[EL] ELB News and Commentary 12/20/11

[Scarberry, Mark]

Right. My only point was that there are circumstances under which the govt pays for speech but is not entitled to regulate its content or viewpoint. Rosenberger illustrates that point. Forum analysis has to be considered.

With best wishes to everyone on the list for a joyous holiday season,
Mark

Mark Scarberry
Pepperdine

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From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of BZall at aol.com [BZall at aol.com]
Sent: Thursday, December 22, 2011 12:59 PM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11


Rosenberger said:
The quoted language in Widmar was but a proper recognition of the principle that, when the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech, but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U.S. at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. See id. at 196-200.

It does not follow, however, and we did not suggest in Widmar, that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors, but instead expends funds to encourage a diversity of views from private speakers.

Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
11300 Rockville Pike, Suite 1200
Rockville, MD 20852
301-231-6943 (direct dial)
www.wjlaw.com<http://www.wj/>
bzall at aol.com



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In a message dated 12/22/2011 3:47:06 P.M. Eastern Standard Time, Mark.Scarberry at pepperdine.edu writes:
Rosenberger upheld the First Amendment rights of the students even though a state entity (U. of Va.) was funding the publication. Forum analysis comes into play here.
Mark Scarberry
Pepperdine
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