proposal to the

ones upheld in Hill or Frisby, arguing that the advocacy being protected is a deeply special and personal

activity that should be held free from confrontational settings (Hill) and respected as if it was held within

one's home (Frisby). Neither is particularly compelling, as advocacy emphasizes the public and active,

rather than the private and contemplative, components of speech (in contrast to Frisby), and is aimed at

highlighting the strength and vigor of argument (Terminiello) rather than the weakness and vulnerability

of private decision-making (as in Hill or Madsen). Second, they could argue that the legislation is

designed not to prohibit counter-speech, but the "inarticulate … roars" (Rehnquist dissent in Johnson) that

add no value to public debate. However, even if the legislation could be more narrowly defined to permit

the "counter-advocacy" of ideas, it still would not be narrowly tailored because it would impermissibly

chill "symbolic communicative expressions" (see Johnson) which would require a decision made through

litigation as to the permissibility of the particular activity and therefore allow fear of such litigation to

"dampen the vigor" and "limit the variety" of debate. (Sullivan) Finally, any concern for protecting the

comfort or convenience of the advocates (see Kovacs) is mitigated by a lack of First Amendment

protection for freedom from embarrassment or other social costs (US v. ALA).

Misdemeanor for intentional lies

This proposal might be found constitutional for allowing uncontrolled governmental discretion in

free speech. There is substantial governmental interest in prohibiting intentional lies in public debate.


Intentional lies can be connected to "libelous" speech that is "no essential part of any exposition of ideas,

and [is] of such slight value as a step to truth" as to justify regulation (Chaplinsky).

The proposal would overcome challenges of vagueness and overbreadth by pointing out that the

modifier "intentional" excludes falsehoods as a result of mistake or even reckless disregard of the truth,

thus holding up a stricter standard than Sullivan ("actual malice") proposed, as well as attempts at satire

(Falwell). By focusing on a firm standard such as

"intentional lies", problems of uncontrolled administrative (Cantwell) or jury (Falwell) discretion in

applying vague "community standards" can also be controlled, which means that there is less concern for

the chilling of protected speech (See Sullivan). There is no concern for the chilling of lies, as "untruthful

speech has never been protected for its own sake." (Virginia Pharmacy) As for the contention that the

proper response to the propagation of harmful speech is either self-help through reply (Gertz) or

counter-speech (Johnson), this proposal could be likened to the regulation upheld in Hill, in which the

most extreme elements are regulated in order to prevent wasting resources on reply or counter-speech,

instead allowing rational deliberation among more moderate voices.

Abolition of tax exemption

This proposal would likely be found unconstitutional, as it is already controlled by Walz. The

arguments that tax exemptions for churches are a subset of exemptions for non-profits, that exemptions

for churches have traditionally been protected, that exemptions represent an incidental freedom from a

burden on religion rather than a direct benefit for religion (see Amos), and that the process of taxing

religious property would lead to excessive and impermissible government entanglement with religion

were all accepted in Walz. Even though proponents would likely rely on Douglas's dissent in Walz,

saying that exemptions are impermissible subsidies under a different name, absent any special

circumstances in this case to distinguish it from Walz, there is no reason to overrule stare decisis in this

situation.


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Answer-to-Question-_2_

The neutrality principle argues that the Court, and government in general, should not be involved

in "regulating" the "marketplace of ideas." (Holmes dissent in Abrams) Instead, the Court should allow

the democratic order, composed of civically virtuous individuals who decide between ideas and enact

policies based on these preferences, to regulate speech. Neutrality assumes that all individuals, or at least

the vast majority of them, are able to rationally and carefully deliberate on every given issue, that the

majority will enact policies reflecting their preferences, and that minorities will be given consistent access

and opportunity to persuade the polity to decide otherwise. I will demonstrate why each assumption is

crucial to the formulation of neutrality in the abstract and why each assumption fails to hold true as

applied in our constitutional jurisprudence.

