Compelled speech

[Volokh, Eugene]

        These are all excellent points, and I assure you that I expect my
students to raise them all in dealing with the problem.  Unfortunately, it
turns out that these proposed distinctions between the professional
responsibility / bias fighting paper -- or for that matter the acting class
involved in the U of Utah case -- and Barnette are harder to draw than at
first appears.

        (1)  The argument that there's no First Amendment problem here
because the student "VOLUNTARILY chooses to attend" a law school or a drama
class can't take us very far, it seems to me.  After all, the Supreme Court
and, more recently, several lower courts have held that university students
retain broad free speech rights when they go to public universities.  True,
if you went to the University of Wisconsin at Madison in the late 1980s (cf.
the UWM Post case), perhaps you should have known that the "culture,
practices, norms, and values" of the university led it to adopt a campus
speech code; and if you really disliked it, you could have transferred to
some other school.  The court, though, struck down the code nonetheless.  If
anything, courts take the view that students at public universities have
broader free speech rights than students at compulsory K-12 schools.

        (2)  The argument that the graduation writing requirement -- and
presumably the speech in the drama class -- doesn't "compel[] speech" but is
instead "an academic exercise" seems to me to founder on Barnette itself.
One could easily characterize a flag salute, just like a paper describing
how to better enforce ethics or fight bias, as an academic exercise aimed at
teaching patriotism.  In fact, I suspect that many people sincerely viewed
it in precisely that light.  One might perhaps distinguish the appointed
lawyer example given by Rob Weinberg and the speech in the drama class as
truly "academic exercises" not just in the sense that they are part of an
academic program, but also that they are simply role-playing:  The goal
isn't to persuade the speaker or his classmates, but just to hone his acting
/ lawyering skills.  But it seems to me that the compelled paper on how to
better enforce ethics or fight bias is as much an attempt to mold the
writer's opinions on ethics or egalitarianism as the pledge was an attempt
to mold students' opinions on patriotism.

        (3)  Bobby Lipkin is surely right that no court would hold a written
exam requirement to be unconstitutional compelled speech; and presumably
this should also doom in-class performance requirements such as those in the
U Utah case.  I think the case is harder as to paper requirements that seem
aimed at promoting one particular viewpoint (e.g., absence of bias, or
compliance with professional ethics rules), but I agree that ultimately
those should be constitutional, too.

        The tough part, though, is explaining exactly how these differ from
Barnette -- and I think that Vance Koven is right to argue that the trial
court didn't do a terribly good job of that in the U Utah case.  Yes,
intuitively they seem to be different.  But how exactly do they differ
analytically?

        Now perhaps this should lead us to conclude that Barnette was
wrongly decided; at the very least I think it should lead us to conclude
that the stirring language there about how speech compulsions are tantamount
to speech restrictions, and how both can only be justified under the most
demanding standards, is not quite sound.  But whether or not Barnette is
right, I don't think it can be dismissed so easily.

        Eugene

> -----Original Message-----
> From: James Maule [SMTP:maule at LAW.VILLANOVA.EDU]
> Sent: Wednesday, August 15, 2001 1:06 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Fascinating case
>
> Following up, where's the compulsion? (Aside from imposing the requirement
> on already-matriculated students (a reason most of the changes we make
> here are done with effective dates of "for students matriculating after
> dd/mm/yy") and aside from a failure to disclose this requirement in
> catalogs and on web sites so that the student can make a fully informed
> VOLUNTARY decision to attend UCLA Law School).
>
>
        -----Original Message-----
        From:   James Maule [SMTP:maule at LAW.VILLANOVA.EDU]
        Sent:   Wednesday, August 15, 2001 1:03 PM
        To:     RELIGIONLAW at listserv.ucla.edu
        Subject:        Re: Fascinating case

        Isn't there a difference between what a state (public) school
requires of a youngster who is in attendance because of state mandatory
education laws ad what a state college requires of a student who VOLUNTARILY
chooses to attend that college, VOLUNTARILY chooses to major in drama,
VOLUTARILY chooses to take a course, and/or VOLUNTARILY chooses to try out
for a play?

        The lack of genuine school choice at the K-12 level puts those cases
in a different posture, it seems to me, than those arising for college and
post-graduate schools. Aside from contractual issues (e.g., college catalog
and web site professed a respect for certain values or practices, and
student relying thereon, finds herself facing a broken promise). Isn't it
incumbent on prospective college applicants to make inquiries into the
culture, practices, norms, and values of the schools they are considering
attending, and of the departments in which they are considering majoring?

        Granted, it might require some transferring by students who discover
unpleasant things about their first college, but transfers are common, and
occur for all sorts of reasons, including dissatisfaction with all sorts of
things about the college. (Moreover, many state schools are so huge that the
opportunity to change sections of a course also presents a viable option).

        I don't see the compulsion.



        -----Original Message-----
        From:   Rob Weinberg [SMTP:robertmw at MINDSPRING.COM]
        Sent:   Wednesday, August 15, 2001 7:57 AM
        To:     RELIGIONLAW at listserv.ucla.edu
        Subject:        Re: Fascinating case

        I don't see why Eugene assumes the hypo graduation writing
requirement compels speech. It's an academic exercise. By such reasoning,
lawyers would be able to avoid representing clients they found personally
undesirable, by arguing that defending or prosecuting their client's
interests violated the lawyer's rights to be free from compelled speech,
particularly true in appointed cases. I've written many a brief or made
arguments to the court that merits of which I personally disagreed with, but
that were legally and ethically in my client's best interest. And without
feeling that my first amendment rights were violated. What's the difference?



        -----Original Message-----
        From:   Robert Justin Lipkin [SMTP:RJLipkin at AOL.COM]
        Sent:   Wednesday, August 15, 2001 1:16 PM
        To:     RELIGIONLAW at listserv.ucla.edu
        Subject:        Re: Fascinating case

             This latest turn in the discussion suggests that ordinary law
school
        (humanities, science, etc.) exams might be cognizable as "compelled
speech."
         Is that even conceivable? Thanks.

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