When is Religious Speech Not 'Free Speech'?

Abstract

This article addresses the often difficult relationship between the speech and religion clauses of the First Amendment. The article challenges the routine assumption that religious speech should always be treated the same as other types of speech under the First Amendment. This challenge is based on the conclusion that the presence of the Establishment Clause in the First Amendment requires courts to treat religious speech differently than other types of controversial speech when that speech occurs on government property or in some other context that associates the religious speech with the government. In other words, the First Amendment itself limits the extension of free speech protection to religious speech whenever that protection would undercut the separation of church and state required by the Establishment Clause. Although this premise may initially seem both unusual and hostile to the central First Amendment goal of protecting religious liberty, in reality the Court itself has recognized that religious speech poses special dangers for a pluralist democracy. This recognition has often motivated the Court to permit greater restrictions on religious speech than on speech pertaining to nonreligious matters. The paradox is that these restrictions are necessary precisely to preserve the essential conditions in which religious liberty may flourish. This article explains that paradox and attempts to define its scope.