Marty.Lederman at USDOJ.GOV
Thu Jul 6 18:39:48 PDT 2000
(1) I *do* think that the fact that Dale was an assistant Scoutmaster was necessary to the holding. Thus, for instance, I don't think the holding necessarily determines the constitutionality of the BSA's exclusion of gay minors from the ranks of the Scouts. I just do not think that the Court held that BSA (and other so-called "expressive associations") has an *absolute* right to choose its leaders/spokespersons, analogous to a church's right to choose its ministers.
(2) As for the other cases: I think they certainly are distinguishable, because they do not involve the Scouts or gays, and (more fundamentally) because Rehnquist wrote the opinion in such a way that every other case is "distinguishable." (See my post yesterday in response to Andy Koppelman.) But in none of those cases did the plainitff have less of a role in shaping the defendant's expression than did Dale.
(i) Roberts: Aren't the members of the Jaycees "role models," and don't they (as the Jaycees alleged) help determine the views of the organization, probably to a far greater extent than Dale in the BSA? (Wasn't it Prof. Bernstein, just yesterday, who described as "not credible" the notion that admission of women would not have an effect on the Jaycees' speech? Whether or not one agrees with Prof. Bernstein that admission of women would significantly affect the Jaycees' speech, there can be no question that women members significantly contribute to the determination of what that organizational speech should be.)
(ii) EEOC v. Univ. of Pa.: Professors most certainly *are* expected to speak on behalf of the University, at least when they're teaching, and even (at least in part) when they are writing. There is no constitutional right for private schools (including private secondary schools) to choose their faculty without regard to antidiscrimination statutes; and I'd be shocked if there were even one vote on the Court for such a holding.
(iii) AP v. NLRB: The Court rejected the claim that a news service "must have absolute and unrestricted freedom to employ and discharge" editors, id. at 131, including editors who are responsible for rewriting news copy, id. at 127, regardless of the National Labor Relations Act's prohibition against discrimination based on union activity. The Court held that enforcement of a Labor Board order that a news wire service reinstate an employee who edited the news, based on the Board's conclusion that the employee had been improperly fired based on his union membership, did not abridge the wire service's First Amendment freedom of speech or of the press. The Court acknowledged that the wire service was entitled to discharge an editor on grounds of bias or prejudice reflected in his written news product. Because the firing in that case was not based on such bias in the content of the editor's speech on behalf of the newspaper, however, but instead on the editor's union activity, the firing was unlawful. I find it hard to imagine that a newspaper's choice of editors has *less* of an impact on the institution's expression than the Scouts' choice of a Scoutleader of a local troop. See also Hausch v. Donrey of Nevada, Inc., 833 F. Supp. 822, 826 (D. Nev. 1993) (rejecting argument that First Amendment provided absolute protection against newspaper employee's claim that she was subjected to sex discrimination in denial of promotion to editor in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. 2000e, because newspaper's right to be free from governmental interference in what it publishes did not apply where it had not "alleged or demonstrated that there is any relationship between their ability to choose their Editor [on a basis prohibited by Title VII] and their ability to control the content and character of their newspaper's message").
Marty Lederman (in my private capacity)
From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
Sent: Thursday, July 06, 2000 3:21 PM
To: CONLAWPROF at listserv.ucla.edu@inetgw
Subject: Re: Redundancy?
I am wondering why Marty thinks that the fact that Dale was an assistant
Scoutmaster, and thus a leader/spokesperson for the Scouts
(1) isn't the basis of the Court's ruling; and
(2) doesn't distinguish Dale from Jaycees (members, not leaders), U of P
(professors, whose views are not expected to represent those of the
university as such), and AP (employees of a wire service)?
David E. Bernstein
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
dbernste at wpgate.gmu.edu
>>> "Lederman, Marty" <Marty.Lederman at USDOJ.GOV> 07/06/00 02:43PM >>>
Mark Tushnet asks: "After (and maybe even before) Dale, is there any
need for a free exercise argument independent of a right to expressive
association argument, to support whatever it is that the clerical
privilege protects? That is, given the existence of a right of
expressive association, does the Free Exercise Clause make any
independent contribution to protection
churches' institutional autonomy?"
Answer: Yes. One thing (one of the only things) about Dale that is
clear is that the Court did *not* accept the BSA's argument that
"expressive associations" have an absolute right to choose their
"spokespersons," analogous to the ministerial exception to title VII.
Such a holding would have established a quite radical limitation on the
nation's civil rights laws, and would have (as Dale did not) meant
overruling cases such as AP v. NLRB, EEOC v. Univ. Of Pa., etc. (as well
as the Roberts trilogy itself, presumably).
Marty Lederman (in my private capacity)
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