No big deal
Marty.Lederman at USDOJ.GOV
Tue Mar 21 12:50:08 PST 2000
You are misunderstanding my point, I'm afraid. My argument is, in short:
(i) Most of the hypotheticals we've discussed, and the cases Eugene cites on his site, involve straight-out disparate treatment (e.g., calling black patrons "nigger" while not insulting white patrons), the prohibition of which does not, in my view, raise serious First Amendment concerns.
(ii) The hypotheticals that *would* likely violate the First Amendment (such as my hypo No. 7, and possibly the Massachusetts case) are *not* prohibited by public accommodations law.
(iii) There's no reason to presume that, in the event a state does construe its law to prohibit the conduct in cases such as hypo no. 7, courts would not recognize First Amendment defenses where appropriate.
I agree that it *would be* a "big deal" if both (ii) and (iii), above, were not correct.
From: Michael McConnell
Sent: Tuesday, March 21, 2000 8:09 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: No big deal
If I understand him correctly, Marty Lederman concedes that public
accommodations law may violate the Free Speech Clause in some
contexts, but this is no big deal. It won't happen very often, and
what is lost is not very important. I have been puzzling over what
kind of claim this is: Is it an empirical claim? If so, how can it be
tested? Also: what free speech issue of the past several decades
would Marty say really *is* a big deal? Flag burning? Cohen v.
California? Hustler v. Falwell? The CDA? Hurley? (Widmar v. Vincent
and its progeny are probably the best candidates, in my opinion.)
It can be argued that ours in a nation with a strong and healthy free
speech tradition; that freedom of speech is rarely invaded; and that
when it is invaded, there usually are good reasons for it. Does that
mean that our vigilant constitutional protection for freedom of
speech is a mistake? Or am I misunderstanding Marty's point?
-- Michael McConnell (U of Utah)
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