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\par \tab Though LIA's claim is statutory, the most difficult questions in the lawsuit will be constitutional. That is, straightforward application of the antidiscrimination law to ADC would probably spell victory for LIA, but ADC will claim that would violate their free speech rights, and possibly the establishment clause also. LIA may be able to make out a speech claim, if it can clear the hurdle of state action. \par \tab ADC's strongest argument is that forced inclusion would constitute compelled speech and violate their right of free association. Though Jaycees makes clear that the state has a compelling interest in preventing discrimination, subsequent cases make equally clear that this compelling interest is outweighed where the discrimination is integral to an expressive activity. ADC's best precedent is Hurley. They will argue that their display, like the parade in Hurley, is highly expressive, and that LIA's highly expressive exhibit-like GLIB's-would significantly alter the content of their speech. Given ADC's strong pro-Christmas orientation, its mission of promoting "traditional" Christmas customs, and restriction of previous displays to symbols of Christmas in particular, ADC appears to have a strong argument, even under the somewhat objective test of Hurley. LIA should argue that ADC's decision is based not on any conflict-objective or subjective-with their message, but merely on an erroneous interpretation of the Establishment Clause. This will be a hard argument to win, given the enormous deference that Dale affords to private organizations in defining the content of their message and assessing conflicts. Perhaps LIA's best strategy will be to goad ADC into staking out a position of hostility to multiculturalism and other religions. It seems unlikely that such statements would bolster their argument for compelled speech, and it will make them a less sympathetic litigant, and may strengthen LIA's constitutional claims. \par \tab LIA's most ambitious constitutional argument is that the exclusion of their exhibit is a form of viewpoint discrimination. As I will explain, this argument is far from a sure winner, but it has the advantage of offering a remedy that is useful to LIA: compelling Langdell North to provide for inclusion of its exhibit. An establishment clause claim, by contrast, would only compel removal of the display. The highest hurdle facing this speech claim is the requirement of state action. ADC is a private group, and private decisions do not become abridgments of speech merely because they concern speech that occurs on public property (see Hurley). Of course, courts have been willing to broadly construe the state action requirement when inclined to do so (e.g., Shelley). And if decisions by private groups can be attributed to government for purposes of the establishment clause (Pinette - 5 justices), why not free speech? LIA should argue forcefully that the state should not be able to circumvent the First Amendment by delegating this kind of authority to private groups, especially where, as here, the public good being allocated is rivalrous (space is limited and the Christmas season (ought to be) short) and the government is familiar with the agenda of the private group through repeat interaction. \par \tab If the court decides to treat ADC's decisions as state action, LIA has a strong free speech claim. ADC's approach of allocating space in the exhibit by application probably creates a public forum. The law is clear that exclusions of speech from such fora may not be viewpoint-based (Widmar, Rosenberger) unless it meets strict scrutiny. LIA's exhibit is clearly speech, and its exclusion seems enormously difficult to justify as viewpoint-neutral. Just as in Rosenberger, speech concerning religious subject matter is already permitted in the forum (the cr\'e8che); only this message of religious tolerance is excluded. If ADC falls into the trap of expressing hostility to a multi-cultural conception of Christmas, the case for viewpoint discrimination becomes stronger. A free exercise claim is weaker, even if state action is found, because the Locke majority's "play-in-the-joints" concerns might have application here.

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\par \tab ADC will probably argue in response that it had a compelling interest in complying with the establishment clause. That raises an interesting question whether the establishment clause can ever justify a speech violation (Thomas's majority opinion in Good News Club hinted that the answer may be no, but the logic of the play-in-the-joints doctrine suggests otherwise). Regardless, LIA will be on firm ground in arguing that the Christmas display is no more consistent with the establishment clause in its current form. If anything, the inclusion of LIA's exhibit would tend to reconcile it with recent precedent. \par Though the composition of the Supreme Court has changed significantly in recent years, such that an accommodationist approach may now command a majority, the District Court will nevertheless be bound by Lynch and Allegheny. As such, they will apply some version of the Lemon test, with a healthy dose of endorsement. At first blush, the display at issue bears a striking similarity to Lynch. The holding there that commemorating Christmas can be motivated by valid secular purposes will probably control here. As to effects, the court will ask whether a reasonable observer will perceive the display to be an endorsement of religion. The inclusion of "secular" symbols like Santa Claus indicates not, as do the sponsor-markers, but the aesthetic aspect is ambiguous. The display lacks the kitsch of Lynch, and as such might be perceived as more religious; alternatively, the good taste of the display might make it more decorative and less an expression of a religious message at all. The scale may be tipped by whether the reasonable observer knows that the ADC's mission statement mentions the birth of Jesus Christ. McCreary supports a well-informed-observer approach, but there were few votes for it in Pinette. \par \tab Regardless of how this close question comes out, LIA's message would not tend to undermine the display's constitutionality. Rather, the message of inclusion would make it more like the menorah display in Allegheny. Use of the word "God" will not change this analysis, as only one justice's reasoning invoked the diminished religious content of the menorah itself. \par \par \par \par \par \par \par ------------------------------------------\par --------------ANSWER-1-ABOVE--------------\par ------------------------------------------\par ---------DO-NOT-EDIT-THIS-DIVIDER---------\par ------------------------------------------\par --------------ANSWER-2-BELOW--------------\par ------------------------------------------\par \par Answer-to-Question-_2_ \par \par \tab The marketplace of ideas is a dangerous metaphor insofar as it stubbornly retains two connotations that it had for Holmes. The first-a product of larger ideas about government and society that prevailed at the time-sets up the First Amendment in opposition to government. The second-a product of Holmes' personal beliefs-enshrines a deep agnosticism about truth. Together, these two aspects of the metaphor stand as obstacles to the fashioning of a First Amendment that works for modern society. I will examine each in turn. \par \tab When Holmes spoke of the market, he invoked a realm of private affairs, imagined as separate from-and even needing of judicial protection fromgovernment. The long shadow of Holmes' words therefore reinforces a libertarian conception of the First Amendment, while undermining a democratic one. Indeed, if the First Amendment is centrally about protecting society from government, a

