A Hypo I Am Using in Class

[Rick Duncan]

I agree with Doug that the gay pride Pls should lose their free speech case, but I find Pico a much closer precedent (assuming the plurality opinion represents the law). 
   
  There is clearly no 1A right to insist that govt put up a gay pride display in the first instance. But removing the gay pride display under politcal pressure from those who disagree with the message raises the same issues seen as dispositive by the plurality in Pico--there is a right to receive information and ideas and govt may not exercise its discretion over removal of books in order to supress unpopular ideas. As Pico puts it: "If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioers' decision, then petitioners have exercised their discretion in violation of the Constitution."
   
  Of course, Pico is only a plurality opinion, and I personally believe that it was wrongly decided, but many others think it is correct; and if it is a correct application of the Free Speech right to receive unpopular ideas, then it seems to apply to the removal of the gay pride display to appease critics who disagreed with the message. No? 
   
  Rick Duncan

Douglas Laycock <laycockd at umich.edu> wrote:
    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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  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.


       
---------------------------------
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