Excessive Entanglement: The Legislative Prayer Doctrine and School Board Meetings

BACKGROUND

The Establishment Clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” This clause was motivated by the Framers’ experience with state-sponsored religious persecution and is thought to serve two purposes: (1) allowing individuals to express themselves according to the dictates of their own conscience; and (2) preventing the government from acting “to make belief — whether theistic or nontheistic, religious or nonreligious — relevant to an individual’s membership” within the political community. Freedom From Religion Foundation v. Chino (9th Cir. 2018).

In light of this purpose, courts express “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” American Humanist Association v. McCarty (5th Cir. 2017). School children are in the process of developing their own beliefs and learning to think for themselves — they are far more susceptible to pressure to conform to social norms and expectations. “The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice,” and therefore religious opining by those with authority over impressionable adolescents in a mandatory secular school has been deemed unacceptable in the eyes of the Supreme Court. Lemon v. Kurtzman (1971).

The relationship between Church and State is not one of total separation, but the Supreme Court has carved out certain exceptions to this Constitutional prohibition. Town of Greece v. Galloway (2014). Here, a resident challenged the practice of the town board’s practice of opening its monthly meetings with a prayer from an invited clergy member. Writing for a five-justice majority, Justice Kennedy writes: “Legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of higher purpose and expresses a common aspiration to a just and peaceful society.” The Court affirmed that the Establishment Clause was never meant to prohibit the longstanding tradition of legislative prayer. Despite the fact that some audience members were offended by the prayer, the Court found that the primary audience consisted of the board members who governed the town, and therefore, opening the board meeting with a prayer was permissible. The Court did not limit its ruling, however, leading to many questions as to how far this “legislative prayer” doctrine could extend.

THE ISSUE

Is the opening of a public school board meeting with a prayer or invocation permissible as an extension of the “legislative prayer” doctrine, or is it an unconstitutional entanglement of Church and State?

THE SPLIT

The Fifth and Ninth Circuits, in particular, have diverged on the issue of whether school boards should be permitted to invoke religious doctrine in meetings. The difference in opinion stems from an overall uncertainty as to whether school board meetings are viewed more as school-sanctioned events or legislative sessions.

In American Humanist Association v. McCarty (5th Cir. 2017), the AHA challenged the actions of the Birdville Independent School District in having a student speaker deliver an invocation prior to each of its monthly school board meetings. The invocation was given after another student led the Pledge of Allegiance and was normally some sort of prayer. The Fifth Circuit upheld the student-led invocation, arguing that the school board is “more like a legislature than a classroom,” distinguishing it from the public-school setting. The Court based its decision on the “legislative prayer” doctrine from Town of Greece, claiming that the Framers saw this form of prayer as merely a “benign acknowledgment of religion’s role in society.” The Court acknowledged that there may be children in the audience, but maintained that their presence did not transform the legislative nature of the school board meeting.

One year later, the Ninth Circuit split with its sister circuit in Freedom From Religion Foundation v. Chino Valley Unified School District (9th Cir. 2018).In this case, the school board permitted a prayer, usually led by a clergy member, to begin its opening sessions. The clergy members were invited from a list of eligible local religious leaders and were permitted to give the invocation on a first-come, first-serve basis. It also became common practice for board members to use these opening invocations as an opportunity to link student, teacher, and district accomplishments to Christianity by citing Bible verses and stressing the need for God in schools and society. The school board had a student representative who attended the meetings, and commonly invited students to highlight their various accomplishments. The Ninth Circuit ruled this opening invocation to be a violation of the Establishment Clause. The Court differentiated the permissible town board meeting in Town of Greece from this case in that the town board meeting was typically attended by mature adults who could express dissent, and had the option to remain or leave at will. “Instead, these prayers typically take place before groups of school children whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.” The Court further argued that public schools lack the historical foundation that legislatures have in allowing opening prayer. The court reasoned that the school board should not be permitted to invoke such religious doctrine in their meetings.

LOOKING FORWARD

Until this split is reconciled, school districts will continue to face uncertainty as to how to proceed with such a practice. As of now, it is not clear if the school board meeting is more like a school-sanctioned event or a legislative session, an important distinction in deciding the issue. Due to these important constitutional ramifications, the Supreme Court should intervene and clarify its ruling in Town of Greece. The conflict here is important because it calls into question the protections afforded by the First Amendment, a bedrock of our democratic society. Additionally, this concerns the imperative right of children in a public school to be free from religious indoctrination, allowing them to develop their beliefs and faculties unimpeded by religious pressure from public authority figures.

