The world we leave our children

[Eugene Volokh]

    1.  I agree with Alan that existing Free Speech Clause doctrine
isn't entirely dictated by the Constitutional text or original
meaning.  I do believe it fits well with it, better than the
alternatives; but if Alan's general position were the contrary, and
that (for instance) the Court got it wrong in NYT v. Sullivan, and
regulations -- and even bans, if no disclaimer is likely to work --
of misleading speech should generally be allowed, that would be one
thing.

    But if the claim is that the Court got it right when it held (and
not just in Sullivan) that merely misleading speech can't be punished
*except* that speech which misleadingly suggests government
endorsement can be, then I strongly disagree.  That would mean
creating a reading of the Estab Cl that is in serious tension with
the reading that one claims is the right one for the Free Speech Cl;
and that seems to me to require a very great deal of justification.

    2.  I do think that the Court has quite clearly held that the
government may not, acting as sovereign (or public forum
administrator), regulate speech because it's merely misleading.  The
government-as-speaker cases (such as Kuhlmeier), the government-as-
employer cases, and even the government-as-nonpublic-forum-proprietor
cases clearly and self-consciously use much lower standards of
review.  I don't see how they can influence the outcome of a case
such as Pinette.

    3.  What about the government acting as nonpublic forum
administrator?  Here I agree that the government has much more power.
I think it can probably regulate speech because it may be misleading
(e.g., Lehman, where the concern is that the speech would
misleadingly create a perception of favoritism).  But this still
leaves the conflict with other principles -- the principle of
viewpoint-neutrality, and (probably) the principle that speech can't
be restricted based on the risk that its ideas will offend people.
And I think the Court was right in Lamb's Chapel and Rosenberger
that discrimination against religious views is viewpoint
discrimination.

    4.  This having been said, I agree that the government may indeed
impose a content-neutral ban on permanent structures, and perhaps
even temporary but longish-term (e.g., one-week or even overnight)
structures, even in traditional public fora.  But again, for the
reasons given above, I see no warrant for reading the Estab Cl as
authorizing what the Free Speech Cl would normally prohibit -- a
content-based ban.

Alan Brownstein writes:

>         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
> >
> >
>

---------------------------------------------------------------------
"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