pageok
pageok
pageok
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.

Sean M:
This is nitpicky, but wouldn't the correct cite for Rosenberger be Rosenberger v. Rector and Visitors of the University of Virginia?

"Rector" in the Commonwealth of Virginia's school system is like saying "President of the Board of Trustees."

Rosenberger v. President of the Board of Trustees is a fairly meaningless cite. Cf. Regents of the University of California v. Bakke as opposed to merely Regents v. Bakke.

* * *

Glad all these hours I'm spending on my Note (wherein I cite Rosenberger) are good for something . . .
10.21.2008 8:52pm
Order of the Coif:
Send it in. It will blow their socks off.
10.21.2008 9:05pm
Jonathan F.:
Your take seems right. For purely nonconstitutional reasons, I'd also be concerned about this provision from #5:
No advertisement is permitted to contain a link, whether directly or indirectly, to a site that contains software downloads, freeware, or shareware.
As I understand it, this would prohibit advertisements linking to, for example, microsoft.com, apple.com, or symantec.com, because software can be downloaded from each of those sites.
10.21.2008 9:12pm
I watch too much TV:
Did you see Prof. Volokh lay down the law?! He is the LAWGIVER!!
10.21.2008 9:14pm
Jonathan F.:
In fact, Professor, please let us know what you decide to send in. If you don't see fit to mention the software-download provision I remarked on above -- and if no one points out to me that I'm being a moron about this somehow -- then I think I'll send a comment about it. As worded, it seems pretty ill-advised.
10.21.2008 9:18pm
Another pinhead (mail):
How did you come across that? Do you have enough spare time to read the Federal Register for fun?
10.21.2008 9:22pm
Mr. Greenbean:
Mary Burke is a Project Officer, not a lawyer. If you're going to write a complaint, use real English instead of legalese.
10.21.2008 9:30pm
Sean M:
Presumably, Mary Burke has a few lawyers kicking around the Service that she could forward Prof. Volokh's letter to ...
10.21.2008 9:48pm
CDR D (mail):
>>>Do you have enough spare time to read the Federal Register for fun?<<<


Glad someone does.

Give 'em hell, EV.
10.21.2008 9:49pm
J. Aldridge:
Lemme see if I understand this correctly: The government can enforce these proposed guidelines against businesses, state and municipal agencies, etc., but cannot adopt these guidelines for itself in regards to advertising?
10.21.2008 9:51pm
LP:
I have no legal training and everything in the letter was pretty clear to me
(assuming the citations back up what you state) except for the precise definition
of nonpublic forum, and this is easily available online.

I am curious-I read here recently that university speech codes have been
found (in every case where they have been challenged) to be unconstitutional.

Does anyone know of a case where academic senates or university administrators (or whoever sets these policies) have been warned about this?
How do they react?
10.21.2008 10:16pm
Sean M:
LP,

The Foundation for Individual Rights in Education (www.thefire.org) makes a living out of doing this sort of thing.

Their website is chock-full of their experiences and how schools react.
10.21.2008 10:22pm
ShelbyC:

...contain a link, whether directly or indirectly, to a site that contains software downloads...


indirectly? What does that mean? A link that links to a site that links to a site? This would pretty much outlaw all links.
10.21.2008 10:34pm
NickM (mail) (www):
If "indirectly" includes linking to a site that links to a download site, it would effectively ban advertising by sites that make .pdf files available, since it is standard practice to link to Adobe's website if you make .pdf files available.

Nick
10.21.2008 10:55pm
David Krinsky (mail):
NickM: The RBFF site links contains PDFs and links to Adobe's site. So it would appear that the guidelines would be stricter for ads than for the site's own content, and that ads might be forbidden from linking to the site they're on.
10.21.2008 11:01pm
Bill Poser (mail) (www):
I too find the restriction on software downloads bizarre. Any idea what that is about? At first I thought that they were trying to exclude free software in favor of proprietary vendors, but in fact the provision is worded so as to exclude even paid downloads. I would think that it would be perfectly reasonable to advertise mapping software or fishing site databases on this site.
10.21.2008 11:08pm
Oren:


Give 'em hell, EV.

Seconded!
10.21.2008 11:14pm
Borealis (mail):
Your error is in point number one. It is not clear that Guidelines constitute government action. The publication of the guidelines in the Federal Register is not conclusive evidence.

