Supremacy Clause Problem? [prev. First Amendment Problem?]

J. Noble jfnbl at earthlink.com
Sun Apr 30 14:40:39 PDT 2006


Is there a Supremacy Clause problem under Crosby v. National Foreign 
Trade Council, 530 US 363 (2000)?

"The issue is whether the Burma law of the Commonwealth of 
Massachusetts, restricting the authority of its agencies to purchase 
goods or services from companies doing business with Burma,1 is 
invalid under the Supremacy Clause of the National Constitution owing 
to its threat of frustrating federal statutory objectives. We hold 
that it is."

John Noble

At 1:40 PM -0700 4/30/06, Volokh, Eugene wrote:
>	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
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