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

[Volokh, Eugene]

	Incidentally, Prof. Rosenthal's suspicion that Miami-Date Transit doesn't in fact have any policy banning controversial ads is correct:  It turns out that this ad was a reaction to an ad that ran last year that said "Islam / Got Questions? / Get Answers?," and referred to Islam as "The way of life of Adam, Noah, Abraham, Moses, Jesus & Muhammad," see http://volokh.com/wp/wp-content/uploads/2010/04/proislamad.JPG

	Eugene

> -----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 2:55 PM
> To: 'CONLAWPROFS professors'
> Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
> 
> 	Would a ban on "controversial" ads -- even if enforced against a broad
> range of controversial ads -- be viewpoint-neutral, if it applied to ads which are
> controversial because of their viewpoints?  “To exclude a group simply because it
> is controversial or divisive is viewpoint discrimination. A group is controversial or
> divisive because some take issue with its viewpoint.” Child Evangelism Fellowship
> of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 527 (3d Cir.2004) (Alito,
> J.).  "[A]ny prohibition against 'controversial' advertisements unquestionably
> allows for viewpoint discrimination.  A controversy arises where there exists a
> 'disputation concerning a matter of opinion.'  An opinion that conforms with
> prevailing community standards is unlikely to prove contentious."  United Food &
> Commercial Workers Union v. Southwest Ohio Regional Transit Auth.,163 F.3d
> 341, 361 (6th Cir. 1998).
> 
> 	Relatedly, such a standard might be so discretionary that it would be
> unconstitutional because of the risk of viewpoint discrimination, even if it's not
> treated as facially discriminatory.  See Hopper v. City of Pasco, 241 F.3d 1067,
> 1079-80 (9th Cir. 2001) ("A ban on 'controversial art' may all too easily lend itself
> to viewpoint discrimination, a practice forbidden even in limited public fora.  Not
> only was Pasco's policy intrinsically flawed, its enforcement of the policy was, in
> practice, contingent upon the subjective reaction of viewers of the artwork, as
> perceived by the city management. Such 'censorship by public opinion' only adds
> to the risk of constitutional impropriety.").
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Monday, April 19, 2010 2:40 PM
> > To: Volokh, Eugene; CONLAWPROFS professors
> > Subject: RE: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
> >
> > 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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