College ordered to bar faculty members from making derogatory statements about men

[Richard D. Friedman]

The 12th amendment just requires that electors vote for a Presidential and
Vice Presidential candidate "one of whom, at least, shall not be an
inhabitant of the same state with themselves."  So all it really affects in
this case is what Texas electors could do.  The electoral college meets on
"the first Monday after the second Wednesday in December," 3 USC sec. 7,
Dec. 18 this year, so I would think that Cheney has plenty of time to
re-establish a credible claim to Wyoming residence.  Given that he was a
long-time representative from Wyoming, I think there probably can't be too
serious a challenge to his claim of Wyoming  residence -- and I don't think
that in this particular election year the Democrats will want to make
residence claims a large issue.  As I recall, Eisenhower ran from
Pennsylvania the second time (from Kansas the first?) because during his
first term he had bought the Gettysburg place, but I doubt (without having
checked at all) he had spent much time there by then.

Rich Friedman

who At 10:25 AM 7/24/00 -0400, you wrote:
>just curious, but does anyone have thoughts on whether Dick Cheney's
>changing his voter registration frm Texas to Wyoming suffices to resolve
>the 12th amendment issue?  i thnk that the 12th amendment prohibition
>applies to a president and vice-president who are "inhabitants" of the
>same state.   the issue was highlighted to me by the tv tape this morning
>of Cheney retrieving his just-delivered morning newspapers (announcing
>that he had solved the 12th amendment problem by registering to vote in
>Wyoming) from the driveway of his home in Texas.   Of course, myriad
>questions of constitutionalism are embedded in this issue.
>
>
>
>
>
>At 06:58 PM 07/19/2000 -0700, you wrote:
>
>>         I agree with Michael that it would not violate the First
>> Amendment for a Montana court to interpret Montana law -- coupled with
>> the agency gloss on the law -- as making actionable certain kinds of
>> offensive in-class speech by public university professors but excluding
>> the same kind of speech by private university professors.  Nonetheless
>> there remains the question whether, as a matter of state law, the
>> statute is susceptible of such a non-textually-indicated
>> construction.  Cf., e.g., Metromedia, Inc. v. City of San Diego, 32
>> Cal.3d 180, 187, 649 P.2d 902, 906, 185 Cal.Rptr. 260, 264 (1982).
>>-----Original Message----- From:  Michael MASINTER
>>[SMTP:masinter at NOVA.EDU] Sent:  Wednesday, July 19, 2000 6:34 PM
>>To:    CONLAWPROF at listserv.ucla.edu Subject:       Re: College ordered to
>>bar faculty members from making derogatory statements about men
>>
>>As I understand overbreadth doctrine, the question Eugene poses does not
>>come up in litigation in a state court construing a state statute. Though
>>a federal court cannot impose an unreasonable limiting construction upon
>>a state statute, or decline to hold it facially overbroad on the chance
>>that a state court might impose an unreasonable limiting construction, a
>>state court is free to construe it as unreasonably as it likes so long as
>>in doing so, it construes it in a manner that does not violate the
>>constitution.  If its construction is sufficiently narrow to cure the
>>overbreadth of the statute, then it should not matter that its
>>construction is also unreasonable, since the unreasonableness of the
>>state's construction of its own law does not, in and of itself, raise any
>>question of constitutional scope.  A vagueness challenge is different; if
>>the defendant cannot reasonably have known his conduct was forbidden by
>>the statute, then a narrowing construction cannot save its previous
>>application to him.
>>
>>In overbreadth challenges, it would seem that the race to the courthouse
>>can determine who wins.
>>
>>Michael R. Masinter                     3305 College Avenue Nova
>>Southeastern University            Fort Lauderdale, Fl. 33314 Shepard
>>Broad Law Center                (954) 262-6151
>>masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>>
>>On Wed, 19 Jul 2000, Volokh, Eugene wrote:
>>
>> >         I apologize for misperceiving Michael's point.  I agree that
>> even if > the order is unsoundly reasoned, perhaps it should have been
>> affirmed on a > different ground rather than being reversed
>> outright.  As I understand it, > Michael suggests that a hypothetical
>> reviewing court should in effect impose > a limiting construction that
>> reads the statute (which on its face treats > public and private
>> institutions identically) as applying to sufficiently > severe or
>> pervasive hostile and derogatory comments by public university > faculty
>> members but not to similar comments by private university faculty >
>> members. > >         Is this approach sound, or would it be more correct
>> to say that the > statute, as interpreted by the agency to include
>> speech by faculty members, > is not fairly susceptible of such a
>> limiting construction?  See, e.g., > Houston v. Hill, 482 U.S. 451, 468
