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Institution Harvard Law School Course Parker- Con Law 1st Amend Instructor NA Exam Mode Closed

Exam ID 45195

Count(s) Section 1 Total

Word(s) 2498 2498

Char(s) 13581 13581

Char(s) (WS) 16051 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 often merely 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, the irreligious 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 with order 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 treated well 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. But couldn'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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