FW: First Amendment Problem?

[Volokh, Eugene]

	Whoops, in item 3 below I meant "quite *constitutional*" (rather
than "quite unconstitutional," as I wrote).  Sorry!

	Eugene

-----Original Message-----
From: Volokh, Eugene 
Sent: Sunday, April 30, 2006 12:58 PM
To: 'Howard Schweber'; 'Howard Wasserman'; 'conlawprof at lists.ucla.edu'
Subject: RE: First Amendment Problem?


	A few thoughts:

	1)  Under both Rosenberger and Velazquez, one would think that
the government may not attach a viewpoint-based restriction to a broadly
available grant that's aimed at fostering a diversity of viewpoints.
This would mean that, for instance, the government can't adapt Title VI
to say that no federal funds may be used to promote racist views, or
enact a law saying that no government funds may be used to promote views
that support the governments of terrorist states.

	2)  Unfortunately, Locke v. Davey (and before that the plurality
in American Library Ass'n v. U.S.) suggests that this does *not* apply
when the funds are aimed at helping *students* (as listeners) rather
than the universities or teachers (as speakers).  Locke involved a
restriction on the use of state education grants in devotional theology
majors.  Under Rosenberger, a ban on the use of state education grants
in student newspapers that focused on theology would likely be
unconstitutional.  But the Court didn't agree:  It reasoned that "[T]he
Promise Scholarship Program is not a forum for speech. The purpose of
the Promise Scholarship Program is to assist students from low- and
middle-income families with the cost of postsecondary education, not to
'encourage a diversity of views from private speakers.'"  It thus
follows, it seems to me, that the government would be able to attach
lots of conditions, including viewpoint-based ones, on the use of
student loans and student grants.

	3)  But in any event, as I read the program that Howard
Wasserman describes, it is a content-neutral ban on certain conduct --
travel to certain places -- and not a viewpoint- or even content-based
ban on speech.  True, the ban might disproportionately affect certain
speech, though I'm not positive (it would apply to a trip aimed at
exposing the evils of Castro's Cuba as well as one aimed at praising
it).  But it bans the use of money for an activity, travel to certain
countries, not the use of money for speech.  It seems to me that such a
funds restriction would be quite unconstitutional even if Rosenberger
and Velazquez applied.

	Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Howard Schweber
Sent: Sunday, April 30, 2006 9:26 AM
To: Howard Wasserman; conlawprof at lists.ucla.edu
Subject: Re: First Amendment Problem?


At 11:06 AM 4/30/2006 -0400, Howard Wasserman wrote:

What do people think may be the First Amendment implications of the
following:
 
A bill pending in the Florida House of Representatives would prohibit
state universities from using state funds or nonstate funds made
available to state universities to administer or support activities
related to or involving travel to a terrorist state and prohibiting
state employees from receiving travel expenses for activities related to
or involving tavel to a terrorist state.  This being Florida, the
primary target almost certainly is Cuba, although the law is defined
more broadly than that.  And obviously this will affect academics who do
research on Cuba and other labeled states.
 
The limitation on the use of state funds falls squarely within Rust v.
Sullivan.  


No, it doesn't.  Well, anyway, I would like to argue that it doesn't -
the more relevant precedent is LSC v. Velasquez.  University teachers,
like lawyers, exist to promote a diversity of views and arguments, not
to present the government's views.

Howard Schweber
Dept. of Poli. Sci.
UW-Madison