Volokh Conspiracy: “Between Citizens United (which has to do with corporate speech related to candidates for office), Stevens (which is an important case about the limits of the “produced using criminal conduct” rationale for punishing speech, the “lacks serious value” rationale for punishing speech, and the “compelling interest” rationale for punishing speech), and now Christian Legal Society, it’s looking like an important Free Speech Clause Term at the Supreme Court.”

Yesterday, the Supreme Court agreed to decide whether it’s unconstitutional for a state-run college to deny official recognition to a student religious group that limits its officers and voting members to those who accept its religious beliefs. The case is Christian Legal Society v. Martinez (08-1371), and it involves Hastings College of Law, in San Francisco.

There were several good reasons for the Court to grant cert. in this case. First, on the issue of whether a religious student group may draw its officers and voting members from among those who share its core religious commitments, the Ninth Circuit’s decision is squarely at odds with the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853, 863 (7th Cir. 2006). Walker rightly decided the expressive association claim before it in concluding that “[i]t would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.”

Second, the Ninth Circuit’s decision conflicts with the Second Circuit’s decision in Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 872-73 (2d Cir. 1996). Hsu upheld, under the federal Equal Access Act (which it characterized as “an analog to the First Amendment”), the right of a high school religious student group to require its officers to affirm its religious viewpoints.

Third, the Ninth Circuit’s ruling is diametrically opposed to that reached in two separate lines of Supreme Court precedent. As to the first, the Supreme Court has consistently protected an expressive association’s First Amendment right to deny leadership and membership to persons who might adversely affect the association’s ability to share its message. One need only look to Boy Scouts of America v. Dale, 530 U.S. 640 (2000) and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) for the Court’s protection of expressive association. Moreover, the Supreme Court has consistently required public universities to recognize so-called “disfavored” student organizations — including religious groups — under the First Amendment’s free speech and expressive association sprotections. See, for example, Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995) and Widmar v. Vincent, 454 U.S. 263 (1981). By requiring religious groups to open their leadership and voting membership to individuals of different beliefs, state-run schools could easily do an end-run around the Supreme Court’s important protection of religious groups’ access to public facilities (from which they have too often been excluded).

Writing about the case at The Volokh Conspiracy, Eugene Volokh notes that the Supreme Court’s decision in this case could be an important one on First Amendment law and government benefits more broadly, as its implications could extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes.

Copies of the cert. petition briefing, as well as the lower court briefs and pleadings, can be accessed at the Christian Legal Society’s website.

An interesting story out of Pittsburgh details how the City has agreed to pay $50,000 to a man — David Hackbart, 35 — who sued after being issued a disorderly conduct citation for gesturing offensively at a police officer. As part of the settlement, the City agreed to retrain its officers in the limits of disorderly conduct law.

Settlement was apparently reached after research by Mr. Hackbart’s lawyers revealed that police citations for swearing or offensive gestures were common in Pittsburgh. This researched showed that from approximately March 2005 to July 2009, Pittsburgh officers issued nearly 200 disorderly conduct citations on the basis of that sort of behavior, despite the fact that the Pennsylvania Supreme Court has deemed such citations unlawful on free speech grounds.

Mr. Hackbart was originally charged in April, 2006, while trying to parallel park. According to the lawsuit, when he saw an open metered parking space and attempted to back into it, a vehicle pulled up behind him and effectively blocked his entry into the space. The driver of the vehicle behind Mr. Hackbart would not back up. Frustrated, Mr. Hackbart extended his left arm out the window of his vehicle and raised his middle finger to the driver. When a third driver objected to the gesture, Mr. Hackbart delivered it to him too. But that third driver turned out to be Pittsburgh police officer, who wrote the citation.

Click here for coverage of the story by the New York Times.

A settlement was reached last week in Cypress Wood Presbyterian Church v. Sch. Bd. of Collier Cty, Florida, (M.D. FL, Nov. 20, 2009).  In June, a church filed the federal lawsuit in Florida challenging a school board’s policy that barred the church from handing out to students fliers about the church’s Vacation Bible School program.  The stipulated dismissal states that the school board agreed to give the church equal access with other community groups to distribute fliers.  In addition, the dismissal indicates that the school board amended the challenged policy to eliminate the requirement that fliers pertaining to religious activities not contain proselytizing messages or overtly advocate support for a religious organization.  The school board also paid the church’s attorney’s fees.  This press release from the Alliance Defense Fund announces the settlement.