UCLA Law Review Discourse, Volume 57
An irony of American free speech law is that it provides more protection for ranting on a street corner than speaking out at a public meeting. This is partly a quirk of the United States Supreme Court’s complicated First Amendment jurisprudence and partly a recognition that such meetings are venues for administrative business and not just citizen engagement. And yet all across the country, city councils, school boards, planning commissions, and other public bodies provide time for members of the public to speak at their meetings. Sometimes the comments are relevant and persuasive, sometimes no one from the public shows up, and sometimes officials are besieged by hostile gadflies who seize the platform to create a spectacle. Officials concerned about such abuse are allowed to quiet speakers if their comments would derail a meeting. However, such power is limited to quelling speech that is disruptive, not merely disfavored. Not surprisingly, judges and local officials have struggled to draw this fine distinction, as exemplified by the recent Ninth Circuit opinion, Norse v. City of Santa Cruz. In Norse, a divided panel held that city officials did not violate a citizen’s First Amendment rights by ejecting him from two municipal meetings—one in which he paraded around the city council chambers in protest and another in which he silently gave a Nazi-style salute. The majority found both ejections acceptable, although the panel was split on the silent salute. A dissenting judge deemed that ejection to be impermissible viewpoint discrimination. The Ninth Circuit announced on March 12 that it would rehear the case en banc, setting the stage for an important reexamination of the law governing citizen speech at public meetings.
For much of the twentieth century, corporations pursued a simple strategy: maximize shareholder wealth. This strategy led to significant gains for shareholders, but too often came at the expense of the public. This dynamic was on display in the past two years, as high-risk financial instruments brought down the global economy. These instruments, including credit default swaps and mortgage-backed securities, offered significant profit potential, but as we now know, they also posed a serious risk to the economy. Indeed, many of these instruments failed, doomed numerous firms, and contributed to a recession. As world economies seek to rebound, the time is right to reform corporate law to address the singular focus on profits that has imperiled so many corporations and economies. In this Essay, I propose that directors and officers reaffirm a duty to consider the public impact of corporate decisions. In doing so, they must refrain from corporate acts that impose a significant risk on the public. Aside from specific regulations, nothing in corporate law forces corporations to consider the negative macroeconomic consequences of their decisions. True to corporate law history and doctrine, I propose a corporate public duty that maintains commercial pursuits as the primary purpose of the corporation, but restrains the corporation from acts detrimental to the public. Under this conception, many of the destructive acts of recent years may have been averted.
A response to The World of the Framers – A Christian Nation? Professor Geoffrey Stone’s Essay, The World of the Framers: A Christian Nation?, seeks to state “the truth about . . . what [the Framers] believed, and about what they aspired to when they created this nation.” Doing so will accomplish Professor Stone’s main objective, helping us to understand what “the Constitution allows” on a host of controversial public policy issues. Regrettably, Professor Stone’s effort is unsuccessful. Although he clearly tried to be fair in his historical account, the Essay ultimately presents a misleading view of the Framers’ perspective on the proper relationship between religion and the state.
A response to Getting the Framers Wrong: A Response to Professor Geoffrey Stone Professor Samuel Calhoun insists that my thesis is “wrong,” that I “overstate” the evidence, present “a misleading view,” “distort” the authorities, argue by “assertion,” offer “no convincing corroborating evidence,” “mislead my readers,” and defend a “historically indefensible” position. In short, Professor Calhoun accuses me of failing to meet the “no distortion” standard. Whew! Revealing my gracious side for just a moment, I must acknowledge that some of Professor Calhoun’s observations are both constructive and interesting. For example, some of his insights about American deism, the decline of Christianity, the Declaration of Independence, and George Washington identify useful points of historical uncertainty and disagreement. Too often, though, Professor Calhoun’s criticisms miss the mark, not only because he exaggerates their significance, but also because he seems not to have noticed that he was critiquing a lecture, rather than a formal scholarly article. A lecture, to succeed, must be clear, concise, easy to follow, and readily accessible to a general audience. It will not do for a lecturer to inflict upon his audience too many subtle qualifications, complex asides, and convoluted clarifications. Professor Calhoun’s criticisms are primarily of the dotted-i and crossed-t variety, though he obviously thinks they add up to something more. I think not.