tushnet at LAW.GEORGETOWN.EDU
Thu Aug 9 18:49:48 PDT 2001
I'm not sure that anyone but me finds this a hard case, but: (1) I'm
agin NPR, CPB, the NEH, the Arts Endowment --not on speech grounds, but
because I don't understand why it's good public policy for relatively
poor people to subsidize the things rich people like (I know, I know,
there's a "public culture" argument to be made, but it doesn't persuade
(2) On this case, I'm not sure it's accurate to say that the government
"has not remotely attempted to limit the subject matter of this 'forum'
in any way," although a lot depends on the content one gives to
"subject-matter," a question on which the Supreme Court's decisions are
not really helpful, as the earlier threat on Bartnicki suggested. It's
not obvious to me, for example, that limiting the forum -- the sheet of
metal stamped out by the government to an individual's specifications --
to "non-inflammatory phrases and those not contrary to public policy"
isn't a "subject-matter limitation." As a matter of public policy, I
wouldn't like government officials saying you can't get a plate that
says "GET HIGH," "SMOKE POT," "LGLZE POT," or "SMKE CRK," but -- on the
assumption that it's constitutionally permissible for them to be in the
business in the first place (that is, on the assumption that the
electorate thinks having the government make personalized plates
available, and that that preference is not ruled out by the
Constitution), it's not clear to me why the electorate can't say, "But
we want you to limit your -- that is to say, our -- business to the
production of non-inflammatory, etc., plates."
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