The further expression is located (physically) from the interior and immediate precincipts of a person's home, the lesser the strength that should be accorded to the privacy/emotional-solace concerns of the resident. Similarly, if the expression is located in open or public areas, even if it could be viewed from a private residence, the less comfortable I would be with regulation, although I would not reject it altogether.
In sum, when it involves a residence, my analysis is essentially that of common-law nuisance doctrine. In partial response to Eugene's second question, then, the standard of the person of ordinary sensibility, etc. provides some basis for a content neutral standard. In the same regard, I think this type of regulation -- of billboard or of dorm hallways -- must be limited to depictions that arouse extreme offense in a person of ordinary sensitivity. Pornography, outrageously racists or sexist depictions, etc. would fall within the ambit of legitimate control; the Confederate flag would make for a more difficult case (although I recall the debate we had previously about whether the Confederate flag may be regarded a the equivalent of a swastica). With this in mind, I would answer with a qualified "yes" to the billboard question, but with a strong presumption against government regulation. A similar example would be a city ordinance that precluded an outdoor drive-in theater from displaying nudity or graphic violence that could easily be seen from nearby homes. I am more troubled by the government ordering private landlords to regulate offensive expression within the buildings, because of the intrusion into the relationship between landlord and tenant and the expressive rights of a larger set of actors. The dormitory scenario offers a stronger justification for sensible regulation for the additional and important reason that Eugene notes, which is that the government is not merely the regulator but also the proprietor of the property (in a public university). When the government is wearing the hat of a landlord, in addition to that of the sovereign, then the sustance of appropriate regulation changes. While the government cannot never take off the hat of sovereign and thus cannot be treated as merely a landlord, it properly is afforded a greater degree of discretion, even if the free speech setting, when acting as an employer, landlord, etc. I should also say that, while I think the government at a public university legitimately may impose restrictions on postings for reasons of offense in dormitory common areas, that is not to say that such a regulation is good policy. Governmental paternalism in this context, as in so many others, can have the effect of heightening sensitivities beyond what is reasonable and of disenfranchising people from taking responsibility for themselves. I submit that a student who takes offense at something posted by another student and responds to it by counter-protest, debate, etc. rather than running to university bureaucrats will be empowered by the experience. Nonetheless, I am sympathetic to the student who says, look, I am ready and willing to be part of the rough and tumble of ideas and controversies from the moment I leave my home until I return that evening. But when I am at home, I need to retreat from the battle to rejuvenate, without being accosted by childish and outrageous symbols even time I open up my dorm room door to go take a shower. Greg -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, June 19, 2003 1:59 PM To: [EMAIL PROTECTED] Subject: Re: Proposed dorm speech code at the University of Alabama Two questions: (1) Say a city bans all billboards with offensive signs, if the billboards are visible from a private residence; and also bans all tenants, in privately owned housing (including private university housing) as well as publicly owned housing, from displaying offensive materials in their hallways, even when the housing owner would allow this. Would you say that's constitutional? Or does the protection of people in their homes (or perhaps around their homes, if one treats the student's home as just being his room, and not the common area that he shares with dozens of others) justify restrictions on offensive speech only when the government acts as proprietor of its own housing, and not when it acts as sovereign? (2) Even if some such restrictions are permissible, may the government impose viewpoint-based restrictions (e.g., "no racist or sexist postings" or "no Confederate flags") and restrictions that are quite vague and that are thus open to viewpoint-based enforcement (e.g., "no harassing postings")? Or would the government's power extend only to, say, content-neutral bans on all postings, or at least such bans that seem viewpoint-neutral (perhaps "no profanity in postings")? Compare Frisby v. Schultz (upholding a content-neutral residential picketing ban justified by arguments such as those that Greg makes) with Carey v. Brown (striking down such a ban when it had a content-based exception for labor picketing). Eugene > -----Original Message----- > From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] > Sent: Thursday, June 19, 2003 11:40 AM > To: [EMAIL PROTECTED] > Subject: Re: Proposed dorm speech code at the University of Alabama > > > Mark raises, I think, an important point about the legitimacy > of different rules for different areas in a dormitory that I > suggest can be recognized as valid even by those of us (and I > include myself) who are something of free-speech absolutists > in most other contexts. > > Many years ago when I (successfully) as a brand-new law > professor had the temerity (in the view of some) to campaign > against a proposed speech code at my former institution, I > nonetheless became convinced that the countervailing > interests of students living in a dormitory to avoid being > confronted with offensive imagery in their own homes deserved > positive consideration. While a student should be left > largely unregulated in choosing what images or expressive > materials to post inside the student's own room, the privacy > and emotional security interests of other students emerge > when expression that may offend is imposed upon a captive > audience in the very place where persons retreat for rest and renewal. > > When a person ventures forth into the world at large, he or > she cannot be protected from exposure to sights, sounds, etc. > that the particular person may find displeasing. And when > that displeasure is grounded in disagreement with the idea > expressed, calling upon the government to suppress it is most > troubling. Thus, for example, the common areas of the > university, as with the public sidewalks of a street, should > be "free speech" zones. In these areas, arguments about > offense, emotional distress, etc. cannot justify governmental > intervention. > > But even the hardiest of souls needs a place of retreat, to > be refreshed, to be "at home." And for many college students > that place is the dormitory. In my view, a student going and > from his or her room to the lavatory or to the elevator -- a > journey that cannot be avoided -- should not have to suffer > the emotional onslaught of offensive images. Just as I > believe a community is justified in adopting different rules > regarding street protests and marches for residential areas, > I think a university justifiably can adopt a more protective > approach to living quarters, requiring greater sensitivity to > the concerns of neighbors, including adopting some > restrictions for those elements of a dormitory that are > immediately adjacent to the rooms in which students live. > The difficulty is in defining what is and is not permitted, > and applying that definition, in a manner that is as neutral > as possible and leaves little discretion for overzealous > administrators in enforcement.) > > Greg Sisk > > Gregory Sisk > Professor of Law > University of St. Thomas School of Law (Minneapolis) > 1000 LaSalle Avenue > Minneapolis, MN 55403-2005 > 651-962-4923 > [EMAIL PROTECTED] > > > > -----Original Message----- > From: Mark Tushnet [mailto:[EMAIL PROTECTED] > Sent: Thursday, June 19, 2003 1:07 PM > To: [EMAIL PROTECTED] > Subject: Re: Proposed dorm speech code at the University of Alabama > > It's worth noting that the policy remains in draft form. One > might imagine different provisions for spaces interior to > residents' rooms, and those exposed to the public such as the > exteriors of doors. I think much would turn on precisely > what the policy covers. But, I would think that there's no > serious problem with pretty restrictive regulations of things > like the walls in common hallways (unless they are > conceptualized, somehow, as public fora -- which seems to me > would be pretty hard to do given the current Court's > unwillingness to expand the scope of the "traditional" public > forum from streets and parks). To the extent that the walls > of the common areas are used to post official announcements > and announcements of public events, again one would need to > know the precise contours of the policy to know whether such > postings had converted the areas into limited public fora. > In short, I find it hard to react to the story without more > detail about what policies are actually in place. >
