Rumsfeld and speech expressing

[Volokh, Eugene]

	I'm not sure I quite grasp the distinction.  "We ask you not to
interview with the military," Prof. Rosenthal reasons, is *not* a
discriminatory act -- even though it does urge people to treat military
employers differently, and indeed treats them differently because it
subjects them to criticism that other employers aren't subjected to.
But "This is a white-only dorm room" *is* a discriminatory act
(assuming, which I stress again seems to me an extraordinarily
implausible assumption, that the university limits dorm residents' power
to choose whom they allow to visit).

	What could possibly be the difference?  Is it only that one says
"ask" and the other says "is," so that "If you're black, we ask you not
to come into this dorm room" is constitutionally protected?  I'd at
least be happy that Prof. Rosenthal concedes this.  It sounds like an
odd distinction to me (among other things, note that if the
no-discrimination-in-guests rule does exist and is well-known, then any
"this is a white-only dorm room; no blacks allowed" sign will have no
legal effect, and thus will be tantamount to an "ask" request in any
case).  But at least it would make clear to people that their viewpoints
are constitutionally protected, so long as they are put only as
declarations ("We don't like blacks") or requests ("We ask ...") rather
than as imperatives.

	Eugene

Larry Rosenthal writes:	 

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
> Sent: Friday, February 22, 2008 8:48 PM
> To: Volokh, Eugene; Conlawprof at lists.ucla.edu
> Subject: RE: Rumsfeld and speech expressing
> 
> Just to be clear about my position, I am not arguing that the 
> government could ban signs that say "We ask you not to 
> interview with the military."  Rumsfeld v. FAIR was pretty 
> clear that the Solomon Amendment did not violate the rights 
> of law schools precisely because it left them free to express 
> their own views about the military.  My claim is a more 
> modest one -- signs that are themselves unlawful 
> discriminatory acts can be forbidden on the theory that the 
> prohibition on the sign is merely incidental to the valid ban 
> on discrimination.  This is why Rumsfeld v. FAIR thought that 
> the government could ban a "White Applicants Only" sign.  A 
> sign that is not itself an act of discrimination -- such as 
> "We ask you not to interview with the military" -- could 
> therefore not be banned as an incidental speech restriction.
>  
> Larry Rosenthal
> Chapman University School of Law