County bans clothing with "disruptive or inflmmatory language or content" in County buildings
rs at robertsheridan.com
Mon Dec 1 17:13:08 PST 2008
Does the ban in Greene County, Missouri, include the wearing of the
Confederate Flag? Would that be inflammatory to some people in
Do we have a name, in Conlaw, for this form of reasoning, this useful
tool, by which when evaluating a ban on Expression X we ask whether it
applies as well to Expression Y, which some people might find that
they don't want to ban, or is otherwise protected? The trick is to
come up with an interesting and cogent Expression Y. Scalia is good
at this. I think we speak of it in terms of overbreadth, and
sometimes underbreadth, as well as in due process terms such as
vagueness as to whether the ordinance provides the requisite notice to
someone who might want to comply or otherwise avoid arrest by an
expansive or overzealous thought-cop. Disruptive or inflammatory as
to whom? Who are these privileged few who are entitled to tell me
what not to think and say? I'd like to join.
If all expression is incitement, it might just as well be deemed to be
disruptive or inflammatory.
Clearly a ban on provocative (or inflammatory) expression alone must
be bad on its face when issued by government as government.
Different, however, when government acts as building administrator
intent on keeping the windows unbroken, I assume. Then rules of
decorum must prevail, except in museums, of course, as we've seen.
Context counts for most, if not all, in these discussions.
Shouldn't we have a dedicated term to conjure up this form of
reasoning, if we don't already and I just can't think of it? Maybe
it's simply "protected speech," but I'd like something more colorful
than that, as good as it is, since it is the bottom line. I'm casting
about for a more colorful term to describe the process of casting
about to find other examples of protected speech than the one in
question. Maybe "the Casting About to Find Protected Examples
Doctrine," or the Casting Process, for short. Once you've found it,
Bingo! you win. The Bingo process. :)
Here's an item from today's NYT on a Confederate Flag ring advertised
in American Heritage Magazine which has created some controversy:
The New York Times
Printer Friendly Format Sponsored By
December 1, 2008
In History Magazine, North and South Clash Again
By ALAN SCHWARZ
American Heritage, the history magazine recently revived under new
ownership, is gamely plowing ahead under the old-media dynamic —
trying to combine editorial content with print advertising. Its
current issue shows how stirring that mix can be.
Currently on newsstands is the magazine’s special Lincoln issue,
focused on the 16th president. The Illinois Bureau of Tourism bought
the back-page ad, depicting Lincoln with the caption, “Walk the same
halls and streets that led him to the White House.”
On the flip side of that page, however, is an ad for a commemorative
Civil War ring emblazoned with the Confederate Flag.
“It’s a little uncomfortable,” Edwin S. Grosvenor, the magazine’s
editor in chief, said in a telephone interview.
Mr. Grosvenor said he became aware of the advertisement, placed by the
Bradford Exchange collectibles company, just before the magazine’s
deadline and that he had to walk a fine line between generating
revenue and maintaining editorial tone.
But one of the contributors to the magazine, the historian James M.
McPherson, said that the line had been crossed.
Mr. McPherson, a history professor at Princeton and author of “Tried
by War: Abraham Lincoln as Commander in Chief,” said that many saw the
Confederate flag as an incendiary symbol of slavery and that he would
have protested the ad had he been aware of it before publication.
Eric Foner, a Columbia University professor and fellow essayist in the
Lincoln issue, said he thought that the ad was more incongruous than
illicit. “The Confederate flag is insulting to a great number of
Americans, not just African-Americans, but it is legal,” he said.
A spokesman for the Bradford Exchange said the company had no idea of
the issue’s content. “We offer this product because it appeals to some
military history buffs,” he said.
Mr. Grosvenor said only one letter from a reader had arrived, so far.
On Dec 1, 2008, at 1:34 PM, Volokh, Eugene wrote:
> Greene County, Missouri is banning "all individuals" from
> "wearing clothing, apparel, or other accessories containing
> disruptive or inflmmatory language or content" in County buildings.
> Constitutionally permissible regulation in a nonpublic forum, or
> unconstitutionally viewpoint-based or vague?
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