Eugene's examples are all pretty powerful. They also demonstrate the arguably
very weak utility of limited public forum doctrine for protecting freedom of
association. Cases like Widmar and Good News Club are distinguishable because
the Court has made it clear that limited public forum parameters cannot be
viewpoint discriminatory. There is no Supreme Court case law (at least to my
recollection) that prohibits the creation of a limited public forum that
restricts access in a way that limits associational freedom.
I think that an all purpose, completely open, designated public forum should be
treated just like a traditional public forum. I would argue that this rule
would prohibit conditioning access on a group's waiving its associational
freedom rights. But once we are in the world of limited public forums, the
issue becomes much more complicated. We have a constitutional framework for
reviewing viewpoint discriminatory, content discriminatory, and content neutral
restrictions on access to a limited public forum. But what is the framework for
reviewing a limited public forum that is defined in a way that burdens
associational freedom? Is the freedom to determine the voting members of an
organization more important than the freedom to express one's views on a
particular subject. Content discriminatory regulations restrcting speech in a
limited public forum are upheld under very deferential review.
It may very well be that a limited public forum that controls access through
restrictions on associational freedom is of far less value to expressive groups
than a more open forum. But state institutions are permitted to create limited
public forums that are only of marginal use to speakers, just as they are
permitted not to create a limited public forum in the first place. What state
institutions cannot do is to eggregiously distort public debate -- hence the
prohibition against viewpoint discrimination. The best argument for CLS is that
restrictions on the right of groups to determine their voting members distort
debate as opposed to weakening debate.
Alan Brownstein
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, May 11, 2010 6:53 AM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS
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
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