Query

[Lederman, Marty]

The standard cite is Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 70-71 (1983):

"The Government does not purport to rely on justifications for the [Comstock Act] offered during the 19th Century. Instead, it advances interests that concededly were not asserted when the prohibition was enacted into law.  This reliance is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve."

Citing this passage, the Court last term in Greater New Orleans, 119 S. Ct. at 1932, stated:  "Moreover, enacted congressional policy and `governmental interests' are not necessarily equivalents for purposes of commercial speech analysis."

See also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978) ("the fact that the original motivation behind the ban on solicitation today might be considered an insufficient justification for its perpetuation does not detract from the force of the other interests the ban continues to serve").

Marty Lederman

-----Original Message-----
From: Pfander, Jim
Sent: Tuesday, November 30, 1999 9:34 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Query


Friends

A colleague of mine, Steve Ross, (who's working on a book on comparative
US-Canada constitutional law) posed the following question and I agreed to
forward it to the listserv:

(1) When courts in both countries carefully scrutinize legislation that
impinges on free expression, they measure the restraint against a
"compelling state interest" (United States) or a "pressing and substantial
objective" (Canada). Butler wrestled with the "shifting purpose" problem -
what happens when legislation was originally enacted to accomplish a
particular public purpose that would no longer be "compelling" or
"substantial," but can now be defended as necessary to achieve another more
legitimate public purpose. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
295, the Supreme Court of Canada struck down legislation limiting business
activities on Sunday, rejecting the government's efforts to transform a
now-illegitimate desire to facilitate rest on the Christian sabbath into a
legitimate desire to facilitate a uniform day of rest for secular purposes.
Some have suggested that Sopinka, J., engaged in a bit of sleight-of-hand to
transform the Criminal Code's obscenity provisions from serving the
now-outmoded purpose of maintaining a standard of public morality to a
feminist-oriented protection against the degradation of women that was not
likely intended by Parliament when the statute was enacted.

Query: Can you think off-hand of a U.S. case that wrestles with this issue?
You may send replies directly to Steve, off list, at the following address:

Professor Stephen F. Ross
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, IL  61820
(217) 333-2502
fax: (217) 244-1478
sross at law.uiuc.edu

Or if you prefer, I'd be happy to pass them along to him.

Thanks,

Jim Pfander

James E. Pfander
University of Illinois
College of Law
504 E. Pennsylvania Avenue
Champaign, Illinois  61820
(217)333-8237
jpfander at law.uiuc.edu