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Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 184.108.40.206
Course / Session Parker- Con Law 1st Amend NA Section All Page 1 of 10
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
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.0 *45195-P. contrary to the student's assertions. at least in part. However. and as a result it cannot always be dominant across cases. 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. the First Amendment either already is or can be. 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. at times. 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. the average citizen. terrorists.-10-2 45195 Course / Session Parker. Jehovah's Witnesses.8.Con Law 1st Amend NA Section All Page 2 of 10 __________________________________________________________________________________________ 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. In fact.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. but ultimately I think that at some level. However. Thus.3. and Mormons combined. How will the Court treat future First Amendment claims . artificial. Before beginning. according to Pew Research atheists and agnostics now outnumber Jews. but whether it should be will depend on which conception of democratic equality espoused by the Court one chooses to embrace.-10-2* 45195-P. and internet activists. 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. Atheists: the Establishment and Free Exercise Clauses A growing number of Americans now identify as "unaffiliated" with any religion. I believe that this approach to analysis is legitimate and worthwhile. about protecting minority rights. For this reason. This may be. In this essay. if.
-10-3 45195 Course / Session Parker.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. Hobbie. In fact. like those of violent polygamous separatist Mormons (Reynolds) or obnoxiously proselytizing Jehovah's Witnesses (Prince). The first approach sees religion as the social foundation for American civic life. Black in Everson). the quaint self-reliant Amish (Yoder). but instead government can aid religion to provide for free exercise by leaving some "play in the joints." Thus. as is any aid with a general secular purpose and with only the effect of supporting religion (see.-10-3* 45195-P. the establishment clause does not erect an impregnable wall of separation. Braunfeld. 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. e. This approach fears the majority directing its righteous rage at perceived apostates through coercive means (Barnette. which will have the added benefit of saving religion from its own corruption (Souter in Zelman).Con Law 1st Amend NA Section All Page 3 of 10 __________________________________________________________________________________________ brought by atheists and agnostics? The Court has taken two dominant approaches to religion. Hobbie) are viewed favorably under the free exercise clause. Weisman) and is suspicious of any ostensibly "secular" policy which significantly aids religion (Jackson in Everson. Zelman).g. or pious Seventh-Day Adventists (Sherbert. Thus. numerous Justices have espoused a view that "we are a religious people whose institutions presuppose a Supreme Being" (Zorach). such secular purposes are often merely shams (see the school prayer and creationism cases).3. From Reynolds through Van Orden. the establishment clause must take on exceptional critical power. while the claims of those who do not are suspect. Souter and Breyer in Zelman).. Everson. On this view.0 *45195-P. While these competing approaches may appear to be based on a . Religions which contribute to this social foundation. aid to religion in general is a permissible accommodation.8. such as peaceful proselytizing Jehovah's Witnesses (Cantwell).
45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. and where the relevant dimension of equality is that between religion and irreligion (Stevens in Boerne). Cutter). As the First Amendment is concerned with "religion" only. atheists and non-believers would be placed beyond the pale of the First Amendment. pluralistic-libertarian approach. they are in fact based on differing conceptions of democratic equality. Unless underpinned by these views of how democratic processes tend to work. 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. these differing views of religion would have no constitutional meaning.0 *45195-P. Under the first approach.8.-10-4* 45195-P.-10-4 45195 Course / Session Parker. the irreligious would be seen as no different than individuals with unorthodox religious beliefs (Lukumi. and thus deserving of protection. Kennedy in Boerne).Con Law 1st Amend NA Section All Page 4 of 10 __________________________________________________________________________________________ subjective evaluation of religion. But under the second. These differing approaches to democracy could translate into radically different treatments of atheists under the First Amendment." Without such safeguards.3. atheists are therefore entitled to no greater First Amendment protection than proponents of other secular views. The second is undergirded by a libertarian-pluralist view of democracy. and holding otherwise would make conscience a "law unto itself" (Smith). 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. where majoritarian legislative determinations must be counteracted by civil rights safeguards. 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). and where the relevant dimension of equality is that amongst religions. democratic processes .
