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

[Lynne Henderson]

What about the fact that, undeveloped to be sure, universities  have 
first Amendment/academic freedom rights that may constitute compelling 
interests under "*grutter* and *Gratz*?  I don't buy Eugene's 
"speech"/"conduct" distinction in this light--if pursuit of knowledge 
and academic freedom are heavily implicated in speech, then trying to 
cut off research on political grounds seems a bit like content 
discrimination.
Liberally yours
Lynne Henderson
On Apr 30, 2006, at 2:40 PM, J. Noble wrote:

> 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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> _______________________________________________
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> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can 
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