The first assumption of a Court neutrality in First Amendment law is that people are individually

capable of evaluating ideas on their own and acting in a self-deliberative manner (Brandeis concurrence

in Whitney). Courts should therefore maintain "content-neutrality" and avoid evaluating ideas for the


people. However, there are stark inequalities of capability between individuals, and the Court should (and

often does) evaluate ideas based on what is "appropriate" for a group of individuals or for the polity as a

whole based on its evaluation of their capabilities. A clear example of this evaluation in action is in

school cases for both speech and religion. The Court has demonstrated that it can censor speech (Fraser),

block publication of certain articles (Kuhlmeier), and punish symbolic speech (Morse), all of which

would be acceptable in most adult contexts under the First Amendment, primarily because students are an

"unsuspecting audience" (Fraser) of individuals who are "not possessed of that full capacity for individual

choice which is the presupposition of First Amendment guarantees." (Stewart concurrence in Tinker)

Even in Tinker, where dissenting speech was upheld as permissible under the First Amendment, the right

of students to do so was limited by the boundaries of appropriate discipline, a limit not found in any adult

case of protest (See, e.g., Johnson)

This incapacity for self-deliberation is found in religion cases in schools to a lesser degree, most

prominently in Lee, where Justice Kennedy blocked an attempted prayer at a graduation ceremony by

contending, "adolescents are often susceptible to pressure from their peers towards conformity," and thus

unable to distinguish between standing in dissent and standing in support of a prayer, or unable to have

the mental and emotional capacity to sit down in dissent during such a prayer. The mixing of religion and

education for younger students has been found as prima facie evidence of a "pervasively sectarian"

environment which the government should not support (Hunt, Roemer). In contrast, older university

students were defined by a "skepticism" in an environment of "high academic freedom [that seeks] to

evoke free and critical responses" from students that would overcome any pervasively sectarian

influences. (Tilton) By stating this contrast, the Court admitted its willingness to evaluate the capacities

for self-deliberation of groups as a whole and adjust its neutrality towards religion accordingly.

Oddly enough, despite the fact that public school cases striking down religion either in the form of prayer

(Engel, Schempp) or meditation (Jaffree) overturned the conscious deliberation and choice made by


voters and legislatures to act on their preference for a particular idea, which is the basis of neutrality,

these cases were characterized as ones being truly "neutral" with regard to religion (Jaffree). Only a select

few cases, such as Mergens and Newdow, go the opposite direction and hold that respecting the

legislative intent to allow certain aspects of religion in schools (facility use, solemnizing of the Pledge of

Allegiance) recognizes neutrality in its ideal form. This implies that for the Court, the appearance of

neutrality has become an end for itself, rather than a means to the values of democratic order.

One might argue, as Scalia did in his Lee dissent, that it is a civic virtue to learn to be respectful of other

ideas and religions, and that the Court should be "neutral" as ideally formulated and allow students to

develop such virtue. However, there is some substantial truth to the relative capacities of children and

adults. In Fraser, for example, the student's speech was met not with appreciative laughter of the

wordplay, nor with any greater insight into his candidate's relative strengths and weaknesses, but with

inappropriate sexual gesturing and general bewilderment, illustrating in part the absurdity of expecting

proper "civic virtue" from high school students that Scalia extolled. While neutrality could be enforced,

by allowing every viewpoint to pass through without regulation, in these circumstances, the relative

incapacities of students vis a vis adults suggest that neutrality should not be the primary focus of this

jurisprudence.

One might also argue that the public school cases represented a narrow exception to the general

rule regarding neutrality, and that in cases of adult decision-making, neutrality ought to be the norm. On

this point, our jurisprudence has tended to be divided, as can be seen through addressing the second

assumption of neutrality: that of a deliberative majority able to enact the policies representing their

preferences between competing ideas. The problems with this assumption relate to the problem of

"capture" by elites, in which a highly organized group of elites are able to "manipulate" the preferences of

the majority, thus requiring the Court to step in and "undo" this manipulation, even at the cost of

neutrality.


Whether or not the Court adopts this view has depended on the extent of "manipulation" observed by the

Court. The discrepancies between decisions can be found both in campaign finance reform and in

commercial speech. On one hand, the Court has ruled in Buckley v. Valeo that limitations on

contributions were constitutional in order to prevent the appearance of corruption or capture of the

political process by the wealthy elite. This reflected the holding in McConnell that "the curbing [of] the

corrosive and distorting effects of immense aggregations of wealth [on politics]" was justified because of

the fear that the citizen was incapable of distinguishing between their ideas and ideas forced upon them

by elite manipulation. Therefore, a non-neutral approach favoring political speech among the less wealthy

was necessary. Similarly, in commercial speech, the Court has upheld regulations limiting the lawyer's

right to solicit business in situations where the threat of a "one-sided presentation and [encouragement of]

speedy and perhaps un-informed decision making" by the citizen being manipulated by the lawyer was

sufficient enough for the Court to cut off this particular mode of communication. (Ohralik).