After all. Thus.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. Muslim men). Holder). but the scope of its ability to do so will ultimately depend on the conception of democratic equality underlying one's decision. of course.3.and the signal is awaited" (Dennis). merely belonging to or otherwise aiding a dangerous organization might itself suffice (Whitney. drawing a crucial distinction between "advocacy and incitement. why should it protect this one.. Gitlow) and we need not wait until "the putsch is about to execute. moored by Chaplinsky. Terrorists: Subversion and Incitement Anyone glorifying or supporting terrorism can perhaps be labeled the "ultimate outsider" in America.. . by contrast. The second approach. 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.. so long as there is a clear and present danger of a violent conflagration. In fact. the Court is obligated to act (Schenck. we face not a choice between "order and liberty" but rather one between "liberty with order and anarchy without either" (Jackson in Terminiello). Indeed.0 *45195-P.8.Con Law 1st Amend NA Section All Page 5 of 10 __________________________________________________________________________________________ left to their own devices would result in outright coercion.-10-5* 45195-P. is fearful of censorship. perhaps with a well-meaning intent to publicly honor God.-10-5 45195 Course / Session Parker.g. who seeks to bomb the marketplace of ideas to pieces? The reason that we should care. Frohwerk. the First Amendment clearly does provide at least some room to protect minorities and outsiders under the establishment clause and free exercise clause. How would the Court treat incitement to or glorification of terroristic violence? The first approach. Such a person is perhaps the outsider which challenges the student's statement the most: if the First Amendment should be about protecting minorities. sees incitement to violence as a form of speech with no value.
even if well-intentioned (c. or both.) and so we must raise the bar the imminence and likelihood of the harm must reach before we intervene (Brandenburg).8. the second approach argues that the First Amendment should not be a haven for prosecutors. and wherein only those who respect the rights of others are entitled to equal rights themselves. Deliberation and debate is far better than "silence coerced by law. Instead. But digging deeper reveals both are anchored by a theory of democratic equality. it seems the only time the Court had the courage to stand against popular opinion regarding a "dangerously violent minority" was in Brandenburg. the choice the terrorist faces is to renounce either violence or their First Amendment rights. and that there are no prerequisites for equality before the law. The point here is not to show that terrorists would be treated well by the Court under the second approach." (Id. This approach devalues intangible "what-ifs. By contrast. or on the importance of intangible harm.3." and is especially vigilant for evidence of viewpoint discrimination on the part of the government. Far from it.. Snyder). It may seem that these two approaches are based merely on a differing assessment of the likelihood of tangible harm. The first approach is grounded in a majoritarian view of democracy wherein courts should give deference to the legislature with respect to threats.-10-6* 45195-P.Con Law 1st Amend NA Section All Page 6 of 10 __________________________________________________________________________________________ between preparation and attempt" (Brandeis in Whitney). such as a teenager posting a careless message on an online message board. holding otherwise would invite majoritarian crushing of dissent even in less dangerous times.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11.f.A. Under the first approach. where the defendant was relatively hapless. what this shows is that even an argument for terrorists' "freedom" can find some basis in First Amendment law. and fears overzealousness will extend to relatively innocuous speech activities.V. . The second approach believes that a pluralist democracy is robust enough to withstand danger from within.-10-6 45195 Course / Session Parker.0 *45195-P. R. admittedly.
45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. Thus. 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. After all. Wisc. Average Citizens: Campaign Finance Although the student's email seems to be concerned more with small. and which rejects equalizing the resources at their disposal for doing so because it would disrupt the private ordering undergirding the system. Suppose the average citizen wants back in . favoritism and cronyism caused by "corporate money in politics" is palpable. They are especially concerned about any chilling effect on core political speech.8. The second approach. two approaches are possible.-10-7 45195 Course / Session Parker. citizens to bear special burdens in order to exercise their right to speak. and worry about forcing some. unions. takes the opposite view that the possibility of corruption. Right to Life. one which has admittedly failed to carry the day so far. First Amendment rights flow from a conception of equality that gives everybody the same right to speak.3." Indeed. This view sees pure private . In this society.Con Law 1st Amend NA Section All Page 7 of 10 __________________________________________________________________________________________ depending ultimately on whether the Court adopts a conception of democratic equality conducive to this. this could happen as a result of the superior spending power and access of corporations. and the wealthy.0 *45195-P. but not all. vulnerable minorities than with majority rights. American citizens are not ill-informed ignoramuses. 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. The first approach is that taken by Conservative members of the Court in McConnell.what then? As always.-10-7* 45195-P. and that "corporate domination" of the airwaves before elections will "drown out" other citizens' voices (Stevens in Citizens United). and Citizens United.
