Subsidized Speech

Yale Law Journal

Volumn 106, Issue 1, 1996, Pages 151-195

  Post, Robert C ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041157819     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797269     Document Type: Review

References (268)

1. Stromberg v. California, 283 U.S. 359, 369 (1931).
2. Palko v. Connecticut, 302 U.S. 319, 327 (1937).
3. Brown v. Hartlage, 456 U.S. 45, 60 (1982).
4. Steven Shiffrin, in Government Speech, 27 UCLA L. REV. 565, 569-70 (1980), credits Laurence Tribe and Mark Yudof for most prominently noting this proposition. See also Laurence Tribe, Toward a Metatheory of Free Speech, 10 SW. U. L. REV. 237, 244-45 (1978); Mark Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV. 863 (1979).
5. Steven Shiffrin, in Government Speech, 27 UCLA L. REV. 565, 569-70 (1980), credits Laurence Tribe and Mark Yudof for most prominently noting this proposition. See also Laurence Tribe, Toward a Metatheory of Free Speech, 10 SW. U. L. REV. 237, 244-45 (1978); Mark Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV. 863 (1979).
6. Steven Shiffrin, in Government Speech, 27 UCLA L. REV. 565, 569-70 (1980), credits Laurence Tribe and Mark Yudof for most prominently noting this proposition. See also Laurence Tribe, Toward a Metatheory of Free Speech, 10 SW. U. L. REV. 237, 244-45 (1978); Mark Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV. 863 (1979).
7. I do not, of course, mean to imply that these two questions of social characterization exhaust the constitutional issues that can be posed by cases of subsidized speech. I mean only to claim that such cases will, at a minimum, require a response to these two questions.
8. For a general discussion, see Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249 (1995).
9. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
10. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
11. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
12. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
13. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
14. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
15. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994); see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 682 (1992); Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544-45 (1995); Michael J. Elston, Note, Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art, LAW & CONTEMP. PROBS., Summer 1993, at 327, 333, 341-42, 358; Gary Feinerman, Note, Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection, 43 STAN. L. REV. 1369, 1378 (1991); Michael Fitzpatrick, Note, Rust Corrodes: The First Amendment Implications of Rust v. Sullivan, 45 STAN. L. REV. 185, 196 (1992). See generally RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 183 (1992).
16. 468 U.S. 364 (1984).
17. See ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 6-10 (1995).
18. 115 S. Ct. 2510 (1995).
19. 500 U.S. 173 (1991).
20. See POST, supra note 9, at 4-6.
21. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969).
22. For a full discussion, see POST, supra note 9, at 188-89, 280-82. The public/private distinction, of course, bears many different kinds of meanings, only one of which I am exploring here.
23. See Robert Post, Between Democracy and Community: The Legal Constitution of Social Form, 35 NOMOS 163 (John W. Chapman & Ian Shapiro eds., 1993).
24. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988).
25. See Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109, 1128-33 (1993).
26. See id. at 1116-19.
27. See Post, supra note 6, at 1277.
28. On the boundaries of public discourse, see Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REV. 601, 667-84 (1990).
29. On the highly contextualized nature of such judgments, see id.
30. 115 S. Ct. 2510 (1995).
31. Id. at 2518-19 (citations omitted).
32. Id. at 2518; see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-4, at 807-08 (2d ed. 1988); Cole, supra note 7, at 702-04 (enumerating justifications for government-supported speech). But cf. JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES 106-07 (1995). I defer to Part III the question of whether the First Amendment places any constraints on government expression of such viewpoints.
33. Id. at 2518; see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-4, at 807-08 (2d ed. 1988); Cole, supra note 7, at 702-04 (enumerating justifications for government-supported speech). But cf. JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES 106-07 (1995). I defer to Part III the question of whether the First Amendment places any constraints on government expression of such viewpoints.
34. Id. at 2518; see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-4, at 807-08 (2d ed. 1988); Cole, supra note 7, at 702-04 (enumerating justifications for government-supported speech). But cf. JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES 106-07 (1995). I defer to Part III the question of whether the First Amendment places any constraints on government expression of such viewpoints.
35. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989).
36. 408 U.S. 593 (1972).
37. Id. at 597.
38. See Brooks R. Fudenberg, Unconstitutional Conditions and Greater Powers: A Separability Approach, 43 UCLA L. REV. 371, 388-93 (1995).
39. Sullivan, supra note 25, at 1415; see Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1921 (1995) (discussing indirect limitations of state powers under Tenth Amendment).
40. Sullivan, supra note 25, at 1415; see Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1921 (1995) (discussing indirect limitations of state powers under Tenth Amendment).
41. Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1359-74 (1984); Sullivan, supra note 25, at 1489.
42. Sullivan, supra note 25, at 1490.
43. Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593, 620 (1990); see also William P. Marshall, Towards a Nonunifying Theory of Unconstitutional Conditions: The Example of the Religion Clauses, 26 SAN DIEGO L. REV. 243, 244 (1989) (analyzing doctrine in relation to religion clauses).
44. Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. REV. 593, 620 (1990); see also William P. Marshall, Towards a Nonunifying Theory of Unconstitutional Conditions: The Example of the Religion Clauses, 26 SAN DIEGO L. REV. 243, 244 (1989) (analyzing doctrine in relation to religion clauses).
45. International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992).
46. Rust v. Sullivan, 500 U.S. 173, 199-200 (1991) (citations omitted).
47. See Hannegan v. Esquire, Inc., 327 U.S. 146, 151 (1946); see also Buckley v. Valeo, 424 U.S. 1, 93 n.127 (1976) (finding public campaign financing permissible subsidy); MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA 234-35 (1983) (listing examples of government speech subsidies).
48. See Hannegan v. Esquire, Inc., 327 U.S. 146, 151 (1946); see also Buckley v. Valeo, 424 U.S. 1, 93 n.127 (1976) (finding public campaign financing permissible subsidy); MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA 234-35 (1983) (listing examples of government speech subsidies).
49. See Speiser v. Randall, 357 U.S. 513, 518 (1958) (holding First Amendment limits Congress's power to regulate mail); see also United States v. Van Leeuwen, 397 U.S. 249, 251-52 (1970); Sherbert v. Verner, 374 U.S. 398, 404-05 (1963); Hannegan v. Esquire, Inc., 327 U.S. 146, 155-56 (1946); Tollett v. United States, 485 F.2d 1087, 1090 (8th Cir. 1973); O'Brien v. Leidinger, 452 F. Supp. 720, 725 (E.D. Va. 1978); United States v. Lethe, 312 F. Supp. 421, 425-26 (E.D. Cal. 1970).
50. 461 U.S. 540, 549 (1983). Justice Rehnquist did observe that "[t]he case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to "'ai[m] at the suppression of dangerous ideas."'" Id. at 548 (citations omitted). However, as the examples offered in the following paragraph in the text indicate, constitutional restraints on governmental use of subsidies to regulate speech in public discourse would apply to discrimination that is content-based as well as viewpoint-based.
51. Cf. Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980) (invalidating state prohibition of policy-oriented speech on monthly bills of public utilities).
52. For a good discussion of government participation in the system of freedom of expression, see CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114-21 (1973); THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 697-716 (1970). On the extreme difficulty of these questions, see Shiffrin, supra note 4, at 572-605; Yudof, supra note 4, at 871-72. The obvious differences between the speech of private persons and the speech of the state have recently featured prominently with respect to the Court's Establishment Clause jurisprudence, which has tended to stress, as Justice O'Connor has put it, the "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990); see also Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510, 2522 (1995) (applying Mergens distinction).
53. For a good discussion of government participation in the system of freedom of expression, see CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114-21 (1973); THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 697-716 (1970). On the extreme difficulty of these questions, see Shiffrin, supra note 4, at 572-605; Yudof, supra note 4, at 871-72. The obvious differences between the speech of private persons and the speech of the state have recently featured prominently with respect to the Court's Establishment Clause jurisprudence, which has tended to stress, as Justice O'Connor has put it, the "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990); see also Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510, 2522 (1995) (applying Mergens distinction).
54. First Amendment Implications of the Rust v. Sullivan Decision: Hearing on First Amendment Implications of the Rust v. Sullivan Decision Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 102d Cong. 11 (1991) [hereinafter Hearings] (statement of Leslie H. Southwick, Deputy Ass't Att'y Gen., Civil Div., U.S. Dep't of Justice).
55. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding acts of privately operated school whose income is derived primarily from public sources are not state action); Polk County v. Dodson, 454 U.S. 312 (1981) (holding that public defender's actions do not constitute state action).
56. 395 U.S. 367 (1969).
57. See FCC v. National Citizens' Comm. for Broad., 436 U.S. 775, 800 (1978).
58. Red Lion, 395 U.S. at 388.
59. Id. at 394.
60. Id. at 389.
61. See id. at 389-90.
62. Id. at 390.
63. 412 U.S. 94 (1973).
