The Role of Mediation in Resolving First Amendment Disputes, Particularly in Cases Involving Freedom of Speech or Religion

By Brian Lakhtarnik

The First Amendment of the United States Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1]

In other words, all U.S. residents are guaranteed freedom of expression, religious practices, and free assembly.  This article explores how Alternative Dispute Resolution could be applied to First Amendment conflicts, particularly in disputes over freedom of speech.

Typically, First Amendment disputes arise in state courts, though they may advance to federal courts, even reaching the Supreme Court (when a fundamental constitutional question needs to be addressed).[2]  These claims are brought in one of two ways: (1) cases that have been brought by individuals against the government[3] and (2) cases that private citizens against other private citizens have brought.  This blog post begins by analyzing the former.

One particular case is National Rifle Association of America v. Vullo.[4]  Here, in the wake of the Parkland School Shooting, the superintendent of the New York State Department of Financial Services, Maria T. Vullo, advised banks in New York State not to provide services to the National Rifle Association (NRA).  This led the NRA to bring suit against Vullo, then-New York State Governor Cuomo, and other New York State Institutions.[5]  The facts note that Vullo issued Guidance Letters and a press release, which were seen as part of her campaign to pressure financial institutions.  The NRA argued that these actions constituted a sanctions-backed threat to cut business ties with the NRA.[6]  In a 9-0 decision against the second circuit, SCOTUS held in favor of the NRA.[7]

In regards to ADR, mediation could have created a confidential, structured environment where both parties — government officials and private entities — voice concerns and negotiate directly.[8]  In this case, the government would have been able to inform the NRA about why they limited their ability to use certain types of governmental institutions and the effects that it would have on the state.  This would have preserved confidentiality, avoided public relations impacts, and led to agreements on non-coercive methods for government advisory.[9]  This issue could have been mutually handled since after this case was decided, there was political polarization with individuals having conservative ideology siding for the NRA and people with a more libertarian viewpoint aligning with the position of the state.[10]

To implement ADR in similar cases, court-annexed mediation may also help.[11]  This technique is mandated by a court and, in reducing docket congestion, encourages compliance with proposed resolutions.[12]  In NRA v. Vullo,[13] court-annexed mediation could have provided a forum for the NRA and state representatives to shape an outcome that acknowledges both parties' interests without setting a judicial precedent that may limit future government speech or advisory roles.  The state has a "narrowly tailored" interest to protect the residents of the state of New York from private entities seeking to take advantage of the population, while private entities like the NRA have an interest in maintaining their business in all states.[14]  Therefore, New York might have been able to avoid suit provided that they did not limit the NRA's dealings in state-wide institutions.

In addition, some cases occur between private plaintiffs/defendants.  A significant dispute between two private entities that arose from a First Amendment conflict is the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.[15]  In this case, a Cake Shop in Colorado refused to design a custom cake for a homosexual couple.  The owner claimed that his religion did not support LGBTQ+ and therefore he had a First Amendment right to deny service.[16]  This was contrary to Colorado law, which prohibited businesses from discriminating based on gender, sexual orientation, and religion.[17]  The Supreme Court ruled for the cake shop owner and explained that his religious rights should be respected.[18]

ADR would have been a suitable mechanism to handle the dispute.[19]  The parties could avoid setting a legal precedent that might polarize society since court rulings, especially on controversial issues which can lead to public backlash and increased division.[20]  Through mediation, the parties could have worked together to reach a solution, such as finding alternative ways for the business to meet the couple's needs.  However, the negative lies in a lack of public record and power imbalances.  This means that other individuals facing similar conflicts might be left without a clear understanding of their rights and obligations.[21]

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[1] U.S. Const. amend. I.

[2] Constitution Annotated Analysis and Interpretation of the US Constitution, Congress.Gov, https://constitution.congress.gov/browse/essay/amdt1-7-2-4/ALDE_00013541/#:~:text=Amdt1.-,7.2.,for%20a%20redress%20of%20grievances.&text=Lebron%2C%20513%20U.S.%20at%20391%E2%80%9393%2C%20398.&text=&text=&text=&text=27-,See%20id.,at%2014%E2%80%9315.&text=&text= [https://perma.cc/T3MN-6S8Y].

[3] Author’s Note: Although Constitutional Law has a deep precedent, for this article I will specifically focus on the most recent cases that have been decided by the Supreme Court of the United States. I want to note that their holdings are subject to change with new disputes being litigated.

[4] National Rifle Association of America v. Vullo, 602 U.S. 175 (2024).

[5] Id.

[6] Id.

[7] Id.

[8] Erin Ryan, ADR, the Judiciary and Justice: Coming to Terms with the Alternatives, 133 Harv. L. Rev. 1851, 1853 (2000).

[9] Id. at 1866.

[10] Barnini Chakraborty, Republican lawmakers side with NRA in free speech lawsuit before Supreme Court, Washington Examiner, https://www.washingtonexaminer.com/news/2797118/republican-lawmakers-nra-supreme-court/#google_vignette [https://perma.cc/6LZM-EY9V] (last visited Nov. 10, 2024).

[11] Ryan, supra note 8, at 1871 (“ . . . as the state empowers arbitrators to issue subpoenas, compel testimony, and grant awards”); but see Jean R. Sternlight, Is Alternative Dispute Resolution Consistent with the Rule of Law?: Lessons from Abroad, 56 DePaul L. Rev. 569, 581 [hereinafter Sternlight] (“. . . court-connected mediation, arbitration, or other programs can be adjuncts to the existing litigation system, and judges can order disputes in litigation to be transferred to those regimes”).

[12] Id.

[13] Vullo, 602 U.S. 175.

[14] District of Columbia v. Heller, 554 U.S. 570 (2008) (specifying three different levels of scrutiny: Strict, Intermediate, and Minimum).

[15] Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Rachel Kleinfeld, Polarization, Democracy, and Political Violence in the United States: What the Research Says, Carnegie Endowment For National Peace, https://carnegieendowment.org/research/2023/09/polarization-democracy-and-political-violence-in-the-united-states-what-the-research-says?lang=en [https://perma.cc/9P47-MSX6] (last visited Nov. 10, 2024).

[21] Ryan, supra note 8, at 1863; but see Sternlight at 579 (explaining that Nepalese mediation is special because mediators use their powers to protect human rights, the mediation is a substitute for, rather than an alternative to, litigation, and mediation programs seek to remedy power imbalances by affording legal counsel to less powerful disputants).