One approach focuses on property "ownership. who the "outsider" is and whether the First Amendment "is about" their freedom will depend on one's conception of democratic equality.Con Law 1st Amend NA Section All Page 8 of 10 __________________________________________________________________________________________ ordering as a danger to our democracy. 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." and is best exemplified by the Third Period cases in which Justice White took the lead (e. the average citizen is not even an "outsider" at all. Thus.0 *45195-P.3. The average citizen could fare quite differently depending on which two of these approaches the Court adopts.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11.g. any owner of property (including the government) can restrict the use of property to that use for . under the second approach.. not a foundation. equality is meaningless without a realistic opportunity to be heard. because the wealthy and powerful can further their self-interest through democratic processes. 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. Metromedia). Their treatment under the First Amendment will surely become important in the coming years. Under this view.-10-8 45195 Course / Session Parker. given the increasing importance of the Internet in social life. Under the first approach. However. as they enjoy the same speaking rights as everybody else.-10-8* 45195-P.8. the one-person one-vote ideal of equality should apply throughout all stages of the political process. Thus. Internet Activists: Public Forums and Time/Place/Manner Restrictions The final archetypal outsider I will consider is the Internet activist. the student's fears are thus unfounded because the Constitution ensures that all members of society enjoy the same freedom.
The second approach is less deferential to those who would restrict access. and sound trucks (Saia). while others are not (compare Stanley with Florida Star and Bartnicki). by contrast. the service provider.-10-9 45195 Course / Session Parker.the website. but also of access. how can one restrict TPM on the Internet in the first place? The first approach gives little guidance. meaningful popular participation which holds the government accountable wherever it operates. otherwise access can be restricted even for such trivial concerns as aesthetic interests (Metromedia). the Internet is surely a low-cost way of reaching many people. which perhaps leaves some headway for democracy. Each approach is grounded in a conception of democratic equality that mirrors one of those seen in the campaign finance cases.-10-9* 45195-P. With respect to the second approach. But is the Internet a public forum? And whose "ownership rights" are implicated . 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). it must satisfy an intermediate scrutiny test). handbills (Struthers). But how could the Court justify protecting online privacy under the . 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.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. The second approach. or all of them? Furthermore. is rooted in a conception of democracy that stresses active. and where equality is not merely a matter of voting.0 *45195-P.3. The first sees private ordering as a foundation of our democracy. the domain registrar. the content creator. and sees leveling the playing field in the name of "equality" an unfair intrusion on property rights.Con Law 1st Amend NA Section All Page 9 of 10 __________________________________________________________________________________________ which it was intended (though if the government does so. Instead. door-to-door solicitation (Watchtower).8. Traditional public forums like sidewalks and parks must remain open to all comers.
0 *45195-P.3.Con Law 1st Amend NA Section All Page 10 of 10 __________________________________________________________________________________________ First Amendment given its strong stance favoring disclosure in campaign finance cases? Regardless.-10-10 45195 Course / Session Parker.45195 Institution Harvard Law School Exam Mode Closed Extegrity Exam4 > 11. but it is up to us to advocate for the form of democracy that makes that outcome desirable for the Court . one who is concerned about "freedom" must first ask themselves what role they believe freedom plays in our democracy.8.-10-10* 45195-P. it is clear that internet activists could find some basis "for freedom" grounded in the conceptions of democracy underlying existing Court opinions. The First Amendment clearly can already be a force for protecting minority rights. Conclusion As the above analysis demonstrates.
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