The Many Faces of Government Speech

Iowa Law Review

Volumn 86, Issue 5, 2001, Pages 1377-1509

  Bezanson, Randall P ^a   Buss, William G ^a  

^a NONE

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EID: 0347033941     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (552)

1. Some scholars thoughtfully considered government speech issues long before the end of the Twentieth Century. See generally THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983) [hereinafter YUDOF, WHEN GOVERNMENT SPEAKS]; Steven Shiffrin, Government Speech, 27 U.C.L.A. L. REV. 565 (1983).
2. Some scholars thoughtfully considered government speech issues long before the end of the Twentieth Century. See generally THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983) [hereinafter YUDOF, WHEN GOVERNMENT SPEAKS]; Steven Shiffrin, Government Speech, 27 U.C.L.A. L. REV. 565 (1983).
3. Some scholars thoughtfully considered government speech issues long before the end of the Twentieth Century. See generally THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983) [hereinafter YUDOF, WHEN GOVERNMENT SPEAKS]; Steven Shiffrin, Government Speech, 27 U.C.L.A. L. REV. 565 (1983).
4. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 669 (1998); Rust v. Sullivan, 500 U.S. 173, 203 (1991).
5. See, e.g., Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000); Rosenberger v. Univ. of Va., 515 U.S. 819, 829-30 (1995).
6. 121 S. Ct. 1043 (2001).
7. Id. at 1048-49 (quoting Rosenberger, 515 U.S. at 833-34 and citing Southworth, 529 U.S. at 229, 235).
8. See, e.g., Rust v. Sullivan, 500 U.S. 173, 192-200 (1991); infra notes 23-78 and accompanying text.
9. See Southworth, 529 U.S. at 234-35 (discussed infra notes 179-244 and accompanying text); Hazelwood Seh. Dist. v. Kuhlmeier, 484 U.S. 260, 270-73 (1988), infra notes 139-52 and accompanying text; Bd. of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 863-65 (1982) (discussed infra notes 118-39 and accompanying text).
10. See Hurley v. Irish-American Gay, Lesbian & Bi-Sexual Group of Boston Inc., 515 U.S. 557, 572-73 (1995); see also Cox v. Louisiana, 379 U.S. 559, 563 (1965).
11. See CBS v. Democratic Nat'l Comm., 412 U.S. 94, 104-05, 109, 117 (1973); Turner Broad. Sys. v. FCC, 512 U.S. 662, 641 (1994).
12. See FCC v. League of Women Voters, 468 U.S. 364, 398-99 (1984); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674-76 (discussed infra notes 246-301 and accompanying text).
13. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (recognizing the right to not speak).
14. See Wooley v. Maynard, 430 U.S. 705, 713 (1977) (holding that New Hampshire cannot constitutionally compel an individual to associate with the state's ideological message, "Live Free or Die," by displaying it on his privately owned but publicly licensed automobiles). The Maynard Court, applying a heightened scrutiny test, found a First Amendment interest at stake and then analyzed the State's countervailing interest to determine if it was sufficiently compelling to justify the statute. The Court wrote: [E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. Id. at 716-17 (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
15. See generally Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565 (1980). See Lauran Neergaard, Anti-Smoking Ads Shown to Influence Kids, CHI. SUN-TIMES, July 19, 1994, at 43 (Financial section) (reporting the effects of ads which illustrated that children exposed to government television and radio ads were thirty-five percent less likely to have smoked than peers in communities where the government campaign did not air).
16. See generally Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565 (1980). See Lauran Neergaard, Anti-Smoking Ads Shown to Influence Kids, CHI. SUN-TIMES, July 19, 1994, at 43 (Financial section) (reporting the effects of ads which illustrated that children exposed to government television and radio ads were thirty-five percent less likely to have smoked than peers in communities where the government campaign did not air).
17. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587-89 (1998) (discussed infra notes 309-76 and accompanying text).
18. William G. Buss, The Government as Friend and Protector of Free Speech, 82 IOWA L. REV. 301, 309-14 (1996) (reviewing OWEN M. FISS, LIBERALISM DIVIDED (1996)).
19. See OWEN M. FISS, LIBERALISM DIVIDED 90-107 (1996).
20. See L.A. Police Dep't. v. United Reporting Publ'g Corp., 528 U.S. 32, 39-41 (1999) (discussed infra notes 395-437 and accompanying text); cf. Buckley v. Valeo, 424 U.S. 946, 954 (1976) (reviewing campaign finance regulations in the 1974 Federal Campaign Act designed to put government support behind unrepresentative messages by limiting private expenditures to communicate all messages; however, the Court held that equality was an invalid purpose for the government to use in controlling political speech and the Court invalidated virtually all of the parts of the statute that regulated expenditures).
21. Compare Rosenberger v. Univ. of Va., 515 U.S. 819, 833-34 (1995) (discussed infra notes 94-109 and accompanying text), with Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-73 (1988).
22. See Cuffley v. Mickes, 208 F.3d 702, 707-09 (8th Cir. 2000) (involving a claim of the KKK to be identified as a sponsor on State signs for an Adopt-a-Highway program), cert. denied, Yarnell v. Cuffley, 121 S. Ct. 1225 (2001) (discussed infra notes 438-73 and accompanying text).
23. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT 22-26 (1948).
24. See id. at 22-23; Harry Kalven Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 S. CT. REV. 1.
25. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
26. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
27. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
28. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
29. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
30. See, e.g., YUDOF, WHEN GOVERNMENT SPEAKS, supra, note 1, at 51-68; Abner S. Green, Government of the Good, 53 VAND. L. REV. 1, 1-68 (2000); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1142-63; Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 163-64 (1996) [hereinafter Post, Subsidized Speech]; Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 84-122 (1998); Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 566-72 (1980).
31. 500 U.S. 173 (1991).
32. Challenges to the regulations based on the constitutional right to liberty, privacy, and autonomy were also made and rejected. Id. at 201-03. See Roe v. Wade, 410 U.S. 113, 163-64 (1973).
33. Codified as Grants for Family Planning Services, 42 U.S.C. §§ 300 to 300(a)-(6) (1994 & Supp. V. 1999); 42 C.F.R. § 59.8(a)(1) (1989).
34. 42 C.F.R. § 59.8(a)(1) (1989).
35. 42 C.F.R. § 59.10(a) (1989).
36. 42 C.F.R. § 59.9 (1989).
37. 42 C.F.R. § 59.8(b)(5) (1989).
38. Rust v. Sullivan, 500 U.S. 173, 181 (1991). It was also argued that these regulations were invalid because they were not authorized by the Title X statute. Id. at 181. The ultra vires argument was accepted by Justice O'Connor's dissenting opinion in Rust, in which she relied in part on the principle that statutes should be construed to avoid constitutional questions (in this case, the First Amendment question) when the statute being interpreted was reasonably open to such a construction. Id. at 223 (O'Connor, J., dissenting).
39. Id. at 194.
40. Id.
41. 468 U.S. 364 (1984).
42. 461 U.S. 540 (1983).
43. Id. at 548-49; League of Women Voters, 468 U.S. at 399-401.
44. Rust, 500 U.S. at 196-99.
45. Id. at 209-15 (Blackmun, J., dissenting).
46. 430 U.S. 705, 717 (1977) (holding that an individual may not be required to carry a political message of the state on an automobile license plate).
47. 460 U.S. 37, 48-54 (1983) (holding an internal mail system of a school district need not be opened to speech by non-employees or speech unrelated to education).
48. 431 U.S. 209, 234-36 (1977) (holding an employee may not be required to pay union fees used for political speech by the union).
49. 483 U.S. 378, 390-92 (1987) (holding that working time employee speech, which expressed regret that President Reagan's attempted assassination failed, was protected by the First Amendment).
50. 391 U.S. 563, 570-73 (1968) (holding that a public school teacher may not be discharged for writing a political letter critical of the school board in the newspaper).
51. Rust v. Sullivan, 500 U.S. 173, 212-14 (1991) (Blackmun, J., dissenting).
52. See David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 683-749 (1992); Steven J. Heyman, State- Supported Speech, 1999 WIS. L. REV. 1119, 1163-74; Post, Subsidized Speech, supra note 22, at 172-75; Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587, 587- 656 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585, 1585-1606 (1992).
