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April 19, 2005

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Mary Minow:

Does White write opinions on other school speech issues? Here the
government is the speaker (as educator), unlike in Red Lion,
where the government is regulator. As educator, the government has
far greater latitude to restrict (its own) speech....


Eugene Volokh:

Mary is exactly right: One shouldn't read White's quote too far
out of its context. Justices make all sorts of categorical statements
in one area that may not apply equally in other areas. One can argue by
analogy that they *should* apply. But such analogies aren't much help
when interpreting a specific White opinion in Pico -- an opinion that
repeatedly says and suggests that White is *not* reaching the
substantive question. That's why Pico is a 4-4 decision, not a 5-4 one.

Susan Nevelow Mart

-post deleted due to factual error-

Humm... This comment needs a little clarification. White is saying that there is a First Amendment issue raised by taking a book off a library shelf for viewpoint-based reasons, even if he won't
tell lower courts one way or the other how he will rule. It's a warning, and has certainly been taken by the library community to mean that viewpoint- based book removals are suspect.


Pico has always suffered from being a plurality opinion. But isn't White saying, to lower courts, in essence, if you find that the motivation to pull the book from the shelf implicates First Amendment rights, then I would have reached the First Amendment issue, which already has a plurality. And I'm the justice who wrote Red Lion Broadcasting Co. v FCC, where I wrote: "It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." (89 S.Ct. 1794, 1807 (1969). So other courts looked on the potential result, and ruled accordingly. White's opinion does seem to raise the First Amendment issue, even if he sidesteps it.

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