Folks might be interested in this Nov. 8 order from WD Wash., granting a PI on
free exercise grounds against a regulation requiring pharmacies to dispense
Plan B (emergency contraception) without any religious exemption. The court
seems to have been most swayed by evidence showing that the regulation was
adopted with the intent of targeting religious pharmacy owners, rather than out
of any purported concern for the availability of other drugs.
Best,
Stuart Buck
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Date: Fri, 9 Nov 2007 08:43:35 -0500
Subject: RE: Of Phelps and Persecution
Thanks as always to Alan for his thoughtful posts, including his
response to my question. I'm not entirely sure, but I could very
well be persuaded to adopt Alan's approach. In any event, I agree that the
Skokie situation can be distinguished on the grounds that Alan proposes.
That said, Blackmun's suggestive comment in Smith v. Collin, which I
quoted before (see below), suggests that Alan's approach - like any
context-specific, open-ended balancing analysis - creates questions of
degree and therefore creates risks of unduly restrictive applications that are
not presented by stronger, brighter-line rules.
Dan Conkle
*******************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of
Law
Bloomington,
Indiana 47405
(812)
855-4331
fax (812)
855-0555
e-mail
[EMAIL PROTECTED]
*******************************************
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Wednesday, November 07, 2007 6:29 PM
To: Law
& Religion issues for Law Academics
Subject: RE: Of Phelps and
Persecution
Great
question, Dan. And I actually gave some thought to Skokie when I wrote my post.
I would argue that the Skokie situation does not fit my framework. In
Skokie, Jews (some of whom were concentration camp survivors) were part of the
general population of a community. They were part of the public at large that
the Nazis were addressing with their march through the city’s streets.
Holding a march expressing a racist message down the main streets of a
community with a significant black population or holding a march expressing an
anti-Semitic message in a town where many Jews live does not present a
sufficiently focused location/context/message to trigger my balancing analysis.
Similarly, if Phelps and his crowd hold a march through the main streets of a
town near a military base or pro-life protestors hold a march through a town
where many women have had an abortion, I don’t think my balancing analysis
would
apply either.
I
think a protest adjacent to and during the burial service of a soldier and a
ring of protestors outside a clinic a patient is entering for medical services
can be distinguished from a march down the main public streets of a community
at
a time of no particular significance that is deeply offensive to many of the
people who live in that community – even if the town was selected as the site
for the march precisely because of the demographics of its population. The
message would be offensive to the part of the community it insults wherever it
was expressed. And I don’t think the feelings associated with “Not in my town”
can be equated with “Not at the burial service of my son.”
Basically,
I think a protest by Nazis outside the cemetery that disrupts the burial
services of concentration camp survivors is different than the Nazis march
through the main streets of Skokie. Do you disagree and believe that there
isn’t
any meaningful difference between these two events for free speech purposes,
Dan? (Needless to say, the Nazis are fascist scum in either case, but that
doesn’t decide the constitutional question.)
Alan
Brownstein
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Conkle, Daniel O.
Sent: Wednesday, November 07,
2007 2:32 PM
To: 'Law & Religion issues for Law
Academics'
Subject: RE: Of Phelps and
Persecution
Under Alan's approach, I
wonder whether the Nazis could have properly been denied the right to march in
Skokie? Would the proposed Nazi march at least have triggered Alan's
balancing analysis, on the ground that the Nazis would have "chosen a
location/context/message that targets an audience that will suffer unique and
especially hurtful injuries as a result of the demonstrators expressive
activities"? Cf. Smith v. Collin (1978) (Blackmun, J.,
dissenting) ("[W]hen citizens assert, not casually but with deep
conviction, that the proposed demonstration is scheduled at a place and in a
manner that is taunting and overwhelmingly offensive to the citizens of
that place, that assertion, uncomfortable though it may be for judges, deserves
to be examined.").
Dan
Conkle
*******************************************
Daniel O.
Conkle
Robert H. McKinney
Professor of Law
Indiana University School
of Law
Bloomington,
Indiana 47405
(812)
855-4331
fax (812)
855-0555
e-mail
[EMAIL PROTECTED]
*******************************************
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Brownstein, Alan
Sent: Wednesday, November 07,
2007 1:09 PM
To: Law & Religion issues for Law
Academics
Subject: RE: Of Phelps and Persecution
In
the overwhelming majority of cases involving demonstrations communicating with
the public at large, I would argue that the demonstrators should be free to say
what they want, in the location they choose, subject to reasonable content
neutral time, place and manner regulations. If the demonstrators choose a
particular location because it is likely to attract public attention and the
media, they should be protected in their choice. If, however, the demonstrators
have chosen a location/context/message that targets an audience that will
suffer
unique and especially hurtful injuries as a result of the demonstrators
expressive activities, courts should evaluate the harm that the demonstration
causes against the free speech rights of the demonstrators. That balance would
include the conventional factors that courts consider – the importance of the
state’s interest, the availability of alternative avenues of communication
through which the speakers could express their message to the public without
causing so much harm etc. Pursuant to that analysis, the fact that the
demonstrators are trying to persuade a particular audience to change their
beliefs or behavior and that the injuries their speech may cause is an
inescapable consequence of the demonstrators’ attempt to fulfill that
expressive
mission counts in favor of the demonstrators free speech rights. (That’s
the anti-abortion protest outside of a clinic example.)
If
the demonstrators have chosen a location/context/message that targets an
audience that will suffer unique and especially hurtful injuries as a result of
the demonstrators expressive activities and there is no particular reason
that furthers free speech values why they should be in that place/ expressing
that message/in that context – that is, there is no special reason why they
should be directing their message to the public at large to the direct and
immediate audience of the mourners at a funeral – then I would assign less
weight to those demonstrators free speech claims. If the demonstrators have
chosen that location/context/message because the injuries their speech will
cause to the targeted audience is what attracts media attention to their
message, I would assign less weight to those demonstrators’ free speech claims
as well. (This is the protests at the soldier’s funeral example) In these
situations, in my judgment, the demonstrators have plenty of opportunities to
communicate their message to the public without causing unique and especially
hurtful injuries to a targeted audience. And I do not assign substantial free
speech value to their attempt to leverage the harm their speech causes to a
targeted audience in order to amplify their message.
But
this analysis only comes into play when the location/context/message causes
unique and especially hurtful injuries. Under the free speech clause, as I
understand it, all protected speech is presumed to have sufficient value to
outweigh the normal costs of permitting it to be expressed (offense, attenuated
influence on unlawful behavior etc.). It is only when those costs come close to
crossing a threshold that puts the question of whether the speech should be
protected in doubt, that I would draw a distinction between persuasive speech
directed at an audience to change its beliefs and behavior and other speech in
context that does not serve core free speech values.
Alan
Brownstein
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