The world we leave our children

[Eugene Volokh]

    I very much appreciate Alan's post, but I think it ultimately
proves my point.  Let me explain why.

    1)  In traditional public fora, we tolerate *a lot* of speech,
speech that poses a great deal of danger.  We tolerate speech that
urges violence, and might increase the longterm risks of violence.
Brandenburg.  We tolerate speech that's deeply offensive to many
people.  Cohen; Kunz v. New York; Collin v. Smith.  We tolerate
speech that intentionally insults individual people.  Hustler v.
Falwell (not a TPF case, but surely it would come out the same way
there).  Under any reading of the libel cases, we tolerate even
misleading speech, though not all false speech; and there's even a
seriously possibility that we tolerate some false statements of fact,
cf. the rejection of seditious libel actions in NYT v. Sullivan, even
when the seditious libel is genuinely a false statement about the
government.

    So the Free Speech Cl protect all this harmful, dangerous speech.
But the suggestion is that the Free Speech Cl should not protect --
in fact, the Estab Cl should *require* the restriction of -- speech
whose harm is that it *might* cause some people to *erroneously* believe
that the government is endorsing it.  Such a striking exception seems
to me to requires quite a lot of justification.  If the Estab Cl
unambiguously commanded this free speech exception, it would be one
thing.  But if there's a pretty much equally plausible interpretation
of the Estab Cl that wouldn't command such an interpretation, that
would treat this relatively innocent speech no worse than we treat
(say) advocacy of violence, that seems to me the better
interpretation.

    (2)  I turn now to Alan's hypo:  "A private group in Millville, a small
town with a predominately white population, posts very large, semi-
permanent, official looking plaques at all of the entrances to the
only public park in town. The signs state, `This park is reserved
for the use of white people only. White people built it. White
people's tax dollars pay for it. We are the only ones that deserve
to be allowed to use it.'"  Alan thinks that the government should be
allowed (maybe even required) to ban such speech, on the theory that
the government can't engage in this speech itself, and that the
government must try to dispel any perceived governmental endorsement,
even if this means banning the signs.

    But surely this is an odd analogy.  The cross is just a cross,
an ambiguous symbol that communicates different messages to different
people.  The much better analogy is if a private group puts up, say, a
confederate flag, or a "Welcome to Millville" sign that conveniently
includes only white faces, or for that matter a "Celebrate Columbus
Day" sign -- of course, with no statement saying "This park is
reserved" or anything like that -- or any of a number of other things
that are perceived by some people as "exclusionary."  Recall that the
restriction Alan is urging is not virulently anti-religious hate
speech, or statements that explicitly say anything is reserved for
anyone; the restriction being urged is a ban on a symbol that sends
an extremely ambiguous message.  Am I mistaken here?  And if I am
correct, does the First Amendment tolerate -- or require -- any
such broad restriction on confederate flags and other, even more
ambiguous but possibly racist-seeming speech?

    The reason I stress this is to show just how remarkable the
proposed exception for public religious speech would be.  I take it
that few of us would endorse the viewpoint-based ban on any
permanently emplaced speech that some viewers would regard as racially
exclusionary and would falsely attribute to the government.  If
that's so, isn't the proposal to restrict such religious speech an
even more remarkable form of discrimination against such speech?

    (3)  But of course my claim is broader still -- I think that even
the plaque that Alan suggests, no matter how different it might be
from the cross in the park in front of the courthouse, must be
protected.  Sure, it's misleading; but note that the hypo suggests
that the government's only response is "a small disclaimer sign
adjacent to each plague explaining that this is a private message
that is not endorsed by the city government."

    Is the stress that this is a *small* disclaimer?  If so, why
doesn't the government put up a BIG disclaimer?  Surely with some sign
the government really can persuade people that indeed the plaque is
not endorsed by the city.  Putting up the sign is thus an eminently
effective (and not even very expensive) alternative to a content- and
viewpoint-based exclusion of the private sign; and of course one
that's much less restrictive of speech.

    Or perhaps the stress is that the disclaimer looks false because
we know that, deep down inside, the government agrees with the
private message.  Perhaps the evidence for this is that the
government is excluding all other messages using some spurious "three
months per sign / one sign at a time" rule.  But if that's so, then
this could be avoided by the government allowing other signs.
There's no need to restrict the rights of the private speaker because
of the bad intentions of the government.

    But perhaps the notion is that no government sign can erase the
message of exclusion; the nonwhite would-be patrons will have their
day ruined by the private sign even if the government makes
absolutely clear that it's just a private sign.  But then the concern
is really not one about misleading appearance of government
endorsement at all.  The concern is that the private speech is
offensive to people regardless of whether it seems to be
governmentally endorsed -- not, in my view, a sufficient reason for a
content- and viewpoint-based exclusion.

