FW: First Amendment Problem?

wasserma at fiu.edu wasserma at fiu.edu
Sun Apr 30 16:03:18 PDT 2006

Perhaps the word "travel" is like the word "expenditures" in campaign-finance 
regulations -- it can connote use for expressive or non-expressive purposes. 

In further support of Howard Schweber's point: The language of the Florida bill 
(which I did not quote verbatim and which I do not have in front of me right 
now) suggests a prohibition not only on paying for travel (i.e., buying an 
airplane ticket).  It prohibits spending state or nonstate money on anything 
related to or involving travel to and from such nations.  So, in organizing an 
academic panel (clealy expressive), an academic could not, for example, pay for 
a Cuban scholar to participate in the discussion, thus affecting (a la Hurley) the 
overall content of the panel.  Now we are starting to drift into some more 
obviously content- and viewpoint-based applications.

And as to John Noble's point about the Supremacy Clause: Since this does not 
entail Florida going off and making its own foreign policy that conflicts with that 
of the Federal Government, I doubt there would be a problem (and certainly not 
one that the Federal Government would pursue in any event).  Florida defines 
"terrorist nation" by the U.S. Attorney General designation, so there is a clear 
overlap, unlike in the Massachusetts case.

Howard Wasserman
FIU College of Law

Howard Schweber:

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.

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