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

Rosenthal, Lawrence rosentha at chapman.edu
Mon Apr 19 14:40:29 PDT 2010


Much depends, it seems to me, on what the existing Miami-Dade transit policies and practices have been.  If Miami-Dade has exercised a high degree of selectivity with respect to advertising in the past, and has avoided any "controversial" ads (not merely a policy excluding religious speech, which I agree would seem to run afoul of Rosenberger), perhaps the exclusion can be defended under Cornelius v. NAACP Legal Defense & Educational Fund.  The fact that the ad at issue seems to have originally been approved, however, suggests that Miami Dade has not to date utilized the kind of policy that could fall within Cornelius.  On the other hand, I know of no rule providing that a designated public forum must remain so forever; if Miami Dade adopts a new Cornelius-compliant policy, even in reaction to the current controversy, I do not see why it could not convert what may have been a designated public forum into the kind of nonpublic forum from which "controversial" messages can be excluded.

Larry Rosenthal
Chapman University School of Law

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 19, 2010 2:24 PM
To: 'CONLAWPROFS professors'
Subject: FW: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

            Most speech expresses a viewpoint.  All speech restrictions – including clearly content-neutral ones – therefore restrict speech that expresses a viewpoint.  But a restriction is only viewpoint-based if it applies to speech based on the viewpoint that the speech expresses; child pornography applies to speech based on its use of a child in its production, not based on the message that the speech expresses.  Material that depicts sexual conduct involving a child in order to show how awful it is would be unprotected; material that expresses support for sex with children without depicting sexual conduct involving a child would be protected.

            The test for fighting words is, fortunately, not that all speech that might lead to a violent response is unprotected:  It needs to be individually targeted to the listener, and to lead to likely retaliation against the speaker.  Otherwise, pretty much any kind of speech could be legally suppressed, so long as some people (even a tiny fraction of the audience) are willing to react violently to it, or even to threaten violence in a way that makes the possibility of violence credible.

            Finally, I’m sure a Muslim might regard the ad as blasphemy – but fortunately we are many decades away from having a blasphemy exception to the First Amendment.

            Eugene

From: Daniel Hoffman [mailto:guayiya at bellsouth.net] 
Sent: Monday, April 19, 2010 1:57 PM
To: 'CONLAWPROFS professors'; Volokh, Eugene
Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"

Re (1) and (2);  all of the exceptions express a viewpoint--generally a very popular viewpoint--contrary to the speaker's.  for example, child porn expresses a viewpoint that children are appropriate sexual objects.  at one time, blasphemy was unprotected speech.  a Muslim might regard this ad as blasphemy.  who decides?
Re (3): if someone bombed a bus in response to this ad, could we say it was utterly unpredictable?  of course we could say it was unreasonable and wrong, but that is true of violent responses to fighting words in general.  maybe in a society full of angry, armed people we need a new exception for offensive speech.
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, 4:23 PM
            (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 
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