The world we leave our children

[A.E. Brownstein]

        Eugene makes so many good points that I can only respond to some of them.
(I'm sorry Eugene. Some of your comments deserve a longer and more thorough
response than I am providing with this note -- but I have to focus on some
other things than the list for a while. I'll be back soon.)

        1. I agree that a cross in a public park is not nearly as offensive to me
and to most people than my "whites only" example. But the point of my
example was not to equate these two misleading communications as to
offensiveness. It was to challenge what I took to be Eugene's assertion
(and I may have misunderstood his point) that there was no constitutionally
permissible basis for distinguishing between different content of
misleading speech. So I used an example comparing innocuous misleading
speech without constitutional implications (the flower planting signs) to
offensive misleading speech with significant equal protection implications
(the "whites only" sign). I only intended the example as an attempt to
breach the wall I thought Eugene was defending against content
discriminatory regulations of misleading speech. If I had succeeded with
this initial objective, I would have moved on to trying to explain why
religious endorsement also deserves special constitutional treatment. But
obviously, I did not succeed in my initial goal. Eugene, quite consistently
with his position, would protect both misleading messages with equal rigor.

        2. Eugene suggests that the government does not have to prohibit the
"whites only" sign in order to avoid misleading people about the source of
this racist message. Government might put up a huge disclaimer sign next to
the racist signs that would effectively counter any misimpression that they
communicate.

        I think this is right. Government could do that. I also think that this
argument goes a long way toward proving my position -- not Eugene's. If I
understand Eugene's position, government MAY put up large disclaimer signs.
But it doesn't have to put up large or small disclaimer signs. Nor is it
constitutionally obliged to require private speakers to place disclaimer
signs of any size next to their plaques or monuments. Since private speech
that misleadingly suggests that government is taking a position the
Constitution prohibits government from taking has no constitutional
significance (other than to be fully protected by the First Amendment),
government has no constitutional obligation to correct the misimpression
created by the private speakers.

        Nor do I think under Eugene's analysis that government has to allow other
private groups to put up large counter signs next to the racist plaques in
my hypo. Pursuant to a content neutral time, place, and manner rule,
government might choose to allow only one large, long term plaque near each
of the entrances of the park. As long as the city had some neutral system
for assigning exclusive permits to these locations for three month periods
(or six month periods, or twelve month periods?), presumably the free
speech clause of the first amendment (the only applicable constitutional
provision) would be satisfied.

        I do agree with Eugene that government can do things to prevent private
speech from constituting an unconstitutional state endorsement of religion
or state endorsement of racial supremacy without suppressing the private
speech in its entirety. I have never seen disclaimers of the kind that he
describes, but they might well do the job. (Small disclaimers next to large
monuments probably don't.) I think this is a very important point and it is
probably my fault that I did not make it clearer earlier on. The
constitutional obligation is to prevent state endorsement of religion or
racial supremacy -- not to prohibit private religious or racist speech. As
long as the state accomplishes the former goal, it need not do the latter.
There are probably a variety of vehicles for avoiding perceived
endorsements. I think I may have mentioned in an earlier note that I can
imagine a park with a rotating sculpture garden open to private monuments
that would not, in my judgment, constitute an endorsement of religion even
if several of the monuments conveyed religious messages.

        But that issue -- determining in what circumstances private speech may
constitute a constitutionally prohibited state endorsement of religion or
racial supremacy and what kind of state action negates endorsement -- is
really not the focus of this discussion. I took the point of the debate to
be whether private speech in a content neutrally governed public forum can
ever constitute a prohibited state endorsement of religion or racial
supremacy requiring some constitutionally obliged action by the state to
avoid the endorsement. I argue "yes". If we get past this first point, I
recognize that there is plenty of legitimate disagreement about where to
draw the endorsement line in discussing the second point.

        3. I agree that we fully protect some private speech that is more hurtful
and dangerous than private speech that misleadingly conveys a state
endorsement of religion. But if the test is that all speech must be fully
protected in all circumstances as long as the speech is less dangerous and
hurtful than the most evil speech receiving full constitutional protection,
then a lot of current doctrine is going to be rejected. At least under my
sense of what is harmful some of the most dangerous speech is protected and
some fairly innocuous speech can be regulated. I'm not sure that is wrong.
There are simply many more factors other than "harmfulness" to consider.

        I know this doesn't come close to a full response to Eugene's note. I just
can't keep up and abdicate the field (at least temporarily)to a faster and
better writer.

                                                                                Alan Brownstein
                                                                                UC Davis




At 04:53 PM 10/9/97 PST, you wrote:
>    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
>
>