53. See David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 683-749 (1992); Steven J. Heyman, State-Supported Speech, 1999 WIS. L. REV. 1119, 1163-74; Post, Subsidized Speech, supra note 22, at 172-75; Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587, 587- 656 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585, 1585-1606 (1992).
54. See David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 683-749 (1992); Steven J. Heyman, State- Supported Speech, 1999 WIS. L. REV. 1119, 1163-74; Post, Subsidized Speech, supra note 22, at 172-75; Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587, 587-656 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585, 1585-1606 (1992).
55. See David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. REV. 675, 683-749 (1992); Steven J. Heyman, State- Supported Speech, 1999 WIS. L. REV. 1119, 1163-74; Post, Subsidized Speech, supra note 22, at 172-75; Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEO. WASH. L. REV. 587, 587- 656 (1993); Peter M. Shane, The Rust That Corrodes: State Action, Free Speech, and Responsibility, 52 LA. L. REV. 1585, 1585-1606 (1992).
56. See Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 751-52 (1995); William G. Buss, Academic Freedom and Freedom of Speech: Communicating the Curriculum, 2 J. GENDER RACE & JUST. 213, 259-63 (1999); Green, supra note 22, at 36, 52.
57. See Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 751-52 (1995); William G. Buss, Academic Freedom and Freedom of Speech: Communicating the Curriculum, 2 J. GENDER RACE & JUST. 213, 259-63 (1999); Green, supra note 22, at 36, 52.
58. See Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (holding advocacy of lawless action is constitutionally protected unless directed to inciting imminent lawless action and likely to cause such action).
59. See generally Stenberg v. Carhart, 530 U.S. 914 (2000); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).
60. See Bigelow v. Virginia, 421 U.S. 809, 818-20 (1975) (holding that an advertisement promoting the procurement of an abortion received First Amendment protection because it involved more than just a "commercial transaction," it "pertained to constitutional interests").
61. See Harris v. McRae, 448 U.S. 297, 326 (1980); Maherv. Roe, 432 U.S. 464, 474 (1977).
62. See Branti v. Finkel, 445 U.S. 507, 517-18 (1980) (barring patronage hiring and firing because it was not related to performance of the public employees' duties); see also Rankin v. McPhearson, 483 U.S. 378, 390-92 (1987) (upholding the right of a public employee in a sheriffs department to make a critical comment about President Reagan; the Court emphasized that the employee had no policy-making role and that her comment did not adversely affect the functions of the office).
63. See Heyman, supra note 44, at 1169.
64. See Williamson v. Lee Optical, 348 U.S. 483, 489 (1955) (holding "reform may take one step at a time"); Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949) (holding that equal protection need not eradicate "all evils of the same genus"). See generally Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Law, 37 CAL. L. REV. 341 (1949).
65. Grants for Family Planning Services, 42 U.S.C. §§ 300 to 300(a)-(6) (1994 & Supp. V. 1999) or 42 C.F.R. § 59.8(a)(1) (1989).
66. It is not clear that even the strongest abortion supporters and Rust critics would prefer no family planning at all to family planning that excluded abortion-related counseling. The more readily such a choice is imposed through a constitutional mandate that the government benefit be defined in the broadest possible terms, the greater will be the limitation on Congress's discretion to make what it regards as desirable policy. That is why most Equal Protection challenges fail. But, of course, the Equal Protection Clause does impose some limitations on democratic choices.
67. Rust v. Sullivan, 500 U.S. 173, 200 (1991).
68. See Post, Subsidized Speech, supra note 22, at 172-75 (noting that this rule particularly applies to physicians). Post's argument is complicated and subtle and must be understood in the context of his basic distinction between public discourse domains and managerial domains; see also Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1765-1833 (1987) [hereinafter Post, Public Forum]. As Post explains, allocating speech between these two domains "is a question of normative characterization." Post, Subsidized Speech, supra note 22, at 171. His analysis of the physician's speech communicated to a patient, based on the expectation developed from practice and experience, is that the physician would have adopted a role that is inconsistent with merely carrying out the organizational directions required by the Title X regulations.
69. Rust, 500 U.S. at 200; see Buss, supra note 45, at 260-61. This line of argument was relied upon in the recent Velazquez case when the Supreme Court stressed that the functioning of a legal services lawyer's role required the freedom to make relevant legal arguments which the governing statute prohibited. Legal Serv. Corp. v. Velazquez, 121 S. Ct. 1043, 1050-51(2001).
70. Post, Subsidized Speech, supra note 22, at 174 n.128.
71. Rust, 500 U.S. at 200.
72. Post, Subsidized Speech, supra note 22, at 174 n. 128.
73. See Bezanson, supra note 45, at 751-52 (arguing that emphasis on the government funding of Title X clinical services understates the limited nature of the doctor's freedom of speech claim). But see Heyman, supra note 45, at 287-334; Buss, supra note 45, at 259-60.
74. See United States v. Oakland Cannabis Buyers' Cooperative, 121 S. Ct. 1711, 1719-20 & n.7 (2001) (holding that there is no medical necessity exception for a seriously ill patient with no alternative to the use of marijuana prohibited by federal criminal statute); Pegram v. Herdrich, 530 U.S. 211, 235-36 (2000) (holding that eligibility and treatment decisions made by an HMO, acting through its physicians, were not fiduciary acts within the meaning of ERISA, and federal law would preempt an inconsistent state malpractice rule).
75. See Harris v. McRae, 448 U.S. 297, 317 (1980); Maher v. Roe, 432 U.S. 464, 474 (1977).
76. Cf. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 652 (1985) (stating that a lawyer advertising contingent-fee services on is required to disclose that the client would have to pay costs if the lawsuit was unsuccessful).
77. See Ward v. Rock Against Racism, 491 U.S. 781, 802 (1989) (holding that the validity of a regulation depends upon the availability of "ample alternative channels of communication"); Frisby v. Schultz, 487 U.S. 474, 487-88 (1988) (upholding a city ordinance prohibiting picketing where ample alternative channels of communication existed).
78. In City of Ladue v. Gilleo, 512 U.S. 43, 53, 56-57 (1994), the Court held that a ban on yard signs did not leave adequate opportunities for political messages; but the case might have been decided on the basis of content discrimination, as preferred by the concurring opinion of Justice O'Connor. See id. at 59-60 (O'Connor, J., concurring).
79. According to the conventional wisdom, wealth is not a suspect classification triggering heightened scrutiny. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28-29 (1973).
80. See supra notes 56-62 and accompanying text.
81. 468 U.S. 364 (1984).
82. Id. at 370.
83. Id. at 400.
84. In determining which projects for family planning services will be funded, the "relative availability of non-Federal resources" is to be taken into account, 42 C.F.R. § 59.11 (a) (6) (1989), and "no grant may be made for an amount equal to 100 percent of the Title X project's estimated costs." Id. at § 59.11(c).
85. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
86. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
87. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
88. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly-Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
89. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
90. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
91. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
92. If one viewed the dormant commerce clause market participant exception as providing a relevant analogy to the government speech in Rust, the requirement to sever and insulate non-conforming abortion services might be treated as a "down-stream" regulation. Under the dormant commerce clause, states are prohibited from enacting regulations that have a discriminatory effect or an undue burden on interstate commerce. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW, 308-46 (6th ed. 2000). States are relieved from this limitation, however, when they are "market participants." See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 94 (1984); Reeves, Inc. v. Stake, 447 U.S. 429, 434 (1980). That is, when they are participating in the commercial market in the manner of private market participants, they are not regarded as exercising regulatory power; rather, they are regarded as making choices like other market participants. See generally Dan T. Coenen, Untangling the Market-Participant Exemption to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989); Mark P. Gergen, The Selfish State and the Market, 66 TEX. L. REV. 1097 (1988); Paul S. Kline, Publicly- Owned Landfills and Local Preferences: A Study of the Market Participant Doctrine, 96 DICK. L. REV. 331 (1992); Michael J. Polelle, A Critique of the Market Participation Exception, 15 WHITTIER L. REV. 647 (1994); Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986); Richard H. Seamon, The Market Participant Test in Dormant Commerce Clause Analysis- Protecting Protectionsim?, 1985 DUKE L.J. 697; Michael Wells & Walter Hellerstein, The Governmental-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980). But when the government combines its market activities with setting conditions on activities beyond the market of its own participation, its immunity is lost and it becomes subject to the usual constraints of the dormant commerce doctrine. See South-Central Timber, 467 U.S. at 97-98. By analogy, government speech might be thought of as government
93. In Hazelwood v. Kuhlmeier, 484 U.S. 260, 271-72 (1988), the Court held reasonable the educators' efforts to dissociate the school from "matters of political controversy," matters that would interfere with the educational process, or matters inappropriate for a high school student where expressed through a school-sponsored venue so as to be "reasonably perceive[d] to bear the imprimatur of the school."
