No subject

[Richard D. Friedman]

On Marty Lederman's point that it still may be government speech because of
the reservation of authority to hold it inappropriate:  I doubt that if the
hypothetical policy were otherwise constitutional, it would be
unconstitutional on its face because of the reservation of authority to
make sure students used the opportunity in some manner related to the
occasion.  Marty gives some examples of what might be considered
"inappropriate" use -- but I'd also add that the district might (and
should, if it wants to preserve the policy) hold that an evangelical sermon
would also be inappropriate.  I agree that most schools probably do reserve
such authority with respect to graduation speeches, and if they don't do so
explicitly in advance they probably would assume the authority if the
speech became an obscene tirade.  Without knowing much about the field I
doubt that such a reservation in advance really makes a religious reference
in a valedictory speech an EC violation.  Of course, if this provision
alone is a stumbling block, the district could take a chance and purport
not to put any restrictions whatever on the statements.  Prof. Berg's
comments in response seem right to me -- but, again, I'm a novice here.


Robin Charlow wrote:


>As to (A), one of the facts that appeared particularly significant was
>that the speakers were chosen by majority vote, so that minority voices
>are effectively absent.  Unless I misunderstood, I thought you retained
>that fact in your hypo, which is why I thought it would still be
>unconstitutional, despite the totality of facts.

My hypo A gave each student one vote for the entire year, so if, say, there
are 5 home games, a relatively small block would have a good chance of
selecting a speaker, and a 20% block would be guaranteed of getting one.


>As to (B), it might be the best they could get, but once the lottery
>winners started giving their speeches it seemed that surely some
>heretic(s) would be among them, rendering the enterprise
>counterproductive.  Perhaps there are so few it wouldn't matter, but one
>wouldn't know that in advance.

My guess is it would be worth the risk.  First, it may well be that there
are sufficiently few heretics in the community that only rarely would one
get chosen by lot.  Second, even if If one got chosen, would he or she
actually choose to make a "heretical" statement, rather than remaining
silent and not letting his or her name become public?  It appears that
would be a gutsy move in this community.  Third, if the policy is
constitutionally acceptable, I've got to believe the district could
determine that, say, a diatribe against religion would not be "appropriate
to the occasion" [or under Prof. Berg's tighter standard, not promoting
sportsmanship] -- just as an evangelical sermon would not be -- and, as the
Santa Fe Court indicated, the authorities could turn off the mike.  Fourth,
if the policy didn't work out as the authorities wished, they could always
abandon it.

Rich Friedman
University of Michigan Law School
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