Legislative Retaliation against University Speech

[Volokh, Eugene]

        One significant distinction is that, to my knowledge, the museum in
NYC was not a government-run entity, though it did get a lot of government
funds.  (Please correct me if I'm wrong.)  I assume that the University of
Missouri is a branch of the state government.

        Eugene

> -----Original Message-----
> From: Conkle, Daniel O. [SMTP:conkle at INDIANA.EDU]
> Sent: Friday, April 05, 2002 1:41 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Legislative Retaliation against University Speech
>
> Isn't this similar to the NYC art museum dispute of a few years ago, when
> Mayor Giuliani tried to implement budgetary reprisals following an art
> show
> that included, inter alia, a depiction of the Virgin Mary (complete with
> elephant dung, etc.) that the mayor and others regarded as offensive?  I
> believe that the lower courts ruled against the city on 1st Am. grounds.
>
> Dan Conkle
> * * * * * * * * * * * * * * * * * * * * * * *
> Daniel O. Conkle
> Professor of Law
> Indiana University School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> mailto:conkle at indiana.edu
> * * * * * * * * * * * * * * * * * * * * * * *
>
> -----Original Message-----
> From: Wells, Christina E. [mailto:WellsC at MISSOURI.EDU]
> Sent: Friday, April 05, 2002 3:58 PM
> To: CONLAWPROF at LISTSERV.UCLA.EDU
> Subject: Re: Legislative Retaliation against University Speech
>
>
> I think that John has crystallized the issue that I am having problems
> with.
> Every instinct I have tells me that the Missouri legislature's action is
> constitutionally problematic.  And if this were a law that required the
> university to refrain from advocating a certain viewpoint in order to get
> a
> tax break (Speiser v. Randall), the unconstitutional conditions analysis
> would be pretty straightforward.
>
> But what is at issue isn't a law; rather at issue is a budgetary
> allocation
> that is typically within the legislature's discretion -- and the
> non-allocation here is quite general rather than a directed non-allocation
> to a particular offender.  Since, as John points out, the legislature
> could
> easily just do this next year under the guise of neutral reasons, I fear
> that a court might use the "you aren't entitled to funding" argument.  The
> Court's jurisprudence is enough of a wreck that I can see a court going
> either way.  The legislature's incredible stupidity by not only putting
> this
> on the record but trumpeting it may be enough in this instance to sway a
> court toward a finding of unconstitutionality but I'm not even sure of
> that.
>
> Chris
>
> -----Original Message-----
> From: Parry, John [mailto:Parry at LAW.PITT.EDU]
> Sent: Friday, April 05, 2002 2:09 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Legislative Retaliation against University Speech
>
>
> I agree generally with Mitch, except that I wonder what it means in this
> context to be the bearer of a right.  Consider a state legislature that is
> unhappy with the manner in which a law school clinic conducts itself, and
> declares that no state money can be spent on that clinic.  The state has
> no
> obligation to fund the university at all, and no obligation to fund the
> clinic -- so it seems to follow that the clinic and its employees have no
> general right to state funding.  Does the fact that the legislature acts
> out
> of opposition to the clinic's legal activities, including its speech on
> behalf of politically disfavored clients, create a right to funding where
> none existed before?  I take it Mitch's answer is yes, becaue the exercise
> of free speech and legal advocacy is the reason for making the clinic
> worse
> off (not-state-funded) than it was before (when it was funded).
>
> But then I wonder whether, even if there is a right to continued funding
> under these circumstances, how many public-supported entities will be
> willing to go to court to insist on funding?  The adverse political
> consequences could be enormous.  Victory might well lead to even less
> funding over time, based on purportedly neutral concerns about state
> finances and funding priorities.
>
> If so, then the unconstitutional conditions argument has a certain due
> process of law-making quality -- the legislature can reduce funding if it
> articulates the right reasons, and the point of unconstitutional
> conditions
> litigation is to force the legislature to reduce funding only when it can
> do
> so.  (Perhaps, too, such litigation allows courts to overturn rash
> decisions
> after a cooling-off period, with the hope that they will not be
> reinstated).
>
> John Parry
>
> -----Original Message-----
> From: Mitch Berman [mailto:MBerman at MAIL.LAW.UTEXAS.EDU]
> Sent: Friday, April 05, 2002 2:07 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Legislative Retaliation against University Speech
>
>
> WARNING: shameless plug below.
>
> I argued in a recent article that part of what it must mean to have a
> constitutional right is that the bearer of the right not be penalized for
> exercising it, in the particular sense that the state not treat her worse
> than it otherwise would have treated it, with a purpose of discouraging or
> punishing exercise of that right.  I won't bore all readers by presenting
> the details of my argument here.  If interested, see my "Coercion Without
> Baselines: Unconstitutional Conditions in Three Dimensions," 90 Georgetown
> L.J. 1 (2001), esp. pp. 32-36.  That the Missouri legislature has run
> afoul
> of this principle seems pretty plain, at least if that principle is
> expanded (as I contended it should be) to accommodate cases in which the
> adverse consequence is imposed on some third party who stands in certain
> sorts of "close relations" to the right holder.
>
> Because your facts essentially present an unconstitutional conditions
> problem, don't be surprised (as I'm sure you won't be) to find case law
> more or less on point that cuts both ways.
>
> Mitch Berman
>
> Mitchell Berman
> Assistant Professor of Law
> The University of Texas at Austin
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512/232-3525
>
> At 12:30 PM 4/5/2002 -0600, you wrote:
> >Hi everyone, I'd like your thoughts on the following:
> >
> >The University of Missouri is currently experiencing an incident that
> >raises some interesting questions.  In response to certain activities of
> >University employees, there is a legislative budget proposal reducing the
> >University's operating budget by about $700,000.  The most interesting
> >incident involves the University of Missouri's publicly-supported NBC
> >affiliate -- KOMU.  After September 11th the manager of the station sent
> >out a memo stating that the student-reporters who work on the local news
> >could not wear flag pins while on air.  The manager's reason was that he
> >wanted the reporters to maintain objectivity while reporting the
> >news.  This caused quite a stir in Missouri and legislators at the time
> >threatened to retaliate.  They appear to have done so, claiming that a
> >$500,0000 reduction in the budget for is a direct response to the KOMU
> >manager's memo.
> >
> >The other interesting incident involves the fact that the legislature cut
> >$100,000 because of a professor's "controversial writings on pedophilia."
> >
> > From a legal standpoint, I'm unsure how to analyze this.  If this were a
> > refusal to fund a particular program (similar to Rosenberger), I would
> be
> > reasonably comfortable arguing that these cuts are retaliatory against a
> > particular viewpoint (which the legislature proudly owns up to I might
> > add) and probably a constitutional problem (although I could be
> > wrong).  But since this is just a reduction in the gross allocation to
> > the university, I'm not sure.  The university is still free to allocate
> > funds within its programs as it sees fit and KOMU/the professor may be
> > absolutely unharmed in a monetary sense.
> >
> >Bottom line question:  What constitutional analysis is appropriate for a
> >gross reduction in the university's overall budget based upon the
> >legislatures' anger about certain speech?
> >
> >For those interested, you can find relevant news articles at:
> >
> >http://www.showmenews.com/2002/Apr/20020404News001.asp
> >http://www.showmenews.com/2002/Apr/20020404News006.asp
> >
> >-Chris Wells
> >
> >Christina Wells
> >Enoch N. Crowder Professor of Law
> >University of Missouri-Columbia
> >Columbia, Missouri   65211
> >(573 )882-8375
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20020405/21fb2e28/attachment.htm