94. If, as seems possible, the prohibition of abortion advocacy is constitutional when limited to its ancillary role related to the ban on counseling but unconstitutional when applicable to advocacy in the broader forum of opinion, it would be tempting to leave the latter question to a later case, if and when it occurs. The problem with that approach, however, is that general pro-abortion advocacy by Title X projects might be chilled by the standing regulations, whereas anti-abortion advocacy would likely be ignored by the government, leaving the burden of enforcement to private entities or rival Tide X projects.
95. 515 U.S. 819 (1995).
96. Id. at 837-38, 845-46.
97. Id. at 834.
98. 307 U.S. 496 (1939).
99. Id. at 515.
100. See Cox v. Louisiana, 379 U.S. 559, 569 (1965); see also GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 237 (13th ed. 1997).
101. See Ark. Educ. Television v. Forbes, 523 U.S. 666, 677-78 (1998); Harry Kalven Jr., The Concept of the Public Forum, 1965 SUP. CT. REV. 1, 11-15.
102. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). See generally G. Sidney Buchanan, The Case of the Vanishing Public Forum, 1991 U. ILL. L. REV. 949 (1991); David S. Day, The End of the Public Forum Doctrine, 78 IOWAL. REV. 143 (1992); L. Thomas Dienes, The Trashing of the Public Forum, 55 GEO. WASH. L. REV. 109 (1986); Post, Public Forum, supra note 56, at 1713.
103. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). See generally G. Sidney Buchanan, The Case of the Vanishing Public Forum, 1991 U. ILL. L. REV. 949 (1991); David S. Day, The End of the Public Forum Doctrine, 78 IOWAL. REV. 143 (1992); L. Thomas Dienes, The Trashing of the Public Forum, 55 GEO. WASH. L. REV. 109 (1986); Post, Public Forum, supra note 56, at 1713.
104. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). See generally G. Sidney Buchanan, The Case of the Vanishing Public Forum, 1991 U. ILL. L. REV. 949 (1991); David S. Day, The End of the Public Forum Doctrine, 78 IOWAL. REV. 143 (1992); L. Thomas Dienes, The Trashing of the Public Forum, 55 GEO. WASH. L. REV. 109 (1986); Post, Public Forum, supra note 56, at 1713.
105. See Lee, 505 U.S. at 678.
106. See Ark. Educ. Television, 523 U.S. at 677; Lee, 505 U.S. at 678; Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
107. Cornelius, 473 U.S. at 802-04; see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1987) (citing Perry, 460 U.S. at 47).
108. See Buss, supra note 45, at 251-55.
109. See Perry, 460 U.S. at 48.
110. Id. at 47-48.
111. See Cornelius, 473 U.S. at 814 (Blackmun, J., dissenting) (noting "the exclusion of the several respondents from the CFC [Combined Federal Campaign], a charity drive targeted at federal employees").
112. See Police Dept. v. Mosley, 408 U.S. 92, 95 (1972) (discussing the difference between discriminating between categories of speakers and discriminating between what any two speakers say). But the distinction has little dependable utility. In Mosley, the forbidden content discrimination was between "labor speech" and other speech. Id. at 95-96. Yet it is clear that labor speech simply means the speech of unions and employees involved in a labor dispute. The Court wrote: "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Id.
113. Rosenberger v. Univ. of Va., 515 U.S. 819, 829-30 (1995).
114. Arguably, reasonableness in this First Amendment context requires more than minimal rational basis scrutiny. For example, in Cornelius, Justice O'Connor's majority opinion engaged in an analysis that appeared less deferential than rational basis review would trigger. 473 U.S. at 808-11. In her concurring opinion and critical vote in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 685-93 (1992), she demonstrated that it would not always be easy for the government to defend its claimed reasonable ground for access denial to a nonpublic forum.
115. On this last point, the majority opinion urgently stressed that the university did not deny funding to the excluded student newspaper because it was a "religious activity." 515 U.S. at 825, 831. According to the University's regulations, a newspaper identified as a religious activity was not within the limited class of qualifying student organizations eligible to participate in the metaphysical funding forum. Id. at 825. The Court did not say that such a definitional exclusion would have been constitutionally permissible; but it did not suggest the contrary. Id. at 826. Nor did the dissent join issue with the majority on the basis of this arguably limiting classification of eligibility. Id. at 895-97 (Souter, J., dissenting).
116. Rosenberger, 515 U.S. at 895-96 (Souter, J., dissenting).
117. Id. at 830-32.
118. United States v. O'Brien, 391 U.S. 367, 377 (1968).
119. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 812-13 (1985) (upholding "reasonable" restrictions on access to a forum, subject to proof on remand that neutral reasons masked a "desire to suppress a particular point of view").
120. "Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set." Rosenberger, 515 U.S. at 829.
121. Id. at 833-34.
122. Id. at 834.
123. See text accompanying notes 214-29 infra.
124. Good News Club v. Milford Cent. Sch., 121 S. Ct. 2093, 2103 (2001); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394-95 (1993); Widmar v. Vincent, 454 U.S. 263, 277 (1981).
125. Rosenberger, 515 U.S. at 863 (Souter, J., dissenting).
126. She stressed that the money came from student fees - not "the general assessments . . . that lie at the core of the prohibition against religious funding," 515 U.S. at 851 (O'Connor, J., dissenting) and not "tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the students," id. at 852; and she pointed out that a system allowing students to opt out was not precluded by the Court's decision. Id. at 852; see Mitchell v. Helms, 530 U.S. 793, 839-40 (2000) (O'Connor, J., concurring) (arguing that neutrality is not enough to avoid Establishment Clause violation).
127. Rosenberger, 515 U.S. at 837-46. Cf. Gentala v. City of Tucson, 244 F.3d 1065, 1081-82 (9th Cir. 2000) (en banc) (distinguishing Rosenberger on Establishment Clause grounds, and holding that the city was not required to provide city-operated and subsidized lighting and audio for a religious prayer meeting in the public park).
128. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
129. See id.; text accompanying notes 438-73.
130. 515 U.S. at 834.
131. 319 U.S. 624 (1943).
132. 529 U.S. 217 (2000).
133. Barnette, 319 U.S. at 642.
134. Id. at 631.
135. See Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that an individual may not be required to carry a political message of the state on an automobile license plate). But see id. at 722; (Rehnquist, J., dissenting) (stating "I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated under the fiction that appellees are unconstitutionally forced to affirm, or profess belief, in the state motto").
136. 393 U.S. 503, 516 (1969).
137. Id. at 511.
138. 457 U.S. 853, 867 (1982).
139. Id. at 858.
140. Id. at 856.
141. Id. at 857.
142. Id. at 857-58.
143. The limitation of the issue to removal rather than acquisition was challenged as illogical and inconsistent with the underlying First Amendment right. Pico, 457 U.S. at 879 (Blackmun, J., concurring), 892 (Burger, J., dissenting), 895 (Powell, J., dissenting). Justice White would not have reached the issue given the procedural posture and factual ambiguity of the case as presented to the Court. Id. at 883-85 (White, J., concurring).
