Friday, June 01, 2007
Case!
Eugene Volokh points us towards an interesting Ninth Circuit case holding that campaign spending limits by student governments are not violations of the 1st amendment. It may be worth reading, since many issues are relevant to some of our controversies. Some things I'm approximating, since I don't know the law particularly well:
1) The student government in this case seems to have limited autonomy. It's not entirely clear whether the ASUC has the same situation or not. The ASUC, as folks know, claims a lot more autonomy than it actually has.
In any case, this student government and its parent university are being sued, and the decision discusses 11th amendment immunity, which apparently prohibits the federal court system from ruling on some suits against states. An exception here involves requests for injunctive relief to stop a continuing constitutional violation, and is invoked because the plaintiff is seeking to have records expunged, which could have present and future harm. (The record is also the reason why it isn't moot, even though the plaintiff graduated.)
2)
The speech at issue occurred in the University of Montana student election system, and, subject to constitutional limitations, government has the power to control speech in its school election system to preserve the character of that system. The reasoning here is somewhat patronizing, and would strike pretty deeply at ASUC autonomy if it was ever considered valid for the ASUC. The idea is that student government elections are an education function, and restrictions preventing interest groups or rich folks from dominating, as well as placing constraints, serve that educational function. (This analysis, if applied to the ASUC, would probably eliminate most of DAAP's bitching, since viewpoint neutrality is the only real issue here. Anything else could be considered for "educational purposes." In fact, the existence of an error-prone judiciary may very well be considered part of this process, and limit the ability of the federal court system to step in even if the Judicial Council clearly fucks up.)
3) The student government election is recognized as a "limited public forum." This means that government can regulate its use to its "intended purpose" (here education). The requirements are viewpoint-neutrality and reasonableness. Its existence as an entity influenced by "political speech" is rejected (no strict scrutiny required):
"The role of the ASUM officers is no less important to society than is that of the Montana state government."
...
Flint's arguments are unpersuasive.... The ubiquity with which political government is present to control facets of our lives is not—thank Heavens!—replicated by student government in students' lives. 4) The student government is clearly part of the university here. The reasoning seems perfectly applicable for the ASUC, so the ASUC would likely be seen the same way in any such case:
The University uses ASUM primarily as an educational tool—a means to educate students on principles of representative government, parliamentary procedure, political compromise, and leadership. In contrast to participation in state or national politics, participation in ASUM student elections is limited to ASUM-enrolled University students—students must maintain at least a 2.0 grade point average to run for office and only students are allowed to vote in the election. Unlike state and national governments, ASUM is a creature of the Board of Regents, whose policy calls for ASUM's Constitution and conditions the validity of the constitution on the University president's approval. Indeed, ASUM's entire operation is subject to the Board of Regents' policies and campus policies. Also, in a footnote:
While the spending limit is found in the ASUM Bylaws, the limitation is nonetheless one imposed by the government on the forum. The University, as required by Board of Regents policy, has established ASUM as the associated student organization on the campus. This issue wasn't disputed, though.
5) Not of any importance, but an interesting contrast on the topic of viewpoint neutrality:
The $100 limit does not apply solely to vegetarians, pacifists and Marxists, but not to meat-eaters, bellicists and fascists. Neither does the limit apply to candidates who might wish to abolish student government or at least intercollegiate athletics, but not to servile apple-polishers of the status quo or "jocks." I suggest that, from now on, we refer to the ASUC whores as "servile apple-polishers."
. . .
|
. . .
|
