A Hypo I Am Using in Class

[Volokh, Eugene]

    Note also that Pico had no majority opinion even supporting the
proposition that libraries may not remove books based on viewpoint.
Four Justices took this view; four took the opposite view; the swing
vote, Justice White, merely concluded that the Court should avoid making
the decision on whether such viewpoint-discriminatory removals are
permitted by waiting until there were more factual findings, which might
make such a decision unnecessary.
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
	Sent: Wednesday, August 01, 2007 11:15 AM
	To: religionlaw at lists.ucla.edu
	Subject: Re: A Hypo I Am Using in Class
	
	

	The gay pride folks do not have a claim. The Free Speech Clause
creates no right to force someone else to say something -- not even if
that someone is the government. Pico was a very narrow holding.  It
involved a library, and surely not every book in the library is
government speech or the government's own message. It did not involve
purchase of books for the library.  The opinions appear to be confined
to removing books from the library because of hostility to their
content, which to some observers looks more like censorship of existing
private speech than failure to speak in the government's own voice. And
of course who knows whether the current Court would accept Pico as a
preceent.

	No one has a right to force someone else, even the government,
Quoting Rick Duncan <nebraskalawprof at yahoo.com>:
	
	> Here is a hypo I am asking the students in my 1A class to
think about today:
	>
	>  Imagine a city with two displays in the public square one
December: 
	> a nativity scene (without plastic elves or talking wishing
wells) in 
	> one public park,  and a "gay pride--stop homophobia display"
in a 
	> second public park. Both displays provoke complaints--the
nativity 
	> scene by an atheist such as Mr. Newdow who, when he sees the
nativity 
	> display, is offended by the religious nature of the display
(and 
	> feels like an outsider, "not a full member of the political 
	> community"); and the gay pride display by an Orthodox Jew
whose 
	> religious conscience is offended when he sees that display and
also 
	> feels like an unwelcome outsider and not a respected member of
the 
	> political community.
	>
	>  The city, wishing to avoid controversy and to offend no one,
removes 
	> both displays.
	>
	>  Supporters of the gay pride display sue claiming that they
are a 
	> willing audience for the message of gay pride and thus, under
Pico 
	> and the Free Speech Clause, have a right to receive the
message 
	> expressed by the gay pride display without censorship imposed
by the 
	> city to satisfy the demands  of "hecklers" and others who
don't like 
	> the message.
	>
	>  Do the Pls have a good claim?
	>
	>  Rick Duncan
	>
	>
	>
	>
	>
	>  Rick Duncan
	> Welpton Professor of Law
	> University of Nebraska College of Law
	> Lincoln, NE 68583-0902
	>
	>
	> "It's a funny thing about us human beings: not many of us
doubt God's 
	> existence and then start sinning. Most of us sin and then
start 
	> doubting His existence."  --J. Budziszewski (The Revenge of 
	> Conscience)
	>
	>  "Once again the ancient maxim is vindicated, that the
perversion of 
	> the best is the worst." -- Id.
	>
	>
	>
	> ---------------------------------
	> Park yourself in front of a world of choices in alternative
vehicles.
	> Visit the Yahoo! Auto Green Center.
	
	
	Douglas Laycock
	Yale Kamisar Collegiate Professor of Law
	University of Michigan Law School
	625 S. State St.
	Ann Arbor, MI  48109-1215
	  734-647-9713

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