Free Speech is not a Vanity

In March the Supreme Court will hear a case in which a Texas group is appealing the state’s refusal to style vanity license plates that include an image of the Confederate flag.  The plaintiff’s argument rests on First Amendment rights:  because Texas allows other citizens to choose images for license plates, the state is violating the right to free speech by suppressing this group’s preference.   Another license plate case is being hammered out in the lower courts in North Carolina. There the ACLU is suing on behalf of a plaintiff who wants a pro-abortion vanity license plate, given that the state permits pro-life licenses.

One might think that these cases should be decided the same way, but Corey Brettschneider and Nelson Tebbe suggest otherwise in a characteristically thoughtful oped in The New York Times.  The authors argue that messages on license plates are a mixture of private and public speech.  Thus the Court should balance the private interest in free expression with the public interest in permitting the government to control its own messages.  They conclude that Texas can suppress the vanity plate bearing an image of  the Confederate flag but that North Carolina must permit the pro-choice sentiment because the Confederate flag is a symbol contrary to the constitutional values of equal protection of the law, while pro-abortion sentiments endorse a legally guaranteed constitutional right.

I respectfully disagree.  Although the government has no obligation to provide the opportunity for messages on vanity plates (and if I were a legislator, I would not vote to have them), it should not discriminate among messages based on their content once it opens up this space.  

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Flemming Rose on the Aftermath of the Mohammed Cartoon Crisis

tyranny of

This next podcast is with the Danish journalist Flemming Rose, foreign news editor at Jyllands-Posten, on the controversy he ignited in 2005 when he published cartoons satirizing the prophet Mohammed. His new book, The Tyranny of Silence, offers his reflections on the conflagration that ensued, including a jihadist’s attempt to murder one of the cartoonists with an axe. Rose received the protection of Danish security services after threats were made on his life. Not bowing to intimidation, Rose has spent the last decade highlighting the dangers of foregoing a commitment to freedom of speech. Our interview delves into these experiences…

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Talked to Death

Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.

The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.

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Elane Photography is a Bad Vehicle For Religious Liberty Case (Post Updated)

Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.

 

Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony.  While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:

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A Parliament of Lawyers and Rights

One of the great advantages of the ever-increasing plethora of rights conferred upon us by government (except that of keeping the product of our own labor) is that it requires lawyers to adjudicate between them when they conflict, as they so often do. It prevents unemployment among the ever-increasing number of lawyers: and you have only to consider the career of Robespierre to know where the disgruntlement of lawyers may lead.

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Friday Roundup, August 2nd

The Liberty Forum for August is an attempt to answer the question if the courts should assume a more prominent role in reining in the administrative state.  Joseph Postell's lead essay argues that Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed. Excellent responses from Gary Lawson and Mark Seidenfeld question Postell's argument in favor of heightened…

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First Amendment Institutions

First Amendment Institutions

The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the "scaffolding" of the individual's right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech,…

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The Delights of Stanley Fish, Master Sophist

fishThe distinguished literary scholar Stanley Fish can teach one a great deal about argumentation. Lacking a law degree, he has also served on law faculties and even as an assistant dean in the Duke Law School. What business does this academic superstar, portrayed as lusty professor Morris Zapp in a David Lodge novel and derided by Camille Paglia as a “totalitarian Tinker Bell,” have teaching law?

I have seen this man of the political left outrage and delight audiences at scholarly conferences and venues, including a Federalist Society convention.  A friend also reported to me that Fish once asked him the difference between a West and an East coast Straussian, and, upon hearing a brief explanation, Fish declared himself to be a West coast one.  (See comment 2 below.) That is, I infer, Fish agreed with these Declaration of Independence conservatives on the vital importance of the political context for establishing the meaning of a text.

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The De-Eroticized University

Most readers of this blog will already know the speech codes—viz. sex codes—that the Department of Education seeks to impose on universities, under the guise of preventing sexual harassment. Eugene Volokh has a lucid summary and the Office of Civil Rights of the Department of Education a tedious tongue-lashing about what constitutes sexual harassment.  The acts that keep Diversity Offices at full employment can range from telling a dirty joke to reading Anna Karenina. Similar directives go back into previous administrations, so, once again, the battle is not about a personality (even a powerful one such as Obama) but about the Administrative State.

It turns out, as Volokh notes, that sexual harassment at an institution of higher education might be found in any public or private discussion of sex, love, or eroticism. This means that the speech constituting the core purpose of higher education would have to be scrutinized by Washington bureaucrats. This is dangerous professionally—terrify your favorite male professor by sending him a DVD of David Mamet’s Oleanna, about a supposed episode of sexual harassment. And, more important, the vague codes enforce a debilitating self-censorship on professors and students that simultaneously increases the blandness and the freakishness of higher education.

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Curbing Campaign Cash

Curbing Campaign Cash

The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith's review of the book in this space. Smith observed that Baker's book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. "Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign…

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