Rick Duncan writes: "Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes.... Why is this condition on expressive association not an unconstitutional condition?"
I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you want to associate in a way that isn't democratic, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, etc., but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? Eugene _______________________________________________ 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.