64. Such an outcome, Chief Justice Burger noted, would subordinate "[j]ournalistic discretion" to "the rigid limitations that the First Amendment imposes on Government." Id. at 121. Other Justices noted that it would convert broadcasters into "common carriers" and "thus produce a result wholly inimical to the broadcasters' own First Amendment rights." Id. at 140 (Stewart, J., concurring); see also id. at 149-65 (Douglas, J., concurring). Justices White, Powell, and Blackmun did not reach the question of state action. See id. at 146-48. Justices Brennan and Marshall would have found that the public nature of the airwaves, the governmentally created preferred status of broadcast licensees, the pervasive federal regulation of broadcast programming, and the Commission's specific approval of the challenged broadcaster policy combine in this case to bring the promulgation and enforcement of that policy within the orbit of constitutional imperatives. Id. at 173 (Brennan, J., dissenting).
65. Id. at 120.
66. CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (quoting CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110 (1973)); see also City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986).
67. CBS, Inc. v. FCC, 453 U.S. 367, 397 (1981); see also id. at 396.
68. See, e.g., Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); cf. Herbert v. Lando, 441 U.S. 153 (1979) (analyzing proposed privilege under substantive First Amendment doctrine).
69. 468 U.S. 364 (1984).
70. Id. at 366.
71. Id. at 416 (Stevens, J., dissenting); see also FCC v. National Citizens' Comm. for Broad., 436 U.S. 775, 801-02 (1978).
72. League of Women Voters, 468 U.S. at 378 (citations omitted). Brennan's position represents an implicit reversal of his earlier opinion in CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110 (1973).
73. League of Women Voters, 468 U.S. at 382 (citation omitted).
74. Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
75. See 412 U.S. at 149-50 (Douglas, J., concurring).
76. See id. (Douglas, J., concurring).
77. League of Women Voters, 468 U.S. at 388-89.
78. Id. at 389.
79. Id. at 394. For a good discussion of the success of this insulation, see YUDOF, supra note 35, at 124-35.
80. For a cross-cultural perspective on this characterization, see MONROE E. PRICE, TELEVISION: THE PUBLIC SPHERE AND NATIONAL IDENTITY 35 (1995).
81. League of Women Voters, 468 U.S. at 392.
82. See id. at 384.
83. See id. at 392-93.
84. Id. at 396.
85. See id. at 391, 396.
86. Id. at 395.
87. Id. at 403 (Rehnquist, J., dissenting).
88. 461 U.S. 540 (1983).
89. League of Women Voters, 468 U.S. at 405.
90. See supra notes 35-38 and accompanying text; cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592-93 (1983) (holding that use tax on ink and paper targeting small group of newspapers "places a heavy burden on the State to justify its action"). Strict scrutiny would occur "even where . . . there is no evidence of an improper censorial motive." Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987).
91. In the case of broadcasters, for example, the rationale of scarcity, upon which the Court has repeatedly relied, is now surely no more than a fiction. See LUCAS A. POWE, JR., AMERICAN BROADCASTING AND THE FIRST AMENDMENT 200-09 (1987). Even the Court has itself come close to admitting this. See Turner Broad. Sys., Inc. v. FCC, 114 S. Ct. 2445, 2457 (1994); League of Women Voters, 468 U.S. at 376 n.11. This implies that the actual rationale for characterizing broadcasters as public trustees has not yet been articulated by the Court.
92. See Post, supra note 20, at 667-84.
93. Although the scarcity rationale presents itself as a simple empirical fact, that fact cannot, even if true, itself explain the special quasi-public status conferred on broadcasters. All that follows from scarcity is that the state must find some allocation rule to distribute scarce broadcast frequencies. One possible allocation would be to sell frequencies on the open market, just as the government sells scarce state-owned land. The owners of frequencies would then be regarded as purely private speakers. Such a scenario is surely possible, which indicates that its rejection must turn on normative considerations rather than on the bare fact of scarcity.
94. See, e.g., Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum. 34 UCLA L. REV. 1713 (1987).
95. See POST, supra note 9, at 4-6, 10-15.
96. See Post, supra note 80, at 1767-75.
97. See Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 318 (1990) (analyzing instrumental regulation of speech within universities).
98. See Robert C. Post, The Management of Speech: Discretion and Rights, 1984 SUP. CT. REV. 169, 201-06 (analyzing instrumental regulation of speech within court system).
99. See Brown v. Glines, 444 U.S. 348, 354 (1980).
100. Connick v. Myers, 461 U.S. 138, 142 (1983) (quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)); see Post, supra note 80, at 1814 n.351.
101. For a more detailed analysis of the management of speech within government institutions, see Post, supra note 80, at 1767-84.
102. For a theoretical discussion of viewpoint discrimination in nonpublic forums, see id. at 1824-32.
103. See, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2147-48 (1993); Regan v. Taxation with Representation, 461 U.S. 540, 548 (1983); SMOLLA, supra note 7, at 184.
104. 115 S. Ct. 2510 (1995).
105. Id. at 2519.
106. Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981); cf. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) ("A school need not tolerate student speech that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school.") (citation omitted). For a fuller analysis of free speech within the university, see Post, supra note 83, at 317-25.
107. Rosenberger, 115 S. Ct. at 2516-17.
108. Id. at 2517.
109. See Paul B. Stephan III, The First Amendment and Content Discrimination, 68 VA. L. REV. 203, 218 (1982); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 197-200 (1983); Luba L. Shur, Note, Content-Based Distinctions in a University Funding System and the Irrelevance of the Establishment Clause: Putting Wide Awake to Rest, 81 VA. L. REV. 1665, 1692 (1995).
110. See Paul B. Stephan III, The First Amendment and Content Discrimination, 68 VA. L. REV. 203, 218 (1982); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 197-200 (1983); Luba L. Shur, Note, Content-Based Distinctions in a University Funding System and the Irrelevance of the Establishment Clause: Putting Wide Awake to Rest, 81 VA. L. REV. 1665, 1692 (1995).
111. See Paul B. Stephan III, The First Amendment and Content Discrimination, 68 VA. L. REV. 203, 218 (1982); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 197-200 (1983); Luba L. Shur, Note, Content-Based Distinctions in a University Funding System and the Irrelevance of the Establishment Clause: Putting Wide Awake to Rest, 81 VA. L. REV. 1665, 1692 (1995).
112. Rosenberger, 115 S. Ct. at 2517. The difference between viewpoint and content discrimination is, in Justice Kennedy's account, intrinsically unstable and therefore always potentially arbitrary. References to religious speech may refer to either content or viewpoint discrimination, depending upon the circumstances that are deemed salient. In the context, say, of a course on the history of religious thought, the category of "religious speech" may refer merely to the meaning of speech. But in the context of a dispute between advocates of evolution and partisans of creationism, the category may refer to a particular viewpoint. It is not the category of religious speech that is determinative, therefore, but the social situation in which the category is deployed. As Elena Kagan rightly observes: The very notion of viewpoint discrimination rests on a background understanding of a disputed issue. If one sees no dispute, one will see no viewpoints, and correspondingly one will see no viewpoint discrimination in any action the government takes. Similarly, how one defines a dispute will have an effect on whether one sees a government action as viewpoint discriminatory. Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 SUP. CT. REV. 29, 70 (footnote omitted). The problem with Justice Kennedy's opinion is that he does not explain how to characterize the social situation in which a regulation is to be categorized as either viewpoint-based or content-based.
113. Rosenberger, 115 S. Ct. at 2517. The difference between viewpoint and content discrimination is, in Justice Kennedy's account, intrinsically unstable and therefore always potentially arbitrary. References to religious speech may refer to either content or viewpoint discrimination, depending upon the circumstances that are deemed salient. In the context, say, of a course on the history of religious thought, the category of "religious speech" may refer merely to the meaning of speech. But in the context of a dispute between advocates of evolution and partisans of creationism, the category may refer to a particular viewpoint. It is not the category of religious speech that is determinative, therefore, but the social situation in which the category is deployed. As Elena Kagan rightly observes: The very notion of viewpoint discrimination rests on a background understanding of a disputed issue. If one sees no dispute, one will see no viewpoints, and correspondingly one will see no viewpoint discrimination in any action the government takes. Similarly, how one defines a dispute will have an effect on whether one sees a government action as viewpoint discriminatory. Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 SUP. CT. REV. 29, 70 (footnote omitted). The problem with Justice Kennedy's opinion is that he does not explain how to characterize the social situation in which a regulation is to be categorized as either viewpoint-based or content-based.