144. Id. at 862 (plurality opinion).
145. Id. 864 (internal citation omitted).
146. Id. at 865 (plurality opinion).
147. Id. at 867 (plurality opinion) (citing, inter alia, Stanley v. Georgia, 394 U.S. 557 (1969)).
148. Id. at 878 (Blackmun, J., concurring).
149. Pico, 457 U.S. at 912 (Rehnquist, J., dissenting).
150. Id. at 863 (plurality opinion).
151. Id. at 871 (plurality opinion) (emphasis added).
152. Id. (plurality opinion).
153. See supra text accompanying notes 79-93.
154. The substance of the plurality's constitutional rule was first criticized as too intrusive and unmanageable, and also too narrow, by Justice Blackmun, who instead preferred a rule prohibiting "den[ial of] access to an idea simply because state officials disapprove of that idea for partisan or political reasons." Pico, 457 U.S. at 879 (Blackmun, J., concurring) (emphasis added). The partisan and political qualifications reflected Justice Blackmun's concern that a Board member's personal moral beliefs, say against racism, should not be flatly disqualified from entering into his or her judgment. As to narrowness, Justice Blackmun could find no principled or theoretical justification for limiting the case to removal of non-required books; acquisition decisions and indeed other curricular decisions should be subject to his non- partisan and non-political principle as well. Id. at 878.
155. How, when, and whether process made a difference in the Pico case could not be judged on the record before the Court, as there was insufficient evidence at summary judgment to permit a legal conclusion. Id. at 875 (plurality opinion).
156. Id. at 874.
157. Id. at 887-89 (Burger, C.J., dissenting).
158. Pico, 457 U.S. at 908 (Rehnquist, J., dissenting).
159. Id. at 909 (Rehnquist, J, dissenting).
160. Id. at 910 (Rehnquist, J., dissenting).
161. 484 U.S. 260 (1988).
162. In 1986, Chief Justice Burger retired, and Justice Scalia was appointed. In 1987, Justice Powell retired, and, in 1988, Justice Kennedy was appointed.
163. Hazelwood, 484 U.S. at 265-68.
164. See William G. Buss, School Newspapers, Public Forum, and the First Amendment, 74 IOWA L. REV. 505, 533-34 (1989).
165. Hazelwood, 484 U.S. at 262.
166. Id. at 262-63.
167. Id. at 263.
168. Id.
169. Id.
170. Hazelwood, 484 U.S. at 263.
171. The regular instructor had resigned in late April and was replaced by another teacher and newspaper advisor who acted on a temporary basis for the rest of the year. Hazelwood, 484 U.S. at 263.
172. Id. at 263-64.
173. Id. at 267.
174. Id. (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n., 460 U.S. 37, 47 (1983)).
175. Id. (citing Perry, 460 U.S. at 46 n.7).
176. Id.
177. Id. at 268 (citing the school's curriculum guide).
178. Id. at 270.
179. 393 U.S. 503 (1969).
180. Hazelwood, 484 U.S. at 271.
181. Id. at 272-73; see infra notes 324-94 and accompanying text.
182. Id. at 281-83 (Brennan, J., dissenting).
183. Id. at 289 (Brennan, J., dissenting).
184. See infra notes 464-72 and accompanying text.
185. Hazelwood, 484 U.S. at 267-89.
186. Id. at 288-89.
187. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 673-75 (1998). See infra notes 260-70 and accompanying text.
188. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
189. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
190. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
191. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
192. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
193. See generally RONALD DWORKIN FREEDOM'S LAW 247-50 (1996); Buss, supra note 45, at 213; J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L. J. 251 (1989); Steven Shiffrin, supra note 1, at 565; Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671 (1988); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 TEX. L. REV 863 (1979).
194. Forbes, 523 U.S. at 673-75.
195. See generally SCHOOL CHOICE AND SOCIAL CONTROVERSY: POLITICS, POLICY, AND LAW (Stephen D. Sugarman & Frank R. Kemerer, eds., Brookings 1999); Stephen D. Sugarman, Part of the Solution Rather than Part of the Problem: A Role for American Private Elementary and Secondary Schools in the 1990s, 31 WM. & MARY L. REV. 681 (1990).
196. See generally SCHOOL CHOICE AND SOCIAL CONTROVERSY: POLITICS, POLICY, AND LAW (Stephen D. Sugarman & Frank R. Kemerer, eds., Brookings 1999); Stephen D. Sugarman, Part of the Solution Rather than Part of the Problem: A Role for American Private Elementary and Secondary Schools in the 1990s, 31 WM. & MARY L. REV. 681 (1990).
197. See supra note 167.
198. See, e.g., Bd. of Educ. v. Pico, 457 U.S. 853, 863-64 (1982); Epperson v. Arkansas, 393 U.S. 97, 107-10 (1968); Mozert v. Hawkins County Pub. Sch., 647 F. Supp. 1194, 1199-1200 (E.D. Tenn. 1986).
199. See generally Buss, supra note 45, at 213 and cases cited and discussed therein.
200. See Green, supra note 22, at 8-12 (discussing "virtues" of government speech); id. at 12-26 (discussing arguments against government speech).
201. See Edwards v. Aguillard, 482 U.S. 578, 584-86 (1987); see supra notes 103-07 and accompanying text (discussing Rosenberger).
202. Pico, 457 U.S. at 853, 871 (1982); see Cary v. Bd. of Educ., 598 F.2d 535, 543-44 (10th Cir. 1979).
203. 500 U.S. 173 (1991).
204. The claim of general inclusiveness is not a claim that the content of public school curriculums is free from criticism. See Stephen G. Gilles, Liberal Parentalism and Children's Educational Rights, 26 CAP. U. L. REV. 9, 24-34 (1997); Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. CHI. L. REV. 937, 947-51 (1996); Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools, 62 N.Y.U. L. REV. 497, 543-48 (1987 ); Nomi M. Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581, 646-51 (1993); Tyll van Geel, The Search for Constitutional Limits on Governmental Authority to Inculcate Youth, 62 TEX. L. REV. 197, 239-60 (1983).
205. The claim of general inclusiveness is not a claim that the content of public school curriculums is free from criticism. See Stephen G. Gilles, Liberal Parentalism and Children's Educational Rights, 26 CAP. U. L. REV. 9, 24-34 (1997); Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. CHI. L. REV. 937, 947-51 (1996); Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools, 62 N.Y.U. L. REV. 497, 543-48 (1987 ); Nomi M. Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581, 646-51 (1993); Tyll van Geel, The Search for Constitutional Limits on Governmental Authority to Inculcate Youth, 62 TEX. L. REV. 197, 239-60 (1983).
206. The claim of general inclusiveness is not a claim that the content of public school curriculums is free from criticism. See Stephen G. Gilles, Liberal Parentalism and Children's Educational Rights, 26 CAP. U. L. REV. 9, 24-34 (1997); Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. CHI. L. REV. 937, 947-51 (1996); Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools, 62 N.Y.U. L. REV. 497, 543-48 (1987 ); Nomi M. Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581, 646-51 (1993); Tyll van Geel, The Search for Constitutional Limits on Governmental Authority to Inculcate Youth, 62 TEX. L. REV. 197, 239-60 (1983).
207. The claim of general inclusiveness is not a claim that the content of public school curriculums is free from criticism. See Stephen G. Gilles, Liberal Parentalism and Children's Educational Rights, 26 CAP. U. L. REV. 9, 24-34
208. The claim of general inclusiveness is not a claim that the content of public school curriculums is free from criticism. See Stephen G. Gilles, Liberal Parentalism and Children's Educational Rights, 26 CAP. U. L. REV. 9, 24-34 (1997); Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. CHI. L. REV. 937, 947-51 (1996); Stephen E. Gottlieb, In the Name of Patriotism: The Constitutionality of "Bending" History in Public Secondary Schools, 62 N.Y.U. L. REV. 497, 543-48 (1987 ); Nomi M. Stolzenberg, "He Drew a Circle that Shut Me Out": Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 HARV. L. REV. 581, 646-51 (1993); Tyll van Geel, The Search for Constitutional Limits on Governmental Authority to Inculcate Youth, 62 TEX. L. REV. 197, 239-60 (1983).
209. By diversity we mean exposure to competing ideas and sufficiently broad coverage of the "canon."
210. See supra text accompanying notes 79-93.
211. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998).
212. Southworth, 529 U.S. 217, 225 (2000).
213. See Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679 (1998); see also Southworth, 529 U.S. at 229-30.
214. Southworth, 529 U.S. at 235.
215. 529 U.S. 217 (2000).
216. Id. at 220-21.
217. Id. at 229 (citing Rust v. Sullivan, 500 U.S. 173 (1991); Regan v. Taxation with Representation, 461 U.S. 540, 548-49 (1983)).