Right to Refrain: Do Abortion Providers Have a First Amendment Right to Free Speech Under Mandatory Narrated Ultrasound Laws?

Background

The First Amendment prohibits Congress or any other legislative body from enacting laws that abridge freedom of speech. The Supreme Court has distinguished between legislation that regulates the content of speech and legislation that regulates conduct associated with the speech. Content-based speech restrictions are generally presumed to be invalid and must face strict scrutiny before the courts. This requires the government to prove that the law is necessary to achieve a compelling state interest — a very high bar that often results in most content-based speech restrictions failing.

The First Amendment not only guarantees the right to speech, it also guarantees the right to refrain from speech. In Riley v. Nat’l Fed’n of the Blind (1988), the Supreme Court held that regulations that compel speech are inherently content-based restrictions, as they compel the speaker to speak when they would have otherwise remained silent. As such, regulations that compel speech must also generally face some form of strict or heightened scrutiny before the court.

In conjunction with the recent rise in abortion regulation, multiple states have passed legislation mandating that narrated ultrasounds be performed by physicians prior to abortion procedures. While specifics vary slightly between states, the laws have the same general premise: physicians are required to perform an ultrasound, display the sonogram, and describe the fetus to the patient. Under these laws, the physician must display and describe the ultrasound, even if the patient actively protests. Most states provide an exception only for emergency situations, although exceptions also vary by state. If a physician refuses to perform the ultrasound, he or she may be subject to multiple forms of punishment, including fines, referral to the state medical licensing board, and an inability to perform future abortions.

The Issue

Reproductive rights and other activist groups have recently joined forces to approach these regulations from a non-traditional vantage point. The groups are straying from the traditional approach of invalidating abortion legislation under Roe v. Wade (1973), where the Supreme Court found a Constitutional right to an abortion under the Fourteenth Amendment. Instead, the groups have turned their focus to the impact of these regulations on the physicians they are intended to regulate. These activist groups have argued that the mandatory narration laws are unconstitutional not because they prohibit access to abortion, but because they compel physicians to engage in speech from which they otherwise would refrain. This has ultimately led to a single question: what are abortion providers’ First Amendment rights under mandatory narrated ultrasound laws?

The Split

In Stuart v. Camnitz (2014), the Fourth Circuit held that North Carolina’s narrated ultrasound law violated physicians’ First Amendment right to refrain from speaking “beyond the extent permitted for reasonable regulation of the medical profession.” The Court noted that while “professionals may be subject to regulations by the state that restrict their First Amendment freedoms when acting in the course of their professions, professionals do not leave their speech rights at the office door.” The Court held that this regulation of speech and professional conduct warranted heightened intermediate scrutiny, under which the law failed. The Fourth Circuit stated that “while it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications,” emphasizing the fact that context matters. Because the speech that the state was attempting to compel in this case was so heavily content-specific and did not allow any room for physicians to exercise professional judgment, the Court held that the law unconstitutionally attempted to make physicians the “mouthpiece of the state” to promote their own “clear and conceded” pro-life position.

The Sixth Circuit recently reached the exact opposite conclusion in EMW Women’s Surgical Center P.S.C. v. Beshear (2019). The Court found that Kentucky’s mandatory narrated ultrasound law did not violate physicians’ First Amendment rights, noting that the law simply “requires the disclosure of truthful, non-misleading, and relevant information about an abortion.” Directly addressing the Fourth Circuit’s 2014 decision, the Court stated that “Stuart’s basis for applying heightened scrutiny is called into question by Supreme Court precedent.” The Court argued that the appropriate level of scrutiny was much lower than that called for by the Fourth Circuit and that, under this new lower level of scrutiny, the law survived. Further opposing the argument that the narrated ultrasound laws inappropriately interfere with the doctor-patient relationship, the Court found that the laws did not interfere “any more than other informed-consent laws,” despite the fact that they were regulating the controversial subject of abortion. Countering the Fourth Circuit’s opinion that the compelling of physicians to deliver the state’s message was unconstitutional, the Sixth Circuit held that “as a First Amendment matter, there is nothing suspect with a State’s requiring a doctor, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion.”

