News Release: Silver Linings Found in Supreme Court's Southworth Decision

[Michael MASINTER]

        Southworth does not appear to have changed the opinion of anyone
respecting the proper resolution of Santa Fe, but it has modified the
arguments.  Until Southworth, the principal argument in defense of the
Santa Fe policy was that state delegation to majority vote of the choice
of a speaker to deliver an expressive message at a school function
constituted the viewpoint neutrality required under Rosenberger.  I think
it unlikely that whoever argues on behalf of Santa Fe will want to rest
the argument on the claim that submitting the use of a public forum for
the delivery of an expressive message to majority vote equates with
viewpoint neutrality.  Insisting that the football pregame ceremony (or
the Adler graduation ceremony) is a limited public forum would seem to be
a concession that limiting access to speakers chosen by majority vote
violates the first amendment.

        Many of the participants in this thread are advocates who also
litigate these issues.  I would not expect them to concede their cases;
rather, I would expect them to try mightily to distinguish Southworth.
Many others argue that Lee was wrongly decided; if they are right, then
the method by which the school chooses a speaker shouldn't matter in the
first place.  I would not expect Southworth to persuade them that Lee was
correctly decided.

        Some participants have argued here and elsewhere that *all* case
decisions, including those which turn on questions of constitutional law,
are inherently contingent, that they cannot be explained as the "correct"
application of any coherent body of doctrine.  If that is true, then why
should we expect any decision to cause anyone to change his mind?

        Westlaw reports that since 1981, at least 192 journal articles
have invoked Heisenberg's uncertainty principle, many to (mis)describe the
nature of legal doctrine.  To date, West does not yet report the use of
"quantum superposition," but isn't it only a matter of time until someone
somewhere writes the claim that every question of constitutional law is a
quantum particle's wave function whose answer cannot be said to have a
certain existence until the Supreme Court observes it by writing a
decision?  The odds are pretty good Schroedinger will make an appearance
too.

        For all of us, I think arguments of the sort we have made in this
thread serve a useful purpose.  I hope they continue.  Even if they only
amount to evidence that there is no such thing as a "legally correct
decision."

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 Thu, 23 Mar 2000, Mark Tushnet wrote:

> I have a "meta" observation and comment about this thread.  Prior to
> Southworth, nearly everyone participating in the thread had a view
> about the legally correct outcome in Santa Fe.  Participants seem to
> agree that Southworth is relevant to Santa Fe.  But, as far as I can
> tell, no participant yet has suggested that Southworth changed his/her
> view of the legally correct outcome in Santa Fe.  Now, I realize that
> reactions in the first hours after a decision may not reflect mature
> consideration, and (in particular) that some of the reactions may be
> efforts to reduce cognitive dissonance in ways that might change on
> further reflection.  But, those considerations aside, does the fact
> that a decision that all acknowledge to be relevant has no impact at
> all on altering "priors" say something about the concept "legally
> correct decision"?
>
> <<< "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU>  3/23 12:05a >>>
>         FYI, just thought some people on the list might find this of
> interest.
>
> > -----Original Message-----
> > From: UTStudentsAffEdu at aol.com [SMTP:UTStudentsAffEdu at aol.com]
> > Sent: Wednesday, March 22, 2000 3:01 PM
> > To:   undisclosed-recipients
> > Subject:      News Release: Silver Linings Found in Supreme Court's
> > Southworth Decision
> >
> > Students for Affordable Education
> >
> > March 22, 2000                  Contact: Marc Levin, President
> > For Immediate Release           Phone: (512) 453-7989, (713) 906-1833
> >
> > News Release: SAE Sees Important Silver Linings in Today's Supreme Court
> > Southworth Decision
> >
> > Austin, TX - Students for Affordable Education (SAE), a registered student
> >
> > organization at the University of Texas at Austin which in 1996
> > successfully
> > fought the imposition of a mandatory student fee for Ralph Nader's Texas
> > Public Interest Research Group (TEXPIRG), sees several important silver
> > linings in today's U.S. Supreme Court Southworth v. University of
> > Wisconsin
> > decision.
> >
> > In this ruling, the Court unanimously overturned a lower court decision
> > holding that Southworth's First Amendment rights were violated by the
> > University of Wisconsin's allocation of mandatory student fees to
> > left-wing
> > student groups.
> >
> > SAE President Marc Levin declared, "Although we wish that the Supreme
> > Court
> > would have extended to students the same First Amendment protection labor
> > union members now enjoy by requiring student political contributions to be
> >
> > voluntary rather than mandatory, the decision is a step in the right
> > direction.  The key is that the plaintiffs in Southworth stipulated the
> > funding was viewpoint neutral, even though the vast majority of student
> > groups that Wisconsin and most public universities fund are on the far
> > left.
> > The majority decision, while it appears to be a defeat on the surface,
> > holds
> > that mandatory funding for political and ideological student is
> > constitutional only if there is viewpoint neutrality.  Thus, universities
> > which fund liberal causes while withholding money from conservative
> > student
> > groups are now acting unconstitutionally and can be successfully
> > challenged."
> >
> > Levin continued, "In addition to the viewpoint neutrality requirement,
> > there
> > is another related silver lining in the Court's decision.  The Court
> > correctly found that allocating money to a political or ideological group
> > based on a student referendum cannot possibly be viewpoint neutral since
> > it
> > is inextricably tied to the political views of the majority of students on
> > a
> > campus at the time of the election.  Thus, the Court held that the portion
> > of
> > Wisconsin's allocation scheme that includes a student referendum amounts
> > to
> > unconstitutional forced political speech."
> >
> > Levin concluded, "The fact that liberal Justices David Souther, Stephen
> > Breyer, and John Paul Stevens felt compelled to file a concurrence that
> > criticizes the majority's creation of a viewpoint neutrality requirement
> > is
> > significant.  It demonstrates that the majority's opinion is far from a
> > total
> > loss for those of us who oppose the mandatory confiscation of student fees
> >
> > for political purposes.  Now armed with the Southworth requirement of
> > viewpoint neutrality, Students for Affordable Education will thoroughly
> > examine the University of Texas' use of student fees to make sure that it
> > is
> > unbiased.  Furthermore, we demand that the University immediately ask its
> > legal counsel to conduct such an inquiry."
> >
> > SAE, an officially recognized UT student governance organization, has led
> > many successful campus activism efforts, including a campaign which
> > resulted
> > in a 65 to 35 percent defeat of the TEXPIRG proposal in a 1996 student
> > referendum.  Most recently, SAE stopped the Student Government from
> > engaging
> > in illegal advocacy efforts relating to the November 2 Texas
> > constitutional
> > amendment election.
> >
> > For further comment on this issue, please contact Marc Levin at (512)
> > 453-7989 or (713) 906-1833, or by email at UTStudentsAffEdu at aol.com.
> >
> > -30-
>
>