218. Id. at 229.
219. Id. at 229, 241 n.8 (Souter, J., concurring) (purporting to take exception to the majority: "unlike the majority, I would not hold that the mere fact that the University disclaims speech as its own expression takes it out of the scope of our jurisprudence on government directed speech").
220. Southworth, 529 U.S. at 224-29.
221. Id. at 229-30.
222. Id. at 234.
223. See Bd. of Regents v. Southworth, No. 98-1189, 1999 WL 1050283, at 3, 7, 18, 30 (Nov. 9, 1999) (United States Supreme Court Official Transcript). In fact, the Court remanded the "referendum aspect" of the Wisconsin scheme, under which a majority vote of the student body could fund or defund an activity. Because the referendum could "substitute majority determinations for viewpoint neutrality, [thus] undermin[ing] the constitutional protection the program requires," the Court felt that "remand [was] necessary and appropriate to resolve this point; and the case in all events must be reexamined in light of the principles we have discussed." Southworth, 529 U.S. at 235-36 (emphasis added). The italicized language seems to suggest that the remand concerning the referendum may open up the entire program for reconsideration. Yet one suspects no wish on the Court's part to have this case return to its docket to decide whether the criteria used is sufficiently neutral.
224. Id. at 234-35.
225. Id. at 235.
226. Id. at 223.
227. Id. at 235.
228. Id. at 240 (Souter, J., concurring).
229. Southworth, 529 U.S. at 225.
230. Id. at 223.
231. See Rosenberger v. Univ. of Va., 515 U.S. 819, 845-46 (1995) (holding unconstitutional the denial of student activity fund support to a religious newspaper published by a student organization because of its religious content) (discussed supra note 77 and accompanying text); cf. Bd. of Educ. v. Pico, 457 U.S. 853, 875 (1982) (holding that public school libraries may not exclude books for partisan or political reasons) (discussed supra notes 118-39 and accompanying text.
232. See Southworth, 529 U.S. at 230-32 (discussing the Court's treatment of Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and Keller v. State Bar of California, 496 U.S. 1 (1990)).
233. Southworth, 529 U.S. at 230.
234. Id. (emphasis added).
235. See id. at 231-32.
236. Id. at 232.
237. Id.
238. See MYRON LIEBERMAN, THE TEACHER UNIONS 174-90 (Free Press 1997); Norman L. Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non- Association, 36 RUTGERS. L. REV. 3, 39-52 (1983-84); Shiffrin, supra note 13, at 592-95.
239. See MYRON LIEBERMAN, THE TEACHER UNIONS 174-90 (Free Press 1997); Norman L. Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non-Association, 36 RUTGERS. L. REV. 3, 39-52 (1983-84); Shiffrin, supra note 13, at 592-95.
240. See MYRON LIEBERMAN, THE TEACHER UNIONS 174-90 (Free Press 1997); Norman L. Cantor, Forced Payments to Service Institutions and Constitutional Interests in Ideological Non- Association, 36 RUTGERS. L. REV. 3, 39-52 (1983-84); Shiffrin, supra note 13, at 592-95.
241. Southworth, 529 U.S. at 236 (Souter, J., concurring).
242. See id. at 240 (Souter, J., concurring) (noting the attenuation between the "fee payer and the ultimately objectionable expression" in comparison to Abood and Keller, and a stronger legitimate governmental interest).
243. Id. at 239 (Souter, J. concurring) (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 572-74 (1995)).
244. Id. (citing Wooley v. Maynard, 430 U.S. 705, 707 (1977)).
245. Id. (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 626-29 (1943)).
246. See infra notes 438-73 and accompanying text.
247. Southworth, 529 U.S. at 235.
248. See supra text accompanying notes 193-96. A part of this question was addressed in the Court's treatment of the objecting student's First Amendment claims - indeed in the Court's conclusion - that the objecting students had no First Amendment claims to make. The issues raised under this heading will be addressed in the following part.
249. Southworth, 529 U.S. at 229.
250. See Santa Fe Indep. Seh. Dist. v. Doe, 530 U.S. 290, 302-18 (2000) (determining that the delivery of a prayer at a football game by a student was violative of the Establishment Clause as speech attributable to the state).
251. See Fed. Election Comm'n. v. Mass. Citizens for Life, Inc., 479 U.S. 238, 260-63 (1986); Flast v. Cohen, 392 U.S. 83, 102-03 (1968); Doremus v. Bd. of Educ., 342 U.S. 429, 433-35 (1952). But see Gentala v. City of Tucson, 244 F.3d 1065, 1081-82 (9th Cir. 2000) (en banc).
252. But see Rosenberger v. Univ. of Va., 515 U.S. 819, 851-52 (O'Connor, J., concurring) (distinguishing student fees from other revenue-raising means).
253. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 583-88 (1998).
254. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553-59 (1975).
255. See Bd. of Regents v. Southworth, 529 U.S. 217, 230 (2000).
256. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294-99 (1984).
257. See Int'l Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 677-78 (1992).
258. Southworth, 529 U.S. at 225-26
259. See Nat'l Endowment of the Arts v. Finley, 524 U.S. 569, 586 (1998); Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677-78 (1998).
260. See Texas v. Johnson, 491 U.S. 397, 404 (1989); Spence v. Washington, 418 U.S. 405, 410-11 (1974); cf. United States v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea"); Forbes, 523 U.S. 666, 677-78 (1998) (describing the categories of speech forums identified by the court).
261. See Spence v. Washington, 418 U.S. 405, 410-11 (1974). But see Barnes v. Glen Theatre, 501 U.S. 560, 565-72 (1991) (not applying the Spence test in finding nude dancing marginally protected speech).
262. Such an assertion would not need to be - and probably shouldn't be - treated as conclusive proof of expressive action by the University, for to do so would be to place control of its constitutional status unilaterally in the hands of the University. See infra text accompanying notes 470-73 (discussing Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000)).
263. See generally Keller v. State Bar of Cal., 496 U.S. 1 (1990); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Wooley v. Maynard, 430 U.S. 705 (1977); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
264. See supra notes 201-13 and accompanying text.
265. The majority did discuss Rosenberger and its statement that "viewpoint neutrality . . . would prevent 'any mistaken impression that the student newspapers speak for the University.'" Bd. of Regents v. Southworth, 529 U.S. 217, 233 (2000) (quoting Rosenberger v. Univ. of Va., 515 U.S. 819, 841 (1995)). But nothing was made of the quotation, which does explain the problem in terms of attribution, and the Court instead relied on Rosenberger as authority for a neutrality standard. This is not necessarily a sound reading of the Rosenberger passage, which instead observed that a general program of student fee support that financed a full range of ideas could not reasonably be interpreted as a university endorsement of a particular idea expressed by a student group. This, of course, is simply an application of the attribution question: could a reasonable observer interpret the university's involvement as expressing the university's own preference for one or more ideas?
266. See id. at 240; Buckley v. Valeo, 424 U.S. 1, 91 (1976); Bezanson, Institutional Speech, supra note 45, at 772-73, 781.
267. 319 U.S. 624 (1943) (discussed supra notes 11, 114 and accompanying text).
268. 430 U.S. 705 (1977) (discussed supra notes 12, 114 and accompanying text).
269. 424 U.S. 1 (1976); see also Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986).
270. Cf. Austin, 494 U.S. at 655-66; Mass. Citizens for Life, Inc., 479 U.S. at 252-54.
271. See Southworth, 529 U.S. at 239-40 (Souter, J., concurring); cf. Mass. Citizens for Life, Inc., 479 U.S. at 252-54; Buckley, 424 U.S. at 91-92.
272. See infra notes 438-73 and accompanying text (discussing the right not to speak).
273. 208 F.3d 702 (8thCir. 2000), cert. denied, 121 U.S. 1225 (2001).
274. See Randall Bezanson, Artifactual Speech, 3 U. PA. J. CONST. L. 819, 823-34 (2001).
275. Cf. Texas v. Johnson, 491 U.S. 397, 406 (1989) (treating burning of the American flag as "speech").
276. See supra notes 166-68 and accompanying text.
277. See generally Texas v. Johnson, 491 U.S. 397 (1989); Cohen v. California, 403 U.S. 15 (1971); United States v. O'Brien, 391 U.S. 367 (1968).