    (4)  Now maybe the plaque hypo isn't a perfect analogy because
with the plaque at least one can put up a disclaimer that passersby
can easily read; with a cross in the park, some people will just be
driving by and won't see any disclaimer unless it's so big that it'll
be an eyesore.

    But look what the proposed free speech exception would then be:
Speech may be barred because *some* people might *erroneously* believe
that the speech is endorsed by the government, even though they should
realize that they're driving by too fast to figure out whether
there's a disclaimer -- or for that matter whether the property is
even government-owned property at all.  We're imagining this driver
who gets the idea that the speech is government speech, who
interprets the speech as sending a message of exclusion, who gets
offended / insulted / bothered / feels left out as a result of it,
but who doesn't even suspend his judgment until he gets a chance to
pull over and do the slightest bit of extra investigation.

    And the Establishment Clause says that this fellow's sensibilities
so deserve protection that we need to carve out this extra exception
from the Free Speech Clause -- an exception that we don't carve out
for the many more harmful forms of speech I mention at the beginning
of this message?


Alan Brownstein writes:

>         As always, Eugene makes some good points. There are legitimate arguments
> on both sides of this issue. Nonetheless, I would argue that the first
> amendment's protection of misleading speech is more nuanced and contextual
> than an absolute rule even when the government is acting exclusively as a
> sovereign. (I think the defamation cases demonstrate that. The Court's
> holdings suggest, for example, that if we can reduce the chilling effect
> created by defamation actions by limiting damage awards, we may also be
> able to allow a claim to go forward on a lesser showing than actual malice.
> And different speech seems to be valued differently in the
defamation cases
> with false speech about public figures regarding matters of public concern
> receiving more protection than false speech about private figures on
> matters not of public concern. (I have always assumed that this is a
> content discriminatory standard. Am I wrong?))
>
>         Given the above, I do not think it is fundamentally inconsistent with free
> speech doctrine for the Constitution to be read to require government in
> some circumstances to restrict private speech that misleadingly appears to
> speak for the government when the speech communicates a position that the
> government is constitutionally prohibited from taking.
>
>         Consider this worst case scenerio. A private group in Millville, a small
> town with a predominately white population, posts very large,
> semi-permanent, official looking plaques at all of the entrances to the
> only public park in town. The signs state, "This park is reserved for the
> use of white people only. White people built it. White people's tax dollars
> pay for it. We are the only ones that deserve to be allowed to use it."
> (This isn't really the worst case - but its bad enough.) There is a small
> disclaimer sign adjacent to each plague explaining that this is a private
> message that is not endorsed by the city government. (I think I may have
> read something like this example somewhere but I don't recall enough to
> give anyone proper credit.)
>
>         When people challenge the plaques they are told that the signs will only
> be up for three months, and after that time other groups will be able to
> apply for permits to put up their own plaques in the same location
> communicating different messages. When this case is brought to court under
> an equal protection challenge, the city replies that last year a local
> group put up large welcoming signs at the entrances to the park stating,
> "The Millville Flower Club welcomes you to the park. Come in everyone and
> enjoy the flowers we have planted." Even though the signs were misleading
> and the Millville Flower Club did not plant any flowers in the park, the
> city did not take the signs down.
>
>         I think the equal protection clause prohibits the city of Millville itself
> from putting up the "whites only" signs (even if they do not enforce a
> whites only park admissions policy.) Does the first amendment preclude a
> ruling that these private, "whites only" signs violate the equal protection
> clause? Is this at least a difficult case? Is it even relevant that
> African-American, Hispanic and Asian parents testify that (1) they are
> having a very difficult time explaining to their children that they may
> still use the park and that they have just as much of a right to do so as
> anyone else and (2) that many non-white parents have stopped sending their
> children to the park when they learned about the signs?
>
>         Does the first amendment allow the Constitution to be read to distinguish
> between misleading signs that suggest the city is expressing a message the
> Constitution prohibits it from expressing and misleading signs about who
> planted flowers in a city park -- just as the first amendment seems to
> allow government to distinguish between false and misleading speech about
> public figures on a matter of public concern and false and misleading
> speech about a private person on a matter of private concern?
>
>
>
>                                                                                 Alan Brownstein
>                                                                                 UC Davis
>
> Eugene Volokh writes:
>
> At 06:54 PM 10/8/97 PST, you wrote:
> >    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
> >
> >
>

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