Looking Forward

 The future of this issue remains uncertain. The Court recently made headlines for accepting an admitting privileges case out of the Fifth Circuit, the first abortion-related case since the addition of conservative Justices Gorsuch and Kavanaugh. However, the Court has generally been hesitant to accept abortion-related cases and has already denied a previous appeal for this issue. In 2014, the Court denied North Carolina officials’ petition to appeal the Fourth Circuit’s decision. As of September 26, 2019, the American Civil Liberties Union has filed a petition for a writ of certiorari for the Supreme Court to hear its appeal from the Sixth Circuit’s decision. A response is due from the Secretary of the Kentucky Cabinet for Health and Family Services, Adam Meier, by the end of October before the Court will begin to consider the petition.

For further reading, see: Sex, Lies, and Ultrasound (2018) by Case Western University School of Law Associate Dean and Professor B. Jessie Hill and Professional Rights Speech (2016) by William & Mary Law School Professor Timothy Zick.

On an Electronic Soapbox: Is a Privately-Operated Public Access Television Channel Subject to the First Amendment?

The Issue

The First Amendment normally only limits and regulates governmental action, not the acts of private entities; therefore, First Amendment violation claims are only viable if they are against a state actor. But when does a private entity become a state actor for First Amendment purposes? Regarding public access television channels, this answer has remained unclear. Public access channels are set aside for public, educational, or governmental purposes and a cable system operator provides them at the request of local government. The Second Circuit recently held in Halleck v. Manhattan Cmty. Access Corp. (2018) that a public access television station operated by a non-profit corporation is a public forum and considered a governmental actor for constitutional purposes. In making this determination, the Second Circuit acknowledged that it was in direct contrast with its sister D.C. Circuit’s decision in Alliance for Community Media v. FCC (1995).

The Split

In Halleck, two producers for the Manhattan Neighborhood Network (MNN), a not-for-profit corporation designated as the operator of the public access channel by the Manhattan Borough President, were suspended after they produced content that presented MNN in a negative light. The producers brought a claim against MNN, stating that as a public access channel under municipal control, its employees were subject to First Amendment restrictions. The Second Circuit found in favor of the producers, analogizing a public access channel to “a speaker’s soapbox” and finding support in a concurring opinion written by Justice Kennedy and joined by Justice Ginsburg in Denver Area Educ. Telcoms. Consortium v. FCC (1996).

In Denver Area Educ. Telecoms. Consortium, the plurality opinion did not definitively resolve the classification of such channels as public fora. Instead, two opposing camps each articulated different views. On one side, Justice Kennedy and Justice Ginsburg concluded that:

public fora do not have to be physical gathering places, nor are they limited to property owned by the government. Indeed, in the majority of jurisdictions, title to some of the most traditional of public fora, streets and sidewalks, remains in private hands…Public access channels are analogous; they are public fora even though they operate over property to which the cable operator holds title.

On the opposing side, Justice Thomas, Justice Scalia, and Chief Justice Rehnquist stated that because the channel was privately owned it could not be a public forum. As neither view held majority support, the issue remained unanswered by the Supreme Court.

In Alliance for Community Media, the D.C. Circuit Court of Appeals held that a public access channel was not a public forum and, therefore, not subject to First Amendment restrictions. The court differentiated parks and streets—which it classified as examples of public fora—from public access channels because the channels “belong to private cable operators; are managed by them as part of their systems; and are among the products for which operators collect a fee from their subscribers.” In contrast to the reasoning in Halleck, the D.C. Circuit held that although a public access channel “must provide communications facilities to those who desire access for their own purposes,” it is not a public forum “in the First Amendment sense and does not transform the entity’s discretionary carriage decisions into decisions of the government.”

Looking to the Supreme Court for an answer

Labeling a television station as a public forum carries significant consequences for its operators as it limits their ability to restrict content. Therefore, whether courts classify channels as modern versions of a town square—or the equivalent—has direct implications on the programming that can be broadcast to the public. In his plurality opinion in Denver Area Educ. Telecoms. Consortium, Justice Breyer said it would be “premature” to classify public access channels as public fora. (Or to not classify them as such.) However, given that 22 years have elapsed since the Court’s opinion and that a circuit split has subsequently developed, perhaps the Supreme Court would consider the issue appropriately mature enough to return with a clear answer sometime soon.

Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

One Meeting Under God?

Background

Prayer in the United States has been contentious ever since it was forbidden in schools. Although over half of Americans say they pray daily, the Supreme Court, in Engel v. Vitale, ruled that public school students cannot be required to begin their day with a nonsectarian prayer . Across the nation, numerous local, county, and state officials take their opening time allotted to them to pray. These prayers are often sectarian in nature.

