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SCOTUS issues opinions in recent First Amendment cases

By Lindsey French
AAC Litigation Counsel

The United States Supreme Court has issued rulings on cases that were argued in the Fall 2021 term, with several of them affecting state and local governments. This article will highlight a few of those cases, specifically those dealing with First Amendment issues.

Kennedy v. Bremerton School District — In this 6-3 decision, the Court held that an assistant football coach was protected by the First Amendment when he knelt in prayer on the field after football games. The ruling also overturned prior case law, Lemon v. Kurtzman (1971), which had established a test for determining whether a law or rule constituted an establishment of religion by the government. The Lemon test “called for an examination of a law’s purposes, effects, and potential for entanglement with religion. In time, the approach also came to involve estimations about whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement’ of religion.” The Court in Kennedy replaced the Lemon test with an analysis that more accurately reflects the intentions of the Founding Fathers.

The Court found that the district violated either or both the Free Exercise and Free Speech Clauses of the First Amendment by denying Kennedy the opportunity to engage in a brief prayer of thanks alone on the field after football games. The Court found insufficient evidence that students were coerced into joining the prayer. The Court found that Kennedy met his burden in showing that the district violated his Free Exercise rights by showing that the district’s policy in firing him was not “neutral” or “generally applicable.” He was disciplined precisely because his actions were religious, with the school conceding that they allowed other personnel to engage in personal conduct after games that was not religious. Therefore, the Court should apply “strict scrutiny,” meaning the government must have a compelling state interest and that its policy be narrowly tailored to meet its goal.

The Court also believed that Kennedy met his burden to trigger a Free Speech issue, ruling that his after-game prayer was offered not as a government employee in the ordinary scope of his duties, but as a “citizen addressing a matter of public concern.” The second part of this test under Pickering v. Board of Ed. Of Township High School and Garcetti v. Ceballos, is for the government to prove its interests as an employer outweigh Kennedy’s interest in his private speech on a matter of public concern.

The Court ultimately ruled that, whether viewed as a Free Exercise or Free Speech issue, the burden was on the school district, either to meet the strict scrutiny standard in the former, or that the governmental interest outweighed Kennedy’s personal interest in the latter. The Court found that the school district could not meet its burden for either test, therefore Kennedy was entitled to summary judgment on both of his claims. In its ruling, the Court specifically rejected the school district’s notion that any visibly religious action by a school official was coercive towards students, and that “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.’”

Shurtleff v. City of Boston — In this unanimous decision, the Court ruled that the City of Boston violated the Free Speech Clause of the First Amendment when it refused to fly the Christian flag on a flagpole outside city hall at the request of the Camp Constitution organization. There are three flagpoles in this location: one flies the American flag, one flies the Massachusetts flag, and the other typically flies Boston’s flag, but for over 15 years Boston has customarily allowed outside organizations to fly other flags during events on the plaza. These flags have represented a wide range of entities, including flags representing other countries, community banks, EMS workers, and Pride Week. The Director of Camp Constitution argued his right to fly the Christian flag was unlawfully denied due to its religious nature, while other citizens were permitted to fly their flags. Boston argued it reserved the pole to “fly flags that communicate governmental messages.”

The Court ruled that while the Free Speech clause does not prohibit the government from declining to express a view, the boundary between government and private speech is blurred when the government invites the people to participate in its speech, as the City of Boston had done. In determining whether the speech at hand was governmental speech, as Boston contended, or rather private speech invited by the government, the Court considered factors used in past U.S. Supreme Court cases, including the history of the expression at issue, the public’s likely perception of who is actually speaking, and the extent to which the government has controlled the expression. The Court has previously ruled that permanent monuments erected on public property is government speech, despite who paid for it and that license plate designs were government speech, but that trademarking private speech was not government speech because the government does not exercise “sufficient control over the nature and content of those marks to convey a governmental message.”

