Freedom of association, sex discrimination law, and the Natio n of Islam

[Volokh, Eugene]

        I'm not sure what authority -- precedential or logical -- there is
for the proposition that "if the government may speak it presumably also may
legislate . . . for private people," which I take to mean may also restrict
private speech to serve the same goals that the government's own speech is
serving.  That proposition is quite contrary to existing First Amendment
law.  As I mentioned, the government may advocate patriotism, abstinence
from drugs, and racial tolerance, and it can certainly outlaw destruction of
government buildings, drug use, and racist violence.  But it may not
advocate private speech that is unpatriotic, pro-drug, or racist, even if
that speech can be said to be "injurious" in that it encourages bad
behavior, or offends people, or expresses "hate," or urges "shunning."

        I also do not see the connection between Hill v. Colorado, a narrow,
content-neutral speech restriction that leaves people free to say exactly
what they want to say, when they want to say it (cf. Schenck v. Pro-Life
Action Network [?], which made clear that offensive speech outside abortion
clinics *is* constitutionally protected), but requires them to say it from a
distance of several extra feet, and hostile work / educational / public
accommodation environment law, a speech restriction that's content-based,
viewpoint-based, and considerably broader.  And I certainly do not see how
Hill v. Colorado would support a ban on women being burqas in a subway.

        There surely is some inconsistency in the Supreme Court's free
speech caselaw -- but it does make some things (such as the distinction
between the government acting as speaker and the government acting as
sovereign) -- pretty clear.  And nothing in the Court's caselaw, it seems to
me, supports the view that the post below urges.

        Eugene



> -----Original Message-----
> From: lweinberg [SMTP:lweinberg at MAIL.LAW.UTEXAS.EDU]
> Sent: Friday, February 15, 2002 2:47 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Freedom of association, sex discrimination law, and the
> Natio n of Islam
>
> 2/15/02
> Dear Eugene,
>         I agree with most of what you say, but I think you are partly
> missing my point.  I am saying that if the government may speak it
> presumably also may legislate.  If it may legislate, presumably it may
> legislate for private people.  If the Government can inculcate tolerance
> in school, in other words, it can do so by laws providing police
> protections (and, by inference, as we slide down the slippery slope, by
> imposing liabilities upon or sanctions against) intolerance that becomes
> injurious.  So it is puzzling to find out it can't.  After Mitchell and
> Apprendi who knows?  Perhaps it can. The occasions when injury occurs
> might include (1) occasions when other crimes or torts are committed,
> including crimes associated with intimidation and threat; (2) when
> individuals are *in the aggregate* or *pervasively* excluded, shunned,
> marked by special insignia, isolated, ghettoized, etc., such that ordinary
> liberties for them are circumscribed; (3) when individuals are privately
> subjected to what the Supreme Court in both Hill v. Colo. and the
> employment cases identified as environments so hostile as to interfere
> with what the individuals are trying to do and have a right to do.  As I
> said, I merely raise these questions.
>         I don't know that the Supremes have been very consistent with
> earlier cases.  I raise these questions precisely for that reason.  If we
> try to make sense of what they are saying, these questions come to mind.
> All best,
> Louise
>
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