I am not familiar with RBFF, but similar foundations associated with the National Park Service and Forest Service have some law developed that makes question of government action a complicated legal issue.
10.21.2008 11:19pm
ChuckC (www):
Prof. Volokh,
So the choices for a 503c non-profit that accepts government funds are
1) do not allow advertising,
2) accept all advertising,
3) give up the government funding. (which theoretically would then allow discretion in accepting ads, except the ads sold would never equal the funding given up, and thus back to 1)

The advertising they want to sell, I imagine, would be for equipment, lodging, and the general "Fishing is Fun!" ad.

The advertising they want to decline is some idiot in blackface, holding a catfish and saying "Fishin' shore iz fuun"
10.21.2008 11:37pm
Harry:
I don't know, but suspect, the linking to software downloads is not to limit Microsoft, or any of the others, but to prevent someone from using a link that has downloads for software that includes spyware, or other software of a nefarious nature. They don't want to be responsible for the software that would be found on that page, nor for validating that it is proper and legal.
10.22.2008 12:25am
Jonathan F.:
So the choices for a 503c non-profit that accepts government funds are
1) do not allow advertising,
2) accept all advertising,
3) give up the government funding. (which theoretically would then allow discretion in accepting ads, except the ads sold would never equal the funding given up, and thus back to 1)
Perhaps so, if -- as I understand it from the regulation preamble -- the nonprofit enters into a memorandum of understanding with the government subjecting its actions to Fish & Wildlife Service approval and notice-and-comment rulemaking procedures. But note that these guidelines were drafted by the RBFF, not by FWS. I'm not at all sure about the mechanism which got them into the Federal Register, or whether the RBFF would be entitled to adopt the guidelines on its own. According to Eugene, "it is clear that the Guidelines constitute government action [because] it is, after all, the U.S. Fish and Wildlife Service that would be adopting the Guidelines." That's not so clear to me.

My point, though, is that if you agree to accept funding at the price of accepting regulation then, well, you have to accept the regulation.
10.22.2008 12:29am
Jonathan F.:
I don't know, but suspect, the linking to software downloads is not to limit Microsoft, or any of the others, but to prevent someone from using a link that has downloads for software that includes spyware, or other software of a nefarious nature. They don't want to be responsible for the software that would be found on that page, nor for validating that it is proper and legal.
Agreed -- I'm sure the intent wasn't to prevent advertising from Microsoft or Adobe Systems. The fact that it does, though, it what makes that regulation so badly written. I doubt it was thought through very rigorously.
10.22.2008 12:34am
TomHynes (mail):
I googled some phrases from the guidelines, and found it is pretty similar to Facebook's:

rel="nofollow" href="http://www.facebook.com/ad_guidelines.php">

I suspect the agency did a cut and paste, with a little editing, without even thinking about the First Amendment.
10.22.2008 12:34am
Eugene Volokh (www):
ChuckC: Accepting government funding doesn't make RBFF a government actor for First Amendment purposes; there's caselaw squarely on that point (Rendell-Baker v. Kohn, 457 U.S. 830 (1982)). But the Fish &Wildlife Service is a government actor, and it's the one that's apparently setting the policies at issue here. Those policies are therefore government action, and are indeed subject to the First Amendment. (Consider Rendell-Baker itself, which stressed that government funding didn't suffice to create state action as to a speech-restrictive decision that "were not compelled or even influenced by any state regulation"; here the government regulation would compel speech-restrictive decisions.)

Borealis: I think this responds to your argument as well, but if you can point me to that contrary caselaw you mentioned, I'd love to see it.
10.22.2008 12:36am
Borealis (mail):
Eugene,

I have limits on my research at home, but some similar foundations are commissioned by statute, and thus have different legal status than 501(c)(3) corporations or federal agencies.

For example, the National Forest Foundation is created by statute at 16 USC 583j.

The National Fish and Wildlife Foundation is a charitable and nonprofit corporation established under 16 USC 3701.

The National Natural Resources Conservation Foundation is established at 16 USC 5802 and includes the statutory provision "The Foundation is not an agency or instrumentality of the United States."

I suggest you call the contact number in the Federal Register ( RBFF Project Officer Mary_
Burke@fws.gov (e-mail) or (703) 358-2435) and ask to talk to the DOI Solicitor's Office attorney working on the proposal. The attorney would be thrilled to get a call from you.

It could be that the agency didn't talk to attorneys and didn't consider First Amendment issues, or it could be that they have worked this out to be consistent with all the various federal foundations commissioned to assist land management agencies. It would save you a lot of time to just find the attorney who is working on the issue.
10.22.2008 2:12am
krs:
Prof. Volokh, were you not persuaded by Judge Kavanaugh's concurring opinion in Bryant v. Gates?

