Any word on the oral argument in the compelled student fees
case, the Driver's Privacy Protection Act case,
or the nude dancing redux case?
althouse at FACSTAFF.WISC.EDU
Thu Nov 11 10:24:04 PST 1999
Today's New York Times has a fascinating account of the oral argument in
the Driver's Privacy Protection Act case, describing what must have been a
nightmare for the lawyer for the state, who was at a loss to answer one of
Justice Breyer's questions. Justice Kennedy tried to offer some help, and
when the lawyer continued fumbling, Breyer said "I'll ask Justice Kennedy
later." It sounds as though the Justices might be seriously considering
overruling Garcia, as Justice Souter asked "Was Garcia wrongly decided?"
and when the lawyer tried to brush away the question, saying it was
unnecessary to reach that issue, Justice O'Connor said, "We may need to.
That's the point."
I think it's clear that there is a majority on the Court that disagrees
with Garcia, but I had thought they had chosen to go about protecting state
interests in other ways (eg Printz, Seminole) and to leave Garcia in place.
As to Southworth, the student fees case, which originated here at my law
school, I understand from news reports and from the report ofmy student who
attended the oral arguments, that the lawyer for the University had a
difficult time attempting to respond to confusing questions that came from
lots of different directions. My student had the impression that only
Justice Ginsburg seemed sympathetic to the University's argument.
It seems crucial to the University's case to persuade the Court that the
funding of student groups is analytically equivalent to building a
speaker's platform: that it's a neutral forum. I think the Justices had
difficulty believing that funding is like building a forum and believing
that the system is handled neutrally.
I attended a forum on the Southworth case here at the law school last month
and heard the University's lawyer discuss the arguments. Then, it appeared
that everyone was assuming that the system did hand out the money in a
neutral way, though I was not sure how that issue had dropped out of the
case. Based on the argument, it looks like the neutrality issue is in play.
Some of the money is handed out based on a student referendum, and Justice
Breyer noted the first amendment idea of protecting unpopular speach and
said "a referendum would seem to protect the views that are popular."
Also, there is a problem with the University's attempt to make the system
legal by screening out the really political groups: this step is key to
characterizing the student groups as within the scope of the University's
educational mission (see the labor union dues cases). But Justice Souter
said "The core first amendment value is in political speech. If you're
excluding hat kind, what does that do to your forum analysis?" Thus, the
University might be seen as needing to advocate two inconsistent
If Souter and Breyer are against the University, it is almost certain to
lose the case.
Arthur-Bascom Professor of Law
University of Wisconsin
Madison, Wisconsin 53706
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