The Court opined that Boston’s flying the city’s own flag, other countries’ flags, and the Pride Week flag during Boston Pride Week were all clearly governmental messages. However, other flags, such as those representing community banks, seem harder to deem government speech. The key factor was whether Boston exercised control over the flags’

content and meaning, which would show that the message was intended to represent the city. The city says its policy is to try to accommodate all applicants who choose to express themselves in its public forums, and that it did not review or pre-approve flags to be flown at these events. No flag had been denied at an event until this instance. The city had no written rules or policies about flying third party flags on its property. Therefore, the Court found the city’s control over the content of the flags to be minimal, leading it to determine that the flying of third-party flags constituted private, not government, speech. Consequently, the City of Boston denied the organizers’ right to free speech by refusing to let them fly the Christian flag at the Camp Constitution event on the city plaza. When the government is not speaking for itself, it is prohibited from discriminating based on the religious viewpoint of the speech’s content.

Carson v. Makin — In a 6-3 vote, the Court ruled that the Maine Department of Education’s prohibition of providing tuition assistance to religious-affiliated schools violated the Free Exercise Clause of the First Amendment. Maine had a long-standing program that allowed parents of children in school districts that did not operate or provide access to a secondary school to designate a secondary school of their choice, and the state would provide tuition assistance payments to the school. Since 1981, Maine has limited a school’s eligibility for receiving this assistance to “nonsectarian” schools only. Petitioners wished to send their children to Bangor Christian Schools and Temple Academy, neither of which qualify as “nonsectarian” schools which are eligible for tuition assistance under Maine’s program. The parents sued the state, alleging violations of The Free Exercise Clause and the Establishment Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The final issue before the Court was whether this restriction violates the Free Exercise Clause.

The Court recently decided Trinity Lutheran Church of Columbia, Inc. v. Comer, in which a Missouri program offered benefits to qualifying nonprofit programs that improved playgrounds but denied applicants that were owned or controlled by a church, sect, or other religious entity. The Court ruled that the state could not deny benefits to otherwise qualifying applicants “solely because of their religious character.” Similarly, in Espinoza v. Montana Department of Revenue, the Court ruled that the state’s constitutional prohibition against aiding any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by preventing parents from using “otherwise available scholarship funds” at religious schools. The Espinoza Court held that a “State need not subsidize private education, [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

In this case, Maine offers its citizens a benefit in the form of tuition assistance for any family whose district does not provide a secondary school. A wide range of private schools are eligible to receive the payments, but religious schools are disqualified solely because of their religious character. The Court therefore applied the strict scrutiny standard. The Court reiterated that a “neutral benefit program in which public funds flow to religious organizations through the independent choice of private benefit recipients does not offend the Establishment Clause.” Furthermore, the Court said Maine’s interest in not establishing a religion does not justify excluding some members of the community from a generally available public benefit because of their religion. It was important to the Court that Maine did not exclude payments to all private schools, only those that had a religious character. By doing so, the Court held that the state violated the Free Exercise rights of its citizens.

Houston Community College v. Wilson — In a unanimous ruling, the Court ruled that a purely verbal censure by a public governing body does not constitute an actionable First Amendment claim by the person censured. Mr. Wilson was elected to the HCC Board of Trustees and often disagreed with other members of the Board, including on media outlets and in state-court litigation, going as far as to allege violations of the Board’s ethics and bylaws. In 2016, the Board reprimanded Mr. Wilson publicly, and in 2018, the board adopted a public resolution to censure Mr. Wilson due to his “not only inappropriate, but reprehensible” actions taken against members of the Board. In addition to the verbal censure, the resolution deemed Mr. Wilson ineligible to hold an officer position for that year. Mr. Wilson asserted in state court that the censure violated his free speech rights under the First Amendment.

The Court considered long-standing and established practice when deciding whether this censure violated Mr. Wilson’s freedom of speech, noting that “elected bodies in this country have long exercised the power to censure their members,” including Congress as well as local and state bodies. Additionally, recent court cases affirm this historical practice. “A plaintiff … pursuing a First Amendment retaliation claim must show that the government took an ‘adverse action’ in response to his speech that ‘would not have been taken absent the retaliatory motive.’” In deciding whether the adverse action taken was a material action, the court considered Mr. Wilson’s position. Elected officials are expected to face a certain degree of criticism and may respond to the criticism by continuing to exercise their free speech rights. Second, the Court found that the only action taken against Mr. Wilson was the censure — another form of free speech in itself. He was not prevented from doing his job, removed from office, or defamed. Therefore, the Court found no materially adverse action was taken against Mr. Wilson, and his claim was dismissed.

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