Destroying print run of a newspaper as free expression

[Bryan Wildenthal]

Private acts of destroying or confiscating expressive materials do not,
obviously, violate the First Amendment, given state-action principles, but
it seems both constitutional and highly desirable and appropriate (to me)
for government to make it a tort (or even a crime, depending on the
circumstances) for a private party to so behave.  Certainly a private
university like Brown could and should make it a student ethical or
disciplinary offense.  The fact that a newspaper is distributed free does
NOT properly or reasonably (certainly not necessarily) imply permission for
anyone to confiscate or destroy more than the number of copies they
legitimately want to read (or perhaps share with a small number of others).
A newspaper sold for a price does imply that anyone may purchase as many
copies as they wish (though perhaps even limits on that could properly be
imposed), but a paper distributed free is done so on the reasonable
assumption and understanding that any given consumer will only take one copy
(or perhaps a few copies for others also).  Tort and criminal laws could
easily and reasonably draw such distinctions.

Bill Funk's college-days anecdote (plastering over someone else's posting
with his own) is a more difficult and interesting call.  That kind of
conduct also makes me uncomfortable, however (of course, I'd hate to now
have to defend all the stuff I did in college -- grin).

Bryan Wildenthal, Thomas Jefferson School of Law


-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Tuesday, March 20, 2001 10:50 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Destroying print run of a newspaper as free expression



        Before we get into the technical details, let me just make sure that
I understand the claims on the other side:  Let's say that a conservative
student organization is outraged at the anti-American, anti-patriotic,
anti-religious material that some left-wing newspapers -- college papers or
other free papers -- are putting out, and it decides to just gather the
newspapers as soon as they're printed and throw them in the trash.

        Is the claim that (1) there's nothing improper about this, and (2)
it would be unconstitutional (or otherwise a violation of academic freedom)
for the university to prohibit this?

        Eugene

        -----Original Message-----
From:   gayle binion [SMTP:binion at ALISHAW.SSCF.UCSB.EDU]
Sent:   Tuesday, March 20, 2001 9:25 AM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: Brown University newspaper advertisement

        A long tradition in support of free speech similarly values the
heckler's speech.  I wonder if there should not also be recognition that the
conduct of protesting a message by openly removing the vehicle of the
message isn't also a form of protest speech...  Had the behavior made the
message inaudible it might be seen differently from an act of expressive
protest that if anything has drawn more attention to the content of this ad
and perhaps may be intended and/or have the effect of making people think
more about the ad and its meaning for African-Americans... I am not sure
that this kind of event inhibits free speech..

        gayle binion



        -----Original Message-----
From:   Bill Funk [SMTP:funk at LCLARK.EDU]
Sent:   Tuesday, March 20, 2001 9:51 AM
To:     CONLAWPROF at listserv.ucla.edu
Subject:        Re: Brown University newspaper advertisement

        "Volokh, Eugene" wrote:

                But setting aside the criminal law questions, isn't it clear
that this sort of conduct is highly reprehensible -- [clip]  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.

        I'm not sure why this is reprehensible.  Assume the school paper in
fact charged for each copy.  Would it be "reprehensible" for someone to buy
all the copies and then destroy them?  If not, and if the paper is free,
what is the difference?  Book publishers (and law reviews) "physically
destroy another's speech products" every day, after sending out rejection
slips, despite the earnest desires of the authors to have their works widely
read.  Nor do I see anything reprehensible with organizing economic boycotts
of stores that carry Playboy and Hustler (or Playgirl), even though the
purpose is to take certain publications out of the "marketplace of ideas."
In short, I see all the difference in the world between private censorship
and government censorship.  But then I was someone who in college would
follow the SDS members who were posting notices of rallies on telephone
poles and then would cover them with a notice publicizing a Young
Republicans rally.  However, even I would have rallied in support of the
SDS's right to post their notices.

        Bill Funk
Lewis & Clark Law School

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