The world we leave our children

[A.E. Brownstein]

        I appreciate Eugene's response. It helps me to clarify the source of our
disagreement -- even if I can't resolve it. I think we disagree on two points:

        1. I am less certain than Eugene is that current free speech doctrine is
in some neutral sense "embodied in the [free speech clause of the]
Constitution." I think the holdings of many cases are permissible
interpretations of the first amendment. And many holdings resonate with my
own values. But I am not at all sure that I can reject the dissents in
these cases (or critical commentary challenging the Court's conclusions) on
the basis of text, history, tradition and logic as clearly erroneous
constitutional interpretations.

        Let me give just one example. I think New York Times v. Sullivan is an
important first amendment case. And its holding is not entirely irrelevant
to the issue of private speech that misleadingly suggests (sometimes
unintentionally) that the government endorses a particular religious faith.
Times v. Sullivan, after all, had a lot to do with establishing the current
understanding that false or misleading speech (particularly false or
misleading speech that is not recognized as such by the speaker) deserves
some level of constitutional protection.

        But if you ask me whether the holding of Times v. Sullivan, and no other
approach to the free speech problems posed by defamation law, is embodied
in the first amendment on the basis of text, history, tradition, and logic,
I have a hard time answering that question in the affirmative. The case
involves a balancing of free speech values and reputational interests. A
Supreme Court decision reaching a different balance, one, perhaps, that was
more protective of reputational interests, might have an equal, or even a
stronger claim, to being "embodied in the Constitution." (The contention
that protecting personal reputation and honor is an extremely important
interest has an impressive pedigree in the American legal system.)

        2. I am not convinced that the establishment clause doctrine I support is
as inconsistent with free speech doctrine as Eugene suggests. I recognize
that there is some tension here, and I haven't thought about the issue in a
systematic way. But I believe that free speech doctrine is sensitive to the
problems raised by expression that erroneously suggests that government or
private actors endorse some third party's message.

        Some of the case law that arguably relates to this concern includes:

        Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)(indicating
that school authorities may regulate student speech that "the public might
reasonably perceive to bear the imprimatur of the school."

        Government regulation of public employee speech that gives a false
impression of agency attitudes.
        Justice Scalia writing in dissent (for four justices) in Rankin v.
McPherson, 483 U.S. 378 (1986) thought that government agencies were
entitled to discipline employees whose speech even on matters of public
concern undermined the image the agency was trying to project. Scalia wrote
that he did not look forward to a world in which public confidence in
public agencies was undermined by employees of the EEOC making remarks
approving of racial discrimination or employees of the Selective Service
System advocating noncompliance with the draft. While the majority
concluded that a police deputy's comment ostensibly approving of an
assassination attempt against the President was protected by the first
amendment, the majority pointedly noted that the employees comments raised
no risk of discrediting her office since the remark was made in a location
to which there was no public access. A more public statment might well have
led to a different result.

        Nonpublic forum regulations of speech.
        Although the Court does not make the argument explicitly, I think that one
of the reasons it is more accepting of regulations of speech in a
non-public forum is that it recognizes the legitimacy of the state's need
to avoid misleading impressions of endorsement. In one case, I think it is
City Council of L.A. v. Taxpayers for Vincent, Justice Stevens says
something like, "Of course, no one would suggest that anyone had the right
to place "Taxpayers for Vincent" bumper stickers on city owned vehicles
like police cars." The reason that claiming such a right seems so
outlandish, I suggest, is that placing private bumper stickers on official
vehicles would communicate an erroneous message of endorsement. And the
first amendment does not prohibit the state from restricting speech to
preclude that result.

        Compelled Affirmation of Belief cases.
        Although these cases are not directly on point, they do demonstrate
considerable solicitude on the part of the Court for people who do not want
to have someone else's views (the government or some private party)
erroneously attributed to them. (I know its a stretch but I thought I would
throw it in.)

        Tort claims based on the placing of an individual in a "false light." I am
not familiar with free speech cases restricting the scope of this tort
although I presume some of current defamation doctrine is applicable here.

        This list isn't intended to be complete (or organized for that matter).
But I think these cases, arguments, and doctrine taken together suggest
that the first amendment recognizes that the state has a legitimate
interest in restricting speech that misleadingly suggests government
endorsement of a private position in at least some circumstances. I do not
believe that content neutral laws designed to further that objective
violate the first amendment (e.g. I think a prohibition against the private
placement of long term structures in prominent locations in public
buildings or parks would be constitutional.) My argument that the
establishment clause requires government to prohibit private expression
that communicates a misleading message of religious endorsement (and
perhaps other misleading messages as well) in some limited circumstances
may be more problematic than the argument in favor of a content neutral
law. But I do not see it as challenging the core values of the first
amendment either. The political branches of government are not provided
discretion to restrict unpopular subjects or viewpoints under this
analysis. The Constitution (assuming that one agrees that government is
prohibited from endorsing a religion) and the courts do the line drawing
here. (These are the same courts that many of us (but not Eugene) trust to
apply pre-Smith free exercise doctrine or RFRA type laws dispite the
potential for discrimination among belief systems that is intrinsic to such
a system.)

