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45 UCLA L. Rev. 1537 (1997-1998)
Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse

handle is hein.journals/uclalr45 and id is 1551 raw text is: TRANSPORTING FIRST AMENDMENT NORMS TO THE PRIVATE SECTOR: WITH EVERY WISH THERE COMES A CURSE Julian N. Eule as completed by Jonathan D. Varat * Professor of Law, University of California, Los Angeles. I am grateful for the magnificent research skills of Braden Penhoet, Matthew McKenzie, and the UCLA Law Library staff. None of this would have been possible without the inspiration of Frank Michelman whose diagnosis of his allergic reaction to the proposed Collegiate Speech Protection Act of 1991 enabled me to better understand the origins of my own rash. See Frank Michelman, Universities, Racist Speech and Democracy in America: An Essay for the ACLU, 27 HARV. C.R.-C.L. L. REV. 339, 341-42 (1992). ** Professor of Law, University of California, Los Angeles. It has been an honor, truly a labor of love, to finish the last scholarly work of my colleague-and very dear friend-Julian Eule. Suffice it to say here that his verve, his intellect, and our-and our families'--close com- panionship enriched, and continues to enrich, my life beyond measure. An incidental byproduct of this project was that I engaged in an interesting exercise in recreating original intent-in this case the original intent of just one author who was far along in a project about which we had spoken, so that I had a general sense of the anti-compelled orthodoxy impulses that California's Leonard Law stirred in him and that motivated his keen desire to address this general topic. (Those who knew Julian appreciate that he never had a desire that wasn't keen.) A few comments about my approach to this task may be useful to understand what follows. I set for myself the objective of finishing Julian's article as he would have wanted to finish it himself-not in style, which I knew to be beyond my ability to duplicate, but in substance, so that his ideas would be conveyed as faithfully as possible. That meant not only that I would suppress my own disagreements with him and my own instincts to emphasize some matters more and some less than he would have, but also that I would aim to render his ideas in the strongest fashion I could muster on behalf of his thesis and its various dimensions. It proved more difficult to accomplish these goals than I appreciated at first. I knew that Julian's approach to scholarship was to build an article page by page, complete with substantive footnotes, so that the sections he had completed were virtually ready for publication as a final draft. Consequently, I have left those sections almost entirely alone-allowing Julian's clear, strong voice to speak unedited. I then sought to follow to completion the trajectory of his detailed, completed work, using the research, notes, and a rough outline of the article he had left behind. When I ascertained that Julian had expressed to several people that his article was 90% fin- ished, I felt a natural optimism about the prospects for an expeditious effort that would be true to Julian's conception of the article and do it justice. Alas, and ironically, the abundance of hints left for me soon revealed that this sort of optimism was unwarranted. First, I discovered that Julian's 90-page, double-spaced manuscript only generally follows the first part of the outline, leaving it uncertain how he would have filled in the details of the remainder of the outline-a completely understandable state of affairs, but one that created a bit of a challenge. Second, and 1537

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