114. There is some language in the opinion that suggests the Court might also have had in mind that the student speech supported by the grants was part of public discourse and that the grant program was therefore not part of the managerial operation of the University. The Court refers repeatedly to the "distinction between the University's own favored message and the private speech of students." Rosenberger, 115 S. Ct. at 2519. But this characterization of the grant program is contrary to the University's own assertion that the grants were designed "to support a broad range of extracurricular student activities that 'are related to the educational purpose of the University.'" Id. at 2514 (citation omitted). In fact, the University of Virginia would have a good deal of explaining to do to the taxpayers of the state were its program not fashioned to further the University's actual educational relationship with its students. A more plausible explanation of the Court's underlying logic, therefore, is that the Court interpreted the actual justification for the University's exclusion of religious speech to rest on the University's desire to avoid violating the Establishment Clause. The Court's holding that the Establishment Clause would not be violated by grants subsidizing religious speech removed this rationale, see id. at 2420-24, leaving the exclusion without managerial justification and hence vulnerable to characterization as viewpoint discrimination.
115. I have sketched the outlines of such an analysis elsewhere. See Post, supra note 83, at 317-25.
116. Fitzpatrick, supra note 7, at 185.
117. 500 U.S. 173 (1991).
118. See Hearings, supra note 40.
119. See Cole, supra note 7, at 684 n.34.
120. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
121. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
122. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
123. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
124. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
125. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
126. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
127. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
128. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
129. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
130. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
131. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
132. For a sample of academic commentary critical of the Rust decision, see SMOLLA, supra note 7, at 218-19; Cole, supra note 7; Phillip J. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359 (1992); Fitzpatrick, supra note 7; Stanley Ingber, Judging Without Judgment: Constitutional Irrelevancies and the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1579-1612 (1994); Ronald J. Krotoszynski, Jr., Brind & Rust v. Sullivan: Free Speech and the Limits of a Written Constitution, 22 FLA. ST. U. L. REV. 1 (1994); Thomas Wm. Mayo, Abortion and Speech: A Comment, 46 SMU L. REV. 309 (1992); Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585 (1992); Christina E. Wells, Abortion Counseling as Vice Activity: The Free Speech Implications of Rust v. Sullivan and Planned Parenthood v. Casey, 95 COLUM. L. REV. 1724 (1995); Loye M. Barton, Note, The Policy Against Federal Funding for Abortions Extends into the Realm of Free Speech After Rust v. Sullivan, 19 PEPP. L. REV. 637 (1992); Ann Brewster Weeks, Note, The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech, 70 N.C. L. REV. 1623 (1992). But see William W. Van Alstyne, Second Thoughts on Rust v. Sullivan and the First Amendment, 9 CONST. COMMENTARY 5 (1992).
133. Rust, 500 U.S. at 178 (quoting 42 U.S.C. § 300a-6 (1991)).
134. Id. at 179 (quoting Grants for Family Planning Services, 42 C.F.R. § 59.8(a)(1) (1989)).
135. Id. at 180 (quoting Grants for Family Planning Services, 42 C.F.R. §
136. Rust, 500 U.S. at 196.
137. Id. at 197.
138. Id. at 193; see also id. at 195 n.4 ("The regulations are designed to ensure compliance with the prohibition of § 1008 that none of the funds appropriated under Title X be used in a program where abortion is a method of family planning.").
139. Id. at 192 (quoting Brief for Petitioners at 11, Rust v. Sullivan, 500 U.S. 173 (1991) (No. 89-1391)). This was also the basis of much criticism of Rust. See, e.g., Hearings, supra note 40, at 19 (statement of Lee C. Bollinger) ("It is one of the most deeply held principles of the First Amendment that the government not discriminate on the basis of viewpoint, and that is what the regulation at issue in Rust v. Sullivan does."); see also Weeks, supra note 103, at 1658-62 (condemning Rust for viewpoint discrimination).
140. Rust, 500 U.S. at 194.
141. See Cole, supra note 7, at 688 n.47; Wells, supra note 103, at 1730-32: Weeks, supra note 103, at 1661-62.
142. See supra Section I.A.
143. For arguments that they are not, see Redish & Kessler, supra note 7, at 576-77; Shane, supra note 103, at 1601-03. For the Court's argument to the contrary, see Rust, 500 U.S. at 192-93.
144. Post, supra note 80, at 1789 (footnote omitted). The argument of this and the following paragraph is fully developed in id. at 1788-809.
145. See id.
146. Leach v. Carlile, 258 U.S. 138, 141 (1922) (Holmes, J., dissenting).
147. United States ex rel. Milwaukee Soc. Democratic Publ'g Co. v. Burleson, 255 U.S. 407, 437 (1921) (Holmes, J., dissenting).
148. See PETER M. BLAU & W. RICHARD SCOTT, FORMAL ORGANIZATIONS 62-63 (1962); see also ROY G. FRANCIS & ROBERT C. STONE, SERVICE AND PROCEDURE IN BUREAUCRACY 154-56 (1956) (discussing competing principles of bureaucracy and professionalism).
149. See PETER M. BLAU & W. RICHARD SCOTT, FORMAL ORGANIZATIONS 62-63 (1962); see also ROY G. FRANCIS & ROBERT C. STONE, SERVICE AND PROCEDURE IN BUREAUCRACY 154-56 (1956) (discussing competing principles of bureaucracy and professionalism).
150. For a good discussion, see W. Richard Scott, Professionals in Bureaucracies - Areas of Conflict, in PROFESSIONALIZATION 265-75 (Howard M. Vollmer & Donald L. Mills eds., 1966).
151. Id. at 266.
152. Polk County v. Dodson, 454 U.S. 312, 321 (1981) (citations omitted) (quoting MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 5-107(B) (1976)).
153. West v. Atkins, 487 U.S. 42, 51 (1988).
154. "Medical ethics as well as medical practice dictate independent judgment . . . on the part of the doctor." Paul D. Rheingold, Products Liability - The Ethical Drug Manufacturer's Liability, 18 RUTGERS L.J. 947, 987 (1964); cf. FRANCIS & STONE, supra note 119, at 156 (arguing that in professional mode of organization highly skilled professionals must be responsible for their decisions and able to perform on their own).
155. "Medical ethics as well as medical practice dictate independent judgment . . . on the part of the doctor." Paul D. Rheingold, Products Liability - The Ethical Drug Manufacturer's Liability, 18 RUTGERS L.J. 947, 987 (1964); cf. FRANCIS & STONE, supra note 119, at 156 (arguing that in professional mode of organization highly skilled professionals must be responsible for their decisions and able to perform on their own).
156. Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983) (quoting PRINCIPLES OF MEDICAL ETHICS § 6, reprinted in AMERICAN MED. ASS'N JUDICIAL COUNCIL, OPINIONS AND REPORTS 5 (1977)). The physician's duty to exercise independent judgment ultimately stems from the basic principle that "[t]he patient's welfare and best interests must be the physician's main concern. . . . The physician's obligations to the patient remain unchanged even though the patient-physician relationship may be affected by the health care delivery system or the patient's state." American College of Physicians Ethics Manual (3d ed.), reprinted in 117 ANNALS INTERNAL MED. 947, 948 (1992) [hereinafter Ethics Manual]; see also Council on Ethical and Judicial Affairs, Am. Med. Ass'n, Ethical Issues in Managed Care, 273 JAMA 330, 331 (1995) ("The foundation of the patient-physician relationship is the trust that physicians are dedicated first and foremost to serving the needs of their patients.").
157. Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983) (quoting PRINCIPLES OF MEDICAL ETHICS § 6, reprinted in AMERICAN MED. ASS'N JUDICIAL COUNCIL, OPINIONS AND REPORTS 5 (1977)). The physician's duty to exercise independent judgment ultimately stems from the basic principle that "[t]he patient's welfare and best interests must be the physician's main concern. . . . The physician's obligations to the patient remain unchanged even though the patient-physician relationship may be affected by the health care delivery system or the patient's state." American College of Physicians Ethics Manual (3d ed.), reprinted in 117 ANNALS INTERNAL MED. 947, 948 (1992) [hereinafter Ethics Manual]; see also Council on Ethical and Judicial Affairs, Am. Med. Ass'n, Ethical Issues in Managed Care, 273 JAMA 330, 331 (1995) ("The foundation of the patient-physician relationship is the trust that physicians are dedicated first and foremost to serving the needs of their patients.").
158. Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983) (quoting PRINCIPLES OF MEDICAL ETHICS § 6, reprinted in AMERICAN MED. ASS'N JUDICIAL COUNCIL, OPINIONS AND REPORTS 5 (1977)). The physician's duty to exercise independent judgment ultimately stems from the basic principle that "[t]he patient's welfare and best interests must be the physician's main concern. . . . The physician's obligations to the patient remain unchanged even though the patient-physician relationship may be affected by the health care delivery system or the patient's state." American College of Physicians Ethics Manual (3d ed.), reprinted in 117 ANNALS INTERNAL MED. 947, 948 (1992) [hereinafter Ethics Manual]; see also Council on Ethical and Judicial Affairs, Am. Med. Ass'n, Ethical Issues in Managed Care, 273 JAMA 330, 331 (1995) ("The foundation of the patient-physician relationship is the trust that physicians are dedicated first and foremost to serving the needs of their patients.").
