Brown University newspaper advertisement

[Volokh, Eugene]

        I agree with Paul that there may be rule of lenity problems with
criminally punishing the students, and that this problem can easily be
solved by just making it clear that only the first copy of the paper was
free for each customer.

        But setting aside the criminal law questions, isn't it clear that
this sort of conduct is highly reprehensible -- especially in a university
-- and that the proper academic-freedom-respecting thing for the university
to do is (1) explicitly ban such conduct, and (2) speak out firmly against
it even if the ban had not yet been implemented?  Surely a respect for the
marketplace of ideas means that you don't physically destroy anothers'
speech products, if you might have the legal right to do so.  (Of course,
this analysis rests on my assumption -- which strikes me as pretty
self-evident -- that an evenhanded rule barring the mass destruction of free
papers is itself neither unconstitutional nor violative of any academic
freedom rights.)

        Of course if I'm mistaken, and someone persuades me that this
behavior is perfectly proper, I'll be off to destroy as much of the print
run of the LA Weekly as I can (the Weekly is a free newspaper here in L.A.
that I think can fairly be described as having a Socialist-or-further-left
editorial policy, and I'm using the term advisedly).

        Eugene


> -----Original Message-----
> From: Paul Salamanca [SMTP:psalaman at POP.UKY.EDU]
> Sent: Tuesday, March 20, 2001 8:38 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Brown University newspaper advertisement
>
> This issue actually arose here at the University of Kentucky a couple of
> years ago, and was battled out in the criminal courts -- more or less.
> Two
> or three students destroyed an entire run of the Kentucky Kernel, the
> student newspaper, because the editor had pulled a story that he or she
> considered libelous (I believe).
>
> The students defended themselves on the ground that the papers were free,
> and that they therefore had the right to take all they wanted and destroy
> them.  The matter was settled in a plea bargain; the students accepted
> community service and their records do not reflect the charges.  But I do
> know that the Kentucky Kernel is now free for the first copy, and quite
> pricey for each copy thereafter.
>
> I assume the government's theory was that there was an implied limitation
> on taking copies that the students had exceeded.  I understand that the
> rule of lenity militates against this theory.  As I said, the case was
> plea
> bargained out.
>
>                                                 Paul Salamanca
>
>
> At 10:39 AM 3/20/2001 -0500, you wrote:
> >I have a collateral question about events reported over the weekend.
> >According to the report, Brown University's student newspaper published
> >an advertisement for a book by David Horowitz, the advertisement
> >enumerating reasons against reparations for African Americans.  The
> >student newspaper is (apparently -- but assume that it is) available at
> >no charge.  A number of students who objected to the advertisement,
> >apparently followed the newspaper's delivery routes and picked up all
> >copies of the newspaper as they were dropped off.  Now, the collateral
> >question:  Did the students do anything that violated (general) legal
> >standards?  (I put aside the possibility that there might be some
> >specific criminal regulation directed at this behavior.)  Or, more
> >generally, is it an offense to take an unreasonable number or amount of
> >material that is made available without charge?
> >
> >Attachment Converted: "c:\eudora\attach\tushnet13.vcf"
> >
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