The town of Goldbergia has a mayor, Ferica, who is a member of the FreeSpeech religion.  Ferica and other adherents of FreeSpeech believe that their lives should be dedicated to enhancing the search for truth through an open marketplace of ideas.

Ferica is quite popular as a mayor.  Her latest initiative involves making the town a more pluralistic and open place for civil discourse.  In 2020, for example, she and the town board passed the following legislative acts.  (1) No one is permitted, within 50 feet of a public park or on public park grounds, to tell another person to shut up or that their ideas are stupid.  (2) Residents cannot exclude guests from their dinner parties simply because they disagree about politics.  (3) Public school teachers for elementary schools must explore both sides of every issue when teaching history classes.

In addition, Ferica learns that members of an adversarial religion, the Roederers, have begun moving into Goldbergia to perpetuate their opposing religious views, that the First Amendment is a sham making all of society worse.  Ferica takes quick action and helps pass a law that (4) bans book burning, a ritualistic practice of the Roederers.  She also (5) places a monument outside city hall that is a giant number one, standing 15 feet tall, in honor of the First Amendment.

Christopher, a member of the Roederers and a public school teacher, challenges all five of these actions by the town of Goldbergia.  Go through each action, one by one.  State what challenges Christopher is likely to bring and whether the town’s actions are likely to withstand constitutional scrutiny.  Some government actions may have multiple bases for constitutional challenge; others will have one potentially valid constitutional challenge.   Assume there are no issues with standing.

Answer Key

• Because the speech takes place near and in a public park, this action will be analyzed as restricting speech in a traditional public forum, which has the highest speech protections.  Christopher will challenge town ordinance number one as a content-based restriction on speech.  Although the government could argue that, like McCullen v. Coakley, this is content-neutral because it is really just a restriction on place, MucCullen is distinguishable because, in that case, no one was allowed to advocate for any views within the buffer zone, and the primary goal was to allow access to abortion clinics for women seeking medical care.  Here, only one type of content is restricted – the content expressing the view that ideas are stupid.

Of course, telling someone to shut up depends on what the speaker is arguing, and no one is permitted to tell anyone to shut up regardless of the underlying views, so a court might consider it viewpoint neutral, but it seems to be targeting one approach to listening to ideas and is thus not content neutral.   Additionally, although the government might argue that “shut up” is fighting words, because a reasonable person might become agitated by it and be provoked to a violent response, pursuant to RAV, the government cannot make content-based distinctions even within the unprotected category of fighting words  – and this appears to restrict only one type of fighting words, and likely not the worst form, an exception in RAV for content-based distinctions within unprotected categories.

Therefore, since this ordinance is considered content-based, it will likely have to survive strict scrutiny. — not an easy feat  Although Ferica has a compelling interest in promoting diversity of views, silencing speakers who have a different approach is not a narrowly tailored way to achieve this interest, and the theory behind the First Amendment is that we allow more speech in order to foster this goal.

• Christopher’s challenge to this ordinance will likely also win because this is compelled intimate association. Dinner parties in one’s home are a way of expressing one’s own freedom, and with a small number of guests, the town cannot force residents to invite others to their dinner parties.   This is especially true because the town is compelling people to accept certain views in their own home, which also looks like a form of compelled speech or a violation of expressive association.  Christopher can claim that forcing people to allow those into their home who disagree with their message distorts their ability to communicate their own messages in their own homes.
• Public school teachers are speaking pursuant to their official duties, so pursuant to Garcetti v. Ceballos, public school teachers do not have free speech rights. If the government, as part of its schooling program, wishes to have public school teachers explore all sides of every issue, that is its prerogative under the free speech clause.  This also does not seem to be an Establishment Clause problem because even though Ferica is a member of a religion celebrating free speech, this passes the Lemon test.  There is a reasonable non-religious motivate for doing this , and there is no advancement of religion or excessive entanglement with religion.  The question of academic freedom was left open by Garcetti, but it likely applies more to college professors, not public elementary school teachers.
• Book burning is expressive conduct – which means a statute banning book burning will have to survive O’Brien  Here, however, the statute seems similar to Texas v. Johnson, banning book burning because Ferica does not like the content of the message sent while book burning, so this will likely not survive a free speech challenge.   Christopher could also bring a free exercise challenge, stating that the statute is targeting his religion.   Neutral laws of general applicability will survive free exercise scrutiny under Employment Division v. Smith, but this looks like Ferica was trying to target the Roederers, like in Church of Lukumi Balalu Aye, and shows some religious animus.   Religion is defined quite broadly, so the Roederers will likely quality for free exercise protection, and will likely win this challenge, especially if there is legislative history showing that Ferica was targeting the Roederers’ religious ritual.
• Religious displays, as government speech, will be subjected to the Lemon Test and analyzed similar to McCreary County and Van Orden v. Perry.  This will likely come down to secular purpose and secular effect, and the outcome will likely be dictated by the difference in reasoning between McCreary County and Van Orden.   The Ten Commandments was permitted on the state capitol building in Van Orden because the Ten Commandments seemed to serve an instructive, almost museum-like purpose, especially when placed in the context of the other monuments nearby, explaining the history of Texas and the origin of its laws.  By contrast, in McCreary County, the towns seemed to have a religious purpose in placing the Ten Commandments in courthouses.   Our case is both stronger and weaker for religious purpose.  The First Amendment, unlike the Ten Commandments, is an overwhelmingly secular symbol and not usually associated to the reasonable observer with religion.  At the same time, Ferica’s religion is well known, and a reasonable observer could well think that the Number 1, especially placed after the Roederers arrived in town, was intended to send a religious message.  This seems more likely given the context, but a court could go either way.