1st Am being trumped

[Michael deHaven Newsom]

"Volokh, Eugene" wrote:

>
>
>         Hmm -- I hadn't realized that Michael's proposal was limited
> to the rights of expressive associations that are "the only economic
> game in town."  That seems an unusual enough hypothetical (in what
> towns is an expressive association, and only one such association, the
> "only economic game"?) that it's not easy to figure out what the right
> result should be, though I think the association wouldn't lose its
> constitutional rights just because it's the only economic game.
>
>         But if "the only economic game in town" is the essence of
> Michael's argument, then how would any of this be relevant to the
> example that launched this whole thread, which is the bookstore
> example?  I know of few towns where a religious bookstore is the only
> economic game.

It is not the essence of my argument.  It is the easy case, that's all.

>
>
>         Eugene
>
>
> I originally wrote:
>
>      Let me see if I understand this correctly.  Let's say a
>      lily-white expressive association -- either one whose
>      lily-whiteness relates to its message, e.g., the Ku Klux Klan or
>      for that matter any other organization that endorses white
>      supremacist views, or one that is lily white for other
>      demographic reasons, e.g., the North Dakota Conservatives
>      Association -- rejects people who do not share their views.
>      Unless I'm mistaken, the suggestion is that these groups would
>      *not* have the right (which even the Roberts Court seemed to
>      accept as a core part of expressive association) to exclude
>      people who do not share their views, because the "14th Am value"
>      trumps that right.
>
>                      That's a pretty remarkable conclusion, it seems
>      to me, and one that's quite corrosive of an important
>      constitutional guarantee that protects us against this very sort
>      of state action.  Now Michael might argue that "the 14th Am
>      value" should justify this cutback in constitutional protection.
>      But those of us who evaluate the "14th Am value" argument ought
>      to be aware that it would indeed have these quite remarkable
>      consequences.
>
> Michael Newsom responded:
>
>      Remarkable is in the eye of the beholder.  It would not be
>      remarkable to me if this lily-white expressive association is the
>      only economic game in town.  It depends on the facts and
>      circumstances, not some general vague abstraction about
>      expressive associations.  I want to know what is at stake as far
>      as social, ecomonic, political, civil and legal equality is
>      concerned.  Your hypothetical reveals none of the important
>      facts.
>
>
>
>                      Eugene
>
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