While Fulton's majority opinion did not overrule Smith, two concurrences suggest that Smith is on life support.
David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small, fledgling church having no fixed site for its services. His masterful performance was recognized this week: victory, with a box score of 9 to 0. Cortman brought to the aid of this small congregation all of the dedication and resources of the Alliance Defending Freedom.
But the irony is that this victory, so resounding, offered no vindication of religious freedom, for that is not what the justices spent their time and their pages talking about.
The decision instead revealed the unlovely spectacle of the conservatives talking themselves ever deeper into a genuine moral relativism in the regulation of speech, a relativism that can neither explain itself nor find a coherent ground for its defense. It’s enough to make some of us call for a psychiatrist or a priest—seeing Stephen Breyer and Elena Kagan suddenly playing the grownups, their concurrences invoking (rightly enough) “common sense.”
The case involved the Good News Community Church, a kind of floating-crap-game kind of church with no building or even regular site for its meetings. Its pastor, Clyde Reed, managed to hold services in elementary schools and other places in the town of Gilbert, Arizona. This shifting locale required the pastor to alert the congregants as to where to go each week. It was necessary to post signs around town, to put them up and take them down quickly. But there the church ran into a series of regulations for signs. What is worse, the regulations were taken seriously, and enforced with stringency, by an officious “sign code compliance manager.”
There were three main categories for signs. There were so-called “ideological signs,” which could be as much as 20 feet square and could be placed in virtually all districts without limits on time. Then there were “political signs,” hawking candidates and campaigns. Those could be 16 square feet on residential property and up to 32 feet on nonresidential property or undeveloped property. “Political signs” could be displayed 60 days before an election and for 15 days afterward. The most restricted category was that of “temporary directional signs relating to a qualifying event.” A “qualifying event” would involve assemblies or meetings held by religious or charitable or non-profit groups.
The category of temporary signs got the least favorable treatment of all. These signs could be no larger than six feet square, and they could be displayed no more than 12 hours before an event and left up for no more than one hour afterward. Of course, it would be useful, even necessary, to inform congregants the day before the services and not wait until just 12 hours before they began. Nor was it possible, on every occasion, to get around town quickly enough to get all of the signs down no later than an hour after the services. But these complications stirred no sympathy.
Pastor Reed challenged these local regulations in court, but they were sustained as reasonable attempts to preserve a certain decorum or aesthetic quality in the community. What was especially telling for judges in the lower courts was that there was no evident political bias at work, and no hostility or aversion to the religious. Nevertheless Justice Thomas insisted for the majority in the Supreme Court that the core of the case involved “content-based regulations of speech that cannot survive strict scrutiny.”
That there was no evident animus at work would not be decisive, for as Justice Scalia had said in another case (Hill v. Colorado, 2000), “the vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes but that it lends itself to use for those purposes.” But from what do these dangers spring?
As Justice Thomas summed it up, “the restrictions in the Sign Code that apply to any given sign [depend] entirely on the communicative content of the sign.” But we may have here another version of the problem Immanuel Kant noted when he remarked on those writers who would invoke reason in the most strenuous way to . . . deny the possibilities of reason. How is the “communicative content” of the sign to be distinguished from other aspects of the sign unless we are making discriminations between the “communicative” and other aspects of a sign? We may have an octagonal, red sign without words, and yet it may communicate the notion of a stop in traffic. It is only by recognizing the communicative meaning or “content” of the sign that we can make these discriminations in the first place.
It simply remained for Justices Breyer and Kagan to point out to their colleagues the many places where our laws depend precisely on judging the content of speech. Physicians may be required to respect the privacy of a patient’s condition, while being allowed to disclose the presence of HIV to the patient’s spouse or partner. The regulation of securities may impose requirements of disclosing more details about the stocks and the companies; pharmacists may be required to put warning labels on some drugs, and airline pilots may be asked to certify that the instructions on safety have been explained to the passengers. All of these things impose restraints or requirements on certain speech acts that are not applied to all speech acts. They hinge solely on the content of the speech.
But we’ve seen this movie many times before. In 1992, Justice Scalia wrote for the Court in striking down a law in St. Paul, Minnesota that banned the burning of crosses. His opinion in R.A.V. v. City of St. Paul did not rest on any judgment of the wrongness of burning crosses as an act of assault or intimidation. The fault lay in the fact that the city council had made a discrimination based on the content of the speech and the viewpoint it contained. The city had picked out for banning, said Scalia, the kind of speech it “disfavored.”
Disfavored? The law had long recognized verbal acts of threat and assault as real acts of assault. Could one not make moral judgments any longer on the acts of speech or expression that were wrongful? Could we not tell the difference, say, between the burning of a cross outside the home of a black family and the burning, say, of leaves in the street?
What Scalia sought to deny is that one could in fact cast moral judgments on these acts of speech without imperiling innocent speech. The Court’s vote to strike down the St. Paul ordinance was unanimous. But Scalia’s liberal colleagues wrote concurrences in which they piled ridicule on his notion that discriminations couldn’t be made based on the content of the speech. As Justice Stevens pointed out, the federal law discriminates in this way when it limits advertisements for cigarettes but not cigars, or when it monitors solicitations by lawyers but not doctors. Justice White pointed out that federal law distinctly forbade speech threatening the life of a President. And that law, “singling out certain threats, incorporates a content-based distinction.”
