Part of the problem may be that we are not well equipped to handle these cases involving multiple secular baselines. When secular groups are all treated the same, the analysis is easy. The Free Speech Clause gives religious speakers as many rights as secular ones; the Establishment Clause prevents them from getting more. But the analysis breaks down when secular speakers are treated differently from one another. A graduation speech on football is perfectly fine. But a graduation speech on how lousy the history teachers are gets censored. So how is a religious speech to be treated? Under the public-forum model that Professor Lederman suggests, religious speech is treated like least-preferred secular speech. If there is any censorship at all, the religious speaker must submit to it. And the failure of the school to censor religious speech becomes establishment. Professor Lederman is right in saying that allowing religious speech past the censor is a sort of "modest" endorsement. But that argument cuts both ways, and it ends up turning on how much is getting censored. If pretty much everything gets censored and the student ends up being a puppet for a school-sponsored message (i.e., Santa Fe?), then the claim of endorsement is real. But if little is getting censored -- if, say only profanity and racial invective are censored -- then a school's choice to also censor religious speeches suggests that it believes religious speeches are best compared to profanity or hate speech. This too is of some modest constitutional concern, right?
The public-forum doctrine is like the general-applicability doctrine; they both tie the treatment of religious individuals to the treatment of similarly situated secular individuals. They do it in different ways -- the public-forum doctrine gives religious speakers no more rights than least-preferred secular speakers, while the general-applicability doctrine entitles religious observers to be treated like their most-preferred secular equivalents. But in either case, when secular individuals are treated in different ways, the whole thing breaks down.
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Date: Sun, 6 Aug 2006 13:22:10 -0400
Subject: Re: Fox News Forgets Fact in Christian Graduation Speech Story
"the school should not exercise any control over the content of their speech at all."I'll hazard a guess that this has never, not once, been the case in any school in America. Or let me be more specific: Many schools have, of course, refrained from exercising control over a graduation speaker's speech, but not a single one would disclaim the authority to do so. Almost every school would, for instance, prohibit a string of obscenities, or double entendres. See Bethel. Beyond that, it is not at all difficult to think of plenty of topics and viewpoints that virtually any school would prohibit (or with respect to which they'd turn off the microphone) -- insults of teachers and fellow students, speeches that are ridiculously off-topic -- and, more likely than not, most partisan political speech.In other words, there is a wide range of inappropriate graduation-speech content. The reason the issue rarely comes up is that, not surprisingly, the vast majority of graduation speakers confine themselves to what is generally thought to be within the wide range of the appropriate at situations such as these. (Wouldn't you?)In other words, this isn't like Speaker's Corner, or some other public forum, and never will be. Thus, there's no getting over the problem of endorsement. If a school would forbid the speaker from leading cheers for the re-election of the President, or for the electoral prospects of Hillary Clinton, or would ask a student to apologize for condemning persons of a particular religion, but would permit the speaker to say that "Jesus died for you on the cross," there is at least a modest sense of endorsement: Not endorsement of the truth of the matter, mind you, but endorsement of the idea that "Jesus died for you on the cross" is within the range of speech that is relevant and appropriate for a graduation ceremony. My personal view is that if the school did accept such a statement as appropriate -- or, e.g., accepted as appropriate the statement "Jesus is a scam" or "women have a religious duty to stay at home" or [you can fill in the blanks with your favorite hypo] -- it would be an Establishment Clause violation, albeit not the most important one of all time. My quick 'n' easy rule of thumb is that specifically religious speech can be treated no better than political speech, or else there's a possible Establishment Clause problem. And if it's treated no worse than such political speech, there's certainly no Free Speech problem.And therefore the school here was well within its rights to ask the student to apologize for a statement that was grossly inappropriate, and that she knew would never have been approved had she included it in the rehearsal version that she recited for the principal. Indeed, asking for such an apology in this case strikes me as just about the perfect, most civil and modest response for the school to have taken. They're not asking her to disclaim her beliefs about Jesus, or to stop trying to convince others of those beliefs -- merely asking her to acknowledge how manifestly inappropriate it was to use that particular occasion, and her privileged position, to make a statement of religious truth of that nature.----- Original Message -----From: Ed BraytonSent: Sunday, August 06, 2006 12:46 PMSubject: Re: Fox News Forgets Fact in Christian Graduation Speech Story[EMAIL PROTECTED] wrote:I would argue that if the graduation speaker is chosen according to some objective criteria, as when the valedictorian automatically is invited to speak, then the school should not exercise any control over the content of their speech at all. Then the speech is purely their own, there is no message of endorsement, and the student can say whatever they want. Free speech preserved, establishment clause problem eliminated, everyone hapy.I much appreciate the kind words (particularly coming from the author of the conlaw book I still use and have been using since law school).There was actually another interesting fact about the Erica Corder case in Monument, CO that wasn't in the Fox News story. Erica Corder's father is on the board of directors of James Dobson's Focus on the Family which is based near there (the father's connection to FoF is reported in the Colorado Springs Gazette). If anyone's interested, I took my argument to the Colorado Springs Gazette online forum in more extended written form at: http://forums.gazette.com/gazette/viewtopic.php?t=345&start=30What I'm having difficulty figuring out, however, is exactly where to draw the line in graduation speech preapproval cases. Does anyone have any good citations (or opinions) on when preapproval of a message becomes endorsement? Also, how do high schools fashion preapproval policies so they are not arbitrary or discriminatory?
Ed Brayton
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