After citing and discussing a bunch of cases, Judge Kavanaugh concludes:

The rule established by these cases is that the Government "has largely unlimited power to control what is said in its official organs (newspapers, radio broadcasts, and the like) or in organs that it officially endorses, even if this control is exercised in a viewpoint-based way." Eugene Volokh, The First Amendment and Related Statutes: Problems, Cases and Policy Arguments 410 (3d ed. 2008).
10.22.2008 9:47am
Bill Harshaw (mail) (www):
I'm curious, did you find the notice through "regulations.gov", which is intended to be the one-stop shopping center for all government regs (I'm skeptical of its effectiveness, hence my curiosity) or elsewhere, as seems to be indicated by the URL. The Administrative Procedure Act needs to be updated to recognize modern realities, both technological and the proliferation of quasi-governmental entities.

I'm no lawyer, but I'd observe this isn't a "rule-making" document, as it's published as simply a notice of availability and request for comment. If it were rule-making, the rules for public comment would probably require all oral communications with the agency to be documented and placed in the rule-making file.
10.22.2008 10:05am
Alex R:
I'm not a lawyer, and unfamiliar with any precedent cases, but are restrictions on hate speech -- if they are truly applied evenly to speech directed against any group or individual -- really considered to be viewpoint-based? One could argue, at least, that such restrictions are based on the *type* of speech, rather than on the *viewpoints* expressed. I'll admit that it might be hard to draw a line between those different types of restrictions, which is why I would be interested in finding out about precedents that address this question.
10.22.2008 10:27am
David Schwartz (mail):
Alex R: If it prevents hate speech but allows equally vigorous love speech, how can it be based on the "type of speech"? What is the "type" difference between hate and love, other than viewpoint?
10.22.2008 11:56am
Eugene Volokh (www):
Krs: I think Judge Kavanaugh's view is plausible, and it might be wise for the Court to adopt it. But it doesn't seem to be the view of the D.C. Circuit, or the most likely interpretation of the Court's "advertising space as nonpublic forum" decisions. So long as the law seems to require viewpoint neutrality in such contexts, I'd like to see that law complied with as to all viewpoints.

Alex R: I've added a cite to R.A.V. v. City of St. Paul, which makes clear that "hate speech" restrictions are viewpoint-based. And R.A.V. is right on this (even if one concludes that it's wrong on its broader holding that viewpoint discrimination and some other kids of content discrimination are impermissible even as to unprotected speech categories), for the reason David Schwartz mentions: Speech praising various groups, or praising equality, is permitted; speech expressing hostility to those groups or to equal treatment is forbidden.
10.22.2008 1:32pm
Chris H.:
Actually, I get a daily email from the GPO with that day's Federal Register Table of Contents. I use it to check several agencies' notices and rulesmaking, and if I find something of interest, I can check out the full entry (although that only happens about once every couple of weeks). It's a decent way to stay on top of things.

I particularly enjoyed this section of the proposed guidelines:


Grammar, spelling, and capitalization:
• Advertising copy must be in logical sentence form and contain grammatically correct spacing.
• Advertisements must use correct spelling.
• Advertisements may not include unnecessary capitalization (such as ''FREE''). Acronyms may be capitalized.
• Advertisements may not include excessive repetition.


Serious consequences await for all typos!!

(I also agree that Prof. Volokh should submit his comments.)
10.22.2008 1:55pm
guy in the veal calf office (mail) (www):
I second commentator I watch too much TV: and just want to add my thanks to Prof. Volokh for extending his pedagogical diligence to our government's agencies. Its [secular] god's work.

Letting people know that we have this, you know, like, constitution, and it prohibits, um, ah, some stuff, seems like a good idea, although our public schools don't necessarily agree.
10.22.2008 2:33pm
Bill Harshaw (mail) (www):
FWIW, a link to a post by the Project on Goverment Oversight on the rulemaking process.
10.22.2008 2:54pm
fortyninerdweet (mail):
"Props to the professor" on this. Please do follow-up - and keep faithful followers updated too, as you find time.

Not to put too fine a line on this idea from the F&WS but doesn't there already exist a couple of Field and Stream type magazines published with advertising space available? Are they turning away needy advertisers who now must look to a government-supported periodical to provide venues so they can pay the feds to "make public" their stories? Or is this just another way for Uncle Sam to compete with private industry?
10.22.2008 4:54pm
ohwilleke:
I'm not impressed that this is constitutionally viewpoint discrimination. I also disagree with the notion that "nonpublic forum" is a sufficiently context specific description to apply the First Amendment to in this situation is doubtful.