There are contrasting cases in both fields. In Valeo, the same Court held that regulations of expenditures

were unconstitutional, contending that the more a candidate spent on his or her campaign, the more

information would be given to individuals as part of self-deliberation rather than manipulation by the

elite. Similarly, decisions in the realm of commercial speech have struck down regulation of elites on the

premise that price advertising of drugs (Virginia Pharmacy), commercial advertising on news racks

(Discovery Network), and tobacco advertising (Lorillard Tobacco) all allow consumers to make to make

relevant economic decisions on their own, rather than depend on the intermeddling of Courts in the free

flow of information.

The contrast between these two series of cases in these fields represent two competing imaginations of the

relevant world: one which believes that neutrality is a sham given high levels of elite manipulation and

low levels of individual capacity of self-deliberation, and one which believes in the exact opposite. While

I recognize the appeal of the latter formulation, my imagination of the relevant world sides with the


former view of weak individual capacity and the power of elites in agenda-setting and message control to

push their views onto an overly-compliant majority. Even without assuming any innate inequalities

between the "elites" and the "masses", and while recognizing my own biases as a presumptive member of

the former group, I contend that because individuals are not solely political entities (as imagined by the

ideal form of democratic participation), but also private citizens, consumers, and a variety of other

"role-players", they physically cannot have the capacity to simultaneously deal with every idea they are

exposed to in a rational and self-deliberative manner and then act accordingly. (For example, Buckley

deals with the individual qua political actor, while VA Pharmacy deals with the individual qua economic

consumer) Given that recognition of limited individual capacity, courts could and should deviate from

the principle of neutrality as needed to maintain checks on elite manipulation of popular democratic

decision-making processes.

A third and final assumption of the principle of judicial neutrality is that out-of-power minority groups

retain access and opportunity to share their imagination of the relevant world such that they may persuade

the majority to adopt their view in the future. So long as the minority has a chance to challenge the

majority viewpoint, the democratic order is imagined as safe from the tyranny of the majority. As our

treatment of "threatening outsiders" have shown, however, the majority has a tendency to block off access

and opportunity for speech for outsiders who we believe threaten our way of life. In order to maintain our

democratic order, however, courts must ensure that these channels of access and opportunity remain open,

even at the cost of neutrality.

"Threatening outsider" cases comprise the majority of conventional wisdom First Amendment cases.

Courts have by and large ensured access and opportunity to dissent in these cases, striking down

regulations that banned a range of outsider viewpoints including flag burning (Johnson), Nazi marches

(Collin), cross burning (RAV), pornography (Hudnut), and anti-draft protest (Cohen). The majority of

these cases have been "non-neutral" in that the Court overrode the desire of the majority to shut certain

voices out of the marketplace of ideas and favored the minority's right to speak, even if the Court did not


agree with those ideas, and even if, as seen in Collins and Hudnut, the minority view affirmed

sub-rational viewpoints which could translate to eventual societal harms. This non-neutrality has been put

into law as "a bedrock principle" holding that "Government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or disagreeable." (Johnson) Courts had the duty, in

fact, to force toleration on society of these minority viewpoints, as the Johnson and later Eichman

holdings demonstrated against efforts to criminalize the burning of the flag by statute.

Not all of the Court's decisions affirm this viewpoint, however. Several decisions purporting to be

"neutral" in its evaluation of viewpoint have allowed the regulation of access and opportunity for minority

viewpoints on the grounds of regulating other activities "incidental" to speech. In this manner, the Court

"neutrally" silenced a draft protester by affirming the government's interest in undestroyed draft cards

(O'Brien). "Neutrality", as applied in these and similar cases, played more of a self-serving role for the

Court to justify restricting the minority's right of access to the political process by making a legally

permissible but largely artificial disaggregation between the viewpoint presented and the activity

regulated. For example, as the O'Brien dissenters pointed out, O'Brien's conviction was not because he

could not produce his draft card to satisfy the government's interest, but because he actively burned it as a

protest against the draft; his conviction was as much based on his speech as on his destroyed draft card,

and the Court's cover of neutrality did little to hide that fact.

The failure of the assumptions underlying a "duty of neutrality" demonstrates that neutrality is at

most a means to the end of democratic order rather than an end in itself. If we recognize the Court's role

as ensuring democratic order rather than appearing as a blind and neutral arbiter in all cases regardless of

the circumstances, we would be much closer to the actual end of democratic order that we strive for under

the Constitution.

Parker Con1st 2009S Exam H

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