tushnet at LAW.GEORGETOWN.EDU
Fri Aug 10 14:50:39 PDT 2001
I'm afraid Eugene doesn't understand the point of the KILLYRMA example:
It's not that people, seeing such a license plate, would think that the
government endorses the sentiment, but rather that people *know* --
because they've never seen one, or one like it -- that the government
would *not* endorse the sentiment and reasonably infer that the
sentiments expressed on the license plates they do see are ones the
government endorses in at least the weak sense that the government finds
such sentiments inoffensive or, to use the terms of the Missouri policy,
non-inflammatory and not against public policy.
Instead of addressing Eugene's hypothetical (on the ground that I
started this conversation and have some right to set its terms), I'd
rather ask Eugene to distinguish his position with respect to this
problem from the one I attributed to him: "My judgments on contestable
matters of social meaning are the ones written into the Constitution."
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