278. For insightful discussions of the problem of government-exercised editorial control, see generally LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 986-1010 (2d ed. 1988); MARK YUDOF, WHEN GOVERNMENT SPEAKS, supra note 1, at 234-45; William C. Canby Jr., The First Amendment and the State as Editor: Implications far Public Broadcasting, 52 TEX. L. REV. 1123 (1974).
279. For insightful discussions of the problem of government-exercised editorial control, see generally LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 986-1010 (2d ed. 1988); MARK YUDOF, WHEN GOVERNMENT SPEAKS, supra note 1, at 234-45; William C. Canby Jr., The First Amendment and the State as Editor: Implications far Public Broadcasting, 52 TEX. L. REV. 1123 (1974).
280. For insightful discussions of the problem of government-exercised editorial control, see generally LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 986-1010 (2d ed. 1988); MARK YUDOF, WHEN GOVERNMENT SPEAKS, supra note 1, at 234-45; William C. Canby Jr., The First Amendment and the State as Editor: Implications far Public Broadcasting, 52 TEX. L. REV. 1123 (1974).
281. For insightful discussions of the problem of government-exercised editorial control, see generally LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 986-1010 (2d ed. 1988); MARK YUDOF, WHEN GOVERNMENT SPEAKS, supra note 1, at 234-45; William C. Canby Jr., The First Amendment and the State as Editor: Implications far Public Broadcasting, 52 TEX. L. REV. 1123 (1974).
282. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998). Portions of the following discussion of Forbes are drawn from Randall P. Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 IOWA L. REV. 953, 957-68 (1998).
283. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998). Portions of the following discussion of Forbes are drawn from Randall P. Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 IOWA L. REV. 953, 957-68 (1998).
284. Forbes, 523 U.S. at 669.
285. Id. at 670.
286. Id. at 670-71.
287. Id. at 684-85 (Stevens J., dissenting).
288. Id. at 670.
289. Id. at 671.
290. Id. at 669.
291. Id. at 683-84 (Stevens, J., dissenting).
292. Id. at 672-74 (illustrating how the ultimate reliance on viewpoint neutrality is similar to the technique used in Southworth).
293. See id.
294. See Forbes, 523 U.S. at 691-92 (Stevens, J. dissenting) ("[The AETC staffs] substantive judgment about a candidate's 'viability' or 'newsworthiness' allowed them wide latitude either to permit or to exclude a third participant in any debate.").
295. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992); cf. Chi. ACORN v. Metro. Pier and Exposition Authority, 150 F.3d 695, 701 (7th Cir. 1998) (excluding speech from a forum based on audience appeal and reaction unconstitutional).
296. Forbes, 523 U.S. at 674.
297. See generally Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974); CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973); N.V. Times Co. v. Sullivan, 376 U.S. 254 (1964). See WALTER LIPPMAN, PUBLIC OPINION 161-62 (1922).
298. See generally Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974); CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973); N.V. Times Co. v. Sullivan, 376 U.S. 254 (1964). See WALTER LIPPMAN, PUBLIC OPINION 161-62 (1922).
299. For a discussion of the nature of editorial judgment and news, and the obligations they carry, see Randall P. Bezanson, The Atomizatim of the Newspaper: Technology, Economics and the Coming Transformation of Editorial Judgments about News, 3 COMM. L. & POL'Y 175 (1998).
300. Forbes, 523 U.S. at 673-74.
301. Id. at 673.
302. Id. at 674.
303. Id.
304. Id.
305. Forbes, 523 U.S. at 693 (Stevens, J., dissenting).
306. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256-58 (1974); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 256-66, 286-88 (1964).
307. 418 U.S. 241 (1974).
308. Id. at 258.
309. See, e.g., Nat'l. Endowment for the Arts v. Finley, 524 U.S. 569, 587-89 (1998); Rosenberger v. Univ. of Va., 515 U.S. 819, 833, 834 (1995) (dictum); Rust v. Sullivan, 500 U.S. 173, 192-94, 196-200 (1991).
310. See, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 207-13 (1997); Rust v. Sullivan, 500 U.S. 173, 192-94, 196-200 (1991); FCC v. League of Women Voters, 468 U.S. 364, 382-84, 395-96 (1984).
311. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674 (1998).
312. Even this form of claim - a claim of immunity - would, however, be different from the traditional inquiry into the government's power and its consistency with constitutional limits. In this setting, the government's action must generally be premised on regulatory or managerial grounds unrelated to speech, or at least to the content of speech. It would instead take the more affirmative form of a claim of privilege to engage in the speech selection act, much as the press claims a privilege to publish opinion or, in the absence of actual malice, false fact. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20 (1990); N.Y. Times v. Sullivan, 376 U.S. 254, 286-88 (1964).
313. Perhaps the most immediate consequence of the difference is in the burden of proof, which would fall upon the government actor if its claim were for immunity, but which would most likely fall, perhaps heavily, on the person challenging the government's action if it were an exercise of a constitutionally guaranteed freedom.
314. FCC v. League of Women Voters, 468 U.S. 364 (1984).
315. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996).
316. The explicit statement, in dicta, appeared in the Court's opinion in Rosenberger v. University of Virginia, 515 U.S. 819, 833, 834 (1995), discussed supra at notes 76-78, 94-107. The Court's direct references to the government as a speaker in Forbes are notably lacking in case citation. And the cases cited, such as CBS v. Democratic National Committee, 412 U.S. 94 (1973) or Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), or Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), are really not on point. Many of the examples, given in dicta, were mentioned previously in Rust v. Sullivan, 500 U.S. 173 (1991), a government subsidy case which was more on point, as the Court's decision turned on the government's ability, though not a constitutional freedom under the First Amendment, to take and express policy preferences and to selectively spend (in support of speech) with those preferences in mind. See Bezanson, supra note 45, at 751-53 or 767-72.
317. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 687 (1992) (distinguishing government action as a proprietor managing internal operations from action as a lawmaker able to regulate or license, which is subject to heightened review). See generally ROBERT POST, CONSTITUTIONAL DOMAINS (1995).
318. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 687 (1992) (distinguishing government action as a proprietor managing internal operations from action as a lawmaker able to regulate or license, which is subject to heightened review). See generally ROBERT POST, CONSTITUTIONAL DOMAINS (1995).
319. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 787-88, 793-94 (1983); Lubin v. Panish, 415 U.S. 709, 716-19 (1974); Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). An analogous claim that the government's specification of arguments a government-funded legal services lawyer could make in a judicial forum was an exercise of government speech was rejected (for reasons largely related to the needs of the forum itself) in Legal Services Corp. v. Velazques, 121 S. Ct. 1043, 1049-52 (2001).
320. Another part of the line might be process and professional criteria and judgment, as with librarians and books, or faculty and tenure. See supra notes 166-67, 178 and accompanying text.
321. See Rust v. Sullivan, 500 U.S. 173, 174 (1993) (upholding the Title X regulation discluding counseling concerning abortion as valid government action determining the type of program to fund); Lubin v. Panish, 415 U.S. 709, 716 (1974). But see Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 737-38 (1996) (holding that provisions of the Cable Television Consumer Protection and Competition Act of 1992 were inadequately tailored to achieve the compelling interest of protecting children).
322. 515 U.S. 557, 568 (1995).
323. See generally Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) (holding that an ordinance granting the city 'unbridled and absolute power' to prohibit any parade was unconstitutional); Cox v. Louisiana. 379 U.S. 536, 555-58 (1965) (concluding that possible power to prohibit parades does not justify discriminatory denial of access to streets for political expression).
324. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674 (1998).
325. Id.
326. Id. at 674-75.
327. Id. at 683.
328. Id. at 677-78.
329. Forbes, 523 U.S. at 689-90 (Stevens, J., dissenting).
330. FCC v. League of Women Voters, 468 U.S. 364 (1984).
331. See Forbes, 523 U.S. at 688-90 (Stevens, J., dissenting).
332. Id. at 689 (Stevens, J., dissenting) ("The League of Women Voters case implicated the right of 'wholly private stations' to express their own views on a wide range of topics that 'have nothing whatever to do with government.' The case before us today involves only the right of a state-owned network to regulate speech that plays a central role in democratic government") (citation omitted).