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role for government in safeguarding the values of the First Amendment is incoherent. Accordingly, time and again, the Supreme Court has demonstrated its unwillingness to recognize the speech enhancement goals of government action limiting speech. In Buckley the compelling interest recognized for restrictions on campaign contributions was not ensuring vigorous public debate, but preventing corruption. And in considering regulations of pornography and hate speech, short shrift is given to the argument that the harms sought to be prevented are speech-related harms-i.e., that women and minorities are silenced by the speech sought to be regulated. The Court's brief recognition of government's speech-protection interests in Red Lion was shunted aside in Pacific Gas and Miami Herald. \par \tab Reinforcing and reinforced by this libertarian orientation is Holmes' agnosticism about truth, stemming from his experience of the horrendous brutality of the Civil War. The marketplace of ideas, understood in this light, is Holmes' rather misanthropic effort to find a neutral methodology for determining truth. It dictates that all ideas be treated equally, because no human institution can be trusted to separate truth from falsehood. It thus pulls together with the libertarian connotation. But rather than serve to devalue the government's assertion of speech-related countervalues, this intuition casts doubt upon judicial efforts to assign differential value to speech. It thus drives the unwillingness of courts to draw doctrinal lines by reference to categories of ideas or institutional contexts, a phenomenon that Schauer and others have recognized. Thus Branzburg denies a reporters' privilege to the institutional press rather than draw a line that excludes the lonely pamphleteer, and the trend in commercial speech doctrine is increasingly toward affording the same staunch protection (in practice if not form) to fast food commercials as to core political speech. RAV is perhaps the ultimate reassertion of Holmes' radical skepticism: an across-the-board requirement of content neutrality now applies to formerly unprotected categories of speech. \par \tab The metaphor has failed to evolve along with progressive recognition of the myriad failures of markets, the private threats to First Amendment values, and the fact that the physical and social sciences tell us something about truth. The result is an over- and underinclusive First Amendment. \par \par \par \par \par ------------------------------------------\par --------------ANSWER-2-ABOVE--------------\par ------------------------------------------\par ---------DO-NOT-EDIT-THIS-DIVIDER---------\par ------------------------------------------\par --------------ANSWER-3-BELOW--------------\par ------------------------------------------\par \par Answer-to-Question-_3_ \par \par \tab After abandoning strict separation, the Supreme Court, in cases like Allegheny, McCreary and Weisman (4 justices), briefly embraced a conception of Establishment Clause that focused on whether government was endorsing a particular religion or religion generally. But the composition of the Court has changed since those five-to-four decisions, and it seems likely that a narrower, accommodationist vision of the Clause will take hold. Beyond noncoercion, this view requires only that the state not actually establish an official church, and that its support and recognition of religion be-facially-nonpreferentialist. There is a textual argument (made by O'Connor in Allegheny) that the clause should not be read so as to intrude upon the free exercise clause. But an

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equally strong argument against the accomodationist view is that it fails to fully account for two important purposes of the establishment clause: avoiding the corruption of religion, and preventing religious divisiveness. \par \tab Justice Black argued that one purpose of the Establishment clause was to avoid the corruption of religion (Everson). Black, raised a Baptist, was receptive to this conception of religion as incompatible with the State. The notion that the clause was meant to prevent politics using religion, rather than merely suppressing it (as the free exercise clause protects against), has a strong pedigree in the thought of leaders, religious and otherwise, at the time of the founding. Roger Williams, as Black would have known, was a strong proponent of the separation of religion and government, at least in part for this reason. And Madison's Remonstrance itself contained similar warnings. Within the limits of nonpreferentialism and noncoercion there remains a great deal of room for government to make use of religion, through both symbolic recognition and the distribution of public largess. While the endorsement test can certainly be applied so as to permit the latter, a forthright application tends to restrict the former (see McCreary). \par \tab The more permissive character of accommodationism also creates a greater risk of religious divisiveness, as religious groups compete in interest group politics for both symbolic recognition and material support. As Breyer emphasized in his dissent in Zelman, major wealth transfers from the state to religious groups rarely come without strings, and the political process for defining the scope of such programs raises the specter of religious disagreement. Arguments about public policy can quickly devolve into arguments about religious truth-exactly what troubles societies that struggle with religious division. This argument is supported by the realization that judicial disputes are unlikely to disappear with a move to accommodationist doctrine. Using a standard of coercion just kicks many of the same difficult questions raised under endorsement and neutrality into new inquiries about coercion (see the division between Kennedy and the dissenters is Weisman) and about nonpreferentialism (Scalia's discussion of monotheistic religions in McCreary, the question about facial versus substantive neutrality in Zelman). As Breyer has recognized, this risk of religious division may make the establishment clause a candidate for Brandeis' oft-cited rule: it is better that the law be settled than settled right. \par \par \par \par }