159. Quilico v. Kaplan, 749 F.2d 480, 484-85 (7th Cir. 1984); accord Ezekiel v. Michel, 66 F.3d 894, 902 (7th Cir. 1995) ("[E]ach and every licensed physician . . . must fulfill his ethical obligations to exercise independent judgment when providing treatment and patient care . . . ."); Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989) ("It is uncontroverted that a physician must have discretion to care for a patient and may not surrender control over certain medical details."); Kelley v. Rossi, 481 N.E.2d 1340, 1343 (Mass. 1985) (affirming importance of physician discretion). Justice Holmes, with characteristic pith, stated the point in this way: "There is no more distinct calling than that of the doctor, and none in which the employee is more distinctly free from the control or direction of his employer." Pearl v. West End St. Ry., 176 Mass. 177, 179 (1900).
160. It is clear that there is a potential conflict between the HHS regulations and ethical medical practice. Doctors are under an "ethical duty to disclose relevant information about reproduction . . . . [T]he physician does have a duty to assure that the patient is offered information on the full range of options . . . ." Ethics Manual, supra note 125, at 950. "A pregnant woman should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. . . . The professional should make every effort to avoid introducing personal bias." AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG), STATEMENT OF POLICY 2 (Jan. 1993); see ACOG, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 61 (1989); ACOG, STATEMENT OF POLICY: FURTHER ETHICAL CONSIDERATIONS IN INDUCED ABORTION 3 (Dec. 1977); COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 8.08 (1994) ("The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice."). The Court's assertion that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship," Rust v. Sullivan, 500 U.S. 173, 200 (1991), can properly be said to border on the "disingenuous." Cole, supra note 7, at 692; see Rust, 500 U.S. at 211 n.3 (Blackmun, J., dissenting). The Court supports its assertion on two grounds. It states, first, that the HHS regulations do not require "a doctor to represent as his own any opinion that he does not in fact hold." Rust, 500 U.S. at 200. While this may be true, the regulations do prevent doctors from offering information that may be medically relevant and necessary to disclose. The Court states, second, that the "doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice." Id. This assertion, however, merely assumes what must be demonstrated, which is that the physician-patient relationship within a Title X clinic is so obviously subordinated to managerial imperatives that it no longer conforms to ordinary understandings of that relationship. Although such an alteration is certainly possible, it is also most unusual, and the Court offers no evidence to support its claim that it has occurred within Title X clinics. A modicum of social awareness would surely dictate a different conclusion. See Cole, supra note 7, at 692; Roberts, supra note 103, at 598-600.
161. It is clear that there is a potential conflict between the HHS regulations and ethical medical practice. Doctors are under an "ethical duty to disclose relevant information about reproduction . . . . [T]he physician does have a duty to assure that the patient is offered information on the full range of options . . . ." Ethics Manual, supra note 125, at 950. "A pregnant woman should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. . . . The professional should make every effort to avoid introducing personal bias." AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG), STATEMENT OF POLICY 2 (Jan. 1993); see ACOG, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 61 (1989); ACOG, STATEMENT OF POLICY: FURTHER ETHICAL CONSIDERATIONS IN INDUCED ABORTION 3 (Dec. 1977); COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 8.08 (1994) ("The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice."). The Court's assertion that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship," Rust v. Sullivan, 500 U.S. 173, 200 (1991), can properly be said to border on the "disingenuous." Cole, supra note 7, at 692; see Rust, 500 U.S. at 211 n.3 (Blackmun, J., dissenting). The Court supports its assertion on two grounds. It states, first, that the HHS regulations do not require "a doctor to represent as his own any opinion that he does not in fact hold." Rust, 500 U.S. at 200. While this may be true, the regulations do prevent doctors from offering information that may be medically relevant and necessary to disclose. The Court states, second, that the "doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice." Id. This assertion, however, merely assumes what must be demonstrated, which is that the physician-patient relationship within a Title X clinic is so obviously subordinated to managerial imperatives that it no longer conforms to ordinary understandings of that relationship. Although such an alteration is certainly possible, it is also most unusual, and the Court offers no evidence to support its claim that it has occurred within Title X clinics. A modicum of social awareness would surely dictate a different conclusion. See Cole, supra note 7, at 692; Roberts, supra note 103, at 598-600.
162. It is clear that there is a potential conflict between the HHS regulations and ethical medical practice. Doctors are under an "ethical duty to disclose relevant information about reproduction . . . . [T]he physician does have a duty to assure that the patient is offered information on the full range of options . . . ." Ethics Manual, supra note 125, at 950. "A pregnant woman should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. . . . The professional should make every effort to avoid introducing personal bias." AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG), STATEMENT OF POLICY 2 (Jan. 1993); see ACOG, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 61 (1989); ACOG, STATEMENT OF POLICY: FURTHER ETHICAL CONSIDERATIONS IN INDUCED ABORTION 3 (Dec. 1977); COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 8.08 (1994) ("The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice."). The Court's assertion that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship," Rust v. Sullivan, 500 U.S. 173, 200 (1991), can properly be said to border on the "disingenuous." Cole, supra note 7, at 692; see Rust, 500 U.S. at 211 n.3 (Blackmun, J., dissenting). The Court supports its assertion on two grounds. It states, first, that the HHS regulations do not require "a doctor to represent as his own any opinion that he does not in fact hold." Rust, 500 U.S. at 200. While this may be true, the regulations do prevent doctors from offering information that may be medically relevant and necessary to disclose. The Court states, second, that the "doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice." Id. This assertion, however, merely assumes what must be demonstrated, which is that the physician-patient relationship within a Title X clinic is so obviously subordinated to managerial imperatives that it no longer conforms to ordinary understandings of that relationship. Although such an alteration is certainly possible, it is also most unusual, and the Court offers no evidence to support its claim that it has occurred within Title X clinics. A modicum of social awareness would surely dictate a different conclusion. See Cole, supra note 7, at 692; Roberts, supra note 103, at 598-600.
163. It is clear that there is a potential conflict between the HHS regulations and ethical medical practice. Doctors are under an "ethical duty to disclose relevant information about reproduction . . . . [T]he physician does have a duty to assure that the patient is offered information on the full range of options . . . ." Ethics Manual, supra note 125, at 950. "A pregnant woman should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. . . . The professional should make every effort to avoid introducing personal bias." AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG), STATEMENT OF POLICY 2 (Jan. 1993); see ACOG, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 61 (1989); ACOG, STATEMENT OF POLICY: FURTHER ETHICAL CONSIDERATIONS IN INDUCED ABORTION 3 (Dec. 1977); COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 8.08 (1994) ("The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice."). The Court's assertion that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship," Rust v. Sullivan, 500 U.S. 173, 200 (1991), can properly be said to border on the "disingenuous." Cole, supra note 7, at 692; see Rust, 500 U.S. at 211 n.3 (Blackmun, J., dissenting). The Court supports its assertion on two grounds. It states, first, that the HHS regulations do not require "a doctor to represent as his own any opinion that he does not in fact hold." Rust, 500 U.S. at 200. While this may be true, the regulations do prevent doctors from offering information that may be medically relevant and necessary to disclose. The Court states, second, that the "doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice." Id. This assertion, however, merely assumes what must be demonstrated, which is that the physician-patient relationship within a Title X clinic is so obviously subordinated to managerial imperatives that it no longer conforms to ordinary understandings of that relationship. Although such an alteration is certainly possible, it is also most unusual, and the Court offers no evidence to support its claim that it has occurred within Title X clinics. A modicum of social awareness would surely dictate a different conclusion. See Cole, supra note 7, at 692; Roberts, supra note 103, at 598-600.
164. It is clear that there is a potential conflict between the HHS regulations and ethical medical practice. Doctors are under an "ethical duty to disclose relevant information about reproduction . . . . [T]he physician does have a duty to assure that the patient is offered information on the full range of options . . . ." Ethics Manual, supra note 125, at 950. "A pregnant woman should be fully informed in a balanced manner about all options, including raising the child herself, placing the child for adoption, and abortion. . . . The professional should make every effort to avoid introducing personal bias." AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS (ACOG), STATEMENT OF POLICY 2 (Jan. 1993); see ACOG, STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 61 (1989); ACOG, STATEMENT OF POLICY: FURTHER ETHICAL CONSIDERATIONS IN INDUCED ABORTION 3 (Dec. 1977); COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS'N, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 8.08 (1994) ("The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice."). The Court's assertion that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship," Rust v. Sullivan, 500 U.S. 173, 200 (1991), can properly be said to border on the "disingenuous." Cole, supra note 7, at 692; see Rust, 500 U.S. at 211 n.3 (Blackmun, J., dissenting). The Court supports its assertion on two grounds. It states, first, that the HHS regulations do not require "a doctor to represent as his own any opinion that he does not in fact hold." Rust, 500 U.S. at 200. While this may be true, the regulations do prevent doctors from offering information that may be medically relevant and necessary to disclose. The Court states, second, that the "doctor-patient relationship established by the Title X program [is not] sufficiently all encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice." Id. This assertion, however, merely assumes what must be demonstrated, which is that the physician-patient relationship within a Title X clinic is so obviously subordinated to managerial imperatives that it no longer conforms to ordinary understandings of that relationship. Although such an alteration is certainly possible, it is also most unusual, and the Court offers no evidence to support its claim that it has occurred within Title X clinics. A modicum of social awareness would surely dictate a different conclusion. See Cole, supra note 7, at 692; Roberts, supra note 103, at 598-600.