333. See id.
334. See id. at 687-90 (Stevens, J., dissenting).
335. Id. Surprisingly in light of this, Justice Souter in dissent in Finley did not dispute the conclusion that government can function as a speaker for First Amendment purposes, and that when it does so it may engage in viewpoint discrimination. See Rosenberger v. Univ. of Va., 515 U.S. 819, 833-34 (1995). Instead, Justice Souter disputed the application of the "government-as-speaker" analogy to the NEA grant process. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 611-15 (1998) (Souter, J., dissenting).
336. CBS v. Democratic Nat'l. Comm., 412 U.S. 94, 103, 110-12 (1973).
337. Forbes, 523 U.S. at 675-76; cf. Bd. of Educ. v. Pico, 457 U.S. 853, 863-64 (1982) (involving public school decisions to exclude books from its library); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 569 (1998) (involving the NEA's grant making process); id. at 596 (Scalia, J., concurring).
338. This is a problem noted by the Court in the setting of corporations. See Buckley v. Valeo, 424 U.S. 1, 236 (1976) (Burger, J., concurring and dissenting in part); Bezanson, supra note 45, at 764-65. But see infra text accompanying notes 492-96 (discussing textual constitutional grounds for government's right to speak).
339. See FCC v. League of Women Voters, 468 U.S. 364, 390 (1984).
340. 518 U.S. 727 (1996).
341. Id.
342. Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §§ 532(h), 532(j) (1994).
343. See 47 U.S.C. §§ 531, 532(b) (1994 & Supp. V 1999).
344. Denver, 518 U.S. at 753 (plurality opinion of Justice Breyer).
345. Id. at 761-62.
346. 395 U.S. 367 (1969).
347. Compare Denver, 518 U.S. at 753 with Red Lion, 395 U.S. at 386-401.
348. 438 U.S. 726, 748-51 (1978) (affirming an FCC decision to bar a monologue from the airwaves for being offensive and broadcast at a time when children would be in the audience).
349. See Denver, 518 U.S. at 745 (emphasizing the breadth of choices in multicultural cable programming).
350. Id.
351. See Sable Communications v. FCC, 492 U.S. 115, 128-28 (1989).
352. Denver, 518 U.S. at 755-56.
353. Id.
354. Id. at 760-66.
355. Id. at 761-62.
356. Id. at 763.
357. See Denver, 518 U.S. at 763 (focusing on the fact that local government could use various methods to address the potential problem of offensive material broadcast to children).
358. Cf. Legal Servs. Corp. v. Velazquez, 121 S. Ct. 1043, 1049 (2001) (holding that the government cannot restrict funding to legal services that would bar legal services from challenging welfare denials because it indicates that "the government seeks to use an existing medium of expression and to control it . . . in ways which distort its usual functioning").
359. Denver, 518 U.S. at 792-95 (Kennedy, J., concurring in part and dissenting in part); cf. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 316-21 (1968) (treating a local shopping mall, though privately owned, as a limited public forum for speech purposes).
360. See Denver, 518 U.S. at 795.
361. See infra text accompanying notes 489-509.
362. See infra notes 492-507 and accompanying text, (discussing issues at greater length).
363. Rosenberger v. Univ. of Va., 515 U.S. 819, 833 (1995).
364. Id. at 834.
365. Id.
366. Id.
367. Id.
368. Rosenberger, 515 U.S. at 834.
369. 524 U.S. 569 (1998).
370. 20 U.S.C. §§ 954-55 (1994).
371. 20 U.S.C. § 955(f), § 959(c),(d).
372. Finley, 524 U.S. at 573.
373. 20 U.S.C. § 954(d)(1) (1994).
374. See Finley, 524 U.S. at 574 (briefly describing these works and their controversial NEA grants).
375. For Helms's argument, see 143 CONG. REC. S9,481 (daily ed. Sept 17, 1997).
376. Finley, 524 U.S. at 588-89.
377. Id. at 580.
378. The Court pointedly noted that a case basing a rejection of a particular application on the basis of the decency/disrespect standard would raise a question not reached in the case. Id. at 584.
379. Id. at 590.
380. Although disagreeing with this statutory interpretation, Justice Souter, remarkably, concluded that even this form of influencing awards against indecency or disrespectful choices would be unconstitutional. Id. at 608-09 (Souter, J., dissenting).
381. Finley, 524 U.S. at 581-84
382. Id. at 586-87.
383. Id at 589.
384. Id. at 590-600 (Scalia, J., concurring).
385. Id. at 599-600 (Scalia, J., concurring).
386. Finley, 254 U.S. at 597 (Scalia, J., concurring).
387. Id. at 590-92.
388. Id. (Scalia, J., concurring).
389. Id. at 606 (Souter, J., dissenting).
390. Id. at 611-12 (Souter, J., dissenting).
391. See supra text accompanying notes 23-43.
392. Finley, 524 U.S. at 611 (Souter, J., dissenting) (preferring George Washington to George III).
393. For Justice Souter, however, artistic funding by the government based on "excellence" or "artistic merit" posed a neutral criteria. Id. at 614 (Souter, J., dissenting).
394. See ACLU v. Reno, 521 U.S. 844, 874 (1997) (striking down portions of the Communications Decency Act that suppressed all indecent transmissions, even those that were not obscene); Sable Communication v. FCC, 492 U.S. 115, 126 (1989) (holding that the Constitution does not protect the transmission of obscene commercial telephone recordings); FCC v. Pacifica Found., 438 U.S. 726, 745 (1978) ("Obscene materials have been denied the protection of the First Amendment . . . [b]ut the fact that society may find speech offensive is not a sufficient reason for suppressing it").
395. See supra nores 51-75 and accompanying text (discussing Rust).
396. In creating the NEA, Congress intended to encourage artistic excellence and appreciation throughout the United States. Through grants to organizations and individual artists, the NEA promotes public appreciation and access to the arts, and in turn, promotes private support for the arts. Furthermore, the NEA was created to further creativity, enrich the common culture of the nation, and promote the values of intellect and spirit. See Heyman, supra note 44, at 1174, 1181-82. For a more complete description of the purposes of federal funding of the arts and the NEA, see Enrique R. Carrasco, The National Endowment for the Arts: A Search for an Equitable Grant Making Process, 74 GEO. L.J. 1521, 1524-34 (1986).
397. Supra notes 177-78 and accompanying text.
398. See supra notes 74-75 and accompanying text.
399. The majority opinion in Finley, relying upon Rust, made this precise argument. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998).
400. Rust v. Sullivan, 500 U.S. 173, 194, 198-99 (1991). See supra notes 49-50 and accompanying text (discussing the government employee/agent aspect of the Court's opinion in Rust).
401. See Buckley v. Valeo, 424 U.S. 1, 17-24, 26-30 (1976) (upholding provisions of the Federal Election Campaign Act limiting political contributions, while finding limits on political expenditures unconstitutional).
402. But see Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (noting the importance of campaign contributions in enabling political speech and association); id. at 410-12 (Thomas, J., dissenting) (arguing that campaign contributions "generate essential political speech" and therefore merit strict scrutiny).
403. Compare Buckley, 424 U.S. at 39-59, with Nixon, 528 U.S. at 23-38.
404. Cf. Cass Sustein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 6, 15, 20, 23 (1996) (arguing for judicial "minimalism," measured by depth and breadth).
405. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 621-22 (1998) (Souter, J., dissenting) (arguing that the NEA has a chilling effect on artistic expression and noting that "most non-federal funding sources regard the NEA award as an imprimatur that signifies . . . artistic merit and value") (internal citations omitted).
406. See Heyman, supra note 44, at 1185-89 (giving a careful delineation of "decency" while treating the subjective value of "aesthetic" as if it were self-defining and obvious.).
407. See supra notes 56-61 and accompanying text.
408. The Rust majority itself recognized this in pointing out that it was dealing only with facial challenges, and that even the gag-rule regulations contained exceptions to safeguard against serious health risks. Rust v. Sullivan, 500 U.S. 173, 183 (1991).
