FW: First Amendment Problem?
schweber at polisci.wisc.edu
Sun Apr 30 14:29:11 PDT 2006
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
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
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
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