165. That is not to say, of course, that the government would be barred from creating special clinics in which all concerned were clear that what appeared at first blush to be "physicians" were actually merely state employees, fully subject to an administrative direction competent to override good and ethically required medical practice. The First Amendment would not constitutionally prohibit such a scheme. What the First Amendment forbids is the attempt to hire what all concerned understand to be physicians and then to attempt to regulate their speech as though they were merely employees.
166. I realize that this distinction is a matter of degree, because good medical practice often requires the provision of information. As used in this Essay, however, the distinction goes primarily to the justification for government regulation.
167. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 355-59 (1991); Wells, supra note 103, at 1764 ("If the First Amendment stands for anything, it stands for the principle that the government cannot 'deliberately deny[] information to people for the purpose of influencing their behavior.'" (quoting Strauss, supra, at 355)); see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507-08, 1510-14 (1996) (plurality opinion).
168. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 355-59 (1991); Wells, supra note 103, at 1764 ("If the First Amendment stands for anything, it stands for the principle that the government cannot 'deliberately deny[] information to people for the purpose of influencing their behavior.'" (quoting Strauss, supra, at 355)); see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507-08, 1510-14 (1996) (plurality opinion).
169. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 355-59 (1991); Wells, supra note 103, at 1764 ("If the First Amendment stands for anything, it stands for the principle that the government cannot 'deliberately deny[] information to people for the purpose of influencing their behavior.'" (quoting Strauss, supra, at 355)); see also 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507-08, 1510-14 (1996) (plurality opinion).
170. See Paula Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L. REV. 201 (1994); Robert D. Goldstein, Reading Casey: Structuring the Woman's Decisionmaking Process, 4 WM. & MARY BILL RTS. J. 787, 852-74 (1996).
171. See Paula Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 B.U. L. REV. 201 (1994); Robert D. Goldstein, Reading Casey: Structuring the Woman's Decisionmaking Process, 4 WM. & MARY BILL RTS. J. 787, 852-74 (1996).
172. Nor did the government suggest any other justification for the Title X regulations. See Brief for Respondent, Rust v. Sullivan, 500 U.S. 173 (1991) (No. 89-1391).
173. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).
174. The Court in Rust repeatedly refers to Maher v. Roe, 432 U.S. 464 (1977), as standing for the proposition that the state can choose to subsidize "services related to childbirth" but not "nontherapeutic abortions," because "the government may 'make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.'" Rust, 500 U.S. at 192-93 (quoting Maher, 432 U.S. at 474 (omission in original)). The argument in this Essay is not inconsistent with this proposition; it merely requires us to make the distinction between government decisions refusing to fund the medical practice of abortion, because childbirth is viewed as a positive good, and government decisions precluding the dissemination of information about abortion, because abortion is viewed as a positive harm. For an-interesting discussion of abortion as a "vice," see Wells, supra note 103, at 1758-62.
175. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
176. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
177. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
178. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
179. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
180. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
181. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
182. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
183. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
184. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
185. For a sample of the literature discussing the NEA controversy, see Cole, supra note 7, at 739-43 (arguing that NEA funding restrictions undermine First Amendment); Elizabeth E. DeGrazia, In Search of Artistic Excellence: Structural Reform of the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 133 (1994) (suggesting structural reforms to grantmaking authority of NEA); Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991) (analyzing exercise of state power in context of Mapplethorpe controversy and NEA); John E. Frohnmayer, Giving Offense, 29 GONZ. L. REV. 1 (1993-94) (discussing NEA controversy); Jesse Helms, Tax-Paid Obscenity, 14 NOVA L. REV. 317 (1990) (same); Robert M. O'Neil, Artistic Freedom and Academic Freedom, LAW & CONTEMP. PROBS., Summer 1990, at 177 (criticizing NEA funding restrictions as violation of freedom of expression); Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts?, 102 YALE L.J. 1209 (1993) (analyzing meaning of "content" in context of NEA controversy); Lionel S. Sobel, First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist, 41 VAND. L. REV. 517 (1988) (arguing that First Amendment imposes standards by which courts may evaluate constitutionality of government subsidies of cultural and artistic expression); Sunstein, supra note 32, at 610-15 (analyzing First Amendment implications of government funding of arts); MaryEllen Kresse, Comment, Turmoil at the National Endowment for the Arts: Can Federally Funded Art Survive the "Mapplethorpe Controversy"?, 39 BUFF. L. REV. 231 (1991) (analyzing Mapplethorpe controversy); George S. Nahitchevansky, Note, Free Speech and Government Funding: Does the Government Have to Fund What It Doesn't Like, 56 BROOK. L. REV. 213 (1990) (arguing that funding decisions should be accorded higher standard of review as their restrictive effect increases); cf. Alvara Ignacio Anillo, Note, The National Endowment for the Humanities: Control of Funding Versus Academic Freedom, 45 VAND. L. REV. 455 (1992) (discussing similar issues surrounding National Endowment for the Humanities grants to scholars).
186. 20 U.S.C. § 953(b) (1994).
187. Id. § 954(c).
188. Id. § 954(d).
189. Note, Standards for Federal Funding of the Arts: Free Expression and Political Control, 103 HARV. L. REV. 1969, 1972 (1990).
190. Fiss, supra note 135, at 2094. For a good description, see DeGrazia, supra note 135, at 139-41.
191. In 1989, Congress passed a temporary restriction on grants funded during fiscal year 1990, providing that grants could not be extended to support work "which in the judgment of the National Endowment for the Arts . . . may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value." Act of Oct. 23, 1989, Pub. L. No. 101-121, § 304(a), 103 Stat. 701, 741 (1990). The certification procedure used by the NEA to enforce the restrictions of this section was declared unconstitutional in Bella Lewitzky Dance Found. v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991).
192. 20 U.S.C. § 954(d)(1) (1994). The statute also declared that "obscenity is without artistic merit, is not protected speech, and shall not be funded." Id. § 954(d)(2). For a good history of these events, see John H. Garvey, Black and White Images, LAW & CONTEMP. PROBS., Autumn 1993, at 189 (1993). In this Essay I do not examine the restrictions on NEA granting authority imposed by § 954(d)(2).
193. 795 F. Supp. 1457 (C.D. Cal. 1992). An appeal of Finley is still pending.
194. Id. at 1476.
195. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338, 2345 (1995); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
196. To paraphrase Laurence Tribe, it is not clear whether the decency clause is an instance of the government's adding its own voice or whether it is an example of the state's silencing the voices of others. See TRIBE, supra note 24, at 807.
197. JEFFREY PFEFFER & GERALD R. SALANCIK, THE EXTERNAL CONTROL OF ORGANIZATIONS 32 (1978).
198. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984). Kathleen Sullivan uses the vocabulary of "sovereign regulator" and "private art patron" to capture this distinction. See Kathleen M. Sullivan, Artistic Freedom, Public Funding, and the Constitution, in PUBLIC MONEY AND THE MUSE: ESSAYS ON GOVERNMENT FUNDING FOR THE ARTS 80, 82 (Stephen Benedict ed., 1991).
199. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984). Kathleen Sullivan uses the vocabulary of "sovereign regulator" and "private art patron" to capture this distinction. See Kathleen M. Sullivan, Artistic Freedom, Public Funding, and the Constitution, in PUBLIC MONEY AND THE MUSE: ESSAYS ON GOVERNMENT FUNDING FOR THE ARTS 80, 82 (Stephen Benedict ed., 1991).
200. Cf. Milton C. Cummings, Jr., To Change a Nation's Cultural Policy: The Kennedy Administration and the Arts in the United States, 1961-1963, in PUBLIC POLICY AND THE ARTS 141, 141 (Kevin V. Mulcahy & C. Richard Swaim eds., 1982) (claiming that second-class postal rate was "profoundly important for" and "a major cause of growth of American magazines).
201. Fiss, supra note 135, at 2097.
202. 20 U.S.C. § 76j (1994); see Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 238 (1987) (Scalia, J., dissenting).
203. This would be true even if the restrictions would in a particular case have the effect of making "work unavailable to the general . . . public." Fiss, supra note 135, at 2097. The decisive question would be the effect of the restrictions on the relevant aspects of public discourse, not on particular speakers.
