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

[Daniel Hoffman]

The history seems to show that the court has sometimes deferred to legislative judgments that were not well-founded, and has done so both in upholding restrictions on speech (e.g. Gitlow) and in invalidating them (e.g., Citizens United).  
I ask again, what is the source of their expertise?
And why doesn't government support for proselytizing violate the Establishment Clause?

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


From: Volokh, Eugene <VOLOKH at law.ucla.edu>
Subject: RE: FW: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
To: "'CONLAWPROFS professors'" <CONLAWPROF at lists.ucla.edu>
Date: Monday, April 19, 2010, 6:41 PM










               Well, in law school we certainly learned the standard argument for across-the-board judicial deference to legislatures – whether as to speech, abortion, or whatever else.  We also certainly learned the standard argument for nondeferential judicial review.  And we learned the history of judicial deference to legislative judgments in speech cases, a history that goes back at least to Gitlow v. New York (“By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight...”).  That history persuaded the Court that a more aggressive form of review was required, and that legislative judgments in favor of
 restricting blasphemy, condemnation of existing laws, and even advocacy of the propriety of violent revolution should not be deferred to.
 
There was of course resistance, most famously from Justice Frankfurter.  But we have gotten to the place where we have gotten, and while one can certainly argue for a return to judicial deference in individual rights cases, I’m not sure there’s anything much new that can be said about it at this point.
 
Eugene
 



From: Daniel Hoffman [mailto:guayiya at bellsouth.net] 
Sent: Monday, April 19, 2010 3:32 PM
To: 'CONLAWPROFS professors'; Volokh, Eugene
Subject: Re: FW: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
 





So, restrictions based on the viewpoint that the speech expresses are subject to strict scrutiny, but restrictions based on the viewpoint that the court expresses simply require 5 votes.  This makes sense if and only if the court is an expert judge of the harms (including degree of risk) and benefits flowing from different examples of speech.

Apparently, the current fighting words doctrine says, "fortunately," that the harm of a punch in the nose, discounted by its probability, is greater than the harm of a bus bombing, discounted by its probability.

Is this expertise acquired in law school?  I must have missed that class.

 

Daniel Hoffman

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


From: Volokh, Eugene <VOLOKH at law.ucla.edu>
Subject: FW: "Miami-Dade Transit to Remove 'Offensive' [Anti-Islam] Bus Ads"
To: "'CONLAWPROFS professors'" <CONLAWPROF at lists.ucla.edu>
Date: Monday, April 19, 2010, 5:24 PM

            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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