A Hypo I Am Using in Class

[Rick Duncan]

Doug makes a good point about the difference between school library books and the govt's "own speech."
   
  So let's put the gay pride banner on display in a public school (as opposed to a public park) and have the school board remove the banner under fire from dissenting parents who disagree with the display's message of gay pride.
   
  If a public school removes a gay pride display from its hallway to appease parents who are offended by the message, do we agree that students who wish to view the gay pride banner at school have no right under Pico (assuming Pico is correct on its facts) to complain about the effect of the removal on their right to receive ideas?
   
  Does it really matter whether the school made the gay pride banner itself by using cardboard squares and colored pens or went out and purchased, say, a painting by a local artist that captures the school's support for gay pride? 
   
  Rick Duncan

Douglas Laycock <laycockd at umich.edu> wrote:
    I think that when the govt puts up a display in a park, it is the government's speech?  Who else could be speaking?
  I think that part of the logic of Pico is that when there are 1000 or 5000 books in a school library, each of which has its own author, no individual book is the government's speech.  So that even though Rick's hypo parallels Pico in focusing on removal, it remains importantly different.
  Quoting Rick Duncan <nebraskalawprof at yahoo.com>:

> "Christopher C. Lund" <chlund1 at hotmail.com> wrote:
>
>
>  "And, finally, note that Pico involved a school library -- the 
> constitutional obligations on the library were created by the 
> school's duties to their students.  (The plurality's opinion relies 
> heavily on Tinker v. Des Moines.)  A school library's decision to 
> take out books directly impacts what its students can read; a 
> decision to take down a display does not have a similar effect."
>
>
>  Hmmm. The school's decision to remove upopular books from a school 
> library did not interfere with the students' rights to read the 
> books. The books were freely available in the city's public (as 
> opposed to school) libraries and in bookstores. The 1A evil in Pico 
> was removal of ideas from a willing audience to appease those who 
> disagreed with those ideas.
>
>  In my gay pride hypo, the removal of ideas to appease critics is at 
> least as harmful as in Pico, because unlike books which are widely 
> available, the particular gay pride display may not be otherwise 
> available to those who wish to view it.
>
>  Again, I disagree with the plurality in Pico, but many others 
> (including some of my students and colleagues) think the Ct's 
> reasoning in Pico was sound. And if it is sound....
>
>  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.
>
>
>
> ---------------------------------
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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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