Incidental Burdens on Constitutional Rights

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Government actions may interfere with individual rights in two principal ways. First, government may disadvantage a person because that person exercised a right. A law that by its terms prohibits the "burning of an American flag as a statement of political protest" is an example of a law directed at a right in this way. Second, the government may enforce a law that is not directed at an individual right but has the incidental effect of burdening a right in the particular case. The application of a law prohibiting "the lighting of a public fire," to an act of politically motivated flag burning is an example of such an incidental burden. The Supreme Court has held that most constitutional rights are protected against direct burdens but not against incidental ones. Thus, in the above examples, the law directed at flag burning would be unconstitutional, while the application of the fire prohibition to the flag burner would be constitutional, so long as the law was not being used as a pretext for punishing unpopular expression. Similarly, a law using race as an express criterion is presumptively unconstitutional, while a facially neutral law that has a disparate impact on a racial group will be upheld if it was adopted for a nondiscriminatory purpose.

From the perspective of an individual right-holder, there may be little difference between direct and incidental burdens on constitutional rights. In each case, some government policy infringes the right. However, to say that incidental burdens always raise the same constitutional concerns as targeted ones would open the floodgates of litigation, because every law can, under various circumstances, impose incidental burdens on rights. User fees for government services often have a disparate racial impact, and taxation of all corporations increases the marginal cost of doing business for those corporations that run newspapers, thereby burdening freedom of the press. To avoid subjecting nearly all laws to searching constitutional scrutiny, the courts must either ignore incidental burdens entirely or find some way to identify some relatively small subset of incidental burdens that pose the gravest dangers. For the most part, the Court has chosen the former course. As a comparison of speech and religion cases illustrates, however, this strategy presents problems.

As a formal matter, in freedom of speech cases, the Court treats some incidental burdens as constitutionally significant. In practice, however, the Court only gives serious scrutiny to direct content-based burdens on speech, which are presumptively invalid. For example, in Simon & Schuster, Inc. v. Members of The New York State Crime Victims Board (1991), the Court invalidated as content-based New York's "Son-of-Sam" law, which required publishers of accounts of crimes committed by their authors to set aside the royalties of those authors for a victim compensation fund.

Content-neutral laws target the noncommunicative element of communicative activity. For example, in kovacs v. cooper (1949), the Court upheld an ordinance prohibiting sound trucks because the ordinance aimed to control noise, regardless of the message conveyed. The Court has said that content-neutral laws will be upheld if they serve important interests unrelated to the suppression of ideas and burden no more expression than necessary. Although this test sounds forbidding in principle, in practice the courts have upheld virtually every regulation subject to it.

The Court's interpretation of the free exercise of religion clause makes explicit what is implicit in the speech cases: incidental burdens do not raise constitutional difficulties. In employment division, department of human resources of oregon v. smith (1990), the Court rejected the claim that Native Americans who used peyote as part of a religious ritual had a free exercise right to an exemption from the state's prohibition on drug use. The Court held that the free exercise clause is essentially an antidiscrimination principle. It proscribes laws that target religious practices as such, but does not reach generally applicable laws that impose incidental burdens on religion.

It is easier to justify the Court's treatment of incidental burdens on speech than its treatment of incidental burdens on religion. A person who wishes to communicate a message may choose from a variety of means of expression, so that laws imposing incidental burdens on speech may be upheld while leaving open adequate alternative means of expression. The medium is not the message. By contrast, religious obligations do not ordinarily admit of alternatives. Thus, the Smith decision was widely viewed as unduly harsh to members of minority religions whose practices the legislative process often burdens indirectly.

Michael C. Dorf


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