Religion and Free Speech
RELIGION AND FREE SPEECH
Religious speech was at the heart of the historical development of freedom of speech principles—as any student of john milton or the Jehovah's Witnesses can attest. But in recent decades, concerns arising under the establishment clause caused religious speech to receive significantly less protection than secular speech, whenever the speech occurred in a public forum or involved public benefits. This disparity is now diminishing.
Under the separationist interpretation of the establishment clause that flourished roughly between world war ii and the 1980s, the first amendment was thought to bar government "aid" to the propagation of religious ideas. At the same time, with the rejection of the right–privilege distinction, the free speech clause came to be understood as barring the government from discriminating on the basis of viewpoint, and sometimes content, in the distribution of government benefits. These two principles were obviously in conflict. The free speech clause was thought to require viewpoint neutrality; the establishment clause was thought to require viewpoint exclusion from government benefit programs in many circumstances.
The conflict first came to the fore in widmar v. vincent (1981). A public university extended the benefit of free access to meeting rooms to all student organizations, but out of concern for the separation of church and state, denied this benefit to groups who were engaged in religious speech or activity. Although the appellate court ruled against the religious students, the Supreme Court reversed, and established the principle that when the government has created a forum for free speech, religious speakers are entitled to take equal advantage of it.
In two cases in 1995, these principles were extended to more difficult and controversial contexts. In capitol square review & advisory board v. pinette (1995), the Court faced the issue of whether a group (which happened to be the Ku Klux Klan, although it was treated as an ordinary religious speaker) could display a large cross in a municipal square, in a space that had been opened for display of symbols by private speakers. Four Justices, led by antonin scalia, advocated a categorical principle that the establishment clause does not bar private religious expression on government property, if a forum has been opened to the public for speech and permission to speak, if any, was granted on the same terms as other private groups. Three Justices, led by sandra day o'connor, maintained that each case should be evaluated on its facts to determine whether a reasonable observer would perceive governmental endorsement.
In rosenberger v. rector & visitors of the university of virginia (1995), the equal access principle was extended to the "metaphorical" forum of student activities funding. The Court held that a student publication that was otherwise eligible for funding could not be excluded on the basis of its religious orientation.
In these cases, therefore, the Court resolved the apparent conflict between free speech and establishment clause principles by extending the principle of viewpoint neutrality (originally a free speech doctrine) to the establishment of religion, in place of the prior emphasis on no-aid separationism.
Michael W. Mc c onnell