Fw: Undeliverable: Fw: The First Amendment and audience selection
Marc Poirier
poiriema at shu.edu
Sun Mar 7 22:36:52 PST 2004
The approach to answering Eugene's questions about who can exclude whom
from
a theater seems to me to depend in part on how one reads Boy Scouts of
America v. Dale. Indeed, the Donaldson case in Massachusetts, in which
the
Nation of Islam was allowed to exclude women from a public meeting held in
a
publicly-owned auditorium, contrary to an antidiscrimination statute,
relied
for its reasoning on Dale, not the religious aspects of the presentation
or
of the sponsoring organization. Basically, the court said that the
communication about men's religious obligations would be more effective
if
women were excluded, and that that satisfied the framework of the Dale
analysis and overrode Massachusetts' concern about discrimination based on
sex.
Eugene's hypos raise other issues. Is Dale about association (which would
suggest you need an association of several individuals, probably with some
kind of formal structure that a court can examine) or about coerced
speech,
in which case an individual owner can complain about violation of a right
to
exclude? The latter reading takes Dale to be an extension of Hurley to
contexts outside of the traditional expressive function of a parade.
If one takes seriously the distinction between expressive organizations
that
are protected under Dale and commercial ones that are not, then the
analysis
of Eugene's questions may depend on whether the owner is motivated by
ideology, or is acting as an agent for a group motivated ideologically, or
is instead excluding protected groups for reasons of commercial gain. the
latter would not be protected.
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478
----- Forwarded by Marc Poirier/LWF/SHU on 03/05/04 05:06 PM -----
"Volokh, Eugene" <VOLOKH at law.ucla.edu>
Sent by: conlawprof-bounces at lists.ucla.edu
03/04/04 01:57 PM
To: conlawprof at lists.ucla.edu
cc:
Subject: The First Amendment and audience selection
I'm not sure why it should matter whether (1) the owner of a theater
limits
the audience by religion, race, sex, etc., (2) an ideological organization
that is the lessee of a theater limits the audience by religion, race,
sex,
etc., (3) the owner of a theater, in response to a request by an
ideological
organization (whether it's organizing a showing or just trying to promote
it), limits the audience by religion, race, sex, etc., (4) the owner of a
theater, in response to a request by the movie producer (obviously not the
case here), limits the audience by religion, race, sex, etc. or whatever
else.
But I do think this is an interesting and difficult question: When should
speakers (whether a theater owner, an ideological group, or whoever) have
a
First Amendment right to limit the audience this way? This could involve:
(1) The Nation of Islam wanting to put on separate programs for men and
women.
(2) The United African Movement wanting to put on a speech about nonwhite
issues for nonwhites.
(3) A group putting on the Vagina Monologues wants a showing for women
only, perhaps based on their theory (whether right or wrong) that women
are
more likely to feel comfortable and open to the show if they're in a
women-only environment.
(4) A theater putting on a screening of The Passion of The Christ for
Christians only.
Should it matter whether the program is likely to involve audience
questions? Should it matter whether the selection criterion is
religiously
motivated? Should it matter whether a judge or a jury is persuaded that
audience members would feel that the program comes across differently when
it's viewed as part of a homogeneous community?
Eugene
-----Original Message-----
From: wasserma at fiu.edu [mailto:wasserma at fiu.edu]
Sent: Thu 3/4/2004 2:04 AM
To: conlawprof at lists.ucla.edu
Cc:
Subject: Re: RE: The Passion Movie - religious identity check at box
office
Could there be a meaningful difference in the First Amendment analysis
because the Passion incident involved exclusion by the actual owner/
operator of the public accommodation. By contrast, all the cases Eugene
cites involve private associations, such as the Nation of Islam or KKK,
utilizing someone else's public or private property for their own private
expressive events.
Howard Wasserman
FIU College of Law
>
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> Date: 2004/03/03 Wed PM 07:15:28 EST
> To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> Subject: RE: The Passion Movie - religious identity check at box office
>
> Very interesting. The cases that I know of on this subject are In
> re Minoo Southgate v. United African Movement, 1997 WL 1051933
(N.Y. Comm'n
> on Human Rts.) (limiting, despite a First Amendment objection, the
UAM's
> right to let only nonwhites into lectures that they conduct); City of
> Cleveland v. Nation of Islam, 922 F.Supp. 56 (N.D. Ohio 1995)
(holding that
> the Nation of Islam had a First Amendment right to hold a men-only
event,
> even in a City-owned arena that the Nation had rented); Donaldson v.
> Farrakhan, 436 Mass. 94 (Mass. 2002) (likewise, though as to event on
> private property).
>
> See also NAACP v. Thompson, 648 F.Supp. 195 (D. Md. 1986)
(holding
> that the county was *constitutionally barred* from allowing the KKK to
run a
> whites-only program, even on private property); Invisible Empire of
the
> Knights of the KKK v. Mayor, 700 F.Supp. 281 (D. Md. 1988) (holding
that the
> KKK was entitled to exclude blacks and Jews from marching in its
parade
> conducted on public streets, though the KKK wasn't trying to exclude
blacks
> and Jews from the *audience*). Thompson strikes me as singularly
badly
> reasoned in its state action analysis.
>
> Eugene
>
> > -----Original Message-----
> > From: Virginia E Hench [mailto:hench at hawaii.edu
<mailto:hench at hawaii.edu> ]
> > Sent: Wednesday, March 03, 2004 3:33 PM
> > To: Ilya Somin
> > Cc: Jonathan Miller; Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > Subject: The Passion Movie - religious identity check at box office
> >
> >
> > Hello all -
> >
> > I received a phone call yesterday from a recent law grad. who is
> > finishing up her Ph.D. in history. She went to see the Passion
> > yesterday to see what all the fuss was about -- the movie was
playing
> > at a large multiplex here in Honolulu. As the box office, the ticket
> > seller asked her "Are you Christian?"
> >
> > She was surprised but answered that she is Catholic. The
> > ticket seller
> > then explained that the reason for the question was that the
> > particular
> > showing was "for Christians only" and that there would be
> > prayer during
> > the showing.
> >
> > She went ahead and entered, and reported that indeed, there
> > was prayer
> > during the showing.
> >
> > Just to clarify - this was not a case in which some group bought out
> > the house for a private showing - as far as I or the recent
> > grad could
> > determine, it was simply a public showing, but for
> > "Christians only." The student notified the state Civil
> > Rights commission and the ACLU.
> >
> > I told her I would let the list know. Any comments?
> >
> > Virginia Hench
> > Assoc. Professor
> > U of Hawai`i -- Law
> > 2515 Dole Street
> > Honolulu HI 96822
> > hench at hawaii.edu
> >
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