Title
Preaching from the State’s Podium: What Speech Is Proselytizing Prohibited by the Establishment Clause?
Abstract
Public schools, like other public institutions, continue to wrestle with difficult problems posed by potential proselytizing in publicly sponsored activities. The fundamental First Amendment question is whether particular religious-oriented speech or conduct is protected by the Free Speech Clause or prohibited by the Establishment Clause. Proselytizing, a legal definition of which is proposed in this article, is unquestionably expressive activity. As the article shows, the term proselytizing weaves its way through U.S. Supreme Court opinions that analyze both Establishment Clause prohibitions and Free Speech Clause precluded “viewpoint discrimination,” without at any point being adequately defined as an applicable legal standard or test.
The article analyzes dilemmas posed by proselytizing expression primarily in public school-sponsored activities and: (1) discusses the evolving use of the term proselytizing in U.S. Supreme Court opinions culminating in the 2005 term Ten Commandments cases, and, while doing so, briefly set forth key High Court decisions involving either Establishment Clause prohibited speech, or Free Speech Clause protected speech; (2) analyzes how Cole and the subsequent Ninth Circuit decision in Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003) interpreted these High Court Establishment Clause cases to adopt a “no proselytizing” rule, and reject the applicability of the “viewpoint discrimination” theory (at least in high school graduation ceremonies); (3) reviews how other federal circuits have approached such speech situations and attempted to define “proselytizing”; and (4) proposes a more certain legal definition which could both mitigate the potential for impinging on free speech rights and avoid violation of the Establishment Clause. Although the article’s focus is on public schools, the cases and principles discussed are applicable to other government institutions. Finally, the article suggests that an ethic of mutual tolerance might serve to resolve practical issues associated with proposed proselytizing in State-sponsored activities.
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