Is First Amendment viewpoint-discriminatory against antigay speech

[Volokh, Eugene]

	Wow, that really is a remarkable First Amendment position:  The
government is constitutionally permitted to ban antigay speech (all
antigay speech? some antigay speech? only antigay speech at funerals?),
but I take it constitutionally forbidden from banning progay speech,
anticapitalist speech, anti-Christian speech, and so on.  Might as well
chuck all the Court's pretensions to viewpoint neutrality out the window
if that sort of exception is accepted (though fortunately I can't count
a single vote for it on today's Court).

	Eugene 

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Newsom Michael
> Sent: Friday, November 02, 2007 11:29 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigay speech
> 
> David has it right: a compelling governmental interest in 
> protecting a discrete and insular minority -- one that is 
> routinely victimized.
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David Cruz
> Sent: Thursday, November 01, 2007 8:12 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory 
> against antigay speech
> 
> I too found that comment a little cryptic.  If Michael meant 
> to be doctrinal rather than just attitudinally predictive, my 
> guess would be that he didn't mean that a different First 
> Amendment rule would apply, but that those decisions might 
> somehow justify a conclusion that there's a compelling 
> governmental interest present.  But it wasn't at all clear to 
> me, so perhaps Michael might clarify.
> 
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law Los 
> Angeles, CA 90089-0071 U.S.A.
> 
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> Sent: Thursday, November 01, 2007 4:43 PM
> To: Law & Religion issues for Law Academics
> Subject: Is First Amendment viewpoint-discriminatory against 
> antigay speech
> 
> 	I'm puzzled -- do Romer and Lawrence really justify not 
> just protection of gays against governmental discrimination, 
> but a different First Amendment rule for antigay speech than 
> for pro-gay-rights speech or a wide range of other speech?
> 
> 	Eugene
> 
> Michael Newsom writes:
> 
> > That said, I have no idea of what the Court would do with 
> this case, 
> > but my guess is that the Court would overturn the jury verdict 5-4, 
> > although Kennedy, on the strength of Romer and Lawrence, might vote 
> > with the moderates and the case would come out the other 
> way, 5-4 to 
> > uphold the jury verdict (although the punitive damages might be 
> > reduced, the Court likely to send a signal, I think, in the Valdez 
> > case that it is prepared to rein in punitive damages).
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