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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.
 

Friday, March 28, 2003

Eugene Volokh comes to the defense of an outrage in New Jersey. He's not defending the outrage itself, mind you; his argument is more along the lines of, "They may very well not have had any other reasonable choice in the matter." This brought to mind a similar flap over hanging American flags on bridges over freeways: If I remember correctly, Volokh used the same argument there.

My thought is, there is an analogy here to the "clear and present danger" test, in reverse. If there is some flavor of private speech which the government can clearly punish, then there is also a flavor of private speech toward which the government can show special favor. Maybe we can call it "closely brigaded with legal action," or some such. The main thing is, it does not necessarily follow, once the government indulges a private patriotic display on its property, that it must necessarily open up that property to all displays whatsoever.

-- posted by Clayton 3/28/2003 07:36:00 PM


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