204. Kreimer, supra note 30, at 1351-74.
205. See id. at 1359-63.
206. Sullivan, supra note 25, at 1490.
207. Finley v. NEA, 795 F. Supp. 1457, 1475 (N.D. Cal. 1992). For a similar perspective on the restrictions on NEA grants imposed by the Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No. 101-121, § 304(a), 103 Stat. 701, 741 (1989), see Carl F. Stychin, Identities, Sexualities, and the Postmodern Subject: An Analysis of Artistic Funding by the National Endowment for the Arts, 12 CARDOZO ARTS & ENT. L.J. 79, 128-31 (1994).
208. Mahler v. Eby, 264 U.S. 32, 41 (1924). For a good discussion of the vagueness doctrine in the context of decision rules, see Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 397-408 (1989).
209. 47 U.S.C. § 307(a) (1994). For the Supreme Court's unsympathetic response to the charge that the standard is unconstitutionally vague, see NBC v. United States, 319 U.S. 190, 225-26 (1943); FCC v. Pottsville Broad. Co., 309 U.S. 134, 137-38 (1940); see also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 379-80 (1969) (discussing statutory authority of FCC to promulgate regulations).
210. See Finley, 795 F. Supp. at 1475-76.
211. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986).
212. A central principle of First Amendment jurisprudence is that public discourse cannot be regulated in ways that censor speech to enforce community standards. See POST, supra note 9, at 134-96. It is because of this principle that a conduct rule imposing a "decency" standard would be found unconstitutional. But this principle would also require that a conduct rule imposing an "excellence" standard be found unconstitutional.
213. Finley, 795 F. Supp. at 1475; see YUDOF, supra note 35, at 234-35. The Court in Finley ineffectually tries to escape this conclusion by analogizing "funding for the arts to funding of public universities." Finley, 795 F. Supp. at 1475. The court reasoned that: In both settings, limited public funds are allocated to support expressive activities, and some content-based decisions are unavoidable. . . . Hiring and promotion decisions based on professional evaluations of academic merit are permissible in a public university setting, but decisions based on vague criteria or intended to suppress unpopular expression are not. Analogously, professional evaluations of artistic merit are permissible, but decisions based on the wholly subjective criterion of "decency" are not. Id. (citations omitted). Even if we put to one side the court's strange notion that a criterion of "decency" is "wholly subjective" in ways that a criterion of "artistic excellence" is not, the court's attempt to equate the NEA with a public university is fundamentally incompatible with its desire to characterize and assess the decency clause as a conduct rule addressed to public discourse. This is because public universities are managerial domains dedicated to the purpose of education, see supra Section I.A, which is why universities may regulate speech in a "content-based" manner designed to accomplish heuristic purposes.
214. See YUDOF, supra note 35, at 242-43. In light of this conclusion it is
215. Government efforts to intervene in public discourse can of course infringe upon many different constitutional provisions. Such efforts, for example, may violate the Establishment Clause or the Equal Protection Clause. They may be arbitrary and irrational and thus run afoul of the Constitution's hostility to "naked preferences." See Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984). In this Essay, I consider only those restrictions that would be specifically placed on the decency clause, viewed as a decision rule, by the freedom of speech provisions of the First Amendment.
216. The Supreme Court has explicitly drawn an analogous conclusion in the area of the dormant Commerce Clause, holding that the government may aim at certain purposes when it acts as a "market participant" that are prohibited to it when acting as a "market regulator." See Reeves, Inc. v. Stake, 447 U.S. 429, 436-40 (1980).
217. Thus a state which permitted "music, opera, drama, dance, and other performing arts" to be performed in a park that was a public forum could not simultaneously exclude academic or political speech.
218. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 247-48 (1974) (footnote omitted).
219. Red Lion Broad, Co. v. FCC, 395 U.S. 367, 390 (1969); see Metro Broad., Inc. v. FCC, 497 U.S. 547, 566 (1990) (endorsing FCC regulation aimed at increasing broadcast diversity), overruled in part by Adarand Constructors Co. v. Pena, 115 S. Ct. 2097, 2111 (1995).
220. A contrary conclusion would prohibit most constructive interventions by an activist state. See generally CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 230 (1993).
221. See Post, supra note 17, at 1114-23.
222. See. e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510, 2519 (1995); Sanford Levinson, They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society, 70 CHI.-KENT L. REV. 1079 (1995) (arguing that state inevitably supports public symbols that carry particular ideological messages).
223. As Melville Nimmer once observed, "Surely there is something fundamentally wrong with a doctrine that would find presumptively illegitimate Theodore Roosevelt's view of the presidency as a 'bully pulpit,' and Franklin Roosevelt's exercise of leadership via the 'fireside chat.' Our government officials are properly expected to lead as well as to reflect public opinion." MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH, § 4.09[D], at 4-96-97 (1984).
224. Regan v. Taxation with Representation, 461 U.S. 540, 549 (1983).
225. See, e.g., EMERSON, supra note 39, at 698 (recognizing necessity of government expression); Cole, supra note 7, at 702-03 (emphasizing importance of government freedom to control content of its speech); Donald W. Hawthorne, Subversive Subsidization: How NEA Art Funding Abridges Private Speech, 40 U. KAN. L. REV. 437, 451 (1992) (recognizing government's nonneutral promotion of ideas); Redish & Kessler, supra note 7, at 560-62 (expressing importance of government's role as educator and communicator).
226. Needless to say, traditional academic opinion is strongly to the contrary. See, e.g., SMOLLA, supra note 7, at 196 (characterizing straightforward viewpoint discrimination as constitutionally invalid); O'Neil, supra note 135, at 191 (same); Sobel, supra note 135, at 525 (same); Sullivan, supra note 148, at 89-90 (same); Sunstein, supra note 32, at 611-12 (same). But see SUNSTEIN, supra note 169, at 231-32 (setting out permissible parameters of viewpoint discrimination).
227. For a discussion of the viewpoint discriminatory aspects of current NEA funding criteria, see PRICE, supra note 66, at 184-86; Daniel Shapiro, Free Speech and Art Subsidies, 14 LAW & PHIL. 329, 346-53 (1995).
228. See Post, supra note 17, at 1114-23.
229. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389-90 (1969).
230. For example, an FCC rule prohibiting broadcasters from covering the Whitewater scandal would surely be unconstitutional because its purpose and effect would be to restrict the marketplace of ideas, even if broadcasters' speech is not regarded as part of public discourse.
231. Martin Redish and Daryl Kessler acutely observe that subsidies are sometimes provided on the condition that a recipient refrain from speaking in ways that the recipient would, in the absence of the subsidy, be free and able to do. They refer to this phenomenon as "negative subsidies" and convincingly argue that such subsidies should be regarded with constitutional suspicion. Redish & Kessler, supra note 7, at 558-59; see SMOLLA, supra note 7, at 189 (arguing that "the more lax constitutional treatment given to the government when it participates in the speech market should not be extended to the government when it is in fact engaged in market regulation, under the pretext of mere participation"). Chief Justice Rehnquist's discussion of the unconstitutional conditions doctrine in Rust is in fact an attempt to reduce the doctrine to a prohibition of negative subsidies. See Rust v. Sullivan, 500 U.S. 173, 197 (1991); supra text accompanying notes 108-11. In the vocabulary that I have proposed in this Essay, we can conceptualize negative subsidies as an effort to leverage decision rules into conduct rules, and we can conclude that they should therefore be evaluated according to the standards appropriate to conduct rules. The Court has imposed similar limitations on a state's ability to leverage market participation into market regulation in the context of the dormant Commerce Clause. For a review of these cases, see South-Central Timber Dev. v. Wunnicke, 467 U.S. 82, 94-99 (1984).
232. See SUNSTEIN, supra note 169, at 231-32; Shiffrin, supra note 4, at 612-17, 622-32; Steven Shiffrin, Government Speech and the Falsification of Consent, 96 HARV. L. REV. 1745, 1750-51 (1983) (reviewing YUDOF, supra note 35).
233. For an interesting case study on the proper scope of official lobbying for public referenda, see Burt v. Blumenauer, 699 P.2d 168 (Or. 1985).
234. For further discussion of the preconditions of public discourse, see POST, supra note 9, at 135-48.
235. OWEN FISS, THE IRONY OF FREE SPEECH (1996).
236. Id. at 42.
237. See id. at 42-43. As Fiss notes: The ideal of neutrality in the speech context not only requires that the state refrain from choosing among viewpoints, but also that it not structure public discourse in such a way as to favor one viewpoint over another. The state must act as a high-minded parliamentarian, making certain that all viewpoints are fully and fairly heard. Fiss, supra note 135, at 2100.
238. FISS, supra note 184, at 44.
239. Id.
240. Fiss refers specifically to this jurisprudence: "Just as some minority groups may be more disadvantaged than others, some unorthodox ideas may be more hidden from public view than others." Id. On the general tendency to import Equal Protection norms into First Amendment analysis, see Post, supra note 6, at 1267-70.
241. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 27 (1948).
242. See Post, supra note 83, at 290-91.
243. See, e.g., Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980) (invalidating state prohibition of policy-oriented speech on monthly bills of public utilities); Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam) ("[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative value of others is wholly foreign to the First Amendment . . . .").
