Destroying print run of a newspaper as free expression

[Volokh, Eugene]

        I agree that the destruction of a print run of a newspaper doesn't
violate the newspaper's 1st Am rights, unless the government destroys it.
The 1st Am came in as to whether the destruction is itself constitutionally
protected expressive conduct -- I agree with Bill that it is not, and that
the government may punish such destruction without violating the 1st Am (and
private universities may punish it without violating academic freedom
principles).

        So we can turn to the right and the wrong of it, which is relevant
to whether the university *should* punish such conduct.  It seems to me
that, for reasons so eloquently stated by others (such as Michael Kent
Curtis, Bryan Wildenthal, and Michael Masinter), such destruction is indeed
wrong:  True, speakers have the right to try to fight others' speech in many
ways, such as by trying to persuade listeners not to listen, or to persuade
speakers not to speak, or even to pressure speakers not to speak with the
threat of boycott.  But it's wrong to interfere with others' speech by
physically stopping it from being seen, whether it's by destroying
newspapers, ripping down posters, or obscuring the posters.

        What about buying up the print run of a newspaper, magazine, or book
and then destroying it?  Well, to my knowledge this almost never happens --
the cost constraints make this sort of behavior self-limiting; also, the
payment at least provides some compensation to the publisher (less, of
course, when the newspaper is heavily advertising-supported) that would let
the publisher print more copies to substitute for the lost materials.  If it
did happen more often, I think it would be quite plausible for publishers to
state "25 cents for each of the first five copies, $1 for each copy after
that," and for the law to enforce that against bulk buyers-and-destroyers.
But fortunately this is one problem that we seem not to have to confront.

        Returning to the problem at hand:  When people try to interfere with
the spread of ideas not by persuasion but by physical destruction of the
means by which the ideas are spread, that's pretty reprehensible behavior.
A university, which is devoted to the free interchange of ideas, should
forcefully and quickly condemn it, and it should enact rules to prevent this
from happening in the future.

        Eugene



Bill Funk writes:

> #2 first -- assuming we're dealing with the original Brown case, no,
> there's nothing wrong with the university (or the government) making it
> illegal.  As several persons have noted, if the newspaper indicates "one
> free copy per person", then taking more than one copy would probably
> constitute theft without any affirmative act by the university or
> government.  However, if the newspaper indicates "take as many as you
> like", then it wouldn't be illegal (or in my view reprehensible) to take
> them all and to do with them as you wished.  I would say the same thing
> for a salad bar (an example used by Professor Epps).  If the restaurant
> advertises, an "all you can eat salad bar" then you should be able to eat
> all you want, but you can't load up a box and take it out and give it to
> the homeless.  My point is a simple one here.  This is not a first
> amendment issue; it is a property/contract issue.  Whether it's newspapers
> or salad should not change the analysis.
>
> #1 -- Assuming the issue is not a property/contract issue, however, is it
> improper to deprive others of the message being put out?  I haven't heard
> a response yet to my question about whether it is improper/reprehensible
> to buy up all the newspapers and then destroy them.  The group goes around
> to all the newspaper dispensing machines and puts the requisite number of
> quarters in to pay for all the papers, and then destroys those newspapers.
> I fail to see how this is improper, even though it denies others the
> ability to read those newspapers.  Similarly, I would find nothing
> improper if Mothers for Morality buy all the tickets for a Marilyn Manson
> concert (whose likeness on T-shirts the a principal found  "contrary to
> the school mission and goal of establishing 'a common core of values that
> include ... human dignity and worth ... self respect, and responsibility,'
> and also the goal of instilling 'into the students, an understanding and
> appreciation of the ideals of democracy and help them to be diligent and
> competent in the performance of their obligations as citizens.'" resulting
> in the exclusion of a student who wore such T-shirts -- upheld by the 6th
> Circuit, cert. denied yesterday), so that they can assure no one will hear
> it in their community.  Nor do I see anything wrong in economic boycotts
> to protest the sale of Smirnoff's Ice or Hustler.  Finally, I'll still
> deny as improper my use of Young Republican posters to cover the SDS
> posters on public telephone poles.
> Clearly, none of these actions raise First Amendment issues, because none
> involves the power of the state to abridge speech.
> And I don't think "First Amendment principles" apply to private actors.
> BYU doesn't have to allow speech that demonizes or dismisses Mormons;
> Howard doesn't have to allow speech that demonizes or dismisses
> Afro-Americans.  If Brown wants to have an open marketplace of ideas, no
> ideas forbidden, that is as much its individually chosen path as BYU's or
> Howard's.
>
> Bill Funk
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