Student Fees/Santa Fe

[A.E. Brownstein]

  Substantively, I think Marty's analysis has to be correct if we are
serious about protecting freedom of speech. Open ended and discretionary
determinations as to which private speakers are permitted to use public
property for expressive purposes violate the First Amendment whether that
discretion is exercised by a public official, a private individual
delegated the authority to select speakers, or a group of private citizens
delegated the authority to select speakers through an election -- unless
the speech is sponsored by the government itself.

        The fact that these decisions may be based on other criteria than the
content of the speaker's message (or multiple criteria) doesn't negate the
fact that it may well be based in considerable part on what the
decisionmaker believes the speaker will say. Certainly the fact the a
public official may allow one speaker rather than another to use public
property for reasons that have nothing to do with the speaker's message
doesn't alter the fact that it is unconstitutional to vest this kind of
discretionary authority in the officials who control access to public
property for expressive purposes. And in an election context, it is at
least as difficult to evaluate the basis for the selection of speakers
after the fact, if not more so, than it is in the context of a public
official exercising this kind of open-ended authority. You can't put the
electorate on the stand and ask them to explain their selections.

I think that individual voters can take whatever factors they deem relevant
into account when they step into the polling booth next November and vote
for Gore, Bush, or other third party candidates. But that strikes me as an
entirely different matter than giving the voters the power to decide which
candidates are permitted to speak at particular public locations before the
election. It's true that some voters may not want Bush to speak at a park
or a college campus in their neighborhood because they think his speech
will tie up traffic in the area or for a variety of other reasons that have
nothing to do with his political positions. But those possibilities don't
negate the obvious fact that the electorate is being given the power to
substantially skew the marketplace of ideas.

                                                                Alan Brownstein
                                                                UC Davis