McCarthyism? Justice?

[Volokh, Eugene]

	Hmm; I should think that following the government-as-employer
cases (such as Pickering, Branti, Rutan, et al.) and the
government-as-contractor cases (such as Umbehr), the government can't
just say "[we do] not have to hire people [we] do[]n't like," at least
when the dislike stems from the person's speech, unless the employee is
in certain positions.  This doesn't necessarily carry over to rejecting
a book because of its author's outside views -- but it doesn't
necessarily not carry over, either.  So given all those cases, how would
we analyze the refusal to contract with an author's publisher for
delivery of books because of the author's views (not those expressed in
a book)?

	Eugene 

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Saturday, November 03, 2007 7:06 PM
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: McCarthyism? Justice?
> 
> Eugene, I don't even see the constitutional issue.  It may be 
> wrong in the MaCarthyism blacklisting sense, but where is the 
> constitutional issue?
> 
> Obviously a faculty member or department can adopt a book or 
> exclude a book for a good reason or no reason or a bad 
> reason. The question I assume you are asking whether the 
> motive for this decision makes what is unquestionably 
> otherwise ok unconstitutional.
> 
> How could it?  On what theory?  Viewpoint discrimination?  
> The government does not have to hire people it doesn't like 
> -- while the Bush administration may have pushed the limits 
> of propriety and even the law in some of its hiring and 
> firing, it certainly hasn't violated the constitution in its 
> obvious viewpoint discrimination.
> 
> What am I missing?
> 
> 
> On 11/3/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> >         Sorry, I guess I was unclear:  The question is whether 
> > refusing to adopt someone's text because of *the author's outside 
> > political views*, which are unrelated to the text, is 
> > unconstitutional; and whether it matters whether the 
> decision is made 
> > by the professor or by the department.  Thus, for instance, is it 
> > improper for a history department to refuse to adopt a textbook 
> > because the author is a Communist, even when there's 
> nothing Communist 
> > in the book?  What if it's a physics department, which is 
> even further removed from Communism?
> > Likewise, is it improper for a paralegal teaching department at a 
> > community college to refuse to adopt a textbook because the 
> author is 
> > a Phelpsian, though there's nothing about gays, the 
> military, or who 
> > God supposedly hates in the textbook?
> >
> >         Eugene
> >
> > > -----Original Message-----
> > > From: guayiya [mailto:guayiya at bellsouth.net]
> > > Sent: Saturday, November 03, 2007 5:51 PM
> > > To: Volokh, Eugene
> > > Cc: CONLAWPROF at lists.ucla.edu
> > > Subject: Re: McCarthyism? Justice?
> > >
> > > It cannot be that I have an affirmative First Amendment right to 
> > > have my texts adopted at all public institutions--even at 
> all those 
> > > that offer obviously appropriate courses. If I did, my 
> competitors 
> > > would have the same right.
> > > At most, I might have a right to have courts examine into the 
> > > reasons why my book was not adopted by all those who 
> declined. And 
> > > my competitors would have a right to challenge those 
> misguided ones 
> > > who did adopt my book. They could even sue me for using 
> it in my own 
> > > course.
> > >
> > > I submit that academic freedom is the core First Amendment value 
> > > here.
> > > What I teach and how I teach it should not be for the courts to 
> > > decide.
> > > Since the clearly legitimate reasons for textbook choice are most 
> > > often content-based, such a doctrine would spawn a 
> bizarre wave of 
> > > litigation.
> > > Can you reject my political theory text because it does 
> not have a 
> > > chapter on Hitler? Because it does have? In both cases, I 
> think the 
> > > answer is yes.
> > >
> > > Perhaps in some cases there might be an equal protection 
> issue, that 
> > > public choices must not be motivated by the author's--or 
> the school 
> > > board's--religion, race, gender, etc., or alternatively, must not 
> > > have a disparate impact on authors of a protected class. 
> But a broad 
> > > constitutional mandate for diversity in the canon or the 
> curriculum 
> > > would also pose a great threat to academic freedom.
> > >
> > > Daniel Hoffman
> > >
> > > Volokh, Eugene wrote:
> > >
> > > >     A reader of my blog mentioned to me that a book
> > > commonly used in
> > > >paralegal teaching programs -- "Practical Law Office 
> Management," 
> > > >by Brent D. Roper -- is apparently written by someone who is
> > > one of Phelps'
> > > >("God Hates Fags") sons-in-law, and is seemingly active in
> > > the Phelps
> > > >movement.  Some teachers of paralegal programs are 
> contemplating no 
> > > >longer using the book because of this.
> > > >
> > > >     If the paralegal program is at a public institution
> > > (say, a community
> > > >college), would such a decision not to use the book violate
> > > the First
> > > >Amendment?  What about a similar decision in the 1950s 
> not to use a 
> > > >book (an entirely unideological book) written by a Communist?
> > > >Does it matter whether the decision is made by the professor
> > > or by the
> > > >administration (on the theory that the administration is a
> > > state actor
> > > >in such matters and the professor is not)?  Does it matter
> > > whether this
> > > >is a decision to stop using the book, as opposed to not
> > > start using the
> > > >book?  (I doubt it, but I thought I'd raise this, since some 
> > > >discussions of Board of Ed. v. Pico seem to focus on 
> this, albeit 
> > > >in the context of libraries rather than curricula.)
> > > >
> > > >     Eugene
> > > >_______________________________________________
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> > > >
> > >
> > _______________________________________________
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> 
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
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