On reflection, I realize that the Texas Monthly lineup can't be dispositive of the book club vs. Bible study group issue, but I still wonder about the Free Speech Clause issue

[Brownstein, Alan]

I'm not sure I understand Doug's reference to high-value speech and the lack of a viewpoint associated with the book club's speech. The viewpoint at issue is that of the Bible study group. The Court has repeatedly held that discrimination against religious clubs and meetings constitutes viewpoint discrimination so discrimination in favor of those same clubs and meetings has to constitute viewpoint discrimination as well. And once we are dealing with viewpoint discrimination, strict scrutiny applies regardless of the "low" value of the speech at issue. Viewpoint discrimination is prohibited within categories of unprotected speech, while regulating speech in a non-public forum, and with regard to what would be constitutional time, place, and manner regulations of expression except that the regulation singles out a particular viewpoint for favorable treatment.

Am I missing something here?

Alan Brownstein
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [laycockd at umich.edu]
Sent: Friday, June 19, 2009 8:59 AM
To: religionlaw at lists.ucla.edu
Subject: Re: On reflection, I realize that the Texas Monthly lineup can't       be dispositive of the book club vs. Bible study group issue, but I still        wonder about the Free Speech Clause issue

That example troubled me too.  The book club doesn't have the strongest free speech claim; it's hard to identify a viewpoint associated with a book club; it's may be neither political nor religious; it has no historical status as an institution of particular First Amendment concern.  But it involves serious speech, and there is a lot of appeal to a rule of neutrality among all high-value speech.

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

> On reflection, I realize that the Texas Monthly lineup can't be
> dispositive of the book club vs. Bible study group issue (given that
> the Brennan/Marshall/Stevens opinion distinguished
> removal-of-substantial-burden cases), but I still wonder about the
> Free Speech Clause issue.
>
> Eugene
>



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