I think this basic description of the trend in
recent cases is largely correct, Alan (whether or not it ought to be
the way the Court deals with such cases). As Kennedy suggests in
Forbes, in cases where the state actor's very job is to make inherently
content-based distinctions among private speakers, the courts simply have little
choice but to stay out of it, even though (as Kennedy concedes) it means that
constitutionally dubious decisions may go undetected and
unremedied:
"As a general
rule, the nature of editorial discretion counsels against subjecting
broadcasters to claims of viewpoint discrimination. Programming decisions would
be particularly vulnerable to claims of this type because even principled
exclusions rooted in sound journalistic judgment can often be characterized as
viewpoint-based. To comply with their obligation to air programming that serves
the public interest, broadcasters must often choose among speakers expressing
different viewpoints. "That editors-newspaper or broadcast-can and do abuse this
power is beyond doubt," Columbia Broadcasting System, Inc., 412 U.S. at 124;
but "[c]alculated risks of abuse are
taken in order to preserve higher values." Id., at 125. Much like a university
selecting a commencement speaker, a public institution selecting speakers for a
lecture series, or a public school prescribing its curriculum, a broadcaster by
its nature will facilitate the _expression_ of some viewpoints instead of others.
Were the judiciary to require, and so to define and approve, pre-established
criteria for access, it would risk implicating the courts in judgments that
should be left to the exercise of journalistic discretion."
This also goes a long way to explaining, e.g.,
Finley. Of course, the doctrine is a whole lot more complicated
than that, and there are certainly cases in tension with this basic trend --
Rosenberger, in particular, is very hard to reconcile, seeing as how
the "university-wide benefit" criterion for funding there was akin to the
"serves the public interest" criterion mentioned in
Forbes.
I haven't looked at the Alito opinion in
Oliva very carefully yet, but my initial impression is that his
exegesis about how teachers cannot engage in viewpoint discrimination as to the
speech of students in a kindergarten classroom -- such as, e.g.,
discouraging speech that will confuse other students or engender resentment (or
that is, frankly, simply not appropriate for school-supervised classroom
discussion by five-year olds in public schools -- which describes much religious
speech) is at least a bit counterintuitive: Teachers temper controversial
and disarming student speech on viewpoint-based grounds in the classroom
regularly, if my experience is any guide. (In addition, that
portion of Alito's opinion appears to be fairly gratuitous to the question at
hand, namely, the discrimination against the student's religious
poster, as to which Alito's concern seems much more
defensible.)
----- Original Message -----
From: "Alan Brownstein" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Monday, October 31, 2005 5:15 PM
Subject: RE: Alito and Religion
I'm aware that some circuits in some older cases read Hazelwood to be a
non-public forum case and require the rigorous review of viewpoint
discriminatory pedagogical decisions in a school classroom. I think
these cases are wrong. Other circuits read Hazelwood more broadly and
clearly have the better of the argument -- particularly in light of
recent Supreme Court decisions.
The direction of the Court's free speech cases has been to move away
from forum analysis in evaluating the decisions of librarians, broadcast
programmers and other officials whose work involves discretionary
judgments about both the content and viewpoint of speech. In Arkansas
Public Television and in American Library Association, the Court
recognized that government expressive institutions are not forums.
Judicial review of the decisions made by the officials running these
institutions should be lenient -- if indeed these decisions should be
subject to judicial review at all.
It does not matter whether we are talking about librarian discretion,
editorial discretion, curricular discretion, or pedagogical discretion.
Teachers, librarians, and others simply can not do their jobs without
making choices that could render them vulnerable to claims of content
and viewpoint discrimination. Subjecting their decisions to strict
scrutiny on free speech clause grounds is impractical -- and more
critically, it substitutes the judgment of the federal courts for value
based decisions that should be left to political determination --
except in the most egregious of situations.
The line the Court draws between content and viewpoint discrimination is
nowhere near clear enough to permit this distinction to be employed as a
basis for rigorously reviewing the decisions of people whose business it
is to make decisions about speech. And even if the line was clearer than
it is, rigorously reviewing viewpoint discriminatory decisions would
still make no sense because part of the job of these officials to make
distinctions based on viewpoint. This is particularly true when we are
talking about elementary schools where part of what teachers do is to
teach basic values, manners, morality and citizenship. There is nothing
neutral about favoring stories promoting honesty, for example.
If we took the argument seriously that viewpoint discriminatory
judgments by teachers regarding student speech is subject to strict
scrutiny review, the federal courts would become the de facto principals
and schools boards of every public school in the United States. It is
hard to believe that this suggestion is supported by conservatives who
claim to be advocates of judicial restraint.
Alan Brownstein
UC Davis
Hazelwood specifically limited itself to allowing schools greater leeway
to engage in subject matter restrictions. It did not lift the
requirement that strict scrutiny continue to apply to the more invidious
censorship based on viewpoint (which, of course, includes religious
viewpoints). So for example, in Searcey v. Harris, 888 F.2d 1314
(11th Cir. 1989), the Eleventh Circuit held:
Although Hazelwood provides reasons for allowing a school official to
discriminate based on content, we do not believe it offers any
justification for allowing educators to discriminate based on viewpoint.
The prohibition against viewpoint discrimination is firmly embedded in
first amendment analysis. Without more explicit direction, we will
continue to require school officials to make decisions relating to
speech which are viewpoint neutral.
See also Planned Parenthood of Southern Nevada, Inc. v. Clark County
Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc) (holding that
school newspaper, sporting event programs, and yearbook were
school-sponsored, non-public fora under Hazelwood and Cornelius, and
therefore "control over access . . . can be based on subject matter and
speaker identity so long as the distinctions drawn are reasonable in
light of the purpose served by the forum and are viewpoint neutral.")
Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
Alan what serious questions are you referring to? It seems to me that
Judge Alito's position reflects the majority view of the courts of
appeals that Hazelwood requires application of strict scrutiny to
viewpoint based censorship of student speech.
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Monday, October 31, 2005 12:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion
Whether O'Connor would have decided Oliva the same way or not, Alito's
opinion in this case raises some serious questions about his
understanding of free speech doctrine. If I understand his opinion
correctly, Alito argues that public school classrooms and students
assignments are non-public forums, and, therefore, viewpoint
discriminatory restrictions on student speech in either context should
be reviewed under strict scrutiny.
The captive audience issue Marc raises is only part of the problem.
Alan Brownstein
UC Davis
[EMAIL PROTECTED]
[EMAIL PROTECTED]
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