"Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

[Humbach, Prof. John A.]

Let me try a slight refinement of what Eugene said below.

It is not quite so that "speech regulations adopted by the political branches must be viewpoint- and/or content neutral." The more precise statement would be that "when speech regulations adopted by the political branches discriminate on the basis of viewpoint and/or content, they are presumptively unconstitutional and subject to strict scrutiny." This is true even if the regulated speech falls into one of the "exceptions" such as fighting words or obscenity. R.A.V. v. City of Saint Paul.

On the other hand, "judicial doctrines denying protection to large categories of speech" presumably pass whatever level of scrutiny is required at the time they are considered for adoption by the Court.

I expect that we will find out more about this, however, when we see the Court's opinion in United States v. Stevens, argued before the Court last October.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net
________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 19, 2010 16:23 PM
To: 'CONLAWPROFS professors'
Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

            (1)  Most First Amendment exceptions are viewpoint-neutral (subject, of course, to the continuing uncertainty about precisely what viewpoint neutrality means): consider false statements of fact, child pornography, threats, the intellectual property exception (such as it is).  The exceptions are incitement and possibly fighting words.  Obscenity may or may not be viewpoint-based, depending on how it's applied.  I take it that the premise behind the constitutionality of the viewpoint-based exceptions is that the Court has concluded that the viewpoint discrimination there is of a sort that doesn't sufficiently threaten First Amendment values, likely because the exception is quite narrow, and sufficiently justified.  (That, for instance, is what I assume that the Justices in the Brandenburg majority would have said if asked why they allow an exception for intentional incitement of likely imminent lawless conduct, and not intentional opposition to likely imminent lawless action.)

            (2)  The premise behind most of the exceptions is also that the banned speech has nearly no constitutional value.  This suggests that viewpoint discrimination against such speech is less troublesome than viewpoint discrimination against valuable speech.

            (3)  I don't see how under Cohen v. California, Gooding v. Wilson, and Texas v. Johnson a statement by a physically absent speaker, said to the public at large, can constitute "fighting words."

            Eugene

From: Daniel Hoffman [mailto:guayiya at bellsouth.net]
Sent: Monday, April 19, 2010 1:17 PM
To: 'CONLAWPROFS professors'; Volokh, Eugene
Subject: Re: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

A wilfully naive question:  why is it that speech regulations adopted by the political branches must be viewpoint- and/or content neutral, while judicial doctrines denying protection to large categories of speech need not be?
Also, might this ad constitute fighting words to a devout Muslim?

Daniel Hoffman

--- On Mon, 4/19/10, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

From: Volokh, Eugene <VOLOKH at law.ucla.edu>
Subject: Re: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
To: "'CONLAWPROFS professors'" <CONLAWPROF at lists.ucla.edu>
Date: Monday, April 19, 2010, 2:20 PM
            A quick follow-up:  I called Miami-Dade Transit to try to find a copy of the policy; they weren't sure that there was a policy, or that they could release the contract language that might indicate what material is allowed and forbidden - they said they'd check into that - but they did report that, following consultation with the County Attorney's office, Miami-Dade Transit reversed course, and decided to reinstate the ads.  I'm still interested, though, in what others think about the question.

            Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 19, 2010 11:09 AM
To: 'CONLAWPROFS professors'
Subject: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

Any thoughts on this story, at http://www.miamiherald.com/2010/04/16/1581903/miami-dade-transit-says-it-will.html?  I sympathize with Miami-Dade Transit's desire to exclude ads that offend prospective passengers.  But I wonder whether the exclusion of ads that are "offensive" because of their viewpoint is consistent with the view that ad space on government-run buses is a nonpublic forum (a rule that seems to have emerged from Lehman v. City of Shaker Heights) and that restrictions on speech in nonpublic fora should be viewpoint-neutral.  (I can't find the precise policy, if any, that Miami-Dade is applying, but it sounds like it removed the ad because it was seen as offensive, not because there's a viewpoint-neutral policy barring, for instance, all ads except commercial advertising.)

For a glimpse of the ad, see http://www.nbcmiami.com/news/local-beat/Miami-Dade-Transit-Throws-Islamic-Ad-Under-the-Bus-91024204.html .  Here's the story from the Herald:
Miami-Dade Transit is pulling advertisements from 10 buses that South Florida Muslims have said are offensive to Islam.
The ads, which went up Tuesday, said "Fatwa on your head? Is your community or family threatening you?'' and directed Muslims to a website encouraging them to leave Islam.
Robert Spencer, associate director of New York-based Stop the Islamization of America, which purchased the ads for one-month as the first leg of a national campaign, said they were "offered in defense of religious liberty.''
But on Thursday, Miami-Dade Transit spokeswoman Karla Damian said that after reviewing the ads, the department decided they "may be offensive to Islam'' and would remove them before the buses ran on Friday.
Damian said the ads were able to initially go up because Miami-Dade Transit has an outside company sell ad space and does not routinely review ads before they run.
The South Florida chapter of the Council on American-Islamic Relations had critiqued the ads as promoting ``bigotry'' and making false statements about Islam.
"Islam guarantees freedom to and freedom from religion. . . . [We] reject as un-Islamic any extremist interpretation that sanctions the killing of any individual because she decided to `leave Islam,'' said director Muhammed Malik.
Eugene

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