No religious advertisements on municipal buses

Ira Lupu iclupu at law.gwu.edu
Mon Dec 20 14:14:07 PST 2010


Perhaps Lehman is not such good law anymore -- only a plurality opinion, and
it says the buses are not a public forum (more like a commercial enterprise,
with discretion about the genres of ads it takes, though not with discretion
to engage in viewpoint discrimination within
a genre).

On Mon, Dec 20, 2010 at 4:59 PM, Marty Lederman <lederman.marty at gmail.com>wrote:

> "If the city allows commercial ads but no political or religious ads, I
> think the policy is constitutionally OK."
>
> Maybe.  To be sure, that forum (limited to commercial speech) would be
> distinguishable from the broader forum in Rosenberger . . . but such a
> favoring of commercial over noncommercial speech would be suspect under the
> rationale of City of Cincinnati v. Discovery Network, wouldn't it?
>
> Nor is it obvious that an exclusion of speech about religion is ok just
> because religion and politics are treated equally.  After all, that was
> effectively UVa's policy in Rosenberger.  One of the oddities of that
> decision is that (especially when viewed in the Shadow of Lehman v. Shaker
> Heights and Greer v. Spock) the Court appears to have concluded that whereas
> all electioneering speech can be disfavored in a "public forum" -- even
> though such speech presumably is at the "core" of most any concept of what
> the First Amendment protects, cf. Citizens United -- speech about religious
> matters may not be.
>  On Mon, Dec 20, 2010 at 3:59 PM, Ira Lupu <iclupu at law.gwu.edu> wrote:
>
>> It would be good to know the exact policy.  If the city allows commercial
>> ads but no political or religious ads, I think the policy is
>> constitutionally OK.  If the city allows political ads but not religious
>> ads, the policy is indeed highly questionable under Rosenberger, etc.
>>
>>
>> On Mon, Dec 20, 2010 at 3:53 PM, Brownstein, Alan <
>> aebrownstein at ucdavis.edu> wrote:
>>
>>> I don't know if Michael's equation of political ads and religious ads
>>> necessarily works. I'm pretty confident that there are lower court cases
>>> where the exclusion of political speech was considered to be content
>>> discrimination, not viewpoint discrimination (but I would have to look to
>>> find them.). There is also commentary questioning whether the exclusion of
>>> political speech from a nonpublic forum or limited public forum would
>>> receive the same rigorous standard of review applied to the exclusion of
>>> religious speech from such locations.
>>>
>>> Alan
>>>
>>> -----Original Message-----
>>> From: religionlaw-bounces at lists.ucla.edu [mailto:
>>> religionlaw-bounces at lists.ucla.edu] On Behalf Of Michael Masinter
>>> Sent: Monday, December 20, 2010 12:13 PM
>>> To: religionlaw at lists.ucla.edu
>>> Subject: RE: No religious advertisements on municipal buses
>>>
>>>  The problematic case is Lehman v. City of Shaker Heights; if a city can
>>> ban political ads from a bus, presumably it can also ban religious ads,
>>> though it may matter whether the ads are inside or outside the bus (inside
>>> in Lehman).  But I would have joined the Lehman dissenters, and I am not
>>> confident that either the views of Justice Blackmun for the plurality or
>>> Justice Douglas would prevail today.
>>>
>>>
>>> Michael R. Masinter                      3305 College Avenue
>>> Professor of Law                         Fort Lauderdale, FL 33314
>>> Nova Southeastern University             954.262.6151 (voice)
>>> masinter at nova.edu                        954.262.3835 (fax)
>>>
>>>
>>>
>>> Quoting "Corcos, Christine" <Christine.Corcos at law.lsu.edu>:
>>>
>>> > Fort Worth.  See here.
>>> > http://www.nytimes.com/2010/12/17/us/17brfs-atheist.html?partner=rss&e
>>> > mc=rss
>>> >
>>> >  I think it may be a reaction to part of a campaign (linked to a
>>> > similar campaign in Canada) that is continuing the "Good Without
>>> > God" campaign that was launched last year.  See here.
>>> > http://atheistbus.ca/
>>> >
>>> > See the Atheist bus website here. http://www.atheistbus.org.uk/
>>> >
>>> > Christine Corcos
>>> > Associate Professor of Law
>>> > Paul M. Hebert Law Center, Louisiana State University Associate
>>> > Professor, Women's and Gender Studies Program LSU A&M
>>> > 324 Law Building
>>> > 1 East Campus Drive
>>> > Baton Rouge LA 70803
>>> > tel: 225/578-8327
>>> > fax: 225/578-3677
>>> > home page: http://faculty.law.lsu.edu/ccorcos
>>> > Feminist Law Professors (http://feministlawprofessors.com/)
>>> > Law and Humanities Blog (http://lawlit.blogspot.com/) Law and Magic
>>> > Blog  (http://lpcprof.typepad.com/law_and_magic_blog/)
>>> > Media Law Blog (http://lawprofessors.typepad.com/media_law_prof_blog/)
>>> > email: christine.corcos at law.lsu.edu
>>> >
>>> > -----Original Message-----
>>> > From: religionlaw-bounces at lists.ucla.edu
>>> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
>>> > Alan
>>> > Sent: Monday, December 20, 2010 1:35 PM
>>> > To: Law & Religion issues for Law Academics
>>> > Subject: RE: No religious advertisements on municipal buses
>>> >
>>> >
>>> > I saw a newspaper story a few days ago (I'm sorry, but I don't
>>> > recall all the details) reporting that a city prohibited all
>>> > religious advertising on buses because people were annoyed with
>>> > advertisements expressing a message by Atheists suggesting that
>>> > there is no G-d. Wouldn't that regulation constitute
>>> > unconstitutional viewpoint discrimination under Rosenberger and Good
>>> >  News Club? I have serious problems with some of the Court's
>>> > decisions that characterize discrimination against religious
>>> > expressive activities as viewpoint discrimination. But if that's the
>>> > rule, it would certainly seem to apply in this case as well.
>>> >
>>> > Alan Brownstein
>>> > UC Davis School of Law
>>> > _______________________________________________
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>>>
>>>
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>>
>>
>>
>>  --
>> Ira C. Lupu
>> F. Elwood & Eleanor Davis Professor of Law
>> George Washington University Law School
>> 2000 H St., NW
>> Washington, DC 20052
>> (202)994-7053
>> My SSRN papers are here:
>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>>
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
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>
>
> _______________________________________________
> 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
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>



-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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