Read the fact pattern and supplemental material and answer the question(s) with a complete analysis

Fact Pattern 1 (Free Speech: Professional Speech or Conduct)

The City of Hill Valley passed an ordinance that prohibits "conversion therapy" of minors by licensed therapists. Conversion therapy is defined by the ordinance as "the practice of seeking to change an individual's sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractionsor feelings toward individuals of the same gender or sex."

However, the ordinance also contains an exception that expressly allows "counseling that provides support and assistance to a person undergoing gender transition."

Robert Jackson, a licensed family therapist and Baptist minister, has sued Hill Valley in federal court alleging, among other things, that the prohibition on conversion therapy violates his First Amendment right of free speech.

1. How would the court rule on Jackson's First Amendment claim if located in the 11^thCircuit which is bound by theOttodecision? Explain why.
2. How would the court rule on Jackson's First Amendment claim if located in the 9^thCircuit which is bound by theTingleydecision? Explain why.

Resources

• Nifla v. Becerra, 138 S. Ct. 2361 (2018)
• Tingley v. Ferguson, Nos 21-35815 (9th Cir. Sept. 6, 2022)
• Otto v. City of Boca Raton, Florida, 981 F.3d 854 (11th Cir. 2020)

Fact Pattern 2 (Free Speech: Content Based Regulation & Government Speech)

The State DMV issues specialty license plates to private groups who submit their design on an approved format. The State DMV has approved hundreds of requests over the years based on its policy that "it will not approve any design that is obscene, defamatory, or fighting words directed towards any race, color, creed, religion or gender." The State DMV has never exercised any control over the design and has never rejected a submitted design request until recently.

A private group called Confederate Brothers submitted a design that contained a Confederate Flag which the State DMV rejected on two grounds: First, it claimed that the specialty license plates were government speech. And second, it claimed that the proposed design could be perceived as "fighting words" directed towards a race, color, creed, or gender.

Confederate Brothers sues the State DMV claiming that rejecting their proposed design violated their First Amendment right of free speech. They raise two arguments: First, the specialty license plates have been treated by the State DMV as a forum for private expression. And second, the State DMV written policy is an invalid content-based regulation.

1. How should the Court rule on the first argument about whether the specialty plate is a form of government speech or a forum for private expression. What facts are important? What cases did you rely on to reach your conclusion and how did you rely on them?
2. How should the Court rule on the second argument about whether the State DMV written policy is an invalid content-based regulation? What facts are important? What cases did you rely on to reach your conclusion and how did you rely on them?

Resources

• Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (2015)
• Shurtleff v. City of Boston, 142 S. Ct. 746 (2022)
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• Miller v. California, 413 U.S. 15 (1973)
• RAV v. St. Paul, 505 U.S. 377 (1992)

Fact Pattern 3 (Religion Clauses: Free Exercise & Establishment)

At the end of every basketball game at Central High School, win or lose, Coach Smith kneels at half-court and offers a moment of silent prayer. Players and students are welcome to join but not required. A group of students have complained to Central High School administrators that they feel "uncomfortable" and "coerced" to either join the students and coach at half-court or, at the very least, stop moving and remain silent during the prayer.

Central High School administration formally told Coach Smith that he could no longer engage in the moment of silence at half-court after the games and that, if he persists in doing so, he would be fired. Instead, he could kneel in silence outside in the parking lot. CHS is concerned that by allowing Coach Smith to pray after the game on half-court it would violate the Establishment Clause of the First Amendment since, as an employee, he would be acting on behalf of CHS. Student complaints suggest a lawsuit against CHS is forthcoming on this very issue.

Coach Smith argues that CHS's request violates the Free Exercise Clause of the First Amendment. Coach argues that their suggested policy isn't neutral but singles out his conduct and points out that nobody else is restricted from walking on the basketball court after the game. CHS argues that Coach Smith is still "on duty" after the game and needs to supervise his players. Coach argues that other coaches, such as the cheer coach, aren't given this requirement.

CHS argues that the "confined environment" of the basketball stadium creates an "atmosphere of coercion" which impacts students, players, and spectators who do not otherwise wish to join Coach Smith at half-court. Coach Smith points out that the cheer squad leads spectators in the CHS chant after every home win. Nobody is compelled to participate and plenty of spectators file out before or during this unofficial celebration.

During a meeting between Coach Smith and CHS administration the principal told Coach Smith, "Look, I don't care where you pray, you just can't do it on my basketball court." In an interview shortly after the meeting Coach Smith said, "They're hostile towards my faith. Period. If I did the Dougie at half-court after every game they'd encourage people to join instead of scheming to fire me."

Coach Smith declines to stop his silent private prayer, CHS fires him, and he files suit alleging CHS violated his rights under the Free Exercise Clause. CHS defends its policy and subsequent firing on the fact that it was concerned with violating the Establishment Clause.

Who should prevail? Use Supreme Court precedent to explain your answer. A complete answer will explain the strengths and weaknesses of Coach Smith's Free Exercise Clause position and CHS's Establishment Clause position in terms of how the Supreme Court has interpreted and applied these clauses.

Resources

• Kennedy v. Bremerton School District: School Prayer and the Establishment Clause
• Fulton v. Philadelphia: Religious Exemptions from Generally Applicable Laws
• Kennedy v. Bremerton School Dist., 142 S. Ct. 2407 (2022)
• Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)
• Masterpiece Cakeshop v. Colo. Civil Rights, 138 S. Ct. 1719 (2018)