First Amendment and tort law -- a twist
tushnet at law.georgetown.edu
Thu Mar 30 19:59:31 PST 2006
I interpolate comments/answers to Mark Scarberry's questions.
Is a government subsidy involved when the government enforces
the law to protect those who are vulnerable or likely to be victims
of lawless conduct (with a resulting higher cost of law
enforcement for protecting them than for protecting those who do
not need protection)?
MT: I would think, "Yes," at least where the increase in the risk of
victimization results from choices by the potential victim and the
potential victim can reduce the risk of victimization by other
choices, such as hiring security guards.
Or is that just a cost of providing an environment in which rights
can be exercised equally by those who wish to exercise them?
MT: The notion of "exercised equally" here must be a disparate
effect notion, which, ion general, signals that there is indeed a
I suppose another way to ask the question is that, if the
government wishes citizens to behave lawfully, may the
government impose on the unpopular speaker the cost of
preventing the lawlessness by requiring him or her either to be
silent or to pay for added police?
Suppose the government just said, "Well, you can have your
march, and we'll have the regular police presence that we'd have
for any other group, and if there is violence we'll do what we
always do when violence occurs--we'll call for backup and we'll do
the best we can to protect law abiding citizens. Of course the
backup may get there too late to save you from being beaten up."
If that is the government's uniform position with regard to marches
of all kinds for all causes, does it violate the 1st Am?
MT: Again FWIW, this is the precise example that elicits the
student reaction I reported -- that saying that the government's
decision violates the First Amendment describes a -- to the
students -- troubling form of public subsidy to speech. (Could the
government charge demonstrators a cost-justified fee for the
excess clean-up costs associated with litter after a demonstration
["excess" here meaning, as in Mark S's example, the costs
beyond those the government would ordinarily bear for cleaning
up the locale overnight, when there was no demonstration there]?
My students' instinct is, "Yes," particularly when I say that the
demonstration is organized by Ross Perot. [And when it's not,
that is, when the demonstrators establish that they can't pay the
excess clean-up costs, and students say, "Taxpayers have to
pay those costs," the subsidy is obvious.] How are excess
security costs different?)
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