Groups that "make claims that they are in favor of free speech"
VOLOKH at mail.law.ucla.edu
Mon Apr 30 13:47:43 PDT 2001
I agree with Malla that if an organization contractually obligates
itself to tolerate certain speech by its members or by others, it can be
held to this promise. If I recall correctly, such claims have been made
against universities on the grounds that their student handbooks imposed
such an obligation on the university; I'm not sure how successful such
claims have been.
I would say, though (and I'm not sure whether Malla and I agree on
this), that more amorphous claims that "we are in favor of free speech"
should not suffice. As we know from this list, the buzzword "free speech"
means different things to different people. To some speakers and listeners,
an organization's statement that "we are in favor of free speech" might mean
"we favor the right of people to speak on anything they please within the
fora of this organization." To others it might mean "we favor the freedom
of speech as defined by the Supreme Court, which is the right of people to
speak free of government punishment but not the right to have one's speech
includes within another private speaker's speech product." To still others
it might mean "we favor the freedom of speech as we define it, which would
exclude 'hate speech', 'pornography', 'harassment', 'incivility', and the
like" (consider the recurring quote in some of these controversies that
"this isn't free speech, it's hate speech").
I don't think that an organization's constitutional rights to be
free from certain regulations by the government can be forfeited simply
because they endorse "free speech" in the abstract. But I agree that if
there are detailed rules in an association's bylaws guaranteeing that
members can speak without fear of retaliation, or that certain association
speech products shall be open to participation to all members, or what have
you, or what have you, and if the other requirements of contract law are
met, these detailed terms may be enforceable. (In my view the presence or
absence of the substantive promise is more important than the presence or
absence of specific procedural remedies as part of the promise.)
> -----Original Message-----
> From: Malla Pollack [SMTP:L10MXP1 at WPO.CSO.NIU.EDU]
> Sent: Sunday, April 29, 2001 3:38 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: First Amd-- individuals v groups
> Ah-- now we are getting into the interesting ground the group discussed
> a few weeks ago! When should an individual have a right to "force" her
> speech into a group with associational rights? How about a rule that
> looks at the formal rules of the group? If a group claims in its
> official material that it does favor free speech etc, it can be forced
> to follow its own preaching. Now many groups make claims that they are
> in favor of free speech, Motherhood, and Apple pie but have no detailed
> procedural rules to give kick to such broad pronouncements. In these
> cases, I cannot see USA courts being willing to intrude. I would love
> to see such groups hit with damages for something akin to false
> advertising but my trademark background supports the belief that any
> such claims would be termed "mere puffery" IE too nebulous to enforce.
> While I would like to see this rule changed, I strongly doubt that it
> ever will.
> Does anyone have any basis for a belief that courts will or will
> not enforce detailed rules in the by laws of associations?
> Malla Pollack
> Visiting Assoc. Prof. of Law
> Northern Illinois Univ., College of Law
> DeKalb, Illinois 60115
> 815-753-1160; (fax) 815-753-9499
> mallapollack at niu.edu
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