Request: Barest Bones list of Recommended 1st Am. Cases touseforFlyby 1st Am. section in Intro con law 2 Individual Rights Course

[Volokh, Eugene]

    *Suing* to enforce a statute is not state action, in the sense that
the plaintiff's motivation for enforcing the statute is not subject to
Equal Protection Clause scrutiny.  If it turns out that somebody
enforces his copyright / right of publicity / etc. only against
Republicans or only against Christians, he's entitled to do so.
 
    But the courts' actually *enforcing* the statute is state action.
That's why Harper & Row, Zacchini, the Gay Olympics case, Hustler v.
Falwell, NAACP v. Claiborne Hardware, Time v. Hill, and lots of other
cases have applied First Amendment scrutiny to the speech-restrictive
statute (or common-law rule).  Some cases have held for defendants, on
the theory that their speech was protected against the judicial
enforcement of the rule; others have held for plaintiffs, on the theory
that the rule was constitutionally sound.  But they do not at all
undermine the state action holding of New York Times v. Sullivan;
rather, they make clear that the holding is alive and well.  (The facial
holding of Shelley v. Kramer may well be a different story.)
 
    Eugene
 
-----Original Message-----
From: Malla Pollack [mailto:mpollack at uidaho.edu] 
Sent: Wednesday, March 29, 2006 10:15 AM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: RE: Request: Barest Bones list of Recommended 1st Am. Cases
touseforFlyby 1st Am. section in Intro con law 2 Individual Rights
Course



Sorry, but I think Eugene misreads the cases. In all the listed cases,
the Court recognizes that passing a statute is state action, but does
not accept that suing to enforce one is state action.  In NY Times v.
Sullivan the suit is treated as state action in a similar fashion to the
state action analysis in Shelly v Kramer.  

 

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 29, 2006 10:05 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Request: Barest Bones list of Recommended 1st Am. Cases
touseforFlyby 1st Am. section in Intro con law 2 Individual Rights
Course

 

    I don't think the Court has denied that enforcement of various
speech restrictions through the civil liability system -- whether libel
law, trademark law, copyright law, or what have you -- is state action.
Harper & Row, Eldred, Gay Olympics, and other cases all engage in
substantive First Amendment analysis.  Gay Olympics does hold that the
*plaintiff's* decisions (as opposed to the court's) are not state
action.  But that, I think, would have been equally true in libel cases
post-NYT v. Sullivan:  If you sue me for libel, I can't object claiming
that you discriminatorily selected me because of my race, sex, politics,
religion, or what have you.  I can challenge the legal rule that the
government is applying, but not the motivations of the nongovernmental
plaintiff.

 

    Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
Sent: Wednesday, March 29, 2006 8:29 AM
To: 'Jonathan Entin'; 'Barksdale, Yvette'; CONLAWPROF at lists.ucla.edu
Subject: RE: Request: Barest Bones list of Recommended 1st Am. Cases to
useforFlyby 1st Am. section in Intro con law 2 Individual Rights Course

Yes, but ... be careful to discuss with students the Court's pull back
on the state-action doctrine.  None found now in enforcement of
copyright, dilution (including the Gay Olympics Case about the Amateur
Sports Act), trademark etc. 

 

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jonathan Entin
Sent: Wednesday, March 29, 2006 5:24 AM
To: 'Barksdale, Yvette'; CONLAWPROF at lists.ucla.edu
Subject: RE: Request: Barest Bones list of Recommended 1st Am. Cases to
useforFlyby 1st Am. section in Intro con law 2 Individual Rights Course

 

I'd use New York Times v. Sullivan if I had only one First Amendment
case to teach. Not only is the case extraordinarily rich in terms of
First Amendment theory but it grows out of the civil rights movement and
therefore can give students an appreciation of how history, politics,
and law intersect.

 

Jonathan L. Entin

Professor of Law and Political Science

Case Western Reserve University

216-368-3321 (voice)

216-368-2086 (fax)

 <mailto:jle at case.edu> jle at case.edu (e-mail)

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