Cheering at Maryland
Howard M. Wasserman
wasserma at fiu.edu
Tue Apr 13 17:14:59 PDT 2004
Perhaps if we adopt more of what Lillian BeVier labeled (and rejected) as
the Enhancement Model of free speech, which imposes at least some burden on
government to provide public forums (what Rodney Smolla called First
Amendment "free-fire zones."). And, as a corollary, that model would
suggest that if government creates a forum, it cannot define too narrowly
the contours of the speech that will be allowed in that forum. In other
words, even when acting as proprietor, government never is too far removed
its role as sovereign. I recognize the line-drawing problem in the notion
of "not too narrowly," of course.
Also, could we conclude that tone or communicative manner warrants stricter
protection than content? In other words, restrictions on tone or manner
should be treated like restrictions on viewpoint -- even more disfavored
than restrictions on subject matter?
FIU College of Law
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Tuesday, April 13, 2004 12:58 PM
Subject: RE: Cheering at Maryland
A few thoughts about Howard's most recent post:
(1) What's so bad about the government designating a public
forum narrowly, with an eye towards protecting the sensitivity of
unwilling listeners? This isn't speech on private property that the
government is regulating as sovereign. It isn't speech on a traditional
public forum that the government has a constitutional duty to leave
open. This is speech on other government property, which the government
has no obligation to open up at all, and which the government is trying
to use for its own purposes -- which may include making money from
invited members of the public.
Why shouldn't the government be able to make the property a
welcoming, pleasant place for those invitees, especially when it's not
discriminating based on viewpoint in so doing? I'm not wild about the
political/commercial distinction in Lehman v. City of Shaker Heights,
partly because it might indeed be viewpoint-based (for reasons that
Brennan's dissent identifies). But should the government really have a
constitutional obligation to accept ads in the buses that contain
profanity or nudity? Maybe it should take ads saying "Fur is Murder,"
but it seems to me that it ought to be able to block ads saying "Fuck
the Animal-Murdering Sons-of-Bitches," precisely because it wants to
keep buses a pleasant environment for passengers. I don't see the First
Amendment problem with so doing.
(2) It's true, of course, as Cohen points out, that such a
designation will somewhat narrow the range of messages that are
available in the forum. It will indeed deny people the ability to make
their point in a particular angry and harsh way. But why is that a
problem when the government is managing its own
non-traditional-public-forum property? Subject matter restrictions of
the sort Howard rightly endorses narrow the range of messages that are
available in the forum, too; but that's OK, because the government is
managing its own property. Why not tone restrictions, too?
(3) Finally, I agree with Howard that one needs to look
carefully at the restriction to make sure it is indeed
viewpoint-neutral. But a ban on all profanity would qualify, I think,
as I think would a ban on all profanity and all epithets (though that's
a closer call).
> 1) This presents the problem w/ the recent cases that have
> permitted government to define the limited forum in a very
> narrow content-based manner. It is a limited public forum
> not for artistic speech, but for decent artistic speech; it
> is a forum limited not for cheering speech, but for
> non-profane cheering speech. I think the Court has been
> wrong in its recent cases to permit government to use that
> narrower limitation in defining the contours of the forum
> itself; it allows government to weed too much out of the
> discussion. I think it is OK to limit the general topic of
> the speech in the forum (student speech, curricular speech,
> artistic speech, cheering speech), but do not allow
> government to limit the way in which that speech is presented.
> 2) Are there any constitutional limitations on the ability of
> government to limit the scope of the forum? Is protecting
> the sensitivity of unwilling listeners, which would not be a
> compelling interest, a reasonable one for government to
> enforce in a public forum? If (as Howard Schweber suggests)
> the restriction must be reasonably related to the purpose for
> which the forum was created, does a ban on profanity or
> certain kinds of cheers accomplish that? After all, all of
> this is "cheering speech" about or related to the game.
> 3) Is a restriction on profane cheering speech
> viewpoint-discriminatory in a Rosenberger sense? Cohen
> suggests that word choice creates a different message or
> meaning -- in other words, a different point of view. Any
> conduct code would restrict the way in which I am able to
> cheer for Maryland (or against Duke)--much as U Va's
> restrictions restricted the way in which students were able
> to discuss issues of public concern. "Come on Maryland, beat
> Duke" and "F--- Duke" are two different/distinct messages.
> Is the restriction on the latter a restriction on a viewpoint?
> 4) Given the specific instances that people have discussed, I
> doubt any restrictions will be limited only to profanity.
> They likely will be broader, targeting things such as
> taunting chants directed at opposing players and coaches and
> officials; the use of double entendre, etc. Even if a simple
> ban on profanity were permissible, once the restriction
> broadens things become more problematic.
> Also, Howard Schweber wrote:
> >these access restrictions are not content-neutral, they are not even
> viewpoint-neutral; sections are reserved
> >for "friendly" and "hostile" fans, and the restrictions on
> >are applied unevenly based on those designations. Since the
> sine qua
> >non of a limited public forum is neutrality in its creation (a
> >violation of which thus gives rise to constitutional concerns), the
> >description above seems to weigh heavily toward finding
> something other
> >than a limited public forum, as in NEA v. Finley.
> But no one's speech is restricted within those sections.
> Except for perhaps the student section, anyone can get
> tickets within the arena from a ticket source; you have to
> work a little harder--Maryland reserves more tickets for its
> fans, so Duke fans would have to go through Maryland to get
> their tickets. Once there, you can cheer for whichever team
> you wish. And I make this last point from the experience of
> 7 years at Northwestern, seeing a lot of Michigan clothing at
> Northwestern home games.
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