But Justice White had been late in awakening to this recognition. He was part of the majority in Cohen v. California (1971), when Justice Harlan spoke his famous line, “One man’s vulgarity is another’s lyric.” In other words, the meaning of speech was subjective; there were no principled grounds for distinguishing the speech that was assaulting and coarse from the speech that was innocent or misguided. Moral statements were essentially emotive in nature; they did not lend themselves to judgments of truth and falsity. And that is why, as Harlan said, the Constitution leaves these matters of “taste and style so largely to the individual” to decide on his own.
And yet, about a decade later, Justice White would have his first moment of awakening. The Court had just protected the right of evangelical Christians to meet on the campus at the University of Missouri (Widmar v. Vincent, 1981). The Court protected them on the grounds that the university could not tenably make a discrimination based on the content of speech. But as White pointed out, “as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson.” What dawned on White was that the Court had developed a thick jurisprudence under the Establishment Clause, and yet none of that made sense unless “religious” speech could be distinguished from other kinds of speech, based decisively on the “content” of the speech.
But today the conservative justices, with the exception of Justice Alito, have made it part of their doctrine that they have no grounds for passing judgment on the kinds of speech that may be rightful or wrongful, justified or unjustified. In this way does the Court, in the days of John Roberts, cast its protection over the Reverend Phelps harassing the funeral of dead marines (“Semper fi fags”); or the video games giving vicarious pleasure in ethnic cleansing or raping Native American women (Brown v. Entertainment Merchants Association, 2011); or the man who passes himself off falsely as the holder of a medal of honor (United States v. Alvarez, 2011).
And just two weeks ago, in Elonis v. United States, the same cast of mind made it difficult for the conservative judges, except for Alito, to discern whether they could ascribe a malevolent intention, or the very act of a verbal assault, when Mr. Elonis conveyed these words to his former wife:
If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.
There was nothing random about these words. Elonis was not as likely to have written, “Shall I compare thee to a summer’s day?” The words themselves were the clear mark of an intending mind, and the words chosen were chosen precisely because they could be depended on to have the effect of an assault and elicit fear.
But once the judges had settled on the notion that the case offered a discrimination based on the content of speech, Justice Thomas could invoke the mantra of “strict scrutiny.” One day anthropologists of the law may wonder how this tribe of lawyers managed to preserve their chant over “levels of scrutiny” longer than the practitioners of phrenology were able to fool the public and themselves that there was a real science at work. The levels of scrutiny pointed outward to standards of judgment that have never quite been explained. Philosophers could amuse themselves by pondering the difference between a “compelling justification” and a weak or lame justification that could be treated nevertheless as though it supplied a real “justification.”
Justice Kagan caught the emptiness of this scheme in her concurrence in Reed v. Gilbert. She recalled signs in different places saying things like “Blind Pedestrian Crossing” or “George Washington Slept Here,” and these signs are exempted from the regulations governing other signs. “So on the majority’s view,” she wrote, “courts would have to determine that a town has a compelling interest in informing passersby where George Washington slept.”
But all of the hocus pocus on strict- or intermediate-scrutiny mattered not at all here. The case could turn, as Justice Thomas showed, on simply testing the rationales for the law against the elementary principle of equal treatment in the law—that is, treating like cases under like rules and justifying any difference in treatment. The Town of Gilbert offered two rationales for its policy: avoiding the hazards of distraction in traffic, and preserving a certain aesthetic character. The problem there, for both, as Justice Thomas noted, was that the code allowed an “unlimited proliferation of larger ideological signs” while strictly limiting the number and size of the “smaller directional ones.” The “ideological signs” surely figured to produce far more distraction and unsightly clutter.
None of this required the pretentious and philosophically empty scheme of “levels of scrutiny.” Justice Kagan caught the matter exactly: “the law’s distinctions [here] between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.”
The Court could have dealt with this case the way it dealt with the old Railway Express case in 1949. New York City banned, as distracting, those vehicles moving in traffic and carrying advertising—unless the trucks advertised the wares of their own businesses!
The question then was why the trucks of Railway Express were more distracting than the trucks blaring the headlines from the Daily News. It was the same question of “equal treatment” under the laws. And that principle would be there, even without the Equal Protection Clause, because it was simply implicit in the idea of the rule of law—as the Court itself discovered the day it decided Brown v Board of Education. For on that day in 1954 it had to deal with the companion case of Bolling v. Sharpe (1954) and racial segregation in the schools of the District of Columbia. The District is not a state; therefore it doesn’t come under the Fourteenth Amendment (“No State shall . . . ”), and therefore the Equal Protection Clause does not come into play. The Court mumbled its way to the recognition that the logic of “equal treatment” is somehow contained in the notion of due process, and well it is.
But from this pile of miscast arguments, we can extract a certain hidden and redeeming truth that deserves to be appreciated anew—and deployed again. David Cortman and the Alliance Defending Freedom expended their effort and their treasure to protect a small church, and they accomplished their end, not by seeking tolerance for “beliefs sincerely held,” but by invoking the deeper logic embedded in the rule of law. As some of us have argued, on this website, that may be the surest and soundest path in defending religious freedom in this country, even when we don’t invoke scripture or ask people to respect a faith they do not share. And by appealing to the deep principles of the Constitution, David Cortman and ADF gave us this further blessing: The freedom they secured for us here was the freedom of everyone, and not solely the freedom of the religious.