244. This objection would prove fatal even if Fiss's egalitarian criteria were interpreted to apply only to the ideas of persons participating within public discourse. Although the potential number of such ideas may not be infinite, Fiss could not defend this (modified) egalitarian thesis on the ground that a rich and full public debate requires subsidization of all views articulated within public discourse that happen to be underfinanced or generally unavailable. It could not plausibly be maintained that public debate would be richer if the views of Nazis or Stalinists were subsidized, even if such views were unorthodox, marginalized, and not commonly accepted. Surely it would be bizarre to contend that such views must be supported to ensure a better and more informed public dialogue. Nor could a modified egalitarian thesis be defended on the principle that the state ought to treat all persons within public discourse equally, as that principle would instead require the state to refrain from treating people differently, even if their ideas had different degrees of acceptance and exposure. The modified egalitarian thesis would therefore have to be justified by some variant of the notion that the First Amendment requires equality among ideas. But there is no particular reason to accept this proposed equality, and good reasons to reject it.
245. FISS, supra note 184, at 41.
246. Fiss, supra note 135, at 2101.
247. Id.; see FISS, supra note 184, at 44-45.
248. E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 68 (1st ed. 1960). As William H. Riker concisely observes: "Just what is apolitical issue is itself a political issue." AGENDA FORMATION 3 (William H. Riker ed., 1993).
249. E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 68 (1st ed. 1960). As William H. Riker concisely observes: "Just what is apolitical issue is itself a political issue." AGENDA FORMATION 3 (William H. Riker ed., 1993).
250. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 393-405 (1978) (discussing concept of polycentric tasks and adjudication).
251. FISS, supra note 184, at 37.
252. Cf. YUDOF, supra note 35, at 259 (judicial review of government supported speech appropriate primarily in "egregious" cases); Frederick Schauer, Is Government Speech a Problem?, 35 STAN. L. REV. 373, 378 (1983) (reviewing YUDOF, supra note 35).
253. YUDOF, supra note 35, at 15.
254. Fiss does not in fact believe that the decency clause should be set aside as unconstitutional. See FISS, supra note 184, at 38.
255. WILLIAM SHAKESPEARE, JULIUS CAESAR act 1, sc. 2.
256. On the fundamental constitutional value of community self-definition, see POST, supra note 9, at 1-18, 51-88, 177-96.
257. We are, of course, free to alter our constitutional commitments and to pursue different values, but, on pain of incoherence, frustration, and hypocrisy, we are not free to ignore the consequences of the values we have chosen.
258. On the tension between these two values, viewed from the perspective of an increasingly international system of communication, see PRICE, supra note 66, at 233-46.
259. For example, one commentator has observed: The NEA is several years younger than Madonna. Still, early in its brief existence it achieved the status of entitlement for those who found themselves for the first time beneficiaries of federal largess, or, in most of their cases, smallness. The dollar amounts may be minuscule by comparison with others flung hither and yon by Uncle Sam . . . but the amount of indignation that can be mustered by those liable to lose these nickels and dimes is truly spectacular. Not merely spectacular, but it has more sniffles and sobs than "Camille." Jonathan Yardley, NEA Funding: Dollars and Nonsense, WASH. POST, Jan. 23, 1995, at B2; see also Tim Miller, An Artist's Declaration of Independence to Congress (July 4, 1990), in CULTURE WARS: DOCUMENTS FROM THE RECENT CONTROVERSIES IN THE ARTS 244, 244-45 (Richard Bolton ed., 1992); Newt Gingrich, Cutting Cultural Funding: A Reply, TIME, Aug. 21, 1995, at 70; Jeff Jacoby, Endowment of Arrogance, BALTIMORE SUN, Aug. 9, 1995, at 17A; John Frohnmayer's Final Act, WASH, TIMES, Feb. 24, 1992, at E2 (discussing Frohnmayer's resignation as NEA chairman).
260. For example, one commentator has observed: The NEA is several years younger than Madonna. Still, early in its brief existence it achieved the status of entitlement for those who found themselves for the first time beneficiaries of federal largess, or, in most of their cases, smallness. The dollar amounts may be minuscule by comparison with others flung hither and yon by Uncle Sam . . . but the amount of indignation that can be mustered by those liable to lose these nickels and dimes is truly spectacular. Not merely spectacular, but it has more sniffles and sobs than "Camille." Jonathan Yardley, NEA Funding: Dollars and Nonsense, WASH. POST, Jan. 23, 1995, at B2; see also Tim Miller, An Artist's Declaration of Independence to Congress (July 4, 1990), in CULTURE WARS: DOCUMENTS FROM THE RECENT CONTROVERSIES IN THE ARTS 244, 244-45 (Richard Bolton ed., 1992); Newt Gingrich, Cutting Cultural Funding: A Reply, TIME, Aug. 21, 1995, at 70; Jeff Jacoby, Endowment of Arrogance, BALTIMORE SUN, Aug. 9, 1995, at 17A; John Frohnmayer's Final Act, WASH, TIMES, Feb. 24, 1992, at E2 (discussing Frohnmayer's resignation as NEA chairman).
261. For example, one commentator has observed: The NEA is several years younger than Madonna. Still, early in its brief existence it achieved the status of entitlement for those who found themselves for the first time beneficiaries of federal largess, or, in most of their cases, smallness. The dollar amounts may be minuscule by comparison with others flung hither and yon by Uncle Sam . . . but the amount of indignation that can be mustered by those liable to lose these nickels and dimes is truly spectacular. Not merely spectacular, but it has more sniffles and sobs than "Camille." Jonathan Yardley, NEA Funding: Dollars and Nonsense, WASH. POST, Jan. 23, 1995, at B2; see also Tim Miller, An Artist's Declaration of Independence to Congress (July 4, 1990), in CULTURE WARS: DOCUMENTS FROM THE RECENT CONTROVERSIES IN THE ARTS 244, 244-45 (Richard Bolton ed., 1992); Newt Gingrich, Cutting Cultural Funding: A Reply, TIME, Aug. 21, 1995, at 70; Jeff Jacoby, Endowment of Arrogance, BALTIMORE SUN, Aug. 9, 1995, at 17A; John Frohnmayer's Final Act, WASH, TIMES, Feb. 24, 1992, at E2 (discussing Frohnmayer's resignation as NEA chairman).
262. For example, one commentator has observed: The NEA is several years younger than Madonna. Still, early in its brief existence it achieved the status of entitlement for those who found themselves for the first time beneficiaries of federal largess, or, in most of their cases, smallness. The dollar amounts may be minuscule by comparison with others flung hither and yon by Uncle Sam . . . but the amount of indignation that can be mustered by those liable to lose these nickels and dimes is truly spectacular. Not merely spectacular, but it has more sniffles and sobs than "Camille." Jonathan Yardley, NEA Funding: Dollars and Nonsense, WASH. POST, Jan. 23, 1995, at B2; see also Tim Miller, An Artist's Declaration of Independence to Congress (July 4, 1990), in CULTURE WARS: DOCUMENTS FROM THE RECENT CONTROVERSIES IN THE ARTS 244, 244-45 (Richard Bolton ed., 1992); Newt Gingrich, Cutting Cultural Funding: A Reply, TIME, Aug. 21, 1995, at 70; Jeff Jacoby, Endowment of Arrogance, BALTIMORE SUN, Aug. 9, 1995, at 17A; John Frohnmayer's Final Act, WASH, TIMES, Feb. 24, 1992, at E2 (discussing Frohnmayer's resignation as NEA chairman).
263. For example, one commentator has observed: The NEA is several years younger than Madonna. Still, early in its brief existence it achieved the status of entitlement for those who found themselves for the first time beneficiaries of federal largess, or, in most of their cases, smallness. The dollar amounts may be minuscule by comparison with others flung hither and yon by Uncle Sam . . . but the amount of indignation that can be mustered by those liable to lose these nickels and dimes is truly spectacular. Not merely spectacular, but it has more sniffles and sobs than "Camille." Jonathan Yardley, NEA Funding: Dollars and Nonsense, WASH. POST, Jan. 23, 1995, at B2; see also Tim Miller, An Artist's Declaration of Independence to Congress (July 4, 1990), in CULTURE WARS: DOCUMENTS FROM THE RECENT CONTROVERSIES IN THE ARTS 244, 244-45 (Richard Bolton ed., 1992); Newt Gingrich, Cutting Cultural Funding: A Reply, TIME, Aug. 21, 1995, at 70; Jeff Jacoby, Endowment of Arrogance, BALTIMORE SUN, Aug. 9, 1995, at 17A; John Frohnmayer's Final Act, WASH, TIMES, Feb. 24, 1992, at E2 (discussing Frohnmayer's resignation as NEA chairman).
