I appreciate Alan's very helpful post particularly his concern about speech
distortion.
I have a question for him and others.
Should severe restrictions on freedom of expressive association best be viewed
as
a kind of viewpoint restriction? If groups speak through their leaders, and if
leaders are elected by voting members, the ability of an expressive group to
craft and articulate its viewpoint in a designated public forum is indeed made
vulnerable to distortion or even total destruction when the state adopts a
designated public forum requiring a waiver of associational freedom as a
condition to access.
I think this is what was bothering Justice Breyer. A marketplace of ideas
requires a diversity of views, and a diversity of views is not served by groups
that are denied the right to define an expressive identity. I think Breyer was
saying such a "fantastical" forum is more like a group hug than a marketplace
of ideas.
Like Doug Laycock, I have exams that need to be graded.
I can't wait to read the opinions that come down in this case.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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