>> (1987); Board of Airport Comm'rs v. Jews > for Jesus, 482 U.S. 569,
>> 575-77 (1987). > > > Michael Masinter writes: > > > Eugene is right to
>> criticize the decision for its faulty reasoning.  I > > (mis)understood
>> the question to be whether the decision should be > > overturned, or
>> otherwise constituted an unconstitutional order, and, > > thinking more
>> like a practicing lawyer than a professor, concluded that > > though
>> poorly reasoned, the order would survive because it ran only > > against
>> a public college.  Because only the public college was bound by > > the
>> order, its faulty reasoning would not require reversal since the
>> state > > has much greater freedom to regulate the speech of its own
>> employees than > > it has to regulate the speech of the employees of
>> private colleges and > > universities. > > > > Michael R.
>> Masinter                     3305 College Avenue > > Nova Southeastern
>> University            Fort Lauderdale, Fl. 33314 > > Shepard Broad Law
>> Center                (954) 262-6151 > >
>> masinter at nova.edu                       Chair, ACLU of Florida Legal
>> Panel > > > > On Wed, 19 Jul 2000, Volokh, Eugene
>> wrote: > > > > >         Maybe I'm misunderstanding Michael's question,
>> but it seems to > > me > > > that we should evaluate the decision based
>> on its reasoning, not on > > > reasoning we can hypothesize for it.  The
>> Montana Dep't of Labor & > > Industry > > > and the Montana Human Rights
>> Commission believe that Mont. Code Ann. > > > 49-2-307, which applies to
>> all educational institutions, makes certain > > > "hostile and
>> derogatory comments about men" by faculty members "illegal" > > -- > > >
>> not just possible grounds for firing by the government as employer,
>> but > > > "illegal."  Had the opinion been written differently, relying
>> explicitly > > on > > > the government's power as employer, I wouldn't
>> criticize it the same way > > > that I do; but it was written in a way
>> that on its face seems to rely on > > the > > > government's sovereign
>> power to restrict speech, not on its power as > > >
>> employer. > > > > > >         Just to give an analogy, say that in a
>> libel lawsuit against a > > > government-run university, a court ordered
>> the university to pay damages > > > based on opinions (or accurate
>> factual claims, or inaccurate factual > > claims > > > made without the
>> required mens rea) that were expressed by a faculty > > member > > >
>> speaking in a university-controlled publication.  Would it be > >
>> permissible > > > for the state to allow lawsuits against public
>> universities under these > > > circumstances?  Probably; the state can
>> restrict its own agencies from > > > expressing, say, unfair opinions,
>> and can probably even require > > > government-run universities to
>> discipline faculty members (under at > > least > > > certain
>> circumstances) when they express such opinions.  Government-run > > >
>> universities' rights in this respect are less than the rights of
>> private > > > universities; the government acting as university manager,
>> and as > > employer > > > of university faculty, has more power than
>> when acting as sovereign. > > > > > >         But if the court enters
>> this libel judgment without any such > > special > > >
>> government-run-university-only law supporting it, and draws no > >
>> distinction > > > at all between government-run universities and private
>> ones, then I take > > it > > > we could still sensibly criticize the
>> court's decision.  Such a > > decision, we > > > might think, would
>> suggest that in a similar case against a private > > > university the
>> court would have punished the private university's > > speech, > > >
>> too, and that would be clearly unconstitutional. > > > > > >         The
>> same analysis, I think, applies here.  Had the agency > > decision > > >
>> relied on the government's role as employer here, its decision might
>> be > > > defensible -- but neither the decision nor the statute which
>> the > > decision > > > applied was in fact relying on this
>> role. > > > > > > > > > > > > > > > Michael Masinter
>> writes: > > > > > > > I come late to this discussion, but why does this
>> order apply to > > > > nonparties?  If it applies only to parties, then
>> why would it bind a > > > > private nursing school?  Though the
>> reasoning underlying the order may > > not > > > > depend upon the state
>> - private distinction, doesn't that distinction > > > > necessarily
>> matter in assessing the constitutionality of the order? > > > >
>> Presumably Montana courts follow generally accepted appellate
>> practice > > and > > > > review judgments, not opinions, and would
>> affirm a proper judgment > > even if > > > > it disagreed with the
>> reasoning of the administrative agency that > > entered > > > > it (as
>> an aside, Florida courts, in one of their few notable > >
>> contributions > > > > to the lexicon of the law, have named the Florida
>> version of that > > doctrine > > > > The Tipsy Coachman Rule). > > > > > > > >
>
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