        Eugene is correct, of course, that an expansive reading of the
establishment clause that substantially restricted private religious speech
on public property to avoid any risk of perceived endorsement would be in
conflict with core first amendment principles. And my more limited position
is certainly vulnerable to the criticism that it requires courts to engage
in some difficult, indeterminate and largely intuitive line drawing. But I
am not convinced that my argument, with a little twisting and shoving,
can't be reconciled with free speech doctrine.

                                                                                Alan Brownstein
                                                                                UC Davis




At 09:17 PM 10/6/97 PST, you wrote:
>    My apologies for the long delay in responding to this, but Alan's
>thoughtful comments merit at least a brief reply.
>
>    The discussion began with the question whether, as between two
>plausible readings of the Estab Cl, we should choose the one that's
>most consistent with the Free Speech Cl.  I think we should, because
>I do think the question is not, at least in the first instance, what
>sort of world *we* want to leave our children.  I think the question
>must be what sort of world *the Constitution* dictates that we leave
>our children.
>
>    Now it may be that, in interpreting the Constitution, there's
>some room for importing our own moral beliefs.  But surely there
>should be even more room for paying attention to the beliefs embodied
>in the Constitution.  The Free Speech Clause says a good deal about
>the world that we ought to leave our children; it should take some
>pretty powerful evidence to read the Esatblishment Clause as saying
>the opposite.
>
>    If the Court is correct in its interpretation of the Free Speech
>Clause, the Clause
>    (1) generally prohibits content-discrimination in traditional
>public fora;
>    (2) generally rejects offense to viewers as a justification for
>restricting speech in such fora; and
>    (3) generally prohibits (except outside the commercial speech
>context) restrictions of speech that is merely "misleading" rather
>than outright false.
>
>    If we have a choice between two otherwise equally
>plausible readings of the Establishment Clause -- one that's
>consistent with all these principles, and another that
>    (1) *requires* content discrimination in traditional public fora;
>    (2) does so because certain speech is perceived as making certain
>viewers feel left out; and
>    (3) restricts speech because of the possibility that it will
>(often unintentionally on the speaker's part) mislead people into
>thinking that the speech is endorsed by the government --
>then I think we should choose the former.
>
>    Now I mentioned above that I concede that moral arguments may in
>some measure guide our interpretation.  I'm not sure I'm happy about
>that, but I agree that this position is at least to some extent
>normatively plausible, and certainly descriptively realistic.
>
>    Still, I would insist on a pretty powerful moral argument -- a
>pretty powerful reason why we should prefer for our children a world
>in which private religious speech is in some measure disfavored -- if
>it is to trump the Free Speech Clause's contrary principles.  I see no
>such argument.  At most I see an argument that might to some carry
>the day if all we cared about was our moral preferences; but not one
>that would carry the day against the contrary weight of the
>preferences that seem to be embodied in the Free Speech Clause.
>
>Alan Brownstein writes:
>
>>         Eugene writes that he would prefer that he and his posterity
live in a
>> constitutional world in whic the Constitution imposes no limits on private
>> speech on public property. That position is certainly not surprising and it
>> is consistent with a many of Eugene's comments on the list. I respect
>> Eugene's values on this issue, but I disagree with them. I also believe
>> that his values color the way he interprets the Constitution just as my
>> values influence the kind of constitutional arguments that I support. (I
>> intend no disrespect to either of us with this comment and I hope none is
>> taken on Eugene's part.)
>>
>>         Eugene also writes, "But of course if constitutional
adjudication does
>> just come down to the kind of world we'd like to create for our children,
>> I'm not sure what "constitutional adjudication" really means. I suppose
>> it'll just come down to who has the most votes when electing a President
>> who'll appoint the Justices."
>>
>>         I don't think this is a fair characterization of my comment
since Eugene
>> leaves out that I limited my statement to constitutional interpretations
>> within the broad parameters established by text and history of
>> constitutional provisions with indeterminate, open ended language. (And if
>> we read my statement as the more modest one I intended, I'm not sure if
>> Eugene is arguing that we should never consider or care about the kind of
>> world that the interpretations of the Constitution we espouse will create
>> for ourselves and our children.)
>>
>>         But he is certainly correct that I believe that who the
President appoints
>> to be Supreme Court Justices matters a whole lot and that there is a
>> political and value based aspect to constitutional adjudication.
>>
>>         As an empirical matter today, I think this is true. The
decisions of
>> current justices are influenced by their personal and political values. As
>> an historical matter, I believe it is also true that the personal and
>> political values of Supreme Court Justices have influenced constitutional
>> decisionmaking. As a matter of comparative law other countries that think
>> their courts are engaged in the process of constitutional adjudication
>> rather plainly accept values as part of the process of constitutional
>> decisionmaking. And as a normative matter, I believe that there are
>> powerful arguments for recognizing a role for values in constitutional
>> adjudication (although people obviously disagree.)
>>
>>         When we develop a system of constitutional adjudication that
transcends
>> history, political power, and human nature, perhaps there will be a basis
>> for insisting on completely value free constitutional interpretation. Until
>> that happens, I'm willing to swim in the same soup everyone else seems to
>> be paddling around in.
>
>
>---------------------------------------------------------------------
>"George promised to be good;                  Eugene Volokh
> but it is easy for little monkeys            UCLA Law School
> to forget."                                  405 Hilgard Ave.
> Complete Adventures of Curious George p.14   L.A., CA 90095
>
>