Rudolph Giuliani, case study

The Associated Press

11.29.99

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NEW YORK — Move over, Thomas Jefferson and the Pentagon Papers. The hottest topic in law school these days is New York's Mayor Rudolph Giuliani, who's been sued two dozen times on First Amendment grounds and lost nearly every case — including three in the last three weeks.

"Lately it seems as if I could teach a First Amendment course just on Mayor Giuliani," mused Amy Adler, a professor at New York University School of Law.

Professors say their favorite cases include Giuliani's fight with the Brooklyn Museum of Art over a painting of the Virgin Mary decorated with elephant dung (the mayor tried to cut the museum's funding but a judge ruled he could not); the New York Magazine case, in which the courts said the mayor could not stop the magazine from buying ad space on city buses just because the ads poked fun at him; and numerous cases in which he tried to deny permits for demonstrations by groups ranging from taxi drivers to the Million Youth March to the Ku Klux Klan.

"It's important in any area of the law to try to show students that what they're learning is relevant," said Michael Dorff, a Columbia Law School professor. "It's especially relevant in constitutional law because the backdrop is, what is the proper role of the court with respect to questions that have an importantly political dimension? The beauty of living in New York is that the mayor is constantly generating classroom hypotheticals."

But it's not just New York where Giuliani's First Amendment follies are required reading.

"Giuliani is an object lesson of the temptation the government feels to enforce various orthodoxies," said Bruce Miller, a professor at Western New England College of Law in Springfield, Mass. "He's like an archetype of the figure that the First Amendment was kind of aimed at protecting us from — the government official out of control."

Robert O'Neil printed out copies of the judge's decision on the Brooklyn Museum for the class he teaches at the University of Virginia Law School.

"We were talking about prior restraint — the removal of controversial books from school and public libraries — and this helps my students appreciate the currency and vitality of these issues," O'Neil said. O'Neil is also the director of the Thomas Jefferson Center for the Protection of Free Expression, which recently gave Giuliani a lifetime "Muzzle Award" for "unprecedented disregard for freedom of expression in a wide variety of settings and contexts."

Jeffrey M. Shaman, a professor at DePaul University College of Law in Chicago, says he uses the Giuliani cases "to talk about the idea that offensiveness of speech is not a reason to restrict it. And we use [them] to talk about the tendency of some governmental officials to overreach their authority and try to regulate speech they don't like."

The Giuliani administration doesn't see it that way.

"We are not against the First Amendment," said Daniel S. Connolly, a lawyer with the Corporation Counsel, which represents Giuliani and the city. "The decisions made by this administration are not made against the First Amendment. They are made for independent reasons of public policy.

"If a group seeks to close off 29 city streets to hold a rally for 12 hours, as they did with the Million Youth March, we're going to say no for public policy reasons, not because we're against the First Amendment," Connolly continued. "If a group of taxi drivers wants to take 1,000 cars over the 59th Street Bridge at rush hour, we're going to say no for public policy reasons, not because we're against the First Amendment."

Connolly added: "What all of this has been about is government maintaining its responsibility to everyone, while at the same time balancing the individual's right to express themselves."

Giuliani's critics disagree. "The reason why I think professors are teaching Giuliani 101, in effect, is that this is a clear example of government abuse of authority," said Norman Siegel, the director of the New York Civil Liberties Union and party to many of the anti-Giuliani lawsuits. The NYCLU is holding a conference next year about Giuliani's First Amendment run-ins called "The Muzzled Metropolis."

It's not just law professors making Giuliani part of the curriculum. Ken Paulson, executive director of the First Amendment Center at Vanderbilt University, uses the New York Magazine and Brooklyn Museum cases in a class on continuing journalism education that he teaches at the American Press Institute in Reston, Va.

"They really bring home to the class just how precarious a position the First Amendment is on a daily basis," he said.

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