The argument around prayer in these public institutions stems from the Establishment Clause of the United States Constitution which states, “Congress Shall make no law respecting an establishment of religion.” Circuit courts are split on how to interpret the clause as it relates to the often sectarian prayers that open meetings. The split boils down to whether lawmakers are able to lead prayer in a sectarian manner.

Town of Greece v. Galloway

In Town of Greece v. Galloway, the Supreme Court ruled that prayer that was nonsectarian in nature could open meetings or sectarian prayer led by guest ministers was constitutional. They cited that the first Congress had a paid chaplain open the meeting, highlighting the history of prayer opening meetings. Additionally, they stated that the prayer “lends gravity to public business” to remind the legislatures that they should work towards a “higher purpose” instead of quibbling amongst themselves. The argument that the prayer was coercive in nature was dismissed because “legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

The Split: Does a lawmaker’s sectarian prayer violate the Establishment Clause of the US Constitution?

Fourth Circuit

The Fourth Circuit ruled that it does. In Rowan v. Lund County, a county in North Carolina had rotating prayer which the elected officials would lead in a clearly sectarian manner. No one other than the elected officials were permitted to offer the prayer. The court ruled that the practice caused the government to be aligned with Christianity with the risk that minority faith citizens would see it as a message of exclusion. They reasoned that although Town of Greece allowed for sectarian prayer from guests and volunteers, the “intimate government involvement” identified the government more strongly with that particular religion because the legislators were the only eligible people to deliver the prayer.

Additionally, the court looked at the audience of the prayers. While Town of Greece found that the intended target of the prayers were the legislators, the Fourth Circuit found that these prayers were intended for the audience and sought audience involvement rather than target specifically the legislators.

Because the audience was targeted and compelled to participate in the prayer, and because the prayers aligned the government with Christianity, the Fourth Circuit ruled that prayers given by lawmakers violated the Establishment Clause of the US Constitution.

Sixth Circuit

The Sixth Circuit took a different approach. In Bormuth v. County of Jackson, a county in Michigan held monthly meetings which were opened by the Commissioners with prayer. A member of the community did not follow Christianity, the religion of all Commissioners, and felt isolated and the Board of Commissioners would prejudice against him because of his beliefs. He voiced his concerns to the Board and was met with expressions of disgust and disagreement, confirming his fear. He filed suit later against the County for violating the Establishment Clause.

Much like the Fourth Circuit, the Sixth Circuit, looked at Town of Greece concerning whether the Commissioners’ prayer practice fell within the tradition of legislative prayer. Looking at the history of legislative prayer, the court rebuked the Fourth Circuit for not engaging the entire legislative prayer history as they had. They found that it was so commonplace that it has been “uninterrupted and continues in modern time.” They say that to strike down a prayer based on the deliverer is an absurd result because one prayer delivered by a minister would be permitted while the same prayer delivered by a lawmaker would be stricken down. To this end, the court holds that the prayers were well within the tradition of legislative prayer.

Next, the court looked to see if the content of the prayer was incompatible with the Establishment Clause. While disparaging and distinguishing the Fourth Circuit’s decision that the content of the prayer was against non-Christians as similar to those in Town of Greece, the court does not agree that one comment that was Christian in nature was enough to disparage nonbelievers. The court also considered that anyone may be elected to the board and lead a prayer in any way that they so choose once elected, adding to their argument that the content and make-up of the Board is irrelevant.

Although the court was unable to determine which coercion standard to apply from Town of Greece, they held that the prayers were not unconstitutionally coercive under either standard, so they did not need to resolve the issue.

Because the prayers were not coercive, not too-Christian in content, not affected by the Board’s composition, and not outside the scope of historic practices, the Sixth Circuit held that the County of Jackson did not violate the Establishment Clause of the Constitution.

Looking Forward

Prayer is a regular part of many town, county, and state meetings. These decisions will ultimately affect how those processes change depending on which jurisdiction the polity may find itself. To that end and due to the current Supreme Court’s enthusiasm with religious freedom cases, the Supreme Court is likely to grant cert. to these cases and settle whether the sectarian prayers are constitutional.

Professional Speech and the First Amendment

In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.

Hines v. Alldredge

In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.

The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.

Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?

The Split

Speech or Conduct?

The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.

The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.

The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.

What Standard?

The next step is to determine the appropriate standard of review. Courts again disagree on the standard.

In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.

On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.

In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.

The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:

At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.

The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.

Looking Forward

Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.