This isn't an area of my speciality, but it seems to me that, simply as a matter of positive law, the relevant decided cases -- that is, the decided cases dealing more or less directly with the asserted conflict between free speech and antidiscrimination law -- weigh strongly against Eugene's assertion. (After all, he's written quite a few articles pointing out how wrong the lower courts are.) Maybe the law should be as Eugene describes it -- although on that see below -- but it's not at all clear to me that it "is" that. (And, as a jurisprudential matter, it seems to me, one ought to take decided cases into account, along with general principles of course, in figuring out what the law is and what it should be. The common lawyer in me thinks that judges with responsibility for deciding actual cases might develop principles more attuned to the problems they see before them than they -- or we -- would by reflecting on First Amendment generalities. Common lawyers, as Louis Henkin put it, draw lines all the time -- principled lines -- informed by the particulars of the cases before them without degenerating into making ad hoc rulings on the basis of those particulars.)
And, on a more normative note, I would think that a position, which seems to me Eugene's, that Lester Maddox had a valid First Amendment right to refuse service to African Americans at his restaurant (because the law requiring him to provide such service would place a substantial burden, and for viewpoint related reasons, on his right to express his deeply held racist views by means of expressive conduct) says something very bad about the state of the First Amendment law as Eugene would construct it. -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Well, if Mark is right, doesn't that say something very bad > about the current state of First Amendment law? Given that for-profit > speakers and speech presenters are fully protected by the First > Amendment (see, e.g, the New York Times, CNN, etc.), isn't it quite > clear that for-profit presentations of Christian music, racist music > (whether white or black racist), anti-gay music, > anti-fundamentalist-Christian music, anti-Catholic music, or whatever > else should be entirely constitutionally protected, at least under > current Supreme Court precedents? > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet > > Sent: Monday, July 03, 2006 11:37 AM > > To: Law & Religion issues for Law Academics; Scarberry, Mark > > Cc: Law & Religion issues for Law Academics > > Subject: RE: "Christian" Skating Time > > > > Let me express my doubts about this assertion -- "No one > > would doubt that a Christian music concert could be held (and > > advertised)" -- where the presenter is a for-profit business. > > (A genuine question: How do for-profit concert promoters > > advertise concerts by Christian rock groups?) > > -- > > Mark Tushnet > > William Nelson Cromwell Professor of Law Harvard Law School > > Areeda 223 Cambridge, MA 02138 > > > > > > Quoting "Scarberry, Mark" <[EMAIL PROTECTED]>: > > > > > The music is a substantial part of the skating experience. > > No one would > > > doubt that a Christian music concert could be held (and advertised). > > > Does the combination of a physical activity (skating) with > > the playing > > > of music deprive the business owner of the free speech rights that a > > > concert promoter would have? > > > > > > Suppose the owner of the rink decided to have a "global > > warming" evening > > > featuring the audio from Vice President Gore's movie. Would that be > > > permitted, even though a lot of people would choose not to > > come to the > > > rink in order to avoid what they would perceive as propaganda? If it > > > would be permitted, then doesn't the NY law discriminate against > > > religious speech? > > > > > > And if, as I think someone suggested, a "spiritual" evening would be > > > permitted, so long as it was inclusive by not focusing on > > any particular > > > religious tradition, then isn't this a matter of viewpoint > > > discrimination? > > > > > > Mark S. Scarberry > > > Pepperdine University School of Law > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu > > > To subscribe, unsubscribe, change options, or get password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this large list cannot be > > viewed as > > > private. Anyone can subscribe to the list and read > > messages that are posted; > > > people can read the Web archives; and list members can > > (rightly or wrongly) > > > forward the messages to others. > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, > > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be > > viewed as private. Anyone can subscribe to the list and read > > messages that are posted; people can read the Web archives; > > and list members can (rightly or wrongly) forward the > > messages to others. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
