Free Speech & Election Law: Freedom of Speech vs. Anti-Discrimination Laws
Free Speech & Election Law: Freedom of Speech vs. Anti-Discrimination Laws
Prof. David Bernstein, Prof. Andrew Koppelman, Prof. Kenneth L. Marcus, Prof. Eugene Volokh, Moderator: Prof. Lillian R. BeVier, 31 N.C. Cent. L. Rev. 207 (2009)
An excerpt from this Federalist Society-sponsored debate is cited by David Bernstein at The Volokh Conspiracy in response to the Supreme Court’s decision to hear a case involving right of religious student organizations to determine their own leadership:
“[W]hat if, on the other hand, university policy is that Republicans are free to exclude Democrats from the college group. Democrats are free to exclude Republicans. The student NRA is allowed to exclude pacifists. Pacifists are allowed exclude gun nuts and so forth and so on . . . But gay students aren’t allowed to exclude Christians who have conservative views on sexuality, or Christians aren’t allowed to exclude gay rights activists. Given that the right of expressive association is implicated, so there is a First Amendment interest here, then the university is engaging in viewpoint discrimination. And I think in that case, the student group would have a very plausible and hopefully winning argument before the courts that they cannot be denied funding for exercising their expressive association rights when other groups are permitted to decide who their members and officers should be.”