A Hypo I Am Using in Class

[Steven Jamar]

I think the distinction between a public display and a book in a
library is significant for 1st Amendment purposes.  Not all modes of
speech are the same.

Steve


On 8/1/07, Rick Duncan <nebraskalawprof at yahoo.com> wrote:
> 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.
>
>
>  ________________________________
> Park yourself in front of a world of choices in alternative vehicles.
> Visit the Yahoo! Auto Green Center.
>
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
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>


-- 
Prof. Steven Jamar
Howard University School of Law