Subsidized speech.

• Author: Post, Robert C.

In 1931, at the very dawn of First Amendment jurisprudence, Chief Justice Hughes presciently observed that "[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" was "a fundamental principle of our constitutional system."(1) Since that time, the First Amendment has been interpreted by courts primarily as a guarantor of the ongoing legitimacy of democratic self-governance in the United States. As Justice Cardozo remarked in 1937, freedom of expression is "the matrix, the indispensable condition, of nearly every other form of freedom."(2)

To view the First Amendment "as the guardian of our democracy,"(3) however, is to adopt a particular image of the American polity. It is to imagine that democratic legitimacy flows from the accountability of the state to the public opinion of its population. From its inception, therefore, First Amendment doctrine has primarily sought to protect from government regulation an independent realm of speech within which public opinion is understood to be forged.

The consequence of this orientation is that traditional First Amendment doctrine has had rather little to say about the speech of the government itself.(4) In this Essay, I shall explore the comer of this perplexing territory in which are located the difficult constitutional questions raised by government subsidies for speech. Subsidized speech challenges two fundamental assumptions of ordinary First Amendment doctrine. It renders uncertain the status of speakers, forcing us to determine whether speakers should be characterized as independent participants in the formation of public opinion or instead as instrumentalities of the government. And it renders uncertain the status of government action, forcing us to determine whether subsidies should be characterized as government regulations imposed on persons or instead as a form of government participation in the marketplace of ideas.

These two questions of social characterization underlie all constitutional cases of subsidized speech.(5) Like many First Amendment issues, they demand complex and contextual normative judgments about the boundaries of distinct constitutional domains in social space.(6) Yet they have never been explicitly addressed by the Court, which has instead chosen to address cases of subsidized speech primarily by relying upon two doctrines, which respectively prohibit unconstitutional conditions and viewpoint discrimination.

Both of these doctrines ignore the questions of social characterization that actually impel First Amendment analysis, and as a consequence, each doctrine has grown increasingly detached from the real sources of constitutional decisionmaking. The doctrines have become formalistic labels for conclusions, rather than useful tools for understanding. It is no wonder that the haphazard inconsistency of the Court's decisions dealing with subsidized speech has long been notorious; the precedents have rightly been deemed "confused" and "incoherent, a medley of misplaced epigrams."'

My thesis in this Essay is that cases of subsidized speech can be usefully analyzed only if we fashion a doctrine that explicitly addresses relevant processes of social characterization. I hope to establish this thesis by demonstrating its value in the comprehension of particular cases. In Part I of this Essay, therefore, I examine FCC v. League of Women Voters'(8) to explore the consequences of characterizing government action as a regulation of speech located in the democratic social domain called "public discourse."(9) In Part II of this Essay I scrutinize the cases of Rosenberger v. Rector and Visitors of the University of Virginia(10) and Rust v. Sullivan"(11) to probe the implications of characterizing government action as a regulation of speech located in a different kind of social formation, which may be termed the "managerial domain."(12) In Part III of this Essay I discuss the recent controversy over funding restrictions imposed by statute upon the National Endowment for the Arts to assess the implications of characterizing government action as a regulation of public discourse or instead as a form of state participation in the marketplace of ideas.

1. Subsidized Speech and Public Discourse

   A democratic government derives its legitimacy from the fact that it is considered responsive to its citizens. This form of legitimacy presupposes that citizens are, in the relevant sense, independent of their government. We would rightly regard a goverment that treated its citizens as mere instrumentalities of the state - "closed-circuit recipients of only that which the state chooses to communicate,"(13) - as totalitarian rather than democratic. One important function of the public/private distinction within American constitutional law is to mark this normative distinction between the independent citizen, who is deemed "private," and the state functionary, who is deemed "public."(14)

   What it means in constitutional thought for a democratic government to be "responsive" to its citizens is a complex subject. To summarize arguments I have made elsewhere,"(15) First Amendment doctrine envisions a distinct realm of citizen speech, called "public discourse,"(16) in which occurs a perpetual and unruly process of reconciling the demands of individual and collective autonomy. First Amendment jurisprudence conceptualizes public discourse as a site for the forging of an independent public opinion to which democratic legitimacy demands that the state remain perennially responsive. That is why the First Amendment jealously safeguards public discourse from state censorship.

   Because First Amendment restraints on government regulation of public discourse are meant to embody the value of democratic self-governance, they contain within them many powerful and controversial presuppositions. They assume, for example, the existence of a domain of democratic selfdetermination, in which persons are independent and autonomous."(17) Within the democratic domain of public discourse, persons must be given the freedom to determine their own collective identity and ends."(18) Outside of public discourse, however, where the value of democratic self-governance is not preeminent, First Amendment doctrine will reflect other constitutional values, and it will presuppose a quite different notion of the legal subject.(19) The nature of First Amendment analysis, therefore, will depend on whether or not speech is conceptualized as within the democratic domain of public discourse.(20)

   This is of particular importance in cases of subsidized speech. When the state supports speech, it establishes a relationship between itself and private speakers that can sometimes compromise the independence of the latter. Subsidization may thus transport speech from public discourse into other constitutional domains. But because there are many examples of subsidized speech that are unproblematically characterized as within public discourse, the mere fact of subsidization is not sufficient to remove speech from public discourse. Subsidization is only one factor that must be considered when making judgments about the characterization of speech.(21) In this Part of the Essay I explore the nature of these judgments, examining the process and consequences of classifying subsidized speech as within or outside of public discourse.

   1. Unconstitutional Conditions, Subsidized Speech, and Public Discourse

      That subsidization simpliciter is not determinative of the classification of speech, and that such classification has fundamental and far-reaching consequences for First Amendment analysis, was recently recognized by the Court in its opinion in Rosenberger v. Rector and Visitors of the University of Virginia,(22) which struck down a state university's policy of excluding religious expression from its subsidies of student speech. The Court observed:

      [W]hen the State is the speaker, it may make content-based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.... [W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.

      It does not follow, however,... that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers. A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles.... The distinction between the University's own favored message and the private speech of students is evident in the case before us.(23)

      The Court's point is that when the state itself speaks, it may adopt a determinate content and viewpoint, even "when it enlists private entities to convey its own message."(24) But when the state attempts to restrict the independent contributions of citizens to public discourse, even if those contributions are subsidized, First Amendment rules prohibiting content and viewpoint discrimination will apply. The reasoning of Rosenberger thus rests on two premises. First, speech may be subsidized and yet remain within public discourse; the mere fact of subsidization is not sufficient to justify classifying speech as within or outside public discourse. Second, substantive First Amendment analysis will depend on whether the...