"The opinions ... would have been much shorter"

[Rosenthal, Lawrence]

My reading of these cases is that when the government is not paying someone to deliver its own message, as in Rust, but instead is subsidizing the speech of others, as in Velasquez, Justice Kennedy believes that the First Amendment forbids funding decisions that are an effort to skew the role that the institution at issue plays in the general "marketplace of ideas."  
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 9/15/2008 3:56 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: "The opinions ... would have been much shorter"




        I agree that the Chief's not getting Justice Kennedy's vote in
ALA tells us *something*.  But it's equally consistent with Kennedy's
thinking there *was* a First Amendment problem with removal decisions
and with his thinking that there *might be* such a problem but that he
didn't want to decide this in this case (compare Justice White's
explicit view on this in Pico).  Why should we assume the former rather
than the latter?

        As to Rehnquist's view in ALA and Pico, my sense is that (1) in
ALA he didn't have to talk about viewpoint discrimination, and (2) in
Pico I didn't see much nuance at all.  He did agree that "[i]f a
Democratic school board, motivated by party affiliation, ordered the
removal of all books written by or in favor of Republicans, few would
doubt that the order violated the constitutional rights of the
students," but stressed that this was an "extreme example[]" of the sort
that "seldom ... arise[s] in" -- and, apparently, doesn't bear much on
-- "the real world of constitutional litigation."  Recall that even
Scalia and Thomas in NEA v. Finley agreed that this sort of purely
partisan discrimination may be unconstitutional, but for reasons that
don't carry over to broader First Amendment questions not involving
partisan discrimination.  And the rest of Rehnquist's opinion in Pico,
and his endorsement of the Burger opinion, seems to me to further
reinforce the notion that Rehnquist's view was that almost anything goes
in library selection and removal decisions.

        Finally, I'm not sure that Kennedy's statement in Reno v. ACLU,
where the government imposed criminal liability on speech, is
particularly telling about his view when the government is simply
excluding speech from library bookshelves (or even library computers).
As I said, it's certainly possible that Kennedy would ultimately reach
the same result in both cases; it's just that one can't simply assume
that he'd borrow from one context to the other.

        Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Monday, September 15, 2008 3:49 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: "The opinions ... would have been much shorter"
>
> Even with Chief Justice Rehnquist writing narrowly in
> American Library Association, he couldn't get Justice
> Kennedy's vote.  Surely that tells us something.  And, of
> course, Chief Justice Rehnquist's own view, in both American
> Library Association and Pico, was more nuanced than his
> essentially anything-goes view on government subsidies in
> Rust v. Sullivan.  Of course, in Rust, the family planning
> counselors were being paid to speak for the government -- but
> the books in a public library are not supposed to be
> conveying the government's own message.  In the Legal
> Services case, Justice Kennedy went out of his way to limit
> Rust v. Sullivan to cases in which the speaker is hired to
> speak for the government.  And in Pico, WHR went out of his
> way to agree that a partisan agenda, even in the context of a
> school library, would violate the First Amendment.  It seems
> to me that what set WHR off in Pico was Justice Brennan's
> claim that the Board had effectively conceded that it was
> engaged in an effort "to suppress ideas" merely because the
> Board had conceded that it had been influenced by the
> members' "personal values, morals, and tastes."  WHR regarded
> sound pedagogy as inevitably influenced by personal values,
> morals, and tastes, as do I.  Still, an effort to suppress
> information about an unpopular minority not rooted in
> pedagogical concerns, it seems to me, would run afoul of the
> Pico dissent.  When the context is not a school library but a
> public library, it seems to me that the case for some First
> Amendment limitations on official discretion is even greater.
>  Justice Kennedy's opinion in Reno v. ACLU, for example,
> repeats the familiar maxim that the "government may not
> reduce the adult population to only what is fit for children."
> 
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Mon 9/15/2008 3:11 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: "The opinions ... would have been much shorter"
>
>
>
>
>         Hmm -- I had thought that Justice Rehnquist's
> dissenting opinion in Pico firmly rejected any broad
> prohibition on viewpoint-based removal of library books
> (except perhaps in unusual contexts where the decision was
> purely partisan, in the sense of triggered by the party
> affiliation of the book's author or the book's message). 
> Rehnquist concludes that the exclusion of books from the
> shelves isn't "suppression of ideas"
> because it only excludes the books from the library; rejects
> the notion that students have a right to access books.  "The
> managers of the school district are not proscribing it as to
> the citizenry in general, but are simply determining that it
> will not be included in the curriculum or school library. In
> short, actions by the government as educator do not raise the
> same First Amendment concerns as actions by the government as
> sovereign."  (This need not extend to the government acting
> as proprietor of a public library, rather than a school
> library, but it well might.)
>
>         Kennedy's view on the subject is, of course, complex
> -- compare, for instance, his votes in Rust v. Sullivan
> (holding that viewpoint discrimination is quite permissible
> as to government speech), NEA v.
> Finley (holding that "non-invidious" viewpoint discrimination
> is permissible as to government funding programs administered
> using quality/excellence criteria), and Locke v. Davey
> (endorsing the plurality's view in American Library
> Association v. U.S. that forum analysis isn't applicable when
> a program is aimed at helping listeners, and not at
> "encourag[ing] a diversity of views from private speakers").
> I don't see how Kennedy's view on the broader issue could be
> confidently predicted.
>
>         Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Monday, September 15, 2008 2:48 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: "The opinions ... would have been much shorter"
> >
> > On the one hand, it may be true that Chief Justice Rehnquist was
> > trolling for a Kennedy join in American Library Association --
> > although Justice Kennedy's general approach to the First Amendment
> > makes him, it seems to me, an unlikely vote for the
> proposition that
> > political branches can endeavor to undermine the functioning of a
> > governmental institution in the marketplace of ideas.  His
> opinion in
> > the Legal Services Corporation funding restriction case,
> for example,
> > seems quite hostile to that view.  On the other hand, even Justice
> > Rehnquist's dissenting opinion in Pico is, I think,
> consistent with my
> > understanding of the law in this area.
> > Justice Rehnquist wrote:
> >
> >
> > I would think that prior cases decided under established First
> > Amendment doctrine afford adequate guides in this area without
> > resorting to a phrase which seeks to express "a complicated
> process of
> > constitutional adjudication by a deceptive formula." Kovacs
> v. Cooper,
> > 336 U.S. 77, 96 (1949) (Frankfurter, J., concurring). A
> school board
> > which publicly adopts a policy forbidding the criticism of United
> > States foreign policy by any student, any teacher, or any
> book on the
> > library shelves is indulging in one kind of "suppression of
> ideas." A
> > school board which adopts a policy that there shall be no
> discussion
> > of current events in a class for high school sophomores devoted to
> > second-year Latin "suppresses ideas" in quite a different
> context. A
> > teacher who had a lesson plan consisting of 14 weeks of study of
> > United States history from 1607 to the present time, but
> who because
> > of a week's illness is forced to forgo the most recent 20 years of
> > American history, may "suppress ideas" in still another way.
> >
> > I think a far more satisfactory basis for addressing these kinds of
> > questions is found in the Court's language in Tinker v. Des Moines
> > School District, where we noted:
> >
> >       "[A] particular symbol - black armbands worn to exhibit
> > opposition to this Nation's involvement in Vietnam - was
> singled out
> > for prohibition. Clearly, the prohibition of expression of one
