Posted by Eugene Volokh:
Draft Comment I'd Like To Submit to the U.S. Fish & Wildlife Service
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224632531
I accidentally ran across [1]these Proposed Web Site Advertising
Guidelines for the Recreational Boating & Fishing Foundation, which
were published in the Federal Register with a request for public
comment (due Nov. 4). I wrote up the following draft, which I plan to
send in a few days, unless I'm persuaded otherwise; I'd love to hear
people's comments on it.
* * *
Dear Ms. Burke:
I am a law professor at UCLA School of Law, where I specialize mostly
in First Amendment law. I ran across your Proposed Web Site
Advertising Guidelines for the RBFF, and it seems to me that many of
them are unconstitutional.
1. Though the RBFF is a nonprofit corporation, it is clear that the
Guidelines constitute government action -- it is, after all, the U.S.
Fish and Wildlife Service that would be adopting the Guidelines and
that is publishing them in the Federal Register.
2. Advertising space on a government-run Web site constitutes a
nonpublic forum. See, e.g., Lehman v. City of Shaker Heights, 418 U.S.
298 (1974) (plurality) (so concluding with regard to advertising space
on government-run buses); Cornelius v. NAACP Legal Defense & Educ.
Fund, 473 U.S. 788, 806 (1985) (majority opinion endorsing the Lehman
plurality's view); Bryant v. Gates, 532 F.3d 888, 896 (D.C. Cir. 2008)
(holding that advertising space in Department-of-Defense-published
Civilian Enterprise Newspapers was a nonpublic forum).
3. In a nonpublic forum, the government may indeed restrict speech,
but only if the restriction is reasonable and viewpoint-neutral. See,
e.g., Cornelius, 473 U.S. at 811-13; Lamb's Chapel v. Center Moriches
Union Free School Dist., 508 U.S. 384, 392-93 (1993); Bryant, 532 F.3d
at 897-98. (If the advertising space is seen as a limited or
designated public forum, the government is if anything even more
restricted in its actions, but in any event must remain
viewpoint-neutral.)
4. At least some of the proposed guidelines are viewpoint-based, for
instance the bans on
* [h]ate speech, whether directed at an individual or a group, and
whether based upon the race, sex, creed, national origin, religious
affiliation, marital status, sexual orientation, or language of such
individual or group";
* "any known associations with hate ... activities," given that hate
activities likely includes speech that expresses hateful viewpoints;
* "[p]olitically religious agendas," given the conclusion in
Rosenberger v. Rector, 515 U.S. 819 (1995), that exclusion of
religious speech is viewpoint-based discrimination;
* "[i]nflammatory religious content," given that religious content
will often be inflammatory because of the viewpoint that it expresses.
Those portions of the guidelines would therefore be unconstitutional.
5. The RBFF is of course entirely free to include and exclude whatever
speech it wishes when it comes to its own editorial content on the
site. See Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666
(1997). But when the RBFF accepts a wide range of advertising
expressing others' views, it must not discriminate based on viewpoint
in its choices of what to accept.
I should note that I'm entirely unaffiliated with the RBFF -- I hadn't
heard of it until I ran across these Proposed Guidelines. I also don�t
knowingly represent anyone who is planning to (or even likely to)
advertise on the site. Please let me know if I can offer more guidance
on the matter.
Eugene Volokh
Gary T. Schwartz Professor of Law
UCLA School of Law
References
1. http://www.fws.gov/policy/library/E8-24850.html
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