Gwen and the Rev

[Eugene Volokh]

    I generally agree with Michael on this; in particular, as to
Gwen, I would not have been at all troubled if the court had
concluded that City Hall had the discretion to take down the
painting.  In fact, the limited public forum holding here struck me
as a bit of a stretch (besides the normal reservations I have about
the coherence of the limited public forum doctrine).

    Nonetheless, it seems to me that there was more here than just
government discretion exercised by the city-government-as-proprietor.
There was also a statutory command -- enforceable through a damages
lawsuit in federal court -- imposed by the federal government as
sovereign.  The city's decision was in significant measure influenced
by this command.  The harassment complaint could equally have been
brought against a private employer who really wanted to leave the
painting up, but who felt pressured by the risk of liability to take
it down.

    Of course, this does not mean that the city's decision should be
actionable; my complaint is largely with harassment law, not with
the city's actions with regard to the painting.  I mean only to point
out that harassment law generally is a more troublesome thing than
this city decision in particular.

    Relating all this to Lumpkin, the analogy would be if the City of
San Francisco was subject to, say, an Establishment Clause lawsuit
for allowing its high officials to condemn people on religious
grounds.  (To my knowledge, the Estab Cl hasn't been read *that*
broadly, though who knows -- cf. the religious garb cases, where if
I recall correctly a fear of Estab Cl liability was used as a
justification for restricting schoolteachers' clothing.)  This would
strike me as a more troublesome thing than a particular city official
firing Lumpkin on discretionary policy grounds.

    I do not suggest, by the way, that Michael disagrees with me on
this -- as I mentioned, I agreed with his post, and he might agree
with mine.  I just wanted to stress that there's more involved in the
Gwen case than just government discretion.

    By the way, I just realized that I posted the Gwen message to
this list by accident -- I meant to post it in a different place.
Thanks to Michael for bringing the subject on-topic!

Michael McConnell writes:

> It seems to me there is a common thread between EV's two recents
> posts: the one about the dismissal of Rev. Lumpkin and the one about
> the Murfreesboro painting. In both cases the law looks foolish,
> censorious, and maybe even dangerous.
>
> In both cases, it seems to me, the right answer is: these are matters
> for government discretion, and such not be subjects of lawsuits,
> either way. There is no "right" to hold a high, policy-making
> position; the Mayor did not require a "compelling reason" to dismiss
> the Rev; he could have been dismissed for being too liberal, too
> conservative, too energetic, not energetic enough, or whatever.
> Including expressing views about homosexuality that the Mayor
> dislikes. (For the court to hold (1) that this is an issue of
> religious liberty, so that the government must have a compelling
> interest, and (2) that the appearance of enforcement of the gay
> rights laws is sufficiently compelling, does far more damage than
> just leaving this political decision to the political sphere.) By
> the same token, an artist has no "right" to have her painting
> displayed in the town hall, and the town leaders have the discretion
> to remove art work they dislike, for whatever reason. Courts should
> not get into the business of deciding whether reasons for removing
> art are "good enough."


                               -- Eugene Volokh, UCLA Law