> > particular opinion, at least without evidence that it is
> necessary to
> > avoid material and substantial interference with schoolwork or
> > discipline, is not constitutionally permissible." 393 U.S., at 510
> > <https://exchange.chapman.edu/cgi-bin/getcase.pl?navby=volpage
> &court=us&vol=393&page=510#510> -511.
> >
> >     
> >
> > In the case before us the petitioners may in one sense be
> said to have
> > "suppressed" the "ideas" of vulgarity and profanity, but that is
> > hardly an apt description of what was done. They ordered
> the removal
> > of books containing vulgarity and profanity, but they did
> not attempt
> > to preclude discussion about the themes of the books or the books
> > themselves. App. 140. Such a decision, on respondents'
> > version of the facts in this case, is sufficiently related to
> > "educational suitability" to pass muster under the First Amendment.
> >
> >
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Mon 9/15/2008 1:52 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: "The opinions ... would have been much shorter"
> >
> >
> >
> >
> >         It may well be that the First Amendment, properly
> interpreted,
> > does impose significant constraints on library holdings decisions
> > (though I tentatively think Rehnquist's dissent in Pico is more
> > persuasive).  It might also impose significant constraints
> on library
> > electronic access decisions, notwithstanding American Library
> > Association.
> >
> >         But it seems to me that the argument that "if the First
> > Amendment placed no constraints, the opinions in the
> American Library
> > Association case would have been much shorter" doesn't
> work.  First,
> > even a simple result may require a good deal of defense.  Second,
> > while it's possible that the plurality was written narrowly because
> > the four Justices knew that (say) Justice Kennedy disagreed with a
> > broader holding, it's also possible that the plurality was written
> > narrowly because the four Justices weren't sure where
> Justice Kennedy
> > would go, or believed that a broader holding wasn't necessary.  The
> > plurality might well have been fishing for a fifth vote, but didn't
> > catch it, with the fifth vote instead resolving the case on
> narrower
> > grounds (without passing judgment on the broader question).
> >
> >         Eugene
> >
> > Lawrence Rosenthal writes:
> >
> > > As it happens, the paper also addresses another issue now being
> > > discussed on this list -- the interaction of the First
> > Amendment and
> > > public libraries.  I argue that the First Amendment places some
> > > limitations on political interference with public
> libraries.  After
> > > all, if the First Amendment placed no constraints, the
> > opinions in the
> > > American Library Association case would have been much
> > shorter.  The
> > > paper places American Library Association within the
> > context of a line
> > > of cases developing what I call the First Amendment concept of
> > > "managerial prerogative," which holds that institutions are
> > exempted
> > > from the First Amendment rules against content and viewpoint
> > > discrimination to the extent that such discrimination is a
> > necessary
> > > incident of achieving an otherwise constitutionally permissible
> > > objective.
> > > Building a suitable collection for a public library, of course,
> > > requires a good deal of content discrimination, and perhaps some
> > > viewpoint discrimination as well. As I read th!
> > >  e case, the issue on which the Court divided in American Library
> > > Association was whether the statute at issue distorted the
> > appropriate
> > > function of a public library -- with the majority
> > concluding that the
> > > modest burden imposed on adult patrons (who merely had to
> > request that
> > > the Internet filters be removed if they wished to view sexually
> > > explicit
> > > material) did not distort the function of public libraries in the
> > > marketplace of ideas.  Still, no member of the Court argued that
> > > promoting popular ideas was a constitutionally legitimate
> > function of
> > > a public library, and a long line of cases, going back at
> least to
> > > Barnette, suggests that using public institutions to promote
> > > ideological conformity is never a legitimate governmental
> objective.
> > >
> > > The bottom line, in my view, is that there is a constitutional
> > > prohibition on the political use of libraries in order to
> > enforce some
> > > conception of approved ideology (whether by librarians or elected
> > > officials), but this is likely to be judicially
> > underenforced norm.
> > > Competent defense counsel will usually be able to gin up some
> > > justification for removing a book that reflects something
> > more than a
> > > censorial objective, although evidence of political pressure or
> > > interference might be more likely to get a  case to the jury on a
> > > mixed motive theory.  Still, in principle, I think the
> > First Amendment
> > > does not permit a political majority to use its control
> over public
> > > resources to promote the dissemination at public
> libraries of only
> > > materials of which that majority approves.
> > >
> > > Larry Rosenthal
> > > Chapman University School of Law
> > >
> > > ________________________________
> > >
> > > From: conlawprof-bounces at lists.ucla.edu on behalf of Steve Sanders
> > > Sent: Mon 9/15/2008 12:45 PM
> > > To: conlawprof at lists.ucla.edu
> > > Subject: Academic freedom as a distinct First Amendment concern
> > >
> > >
> > >
> > > Can anyone recommend articles or other works that explore
> arguments
> > > about whether or how "academic freedom,"
> > > specifically the speech rights of public university faculty
> > members,
> > > is a special or distinct concern of the First Amendment?
> > The Smolla
> > > and Nimmer treatise has a good treatment of this subject, but I'm
> > > interested in others as well.
> > > Many thanks.
> > > _________________________________
> > >
> > > Steve Sanders
> > > E-mail:  stevesan at umich.edu
> > > Web: http://www.stevesanders.net <http://www.stevesanders.net/>  <http://www.stevesanders.net/> 
> > > <http://www.stevesanders.net/> <http://www.stevesanders.net/>
> > > _______________________________________________
> > >
> > >
> > > _______________________________________________
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