Public forums, selective subsidies, and shifting standards of viewpoint discrimination.

• Author: Casarez, Nicole B.
• Position: Government censorship of subsidized speech

1. INTRODUCTION

   In modern American society,, the government distributes benefits to its citizens in a multitude of ways. Need a doctor or a lawyer but can't afford one? You may qualify for government-subsidized medical or legal aid.(1) Running for president on a major party ticket? You may be eligible for public funding of presidential election campaigns.(2) Organizing a chapter of Amnesty International on your state university campus? You may be entitled to student activity funds collected by the university.(3) Looking for a place to show a film about parenting from a Christian perspective? If a local public school lets outside groups use its premises after hours, you may have a right of access to those facilities, too.(4)

   Of course, it would be impossible to list all the government benefits or subsidies that affect our lives today. Government at all levels has expanded dramatically since the nation's founding. The influence of government spending on most Americans, both rich and poor, is inescapable. As a consequence, much citizen speech occurs either in forums provided by the government or in connection with enterprises financed in part by government largesse.(5) This creates a First Amendment dilemma. On one hand, the government naturally uses the power of the purse to discourage policies or behaviors with which it disagrees.(6) For instance, the budgeting of taxpayers' money--determining which programs to support and by how much, and which to abandon--largely constitutes the very essence of government.

   On the other hand, the state sometimes chooses not to discontinue a controversial initiative, but rather imposes conditions on the use of public funds to bring the program in line with particular governmental objectives.(7) The First Amendment becomes implicated when the government attempts to restrict private speech as part of its benefit package. For example, the United States has historically granted the print media a subsidy in the form of second-class mailing privileges.(8) Having decided to provide the subsidy, however, may Congress deny it to publications that favor a particular political party or to nonobscene publications that Congress nevertheless views as inappropriate? In other words, because the government pays the piper, may it call the tune?

   The answer hinges on the venerable First Amendment concept of viewpoint discrimination.(9) In the second-class mailing rate example, the Supreme Court held, in 1946, that Congress may not limit the subsidy's application to only those periodicals the government finds inoffensive or that endorse a government-approved point of view.(10) More recently, the Court has continued to recite that the government may determine what to subsidize and what not to subsidize as long as it does so in a viewpoint-neutral manner.(11) According to the Court's rhetoric, the government is free to condition its subsidies as it chooses, forbidden only from "aim[ing] at the suppression of dangerous ideas."(12)

   The prohibition against viewpoint discrimination, then, should play a major role in restraining government censorship of private speech activities within government-funded subsidy or benefit programs. Indeed, in the public forum context, viewpoint discrimination has been defined in such a way as to provide substantial protection to private actors' First Amendment rights.(13) This has not always been the case in either the nonpublic forum or the subsidy arenas. While ostensibly acknowledging that the government may not discriminate against disfavored views in allocating subsidies, the Court nevertheless has given the government great leeway to delineate the scope of its generosity. For example, sometimes the Court has achieved this by deputizing private speakers as government agents to whom the government owes no duty of neutral treatment;(14) other times, the Court has applied a toothless interpretation of viewpoint discrimination to overlook questionable subsidization distinctions.(15)

   As applied by the Court during the last three decades, the rule against viewpoint discrimination no longer serves as a material check on the government's ability to censor subsidized speech outside the public forum. Even judges and commentators who disagree with this result tend to fall back on forum analysis to oppose viewpoint discrimination in government funding decisions. By doing so, they have implicitly recognized that only by forcing subsidized speech into a public forum mold will the rule against viewpoint discrimination be applied in a meaningful way.(16)

