stern's thoughts on "captive audiences"HAving saidf all this,I would ahve pe

[MSternAJC at AOL.COM]

Although I have not yet and time to read the entire second circuit opinion,
its result follows from a peculiar second circuit rule that allows the owner
of public land to designate s forum for a limited subject matter--i.e.,
Classical music only or political speech only.( THE rule has one advantage.
It offers a rationale for limiting a municipal auditorium to a particular
type of music or theater problem discussed in the Hair case, and not, as I
recall resolved). The Second Circuit also believes, and Rosenberger can be
read this way, that religion is a subject amtter.not a viewpoint.It reads
Lambs Chapel as involving the subject matter of family problems and the
exclusion of Lambs Chapel film on family problems as viewpoint, the subject
matter being family problems. In Lambs Chapel, the Court refused to pass on a
New York statute which allows schools to rent facilities to community groups
but not to religious groups. The Second Circuit treats this as a limited
designated forum by subject matter and therefore constitutional believe that
it has invoked this limited designated forum analysis in non religious cases.
What is incoherent about this is first the Supreme Courts public forum
doctrine which covers all too many types of free speech claims and which I
think is altogether a disaster, and would be despite the religion cases? Try
advising a client about this doctrine sometime. Its great fun.

Having said all this I would have personally voted with the dissenters
especially since the majority invoked the distinction between prayer and
religious education I thought had been rejected in Widmar.
MArc Stern