Reasonable time, place and manner restrictions in speech, and in particular, in political and religious speech, in governmental contexts is not only permitted constitutionally, it is required in some contexts.

Leniency in permitting website operators to restrict advertising content in an Internet based nonpublic forum is particularly appropriate, because on the Internet the ability to present a message to the entire world is great, and government controlled forums are not preferred or special relative to other forums. Unlike, for example, a bus advertising, there is no government monopoly on placing web based advertising.

The law lawfully prohibits governmental employees from engaging in political activities on government property, and likewise, the law (constitutionally) typically prohibits any campaigning in polling places even when the polling takes place in churches, taverns or grocery stores (all used in Colorado) where other types of advertising is present.

Indeed, to the extent that hate speech is discriminatory, or harassing in character, anti-discrimination laws, which are at least on a co-equal foundation under the 13th and 14th Amendments with the 1st Amendment, may be required to be banned in many contexts. While trash talking about the interfiority of a group legally protected from discrimination is not banned, it is legally prohibited by those in a position to carry out anti-discrimination laws (e.g. managers of medium and large employers, significant landlords, and operators of public accomodations).

Also relevant are the broadcast television decency laws. While everyone agrees that much that is restricted by FCC decency regulations is not obscene and may not be outright prohibited by government, government can broadly designate private but government regulated forums as "family friendly." While only "fighting words" can be banned outright, higher standards of non-threatening communication can be imposed in a particular forum that does not ban it outright. All of the prohibited communications are basically non-fighting word threats or condemnations of others.

All of the restictions here, other than the "politically religious" restriction are closely analogous to the Fair Housing Act restrictions that prohibit discriminatory advertising for rentals.

It also seems to me that it is entirely appropriate to limit advertising to ads that are in some way germaine to the website. It seems to me that these restrictions are a way of limiting discussion to ads that don't have the character of "heated debate." Mandating civility in one's advertising is more of a "manner" restriction (similar to prohibiting the use of megaphones to communicate a message in a park), than a viewpoint distinction.

Also, while government funding may require a non-profit to adhere to regulation, it does not follow that the non-profit is the government. The Recreational Boating &Fishing Foundation is not appropriate required, by virtue of taking a government grant, to permit viewpoints contrary to, or which undermine, its primary mission, which is advancing Recreational Boating and Fishing for the general public. Allowing certain kinds of advertising, even with great disclaimers, can undermine the organization's larger mission.

The issue is not "what can a government do in a nonpublic forum," but, "does anything done by a private organization become illegal when it receives some government funding?" For example, the regulations proposed are found at websites of almost every private institution of higher education in the country, despite the fact that all but a handful receive government funding, directly, or indirectly by being qualified to be eligible providers in government funding of students through grants and loans.

The proposed letter is a classic example of the difference between being a real lawyer for an organization or government, and being a law professor. It highlights a theoretical and hypothetical concern, but is heavy on reason and light on experience, precedent, context and accepted practice.
10.22.2008 5:42pm
BZ (mail):
Sorry to be late commenting, but have been on vacation. Two quick points:

1) In response to the question of govt's power to regulate speech, I use as shorthand a version of Justice O'Connor's "speech spectrum:" the closer the speech is to government's own speech, the greater its power to dictate its content. Other cases deal with govt funding of speech and are clear that the govt may control what it pays for. But here the govt is not paying for the speech, it is reviewing and publishing the limitations on speech, pursuant to a Memo of Understanding, the extent of which is unclear. This is entanglement such that a reasonable observer might view the speech as the govt's own, giving the govt more power to regulate it. See the school speech cases, in which the govt has the power to regulate speech which only gives the impression to a reasonable observer that it is the govt's own speech. Or Lehman, in which the city restricted signs on city buses to avoid "lurking doubts about favoritism." 418 US at 303-04.

2) As to the restrictions on 501(c)(3) speech, a charity engaged in "hate speech" may lose its tax-exemption under the "public policy" doctrine (discussed in another thread on VC a few weeks back). Bob Jones University v. United States, 461 U.S. 574, 591 (1983)(charity loses exemption for opposing inter-racial marriage). The govt can probably justify that portion by citing the need to protect the Foundation.
10.23.2008 3:15pm