264. In 1995, the NEA's grant-making funds totaled approximately $138 million. See National Endowment for the Arts Office of Policy, Research, and Technology, Table Summarizing NEA Funding (Nov. 1995) (on file with the Yale Law Journal). In that same year, $265.6 million was appropriated through state art agencies, and an estimated $650 million was allocated by local governments. See NINA KRESSNER COBB, PRESIDENT'S COMM. ON ARTS & HUMANITIES, LOOKING AHEAD: PRIVATE SECTOR GIVING TO THE ARTS AND THE HUMANITIES 5 (1995). Furthermore, foundation funding for the arts in 1992, the most recent year for which complete data are available, totaled approximately $1.36 billion. See id. Finally, according to one survey, corporate funding for the arts in 1994 totaled $875 million. See id. Figures for individual giving to the arts are not readily available, but simply extrapolating from these estimates of government, foundation and corporate donations, it is likely that NEA support for the arts is about 5% of total donations. This estimate may understate the extent of NEA influence, because the NEA is the single largest donor to the arts and because NEA grants are often highly leveraged through requirements for matching funds. See id. at 18-20. The NEA's national prestige also creates independent leverage, so that, as the President's Committee on the Arts and Humanities stated: "The funding patterns demonstrate a complex national cultural structure in which private and public donor sectors reinforce each other, funding different pieces and parts, exercising different priorities within the whole. . . . [T]he public and private sectors 'operate in synergistic combination.'" Id. at 4. It is also the case, however, that the estimate of 5% may strikingly overstate the extent of NEA influence because it does not account for income earned by artists and arts organizations directly through ticket sales, art purchases, and the like. We know, for example, that in disciplines like music, dance, and theater earned income can account for between 50% and 60% of total revenues. See President's Committee on the Arts and Humanities, Chart Displaying Sources of Operating Income for Various Disciplines (1994) (on file with the Yale Law Journal). For an argument that "the pervasive role the NEA plays in the art world and the funding mechanisms on which artists and museums depend" gives to it "the ability to effectively silence artists who express disfavored views," see Hawthorne, supra note 174, at 438. For a contrary view, see ALICE GOLDFARB MARQUIS, ART LESSONS: LEARNING FROM THE RISE AND FALL OF PUBLIC ARTS FUNDING 246-53 (1995).
265. In 1995, the NEA's grant-making funds totaled approximately $138 million. See National Endowment for the Arts Office of Policy, Research, and Technology, Table Summarizing NEA Funding (Nov. 1995) (on file with the Yale Law Journal). In that same year, $265.6 million was appropriated through state art agencies, and an estimated $650 million was allocated by local governments. See NINA KRESSNER COBB, PRESIDENT'S COMM. ON ARTS & HUMANITIES, LOOKING AHEAD: PRIVATE SECTOR GIVING TO THE ARTS AND THE HUMANITIES 5 (1995). Furthermore, foundation funding for the arts in 1992, the most recent year for which complete data are available, totaled approximately $1.36 billion. See id. Finally, according to one survey, corporate funding for the arts in 1994 totaled $875 million. See id. Figures for individual giving to the arts are not readily available, but simply extrapolating from these estimates of government, foundation and corporate donations, it is likely that NEA support for the arts is about 5% of total donations. This estimate may understate the extent of NEA influence, because the NEA is the single largest donor to the arts and because NEA grants are often highly leveraged through requirements for matching funds. See id. at 18-20. The NEA's national prestige also creates independent leverage, so that, as the President's Committee on the Arts and Humanities stated: "The funding patterns demonstrate a complex national cultural structure in which private and public donor sectors reinforce each other, funding different pieces and parts, exercising different priorities within the whole. . . . [T]he public and private sectors 'operate in synergistic combination.'" Id. at 4. It is also the case, however, that the estimate of 5% may strikingly overstate the extent of NEA influence because it does not account for income earned by artists and arts organizations directly through ticket sales, art purchases, and the like. We know, for example, that in disciplines like music, dance, and theater earned income can account for between 50% and 60% of total revenues. See President's Committee on the Arts and Humanities, Chart Displaying Sources of Operating Income for Various Disciplines (1994) (on file with the Yale Law Journal). For an argument that "the pervasive role the NEA plays in the art world and the funding mechanisms on which artists and museums depend" gives to it "the ability to effectively silence artists who express disfavored views," see Hawthorne, supra note 174, at 438. For a contrary view, see ALICE GOLDFARB MARQUIS, ART LESSONS: LEARNING FROM THE RISE AND FALL OF PUBLIC ARTS FUNDING 246-53 (1995).
266. In 1995, the NEA's grant-making funds totaled approximately $138 million. See National Endowment for the Arts Office of Policy, Research, and Technology, Table Summarizing NEA Funding (Nov. 1995) (on file with the Yale Law Journal). In that same year, $265.6 million was appropriated through state art agencies, and an estimated $650 million was allocated by local governments. See NINA KRESSNER COBB, PRESIDENT'S COMM. ON ARTS & HUMANITIES, LOOKING AHEAD: PRIVATE SECTOR GIVING TO THE ARTS AND THE HUMANITIES 5 (1995). Furthermore, foundation funding for the arts in 1992, the most recent year for which complete data are available, totaled approximately $1.36 billion. See id. Finally, according to one survey, corporate funding for the arts in 1994 totaled $875 million. See id. Figures for individual giving to the arts are not readily available, but simply extrapolating from these estimates of government, foundation and corporate donations, it is likely that NEA support for the arts is about 5% of total donations. This estimate may understate the extent of NEA influence, because the NEA is the single largest donor to the arts and because NEA grants are often highly leveraged through requirements for matching funds. See id. at 18-20. The NEA's national prestige also creates independent leverage, so that, as the President's Committee on the Arts and Humanities stated: "The funding patterns demonstrate a complex national cultural structure in which private and public donor sectors reinforce each other, funding different pieces and parts, exercising different priorities within the whole. . . . [T]he public and private sectors 'operate in synergistic combination.'" Id. at 4. It is also the case, however, that the estimate of 5% may strikingly overstate the extent of NEA influence because it does not account for income earned by artists and arts organizations directly through ticket sales, art purchases, and the like. We know, for example, that in disciplines like music, dance, and theater earned income can account for between 50% and 60% of total revenues. See President's Committee on the Arts and Humanities, Chart Displaying Sources of Operating Income for Various Disciplines (1994) (on file with the Yale Law Journal). For an argument that "the pervasive role the NEA plays in the art world and the funding mechanisms on which artists and museums depend" gives to it "the ability to effectively silence artists who express disfavored views," see Hawthorne, supra note 174, at 438. For a contrary view, see ALICE GOLDFARB MARQUIS, ART LESSONS: LEARNING FROM THE RISE AND FALL OF PUBLIC ARTS FUNDING 246-53 (1995).
267. In 1995, the NEA's grant-making funds totaled approximately $138 million. See National Endowment for the Arts Office of Policy, Research, and Technology, Table Summarizing NEA Funding (Nov. 1995) (on file with the Yale Law Journal). In that same year, $265.6 million was appropriated through state art agencies, and an estimated $650 million was allocated by local governments. See NINA KRESSNER COBB, PRESIDENT'S COMM. ON ARTS & HUMANITIES, LOOKING AHEAD: PRIVATE SECTOR GIVING TO THE ARTS AND THE HUMANITIES 5 (1995). Furthermore, foundation funding for the arts in 1992, the most recent year for which complete data are available, totaled approximately $1.36 billion. See id. Finally, according to one survey, corporate funding for the arts in 1994 totaled $875 million. See id. Figures for individual giving to the arts are not readily available, but simply extrapolating from these estimates of government, foundation and corporate donations, it is likely that NEA support for the arts is about 5% of total donations. This estimate may understate the extent of NEA influence, because the NEA is the single largest donor to the arts and because NEA grants are often highly leveraged through requirements for matching funds. See id. at 18-20. The NEA's national prestige also creates independent leverage, so that, as the President's Committee on the Arts and Humanities stated: "The funding patterns demonstrate a complex national cultural structure in which private and public donor sectors reinforce each other, funding different pieces and parts, exercising different priorities within the whole. . . . [T]he public and private sectors 'operate in synergistic combination.'" Id. at 4. It is also the case, however, that the estimate of 5% may strikingly overstate the extent of NEA influence because it does not account for income earned by artists and arts organizations directly through ticket sales, art purchases, and the like. We know, for example, that in disciplines like music, dance, and theater earned income can account for between 50% and 60% of total revenues. See President's Committee on the Arts and Humanities, Chart Displaying Sources of Operating Income for Various Disciplines (1994) (on file with the Yale Law Journal). For an argument that "the pervasive role the NEA plays in the art world and the funding mechanisms on which artists and museums depend" gives to it "the ability to effectively silence artists who express disfavored views," see Hawthorne, supra note 174, at 438. For a contrary view, see ALICE GOLDFARB MARQUIS, ART LESSONS: LEARNING FROM THE RISE AND FALL OF PUBLIC ARTS FUNDING 246-53 (1995).
268. See Post, supra note 6.