This exchange, from the Conlaw professors discussion list:
Response, by yours truly, to a query about a city that asked a private sign company to take down a billboard with the message, "Imagine No Religion," after some of the public complained about the anti-religion message:
Why couldn't the city have taken a different, let's say more speech
neutral position, such as the one that Thomas Jefferson, for instance,
did in writing his now famous reply to the ministers of Danbury, CT,
in which he reminded them of the alleged wall of separation between
church and state, an idea that had been around for some time by then.In the billboard instance, this seems to be an example of the
heckler's veto at work, not by the police, who arrest or hustle off
the speaker, but by the city fathers who, instead of acting to protect
the speaker of a disfavored message, take steps to silence him, her,
or it. This might have been popular politics in the short run, but
does nothing to support freedom of expression, which I submit is the
paramount value here.I put this on the order of the White House spokesman who, soon after
9-11, urged critics to watch their mouths on the ground that we needed
unity, patriotism, etc. A fair number of people pointed out that
criticizing the actions of government in a democracy was often
patriotic indeed, and that the spokesman was out of line.I suggest that the city was out of line in failing to advise callers
that the city had no jurisdiction to protest the contents of the sign
and that callers were free to go to the expense of putting up a
competing sign if they wished. The marketplace of ideas, you know.So yes, using the good offices of the government, the time and
attention of its employees, to stifle protected expression based on
the contents of the message seems clearly to be a violation of the FA
for which an injunction should lie if threatened again.The sign company should have denied the request and politely told the
mayor to pound salt.rs
sfls
***
FA = First Amendment, for the uninitiated.
***
One of the comments to the above:
I'm with Prof. Sheridan on this one. Given the discretionary power all
governments have these days, it is rational to feel "chilled" if
governmental major domos express public dissatisfaction with such speech
acts as billboards. Phone calls from the ma[y]or or police chief carry
with them the overtone "and we'll remember whether you were cooperative
the next (inevitable) time you need to ask us for some governmental
favor." This doesn't count as great oppression (and may not even be
illegal), but it would certainly have been nice if the the city had
explained to the 90 callers that we have something called freedom of
speech in America. - from Prof. S.L.
Another:
Woo-hoo! Applause! Cheers!
E.E., a civilian.
***
On further reflection, the evil of the city's action is not only that it fails to recognize the first amendment values implicated in responding to the protests, and the implied threat of retaliation, both pointed out by SL, above, but that it represents an assertion of government power that endorses a particular brand of religion, as opposed to no religion. In this country, where we have freedom of conscience, no one can tell you authoritatively to accept or reject any religious dogma, including a belief in a supernatural being, from the boogieman to fairies, elves, ghosts, goblins, witches, saints, angels, gods and God itself. We are free to be believers, non-believers, free-thinkers, agnostics, atheists, and BICs. Blind Irish Catholics, an old put-down of the faithful. Yet the city has come down on one side of the matter of faith, as though it had any business doing so. Aren't there any free-thinkers for the city to represent, as well as believers? Apparently not, or at least they didn't call. Maybe they should have. I must say that I was astonished to see that the FA expert who posted the query, below, saw little, if any, problem with the position taken by the city, which is one reason I bothered to compose my reply.
Imagine no First Amendment!
The original query:
On Nov 22, 2008, at 11:03 AM, E. wrote:
Is there any constitutional problem with this? I'm inclined to say no, if the city indeed simply made a request, rather than expressly or implicitly threatening some retaliation (though of course commercial property owners likely always worry about the risk of some retaliation if they get on the city's bad side). But I was wondering what others thought.
E.
From the Inland Valley Bulletin, Nov. 20, 2008:
A billboard with the message "Imagine No Religion" is no more.
Sign company General Outdoor removed the sign by the Freedom From
Religion Foundation on Thursday after it received a request by the
city to do so.
According to Redevelopment Director Linda Daniels, City Hall had
received 90 calls of complaint since Wednesday.
"We contacted the sign company and asked if there was a way to get it
removed," Daniels said....
Daniels said the city did not demand General Outdoor take down the
"Imagine No Religion" sign.
"We didn't say they had to (take it down), but they respected the
concerns of residents," Daniels said....
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