Puzzling case

[Michael Curtis]

The problem with Walter Dellinger's approach--get the government out of funding
speech, eliminating NPR, PBS, etc. is that it fails to come to grips with what
is in fact happening to mass communication in the country, as media corporations
merge, are owned but GE, etc. and the market place of ideas become an oligopoly,
and the range of acceptable discussion shrinks.  Meanwhile reporting of matters
such as what most candidates for public office have to say shrinks--after all it
is much better to require political speech to be paid for rather than for free.
So formalism ignores what is going on in fact.  A disturbing discussion of what
is actually happening can be found in McChesney, Rich Media, Poor Democracy.
Before we further shrink sources of information, we might want to take a peek at
what is happening in the real world.  And then, if we are concerned with
democratic government, we might begin to think about what if anything can be
done.

Michael Curtis

"Dellinger, Walter" wrote:

>  Mark -- The state law denying personalized license plates messages that are
> 'inflammatory or contrary to public policy' seems clearly unconstitutional.
> I don't see how the First Amendment can permit state officials to censor
> what is undoubtedly private speech, much of it protected by the core of the
> first amendment.  Here, of course the State has provided a generalized
> subsidy, but it has not remotely attempted to limit the subject matter of
> this 'forum' in any way, nor has it in any way sought to propound its own
> message.
>   Here's why I think you are unsympathetic to the claim that the law is
> unconstitutional.  It is very understandably that one is uncomfortable when
> state itself to actually stamps out and provide the plates for messages that
> are deeply offensive [Ethnic Group X Stinks] or religious [Jesus is Lord] or
> anti-religious [God is Dead].  But if one is uncomfortable with the
> Government's role in actually producing such messages, the option should not
> be censorship, but withdrawal of the government from the business of
> stamping out messages.
>    I think that we are generally too reluctant to see that the right answer,
> considering both constitutional law and good policy, is to conclude that
> because government can't censor private messages it funds, it simply ought
> to get out of the business of funding private massages. I love much about
> NPR, but the whole area of government funding of speech makes me
> uncomfortable.  Censorship of [governmentally funded] private speech cannot
> be the answer. Maybe less government is.
>
> -----Original Message-----
> From: Mark Tushnet
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 8/9/01 12:49 PM
> Subject: Puzzling case
>
> I'm genuinely puzzled about how to think about Lewis v. Wilson, 253 F.3d
> 1077 (8th Cir. 2001), which holds unconstitutional a state policy of
> denying personalized license plates  that are "inflammatory or contrary
> to public policy."  The Court of Appeals invoked the principle that
> speech restrictions are unconstitutional when they are so general that
> government officials have unbridled discretion.  Assume that there's no
> state action question about the U.S. Postal Service, and that the Postal
> Service adopts a policy of issuing personalized stamps to anyone who
> pays a special fee, but refuses to issue stamps that are inflammatory or
> contrary to public policy.  Assume that a state university's press
> decides to promote literacy by issuing pamphlets submitted to it by
> anyone (with a special fee), but refuses to publish pamphlets that are
> inflammatory or contrary to public policy.
>
> I confess to being unsympathetic to the claim that these policies are
> unconstitutional, but I'm not sure why.  Does it matter that everybody's
> got to have a license plate (though not a personalized one -- and we
> know that the government can't prohibit bumper stickers that are
> inflammatory, etc.), and that every letter has to have a stamp?  Or are
> all the cases ones of government speech, including the personalized
> license plate, in which case I would think that the "unbridled
> discretion" principle couldn't possibly apply?  Or are they (or some of
> them) cases of "individual speech channeled through the government," in
> which case -- well, what *are* the relevant principles?  (The Supreme
> Court cases don't seem to acknowledge the possibility of an intermediate
> category; Rosenberger is conceptualized a case of pure individual
> speech, and I think that's true of all the relevant cases [some of
> which, of course, say that the speech is pure government speech].)
>  <<Card for Mark Tushnet>>