Legislative Retaliation against University Speech

[Tobias Wolff]

Does Palmer v. Thompson bear on the question here?  Selective
withholding of governmental funds for government-sponsored
facilities certainly is what Palmer addresses, though the extent to
which it remains good law is debatable.  (I devote an entire class to
Palmer in Constitution Law every year -- it's one of my favorite cases,
and a marvelous teaching tool.)

-- T

> I would bet a large amount of money (if it were not illegal to do so
over
> the internet) that any suit attempting to restore funding on federal
> constitutional grounds would fail. But I think the 11th amendment
would not
> create difficulties. The 1st is enforced against the states by way of
the
> 14th; and actions brought pursuant to constitutional provisions
postdating
> the 11th amendment are not, I think, barred by the 11th
amendment.
>
> Mark Scarberry
> Pepperdine
>
> -----Original Message-----
> From: Michael MASINTER
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 4/5/02 7:45 PM
> Subject: Re: Legislative Retaliation against University Speech
>
> I am curious about why the claim below would be easy.  I take the
claim
> to
> be that the legislature unconstitutionally refused to appropriate
money,
> and therefore the relief to be the provision of that money.  Who is
the
> defendant? Individual legislators enjoy absolute immunity per
Tenney v.
> Brandhove. The state enjoys 11th amendment / sovereign
immunity.  An ex
> parte Young claim against a state treasurer in his/her official
capacity
> seeking to compel the writing of a check for unappropriated funds
surely
> raises serious eleventh amendment issues under Edelman v.
Jordan, Quern
> v.
> Jordan, Seminole Tribe and Coeur d'Alene since it is, in substance,
an
> order granting monetary relief against the state.  Collectively those
> cases suggest that far from being easy, the claim may be fruitless.
>
> Michael R. Masinter                     3305 College Avenue
> Nova Southeastern University            Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center                (954) 262-6151
> masinter at nova.edu                       Chair, ACLU of Florida Legal
> Panel
>
> On Fri, 5 Apr 2002, William D Rich wrote:
>
> > If the legislature makes it explicit that, as punishment for a faculty
> > member's having engaged in protected speech, the University is
being
> funded
> > at a lower level than it otherwise would be funded, the free
speech
> claim
> > should be pretty straightforward.  As John Parry has observed,
> however, the
> > University may well forgo such a claim for political reasons.  (The
> > University should have standing to assert the free speech rights
of
> the
> > faculty member because of the substantial relationship that
exists
> between
> > the University and the faculty member.  Whether it, as an
institution,
> has
> > its own free speech rights against the state is not an easy
question,
> as
> > others have pointed out.)
> >
> > More interesting perhaps is the question of whether the faculty
member
> > could successfully assert a free speech claim were the University
to
> choose
> > not to.  If the cut in funding is to succeed in punishing the speech
> of
> > which the legislature disapproves, it would have to be either (1)
by
> > causing the University in turn to punish or restrict the faculty
> member's
> > speech, or perhaps (2) by deterring the faculty member from
engaging
> in
> > such speech because he or she cares about the well-being of
the his or
> her
> > University and does not wish to cause the University to suffer the
> > consequences of funding cuts.  Either way, the faculty member
should
> have a
> > meritorious claim.  If the legislature, by cutting the University's
> funding
> > expressly as punishment for the faculty member's engagement in
> protected
> > speech, were to induce the University to punish or restrict the
> faculty
> > member's speech, the University's action would be
unconstitutional and
> the
> > legislation that prompted it would afford the University no
defense.
> If,
> > on the other hand, the University takes no action against the
faculty
> > member, the only way the budget cut might inhibit free speech
would be
> by
> > causing the faculty member to self-censor for fear that speaking
out
> would
> > redound to the detriment of his or her beloved (or at least beliked)
> > University.  A governmental act that punishes one person for the
> > constitutionally protected speech of another, not on the theory that
> the
> > person being punished should have exercised control over the
speaker
> (a
> > form of vicarious liability) but rather on the theory that the speaker
> > cares about the person being punished and therefore may be
inhibited
> from
> > speaking, violates not one but two constitutional norms:  freedom
of
> speech
> > and what has been called the corruption-of-blood principle (but
might
> > better be termed the vicarious punishment prohibition).  If the
> University
> > does not take or threaten action against the faculty member, the
> biggest
> > obstacle to a successful challenge by the faculty member may be
the
> > requirement of injury for standing to litigate the claim.
> >
> > Bill Rich
> > Univ. of Akron Law School
> >
> >
>