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September 26, 2005

Malkin at Manzanar, and the Irrelevant First Amendment

or reasons that are unclear to me--I thought the controversy was long since passed--the Boston Globe has an article in today's paper about the decision of the Manzanar National Historic Site to stock Michelle Malkin's "In Defense of Internment" in its bookstore.

Two quick comments about the piece, which is generally quite good and accurate.

First: Speaking of the correspondence that Manzanar has received about the controversy, the article reports this:

[T]he vast majority of the correspondence, to the surprise of park officials, has been in support of the government's decision to carry the book, a former bestseller.

Duh. Gee, I wonder how that happened? Could it be because Malkin asked the very large readership of her blog to email Manzanar in support of their decision to stock the book?

It surprises me that an official at Manzanar still confesses suprise at this. When I met Frank Hays, Manzanar's superintendent, at an internment-related event in San Francisco a few months ago, I pointed out to him that Malkin had called on her blog readership to write in, and he told me he was aware of that. So what's this lingering "surprise" about?

Second: Behind Malkin's book, the Boston Globe article tells us, the Manzanar National Historic Site has placed a letter explaining that in the view of the Historic Site, not carrying the book "could ironically be viewed as denying the First Amendment rights to free speech."

People (especially historians) often complain about what happens when lawyers profess expertise about history, but here's an example of the danger of historians professing expertise about law. There is no way that a decision by the Manzanar National Historic Site not to stock Malkin's pro-internment book could "deny the First Amendment right to free speech." If the First Amendment confers on authors a right to have their books stocked in government-run bookstores, why, I have got causes of action in spades, as does every other author in the country who has published a history book that every relevant government-run bookstore does not stock.

Michelle Malkin has no right at all for any bookstore anywhere--public or private--to carry her book.

The folks at Manzanar might believe it wise, helpful, provocative, or even profitable to carry Malkin's book. For those reasons, they can choose, in their discretion, to stock her book if they wish (as they have done). But if they think stocking the book is a good idea, then they should own up to their choice, rather than hiding behind the First Amendment, which has nothing to do with the situation.

(Note: Whether Manzanar, having initially decided to stock the book, may remove it from its shelves presents a slightly different question. In such a situation, I can envision a colorable argument that the First Amendment might stand in the way of such a decision if the basis of the removal decision were disagreement with the book's content. I'm not sure that this would be a correct argument, but it's certainly a closer question than the question of whether the First Amendment requires the book to be stocked in the first place.

Of course, once Manzanar sells out the copies it has got on its shelves, I would imagine that, as with the original stocking decision, the bookstore would be under no First Amendment obligation to restock the book in perpetuity.)

Posted by Eric at September 26, 2005 9:37 AM

Comments

Posted by: Rick at September 26, 2005 10:20 AM

Posted by: Josh at September 26, 2005 6:16 PM

Posted by: David Neiwert at September 27, 2005 3:44 PM

Posted by: Eric at September 27, 2005 4:12 PM

Posted by: Susan at September 29, 2005 6:47 PM