Excluding Religious Speakers and "Holiday Tree"
Mark.Scarberry at PEPPERDINE.EDU
Thu Oct 4 02:07:24 PDT 2001
[snip]If the state screened all submissions and
posted those it deemed appropriate, there would be a stronger argument
this is an organized activity for students that has to comply with state
standards rather than a forum for private speech.[snip]
I assume Alan is not limiting his approach to the school setting. Putting
that aside, doesn't this approach beg the question? If the question is
whether it is appropriate for the state to engage in viewpoint
discrimination in a particular setting, don't we beg the question if we
consider evidence of viewpoint discrimination to be relevant to whether a
forum is created (and what kind), and then use the conclusion to justify
viewpoint discrimination? I don't understand how evidence of viewpoint
discrimination can be an important factor in determining whether the state
is entitled to engage in viewpoint discrimination.
Suppose a state opened a new park and called it "Patriotic Expression Park."
The state then permitted only speakers whose patriotic views it approved of
to speak. We would not allow evidence of viewpoint discrimination to
convince us that the state had actually closed (or never opened) what would
normally be a traditional public forum, so that the speech in the park was
governmental speech with regard to which the government is entitled to
choose its viewpoint and message.
I understand Alan's approach at the margin. If the state hires an
advertising company to create a TV ad touting the state's tourist
attractions, the state is presenting its own, fairly well defined message.
In a sense this is viewpoint discrimination, but it is more properly seen as
an affirmative specification of a message to be transmitted by persons
selected to speak for the state.
But once we move into situations in which the state has no specific message
but simply provides an opportunity for citizens to express themselves
(either generally or on a particular topic, such as celebration of the
holiday season), it seems to me that viewpoint discrimination against
particular views is not evidence that the speech is the state's. It is
evidence that the state is getting into the business of allowing speech of
which it approves, and of not allowing speech of which it does not approve.
That sounds like censorship to me.
In the holiday tree case it seems to me that the state is generally
permitting citizens to express their own creativity and their own message on
the topic of the holiday season, unless that creativity involves religious
expression. This is a narrow limitation on speech by citizens generally
(rather than an affirmative message to be delivered by chosen state
I recognize that in choosing a tree as the setting for the ornaments, the
state is to some extent making its own statement that the holiday season is
to be celebrated. But the state would also make a statement of its own by
creating the "Patriotic Expression Park" suggested above, or perhaps by
putting up a statue of the mayor in the city plaza or by funding a local
access TV channel named "The Channel for Expressing Support for Our Mayor."
Or perhaps a meeting room in City Hall could be named for the mayor and
could feature a large portrait of the mayor on the wall--with the simple
rule that anyone could reserve the room for discussions of city issues, so
long as the discussions did not criticise the mayor.
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