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

Malla Pollack mpollack at uidaho.edu
Wed Mar 29 11:45:47 PST 2006


I know what the  doctrine is. I, however, disagree with it on theoretical
and pragmatic grounds.  No "private" entitlements exist privately. But that
is a long discussion on which I'm sure all people on this list have already
reached their own conclusions.

 

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 10:18 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Request: Barest Bones list of Recommended 1st Am.
CasestouseforFlyby 1st Am. section in Intro con law 2 Individual Rights
Course

 

    *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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