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1 1 (December 11, 2019)

handle is hein.crs/govbivz0001 and id is 1 raw text is: Resarh Servi kM- Religious Speech and Advertising: Current Circuit Split and its Implications for Congress December 11, 2019 On September 17, 2019, the U.S. Court of Appeals for the Third Circuit (Third Circuit), in a divided decision, held that a transit system's policy banning ads with religious and atheistic messages violated the First Amendment's Free Speech Clause. This decision came shortly after the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held that a similar ban was a permissible and reasonable regulation in a nonpublic forum. A petition to review (i.e., certiorari) the D.C. Circuit case is currently pending before the Supreme Court. Although the two cases differ slightly, together, they present the question of when a blanket ban on religion as a subject matter becomes unconstitutional viewpoint discrimination. This developing split amongst the circuit courts, while relevant to the specific context of the regulation of local transit systems, may have broader implications for Congress and free speech law that this Sidebar explores in more detail. First Amendment and Religious Speech The Free Speech Clause provides that Congress shall make no law ... abridging the freedom of speech ..... It is well settled, however, that the government does not have to permit all forms of speech on property that it owns and controls. The Supreme Court has developed a forum based approach for evaluating the constitutionality of speech restrictions the government may impose on the use of its property. The Court has identified three categories of forums. Within each, courts will apply a different level of scrutiny when determining whether a speech-based regulation violates the First Amendment. In other words, courts will look at where the government is attempting to regulate speech and then decide how limited the government is in its ability to regulate speech in that forum. In both the traditional public forum (a place that has by long tradition been devoted to assembly and debate, such as a sidewalk or park) and the designated public forun (a space that the government has intentionally opened up to a broad audience for expressive activity), the government must satisfy strict scrutiny to impose a content-based restriction on speech (i.e., a restriction that is based on the subject matter or type of speech). To satisfy this heightened judicial scrutiny, the government must show that the restriction is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. By contrast, the nonpublic forum is one that is not traditionally designed, nor intentionally opened up, for public speech, such as a jail or public school classroom. In nonpublic forums, the government has Congressional Research Service https://crsreports.congress.gov LSB10383 CRS Lega Sidebar Prepaed for Membeivs and Cornm ittees o4 Co q _gress ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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