The Volokh Conspiracy - Draft Comment I'd Like To Submit to the U.S. Fish & Wildlife Service:

I accidentally ran across these Proposed Web Site Advertising Guidelines for the Recreational Boating & Fishing Foundation, which were published in the Federal Register with a request for public comment (due Nov. 4). I wrote up the following draft, which I plan to send in a few days, unless I'm persuaded otherwise; I'd love to hear people's comments on it.

* * *

Dear Ms. Burke:

I am a law professor at UCLA School of Law, where I specialize mostly in First Amendment law. I ran across your Proposed Web Site Advertising Guidelines for the RBFF, and it seems to me that many of them are unconstitutional.

1. Though the RBFF is a nonprofit corporation, it is clear that the Guidelines constitute government action — it is, after all, the U.S. Fish and Wildlife Service that would be adopting the Guidelines and that is publishing them in the Federal Register.

2. Advertising space on a government-run Web site constitutes a nonpublic forum. See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806 (1985) (treating advertising space on buses, dealt with in the earlier Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), as a nonpublic forum); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983) (likewise); Bryant v. Gates, 532 F.3d 888, 896 (D.C. Cir. 2008) (holding that advertising space in Department-of-Defense-published Civilian Enterprise Newspapers was a nonpublic forum); Rutgers 1000 Alumni Council v. Rutgers, 803 A.2d 679, 689 (N.J. Super. Ct. App. Div. 2002) (treating advertising space in a public university magazine as a "limited public forum," but applying much the same First Amendment rules as are applicable to a nonpublic forum).

3. In a nonpublic forum, the government may indeed restrict speech, but only if the restriction is reasonable and viewpoint-neutral. See, e.g., Cornelius, 473 U.S. at 811-13; Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 392-93 (1993); Bryant, 532 F.3d at 897-98. (If the advertising space is seen as a limited or designated public forum, the government is if anything even more restricted in its actions, but in any event must remain viewpoint-neutral, see, e.g., Rutgers 1000 Alumni Council.)

4. At least some of the proposed guidelines are viewpoint-based, for instance the bans on

* [h]ate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, marital status, sexual orientation, or language of such individual or group" (see R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992) (holding that a ban on bigoted speech is unconstitutionally viewpoint-based, even when the ban is limited to unprotected categories such as fighting words, which the proposed advertising policy would not be limited to));

* "any known associations with hate ... activities," given that hate activities likely includes speech that expresses hateful viewpoints;

* "[p]olitically religious agendas," given the conclusion in Rosenberger v. Rector, 515 U.S. 819 (1995), that exclusion of religious speech is viewpoint-based discrimination;

* "[i]nflammatory religious content," given that religious content will often be inflammatory because of the viewpoint that it expresses.

Those portions of the guidelines would therefore be unconstitutional.

5. The RBFF is of course entirely free to include and exclude whatever speech it wishes when it comes to its own editorial content on the site. See Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666 (1997). But when the RBFF accepts a wide range of advertising expressing others' views, it must not discriminate based on viewpoint in its choices of what to accept.

I should note that I'm entirely unaffiliated with the RBFF — I hadn't heard of it until I ran across these Proposed Guidelines. I also don't knowingly represent anyone who is planning to (or even likely to) advertise on the site. Please let me know if I can offer more guidance on the matter.

Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

UPDATE: I've beefed up some of the citations.

	[Eugene Volokh, October 21, 2008 at 7:42pm] Trackbacks Draft Comment I'd Like To Submit to the U.S. Fish & Wildlife Service: I accidentally ran across these Proposed Web Site Advertising Guidelines for the Recreational Boating & Fishing Foundation, which were published in the Federal Register with a request for public comment (due Nov. 4). I wrote up the following draft, which I plan to send in a few days, unless I'm persuaded otherwise; I'd love to hear people's comments on it. * * * Dear Ms. Burke: I am a law professor at UCLA School of Law, where I specialize mostly in First Amendment law. I ran across your Proposed Web Site Advertising Guidelines for the RBFF, and it seems to me that many of them are unconstitutional. 1. Though the RBFF is a nonprofit corporation, it is clear that the Guidelines constitute government action — it is, after all, the U.S. Fish and Wildlife Service that would be adopting the Guidelines and that is publishing them in the Federal Register. 2. Advertising space on a government-run Web site constitutes a nonpublic forum. See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806 (1985) (treating advertising space on buses, dealt with in the earlier Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), as a nonpublic forum); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983) (likewise); Bryant v. Gates, 532 F.3d 888, 896 (D.C. Cir. 2008) (holding that advertising space in Department-of-Defense-published Civilian Enterprise Newspapers was a nonpublic forum); Rutgers 1000 Alumni Council v. Rutgers, 803 A.2d 679, 689 (N.J. Super. Ct. App. Div. 2002) (treating advertising space in a public university magazine as a "limited public forum," but applying much the same First Amendment rules as are applicable to a nonpublic forum). 3. In a nonpublic forum, the government may indeed restrict speech, but only if the restriction is reasonable and viewpoint-neutral. See, e.g., Cornelius, 473 U.S. at 811-13; Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 392-93 (1993); Bryant, 532 F.3d at 897-98. (If the advertising space is seen as a limited or designated public forum, the government is if anything even more restricted in its actions, but in any event must remain viewpoint-neutral, see, e.g., Rutgers 1000 Alumni Council.) 4. At least some of the proposed guidelines are viewpoint-based, for instance the bans on * [h]ate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, marital status, sexual orientation, or language of such individual or group" (see R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992) (holding that a ban on bigoted speech is unconstitutionally viewpoint-based, even when the ban is limited to unprotected categories such as fighting words, which the proposed advertising policy would not be limited to)); * "any known associations with hate ... activities," given that hate activities likely includes speech that expresses hateful viewpoints; * "[p]olitically religious agendas," given the conclusion in Rosenberger v. Rector, 515 U.S. 819 (1995), that exclusion of religious speech is viewpoint-based discrimination; * "[i]nflammatory religious content," given that religious content will often be inflammatory because of the viewpoint that it expresses. Those portions of the guidelines would therefore be unconstitutional. 5. The RBFF is of course entirely free to include and exclude whatever speech it wishes when it comes to its own editorial content on the site. See Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666 (1997). But when the RBFF accepts a wide range of advertising expressing others' views, it must not discriminate based on viewpoint in its choices of what to accept. I should note that I'm entirely unaffiliated with the RBFF — I hadn't heard of it until I ran across these Proposed Guidelines. I also don't knowingly represent anyone who is planning to (or even likely to) advertise on the site. Please let me know if I can offer more guidance on the matter. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law UPDATE: I've beefed up some of the citations.