The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
–Justice Anthony Kennedy (1936 – )
This is going to be a quick post, at least for now, due to my time limitations.
Yesterday, the California Science Center (CSC), a public institution and affiliate of the Smithsonian Institution, settled a lawsuit against it filed by the American Freedom Association (AFA). AFA had claimed that CSC had breached a contract for AFA’s rental of CFC’s IMax theater to show a pro-intelligent-design film. CSC claimed that AFA breached the contract first by falsely publicizing, through the Discovery Institute, that the event was sponsored or endorsed by CSC. AFA, in turn, claimed that it had no control over the Discovery Institute’s publicity of the event. More importantly, AFA claims that the CSC cancelled the showing because of the content of the film, and that it therefore violated AFA’s First Amendment rights.
I can’t express an opinion on the lawsuit itself, since I have not seen any of the court documents, the original rental agreement, the discovery from the lawsuit, or the publicity that was allegedly a breach of the contract. But I do want to correct some misperceptions and answer some questions raised in PZ Meyers’s excellent post (does he have any other kind?) on the topic, and in the comments to that post. I will add links and references tonight, time permitting. [Update: I don’t have the time tonight, but I have made some minor edits.]
Pseudo-scientists have just as much right to speak out as skeptics do. The first comment to PZ’s blog suggests that the CSC should simply not rent to organizations like the AFA. That, however, would be a blatant First Amendment violation. If a government institution makes space available to outside organizations to engage in speech, it cannot pick and choose arbitrarily what kinds of organizations it will rent to. There are two levels of First Amendment analysis here. The first level looks at the ability (or inability) of a government organization to choose what it would allow to be shown based on the subject matter of the speech. For instance, if the CSC has made a clear policy that it will only rent its theater to organizations showing films relating to science, it will likely be able to successfully defend any claim that it must require a knitting club to show the movie, “How to Knit a Killer Sweater.” If, however, the CSC simply made its theater available to all non-profits, then it can’t later choose to exclude a film on abortion because it’s squeamish about the subject.
The second level looks at the ability of the government organization to choose the organizations to which it will rent based on the viewpoint of the speech. Another commenter on PZ’s blog asks whether “what Luskin [the Discovery Institute’s lawyer] says about the First Amendment (i.e. that it “forbids government preference for one viewpoint over another”) sound like complete shite…?” No, it’s not baloney. It’s entirely accurate. The worst thing a government institution can do is discriminate on the basis of viewpoint. The CSC cannot say, “We’ll rent to films explaining evolution but not to films arguing against evolution.” Can it refuse to show any films about evolution? Maybe, given its ability to regulate the subject matter to some extent, but if it starts to make policies excluding only controversial science subjects, then the courts will question their purpose in making those policies, and if the intent was to suppress speech with which the CSC did not agree, then the courts may require the CSC to change its policies.
PZ himself asks in the comments,
You can’t have a general license agreement that spells out a list of things you will intentionally discriminate against, without discriminating. I wonder, though, if there aren’t models for exclusion that could be used. If the KKK asked to lease the IMAX theater, would they do so?
Again, this depends on the policies and the purposes behind those policies. If the KKK wanted to show a film arguing that there is scientific evidence that people of African descent have inferior intellect, and the CSC’s policies state that it will rent out the theater to organizations showing films on scientific subject matter, then the CSC would likely have to rent the theater to the KKK. There are “models for exclusion,” as PZ puts it. Public libraries around the country deal with this kind of problem (limiting the use of meeting rooms) all the time, and the American Library Association has some guidance for libraries on its website.
One commenter answers PZ by saying,
KKK is classified as a hate group so if fits into an entirely different legal area.
Obviously, the fix for this is to get these creationist groups categorized as hate groups. Then the museum would be legally backed up in saying they don’t want to associate with homophobic, patriarchal, lying bastards.
Well, not quite. There is no such legal “category” as “hate groups.” There are things called hate crimes, but the key is that whatever you’re doing has to be a crime in the first place. Then the sentence or penalty can be enhanced if your motive was “hate.” In other words, if you just beat the crap out of someone for fun, then you may only serve up to five years in jail. But if you beat the crap out of them because they’re gay, then you may spend up to ten years in jail. But the government can’t treat someone differently just because the person hates gays.
Many comments make the point that the CSC should have allowed the AFA to show the film, but engaged in its own speech to counter the message presented by AFA. Some commenters suggested holding a lecture before or after AFA’s film, or putting up posters around the theater, or otherwise publicizing that the event was not sponsored or endorsed by the CSC. I couldn’t agree with these comments more. People much smarter than I have recognized that the marketplace of ideas will take care of itself. The best way to counter speech with which you do not agree is to engage in more speech.
Speaking of more speech, I’ll post more later. I’ve got to get back to work now.