The Indiana legislature and Gov. Pence did so well toying with free exercise rights in its two versions of the state’s Religious Freedom Restoration Act (“RFRA”) last year, as discussed hereand here, that some now feel empowered to take the extreme standard in RFRA and extend it to other rights. That’s right: the RFRA proposal now on Indiana’s radar would pile on to inflate protections for free speech, free assembly and petitioning the government, and that one right that really needs more pumping up in this era: the right to bear arms.
What could be wrong with such rights, you ask? I am now going to repeat what I tell my Constitutional Law II students every year: You think you know what the “freedom of speech” means? Let me be blunt to save us a lot of wasted time: you don’t, so get to work. It’s complicated.
Every American thinks they know what “free speech” means, but what the vast majority knows is a sliver, taken out of context. I always tell my students about the sixth-grader whose parents tell him to be quiet at the dinner table, and he responds, “I have a right to say whatever I want.” That is an American sentiment to its core. But lo and behold he learns he does not have such a right in his house! First, the First Amendment is a right against the government, so good luck using it against mom.
Second, there are no absolute rights in the Constitution, except for one: the right to believe. After that, the Court has calibrated the Constitution’s rights for purposes of common sense, safety, and to serve the higher goals of our Bill of Rights. This is especially true in the speech arena, where there is a spectrum of protection for many scenarios worked out over centuries. The extreme RFRA standard has not been a feature of these cases, and it would wreak havoc to displace the current nuanced doctrine with RFRA’s unreasonable standard.
For example, in the public schools, students do have some free speech rights, but they are subordinate to the institution’s educational purpose and policies. For example, a student in Tinker v. Des Moines Independent School District, could wear a black armband to protest the Vietnam War where there was no disruption of the educational atmosphere, but a student who unfurled the banner, “Bong Hits for Jesus,” during school hours to get attention as the Olympic torch procession passed by had no right to speak in violation of the no-tolerance-for-drugs policies of the school.
Imagine being the principal in a school where each student’s free speech rights must be individually calibrated so that the school must prove a “compelling interest” and the “least restrictive means” to suppress it. Under that standard, the kid with the “Bong Hits for Jesus” sign likely would win. Here is how it would go: there is a substantial burden on this student’s right to speech and while there is a compelling interest in an anti-drug policy, there are less restrictive means of ensuring students don’t use drugs than banning a religious sign about drugs. It’s just a sign, after all. So let him unfurl the attention-grabbing silly sign as his “right” and wait for the next student’s sign.
Schools are just the beginning. The First Amendment has never recognized “strict scrutiny” (let alone the super strict scrutiny of the RFRA standard) for time, place, and manner regulations. Let’s say the Ku Klux Klan wants to have a parade in downtown Indianapolis. Ordinarily, parade permits must be provided neutrally by the government, so that it does not pick and choose viewpoints, but the government can impose restrictions like forbidding parades during peak rush hour, or banning them in certain locations where it would be disruptive, or setting a decibel limit on them. With the handy RFRA standard, the KKK would argue that its mission is substantially burdened by the fact its parade is not at a time when it can get the attention of the most people, that “time, place, and manner” restrictions are just low-level housekeeping concerns compared to their beliefs and certainly not compelling, and that there is a less restrictive alternative than to ban them from the busiest part of the city where they would prefer to make as much noise as possible. Here’s the killer argument: Just let them do it this once. That’s certainly less restrictive than a blanket ban on rush-hour parades.
Then there would be the question of how a court is to determine what the “least restrictive means” is for a protester to enter a military base for purposes of criticizing the Administration’s handling of the war on terror. A complete ban seems so extreme when the base could just let the protester in for a few hours once a week. How about whether a city could limit pornography through zoning? It is a lot less restrictive to let “adult” stores locate wherever they choose than to consign them to a particular zone or zones.
But Indiana’s current proposal goes well beyond free speech. It would give a gun owner the right to argue that the government must tailor its regulations to his “right to bear arms.” Let’s say there is a requirement of paying for a gun before taking it from a store in Indiana as in most states, and when the fellow is arrested, he invokes his RFRA gun rights. His argument: the government forcing him to pay for the gun substantially burdens his right to a gun (talk about insuperable barriers!) and while the government may have a compelling interest in making most people pay for guns, this one exception for him so that he can have a gun is less restrictive than banning him from having a gun altogether.
The crazy RFRA (I know that is redundant) standard limited to religious actors is a black box, as I discussed here, but this new Indiana proposal is a black hole. Gov. Mike Pence lost any hope of ever winning national (and maybe even state) office with the first version of the Indiana RFRA. I wager that anyone who votes for this bill in Indiana or elsewhere will find themselves in even deeper political waters. And they will have to explain, first, whether they knew what they were doing and, second, why.
As my Constitutional Law students will tell you at the end of every semester: constitutional rights really are complex.