   This article presents the argument that the Court has erred in treating the First Amendment's viewpoint neutrality mandate as a dead letter in nonpublic forums and nonforum government funding allocations. Part II of this article sets a baseline point of comparison by showing how the prohibition on viewpoint discrimination has been applied in a speech protective manner in the traditional public forum and the general speech domain.(17) Part III contrasts how the Court has used an expansive definition of viewpoint discrimination in several limited public forum cases involving schools and universities, with how it has basically ignored the concept in nonpublic forum cases.(18) Part IV demonstrates how the Court has failed to apply the rule against viewpoint discrimination in subsidy cases,(19) including Rust v. Sullivan(20) and National Endowment for the Arts v. Finley.(21) Part IV also suggests how the concept can be revived with respect to government subsidized speech in a case the Court will decide this term,(22) Velazquez v. Legal Services Corp.(23) Part V concludes the article and summarizes the Court's application of the First Amendment prohibition on viewpoint discrimination.(24)

   The conclusion calls for the reanimation of viewpoint discrimination as a limit on the government's ability to censor private speech in nonpublic forums and selective subsidy programs. Whether the state promotes citizen speech activities through a government-financed initiative or a government-sponsored forum, the First Amendment requires that those funding decisions comport with substantive standards of viewpoint neutrality.

2. VIEWPOINT NEUTRALITY IN THE TRADITIONAL PUBLIC FORUM/GENERAL SPEECH DOMAIN

   To understand and apply the prohibition against viewpoint discrimination, the Supreme Court has had to address two linked and overlapping questions. The first concerns what qualifies as a "viewpoint," and the second relates to what constitutes "discrimination." Although these questions appear simplistic, the Court has provided differing answers in various contexts, resulting in uncertainty about the meaning of viewpoint discrimination across the board. The Court has further complicated matters by using terms inexactly, sometimes referring to "viewpoint," "subject-matter," and "content" discrimination as though they were constitutionally indistinguishable. To create a point of reference, I begin by looking at the viewpoint neutrality mandate where it arose, in the traditional public forum and general speech domains.(25) In these speech locales, fine distinctions between content and viewpoint have not been terribly important to the protection of First Amendment interests and the Court has tended to reach the right result, although not always for properly articulated reasons.(26)

   1. The Early Cases: Establishing the Ban on Viewpoint Discrimination

      In the span of five years around 1940, the Supreme Court decided two landmark cases that advanced First Amendment interests in two ways: both cases overturned speech restrictive precedents and struck blows against the government's ability to restrict speech based on viewpoint. The first case, Hague v. Committee for Industrial Organization,(27) gave rise to the public forum doctrine, holding that the government, as landowner, could not completely forbid citizens from using public streets and parks for expressive purposes.(28) The contrary rule had prevailed for more than forty years, since the Court's holding in the famous Boston Common case, Davis v. Massachusetts.(29) In Davis, the Court determined that the government's greater power to close a park or roadway included the lesser power to control or deny access to those facilities in whatever manner the government saw fit.(30)

      Although the Court in Hague did not expressly overrule the Boston Common decision,(31) Justice Roberts, in his plurality opinion, used a historical approach to re-characterize public streets and parks as public forums. "[F]rom ancient times," streets and parks were places where citizens congregated to express their opinions.(32) While these traditional forums might literally belong to the government, the public had accrued a guaranteed right of access to them that could be regulated, but not arbitrarily denied.(33)

      On its facts, Hague reeked of viewpoint discrimination to such an extent that it amounted to an arbitrary denial of access to a public forum. Jersey City Mayor Frank "I Am the Law" Hague(34) had used a permit requirement to prevent labor organizers from meeting, speaking, or distributing literature within the city on the grounds that they were Communists or were affiliated with Communist organizations.(35) Mayor Hague had literally evicted union speakers by having them arrested and forced aboard ferry boats headed for New York City.(36) Because the permit ordinance gave municipal authorities unlimited discretion to control public communication within the city, the Court invalidated it as an "instrument of arbitrary suppression of free expression of views on national affairs."(37) Subsequent decisions have clarified that the state could regulate public access to traditional forums, as long as it did so pursuant to reasonable and content-neutral time, place and manner restrictions.(38)

      The second landmark case, West Virginia State Board of Education v. Barnette,(39) is probably the Court's best known and most eloquent...