Student Fees Upheld/Santa Fe

[Patrick J. Schiltz]

This is just fighting the hypo, not contesting the legal analysis the
follows the hypo.  (I don't know enough about the Santa Fe case to know how
closely it resembles the hypo.)

As to the hypo:  In every one of the class speaker elections of which I've
had some knowledge, the likely content of the candidates' speeches was
completely irrelevant to the voters.  The successful candidate won because
she was popular or widely respected -- and she was popular or widely
respected because she was nice or funny or smart or athletic or physically
attractive.  No one had any idea what the speaker would say until she said it.

Pat Schiltz
Notre Dame


At 03:27 AM 3/23/00 , you wrote:
>The policy in Santa Fe does not prohibit candidates from representing what
they will say at football games; and in the normal course, that is
precisely what one would expect the campaigns to be about, seeing as how
the election is, after all, for "football speaker."  I think we can fairly
expect campaigning in the form of "If elected, I promise . . . "  You get
the idea.  But even if the policy did prohibit students from telling voters
what they plan to do if elected (which would be pretty silly), that would
not eliminate the substantial risk (I would say certainty) of viewpoint
discrimination in the voting, since students obviously can be expected --
not always, but often -- to vote according to what they expect the
candidates will say at the football game.  That will be especially true in
an atmosphere such as that at Santa Fe, in light of the heated controversy
that has swirled around the football prayer issue there.  And the legally
imposed "vow of candidate silence" would!
> not, realistically, prevent voters from making informed choices about the
likelihood of prayer (or other speech), given that students are quite
familiar with one another's views.  Even if AL Gore and George Bush had
been legally prohibited from making any campaign promises, I doubt many
voters would vote for one or the other on "viewpoint-neutral" grounds.
>
>Marty (in my private capacity)
>
>-----Original Message-----
>From: Patrick J. Schiltz
>Sent: Wednesday, March 22, 2000 3:27 PM
>To: CONLAWPROF at listserv.ucla.edu@inetgw2
>Subject: Re: Student Fees Upheld/Santa Fe
>
>
>Marty Lederman writes:
>
>>But the critical point is that the "voters" in the referendum, as in Santa
>Fe, are engaged in state action, and may not (according to Kennedy) choose
>to benefit a *private* speaker based on the viewpoint of the anticipated
>speech.  Of course (and this is in response to Patrick Schiltz's post), it
>is *possible* that the majority will choose a public speaker without regard
>to the content of the expected speech; nevertheless, the significant risk
>of viewpoint discrimination renders unconstitutional the unbridled
>discretion that the electorate has.  (Lakewood.)  I think that's what
>Kennedy is getting at in today's opinion.
>
>I'm still not getting it.  In my hypo, three students run for class
>speaker, and none of the candidates gives any indication of what he or she
>will say if elected.  The voters don't know whether the candidates will
>give a funny speech or a sad speech, a speech that focuses on the future or
>a speech that focuses on the past, a speech that celebrates the triumphs of
>the football team or a speech that pays tribute to a recently deceased
>teacher.
>
>How can the voters possibly be "choos[ing] to benefit a *private* speaker
>based on the viewpoint of the anticipated speech" when the voters don't
>have a clue as to what the "viewpoint of the anticipated speech" *is*?  It
>is not only "possible," in such circumstances, that "the majority will
>choose a public speaker without regard to the content of the expected
>speech"; it is a virtual certainty, as none of the voters knows what the

>speaker will say.  (Indeed, it is likely that none of the candidates knows
>what the speaker will say, as none of them is likely to have started work
>on a speech that might never be delivered.)
>
>Pat Schiltz
>Notre Dame
>
>
>****************************************************************
>Patrick J. Schiltz
>Associate Professor of Law
>Notre Dame Law School
>325 Law Building
>P.O. Box R
>Notre Dame, IN 46556-0780
>
>Phone: (219) 631-8654
>Fax: (219) 631-4197
>E-Mail: schiltz.2 at nd.edu
>****************************************************************
>
****************************************************************
Patrick J. Schiltz
Associate Professor of Law
Notre Dame Law School
325 Law Building
P.O. Box R
Notre Dame, IN 46556-0780

Phone: (219) 631-8654
Fax: (219) 631-4197
E-Mail: schiltz.2 at nd.edu
****************************************************************