July 22, 2010

NOT the whiteman's Volokh

I would be inclined to say that a viewpoint-neutral rule prohibiting vulgarities or epithets might well be constitutional, since the ballot is a state-created limited public forum.
Well, there is no such rule. There was a ruling, and it most certainly was not viewpoint-neutral: It was directly viewpoint-discriminatory.

Volokh then refers us to a federal case from New York where the dispute was over exceeding the maximum number of letters in a ballot message, yet the "epithet" was allowed to stand. Not helpful.

Further demerit points assessed against Prof. Volokh for egregiously conclusion-assuming use of the word "since." Final grade: D.

Surely by the time they've reached voting age folks have had more than ample opportunity to get their delicate sensibilities assaulted. I know some 13-year-olds who read The Onion (and get the jokes).


Anonymous said...

I'm not clear why you've decided to attack Volokh on this particular post, but you seem to be making his arguments something they are not.

First, you omitted this part of his quote: "As best I can tell, the relevant statute provides simply [text of statute]; I don’t know what statute or regulation gives the board authority to restrict the contents of those 5 words, and under what standards."

He offered no commentary about whether it WAS viewpoint discriminatory, but merely saying that if there was some kind of content-neutral standard, it would be constitutional.

Second, he didn't cite the New York case as some kind of legal authority for any argument he was making. He merely noted that it was a "related example."

Third, the state ballot is a state-created limited public forum. I don't understand how that could be reasonably disputed. Obviously that does not permit viewpoint discrimination when it occurs.

Finally, I'm not sure if your comment about "delicate sensibilities" is directed at Volokh (I'm not sure why its in this thread if not) but I can't imagine that he would disagree with it. His analysis was merely under the existing law, and I think it is pretty clear that it would indeed support a viewpoint-neutral rule prohibiting obscenity.

illusory tenant said...

"[T]he state ballot is a state-created limited public forum."

What's your authority for that? It seems to me to be Volokh's crucial assumption.

illusory tenant said...

As to the rest:

"[A]ttack ..."

Good heavens. Seriously?

"[Y]ou omitted this part of his quote ..."

There's a link.

"[He was] merely saying that if there was some kind of content-neutral standard, it would be constitutional."

Kind of a trivial observation, don't you think? Similarly: "If Congress made a law respecting an establishment of religion, it would be unconstitutional."

"[H]e didn't cite the New York case as some kind of legal authority ..."

I never said he did. I only said it was unhelpful, for two reasons: (1) It had to do with character-counting as opposed to content (notwithstanding the plaintiff's apparent paranoia) and (2) the "vulgarity" or "epithet" was allowed to stand, which defeats the purpose of Prof. Volokh providing the case as a related example. But now that you mention it, it doesn't even seem to be a related example.

"I'm not sure if your comment about 'delicate sensibilities' is directed at Volokh ..."

It isn't. I imagine he's been around the block a few times.

illusory tenant said...

P.S. Maybe you want to say that that particular portion of the ballot, which allows for the independent candidate to describe her position and/or views, is a limited public forum. A limited public forum is something which the government is "not required to create or indefinitely maintain," a description within which a ballot cannot fit.

Anonymous said...

Yes, what I was referring to (and what I assumed Volokh was referring to) as a limited public forum was that specific part of the ballot. Indeed, isn't that what this whole dispute is about? The ballot itself is obviously not a public forum, at least insofar as it does not provide the opportunity to speak.

Thus, to clarify my earlier point: What I thought could not be reasonably disputed was that the government need not give candidates the opportunity to make this brief statement. If the government does, it may impose certain restrictions, but cannot discriminate on the basis of viewpoint. I suppose I could try and muster up some authority for that, but I am honestly not invested enough in my position to do so. This is just consistent with my recollection from my Con Law and 1st Amendment classes.

I don't disagree with your basic position on the ballot, and I don't see the wisdom in the board's decision. And it does appear that the board did make a viewpoint-discriminatory ruling, insofar as they restricted it on the grounds that it is "derogatory." I'm just not entirely sure what the scope of their authority to do so is. After all, isn't the government permitted to impose similar restrictions on license plates?

Anonymous said...

Actually, upon a little reflection, I am not certain that I agree that the decision was viewpoint discriminatory. It seems like it instead discriminates on the basis of content. I think there is a distinction here between prohibiting "derogatory" statements generally and prohibiting this particular viewpoint (the viewpoint that she is not the whiteman's bitch).

illusory tenant said...

Thanks for clarifying (and thanks for all your comments). License plates are a debatable corollary, I suppose, but I think Ms. Griffin has a far more compelling right of access to the ballot (and I have in mind that line of cases' tension with that of the limited public forum cases) than she might to a license plate, as I don't believe her access to the plate is in any way constitutionally guaranteed.

But she probably has a right to stencil "NOT the whiteman's bitch" all over her vehicle (and then tail that abortion guy's station wagon up and down Wisconsin Ave.).

John Foust said...

One can imagine that this tag line was created a hundred years ago as extra free advertising space for the dominant political parties.