I think that the free speech claim, standing alone, would have
to be a loser. I take it that a public university should be free to
discriminate based on viewpoint in setting up panels -- we do that all
the time, even when we're trying to set up balanced panels, and I think
there's no First Amendment obligation to set up such panels, even if the
panelists are being asked to express their own views, not the
university's. Why shouldn't a public high school be equally free to do
so? So the district court's Free Speech Clause argument strikes me as
unpersuasive.
But I do think that the Establishment Clause argument is pretty
strong here: The school is inviting religious speakers, not just as
part of a process of learning about religious perspectives, but in order
to persuade listeners that a certain religious view (homosexuality is
fine) is correct.
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E.
Brownstein
Sent: Tuesday, April 20, 2004 9:58 AM
To: Law Religion issues for Law Academics
Subject: Re: Hansen case or, Clueless in Ann Arbor
I do not defend the school district's conduct in this case.
But I think the
free speech issue here is far more difficult than the
district court suggested.
I think there are more than two categories here. I'm not at
all sure that
school sponsored speech can be collapsed into forum analysis
and subjected
to the requirements of viewpoint neutrality. At least not if
we are taking
viewpoint neutrality seriously. And I'm not at all sure that
the Supreme
Court would accept the District Court's analysis.
Consider Justice Kennedy's language in Arkansas Educational
Television
Commission v. Forbes. Much like a university selecting a
commencement
speaker, a public institution selecting speakers for a
lecture series, or a
public school prescribing its curriculum, a broadcaster will
facilitate the
expression of some viewpoints instead of others. Were the
judiciary to
require, and so define and approve, pre-established criteria
for access, it
would risk implicating the courts in judgments that should be
left to the
exercise of journalistic discretion. . . .
When a public broadcaster exercises editorial discretion in
the selection
and presentation of its programming, it engages in speech
activity. . . .
Of the examples given, only a public school prescribing its
curriculum
constitutes government speech in the sense that the government stands
behind the message that is communicated in some sense. In all
the other
examples, government typically does not endorse the messages
of the actual
speakers, just as a newspaper does not endorse the messages of every
article it chooses to print on its op ed page. But the choice
of speakers
or writers does constitute speech activity according to
Forbes and can not
be subjected to a viewpoint neutrality mandate when it is the
government
that chooses the speaker or writer.
Maybe that is what Doug means when he writes it can claim
speech as its
own and take political responsibility for it. In that case,
I have no
problem with his post. But my quick skimming of the opinion in Hansen
suggests that the District Court does not seem to take that
position. It
seems to read the Supreme Court's language in Hazelwood --
permitting
censorship of a high school newspaper when doing so it is
justified by
legitimate pedagogical concerns -- to demand viewpoint
neutrality. But
clearly the principal exercising final editorial control over
the content
of the school paper is a classic example of editorial
discretion. And one
of the reasons the Court provides for allowing the principal
to censor the
school paper is that the school administrators will be held
accountable for
the paper's content since the paper necessarily carries the
imprimatur of
school approval.
It may be that by delegating control over this program to a
student group
in the Hansen case, the school has surrendered its
discretionary authority
and really does not sponsor this panel. In that case, the
district court's
opinion should really read in the alternative. Either the
school sponsors
the program, in which case it violates the EC, or the school
created a
forum, in which case viewpoint discrimination is prohibited.
That seems to
be Doug's argument as well. But in cases outside of the
context of inviting
religious speakers to talk about religion in a way that
raises EC concerns,
I am not sure there would have been a free speech clause
violation in this
case. If the student group had invited speakers supporting
gay rights from
a secular perspective, and the school affirmed that it sponsored the
program, I am not at all sure that viewpoint discriminatory
choices in
selecting speakers would be unconstitutional.
Alan
