FW: First Amendment Problem?

[Howard Schweber]

I am not convinced by Eugene's argument, and I say that not only in terms 
of my own idealized version of what the First Amendment ought to protect, 
but in terms of a prediction of how the Rehnquist Court would have 
considered the question (the Roberts Court is too newly-minted to say with 
certainty).

Regarding Malla's comments, in Velazquez, it was not quite a matter of the 
Court deferring to a profession's self-definition, it was a matter of the 
Court taking it upon itself to define the profession of "lawyering" as one 
which involves the expression of a range of viewpoints.  Various comments 
in various settings have suggested that many justices are equally ready, on 
their own authority, to recognize a central norm of academic freedom where 
free speech issues arise in a university setting.  Travel is not merely an 
"activity" unrelated to expression, it is an essential part of academic 
research and the exchange of academic views with compatriots in other 
nations.  After all, it was not just speaking that was protected in 
Velazquez, it was filing briefs and motions and raising legal arguments, 
and paying filing fees.

Furthermore, the restriction here is not on travel per se, it is on travel 
to certain nations, selected by virtue of the views as well as the actions 
of their governments.  Eugene's description would apply to a rule that said 
"no funds may be used for travel outside the United States," perhaps, but 
not to a rule that prohibits the use of funds to pay for travel to 
specified countries.

Locke v. Davey seems to me readily distinguishable; the Court concluded 
that the point of that program was not fostering a diversity of viewpoints, 
but that is exactly the function of funding research at a university.

I therefore believe that it is at least plausible that a Court both should 
and would find that restricting travel in the context of university funding 
constitutes a restriction on academic freedom, and consequently a viewpoint 
restriction

Howard Schweber 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060430/453fc2ce/attachment.htm