409. See Police Dep't of Chi. v. Mosley, 408 U.S. 92, 96-98 (1972).
410. See FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978) (Stevens, J., plurality opinion) (reasoning that the FCC's regulations limiting the broadcasting of indecent radio messages is not based on a point of view but on aesthetic quality like ugliness or noise).
411. See Mosley, 408 U.S. at 96; Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 46-47 (1987); cf. Greene, supra note 22, at 32 (discussing difficulty of determining when content discrimination is also viewpoint discrimination).
412. This is precisely the position advocated by Professor Fiss. See FISS, supra note 16, at 102; see also Post, supra note 22, at 186.
413. See Post, supra note 22, at 180-84 (discussing reasons for upholding the funding restriction in Finley).
414. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 599 (1998) (Scalia, J., concurring).
415. Id. at 598 n.3 (Scalia, J., concurring).
416. Greene, supra note 22, at 38 (relying on United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938)). Professor Greene included, as another example that would invoke the Carolene Products footnote, government speech "praising whites and refusing to praise blacks." Id.
417. Id. Compare L.A. Police Dept. v. United Reporting Publ'g Corp., 528 U.S. 32, 43-44 (1999) (Ginsburg, J., concurring), with id. at 45-47 (Stevens, J., dissenting). See also Bd. of Educ. v. Pico, 457 U.S. 853, 866-67 (1982) (Brennan, J., plurality opinion).
418. Finley, 524 U.S. at 582-83.
419. It is interesting, yet unexplained, that the majority drew support from the "patron" characterization only in connection with the part of its opinion dealing with the vagueness challenge. See Finley, 524 U.S. at 589.
420. See id at 584.
421. Id. 583-84.
422. Id. at 615 n.9 (Souter, J., dissenting) (relying in part on Metromedia, Inc. v. San Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion), in which aesthetic goals were legitimate government objectives).
423. Finley, 524 U.S. at 615 n.9 (Souter, J., dissenting).
424. Id. (quotations omitted).
425. See Widmar v. Vincent, 454 U.S. 263, 278-80 (1981) (Stevens, J., concurring); cf. Pico, 457 U.S. at 871-72 (Brennan, J., plurality opinion).
426. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (holding music to be a form of expression protected by the First Amendment).
427. See Finley, 524 U.S. at 596 n.2 (Scalia, J., concurring) (discussing the performances for which the plaintiffs sought relief).
428. See OWEN M. Fiss, THE IRONY OF FREE SPEECH 44 (1996) (discussing homoerotic work before and after the movie PHILADELPHIA); William G. Buss, The Government as Friend and Protector of Free Speech, 82 IOWAL. REV. 301, 310 (1996).
429. See OWEN M. Fiss, THE IRONY OF FREE SPEECH 44 (1996) (discussing homoerotic work before and after the movie PHILADELPHIA); William G. Buss, The Government as Friend and Protector of Free Speech, 82 IOWAL. REV. 301, 310 (1996).
430. See Finley, 524 U.S. at 591-592 (Scalia, J., concurring) (observing that decency could be incorporated in, or separate from, artistic merit).
431. See Shiffrin, supra note 1, at 653 (advocating the decentralization and dispersal of decision-making).
432. See National Foundation on the Arts & Humanities Act, 20 U.S.C. § 955(b) (1994) (describing the composition of the council).
433. See 20 U.S.C. § 955 (explaining that these fourteen members are chosen by the President from those that are "widely recognized" in the field of the arts).
434. Finley, 524 U.S. at 584-85.
435. 528 U.S. 32 (1999).
436. CAL. GOV'T CODE § 6254(f)(3) (West Supp. 1999).
437. L.A. Police Dep't, 528 U.S. at 34.
438. Id. at 36-37.
439. 447 U.S. 557, 566 (1980) (setting forth a four-part test).
440. L.A. Police Dep't, 528 U.S. at 37.
441. Id. at 39-40.
442. Id. at 40.
443. Id.
444. Id. at 42 (Scalia, J., concurring).
445. L.A. Police Dep't, 528 U.S. at 42 (Scalia, J., concurring).
446. Id. at 42-43 (Ginsburg, J., concurring).
447. Id. at 43 (Ginsburg, J., concurring).
448. Id. (quoting from Wabaunsee County v. Umbehr, 518 U.S. 668 (1996), and citing Regan v. Taxation with Representation, 461 U.S. 540 (1983)).
449. L.A. Police Dep't, 528 U.S. at 43 (Ginsburg, J., concurring).
450. Id. at 45, (Stevens, J., dissenting).
451. Id.
452. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-37 (1977) (holding that compulsory funding of union ideological activities violates freedom of speech); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641-42 (1943) (holding that compulsory flag salute and pledge violated public school children's right not to express a belief or attitude).
453. See, e.g., Freedom of Information Act, 5 U.S.C. § 552 (1994 & Supp. V 1999).
454. See Fla. Star v. B.J.F., 491 U.S. 524, 538-41 (1989).
455. Given the Court's failure to reach the issue, it remains unclear why the California statute favored some uses - "scholarly, journalistic, political, or governmental" - over others. See CAL. GOV'T CODE § 6254(f)(3) (West Supp. 1999).
456. See supra text accompanying notes 376-80.
457. 500 U.S. 173 (1991).
458. Cf. Fla. Star v. B.J.F., 491 U.S. 524, 534-35 (1989).
459. Bd. of Educ. v. Pico, 457 U.S. 853 (1982).
460. Hazelwood Seh. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
461. See Tinker v. Des Moines Indep. Cmty. Seh. Dist., 393 U.S. 503 (1969).
462. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 43 (1999) (Ginsburg, J., concurring).
463. Id.
464. The subsidy dimension also suggests Rust v. Sullivan, 500 U.S. 173 (1991) (unsubsidized abortion counseling to be paid for from private sources) and Board of Education v. Pico, 457 U.S. 853, 908 (1982) (Rehnquist, J., dissenting) (pointing out that books not subsidized by storage on public school library shelves would be available in bookstores).
465. See discussions on Finley, supra Part II.B.6.
466. See supra notes 76-77, 94-107 and accompanying text.
467. See Hudgens v. NLRB, 424 U.S. 507, 518-21(1976) (indicating that First Amendment rights do not extend to privately owned shopping centers, regardless of whether or not speech is related to the shopping center's business operations); cf., Pruneyard Shopping Ctr. v. Robins,
468. U.S. 74, 75 (1980) (finding a right of access to a shopping center under the state constitution, while no such right existed pursuant to the federal constitution).
469. Rosenberger v. Univ. of Va., 515 U.S. 819, 829-33 (1995) (addressing the analogy and its results).
470. See, e.g., Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 93-94 (1987).
471. See id.
472. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 701 (1992) (Kennedy, J., concurring and dissenting) (applying compatibility analysis to speech restrictions in a public airport); Grayned v. Rockford, 408 U.S. 104, 115-19 (1972) (upholding an anti-noise ordinance surrounding public schools and articulating a general test for access to government facilities asking whether the expression prohibited is "basically incompatible with the normal activity of a particular place at a particular time").
473. See Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1743-45, 1777-78 (1987).
474. See Freedom of Information Act, 5 U.S.C. § 552 (1994 & Supp. V 1999); 20 U.S.C. §§ 1232g-1232i (1994 & Supp. V 1999) (Buckley Amendment protecting privacy of student records).
475. See 20 U.S.C. §§ 1232g-1232i.
476. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 43 (1999) (Ginsburg, J., concurring).
477. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 323 U.S. 666, 681 (1998); cf. Rosenberger v. Univ. of Va., 515 U.S. 819, 832-33 (1995) (recognizing need of educational decision-makers to exercise discretion in allocating resources).
478. See Carey v. Brown, 447 U.S. 455, 461-65, 470-71 (1980); Police Dep't. of Chicago v. Mosley, 408 U.S. 92, 94-99 (1972).
479. 208 F.3d 702 (8th Cir. 2000) cert. denied sub. nom. Yarnell v. Cuffley, 121 S. Ct. 1125 (2001).
480. These were the facts of Wooley v. Maynard, 430 U.S. 705 (1977).
481. Cuffley, 208 F.3d at 705.
482. Id.
483. Id.
484. Id.
485. The Klan's claim was thus similar to that raised by Karen Ann Finley, though in the Finley case the government's asserted speaking action was initiated by the government and not a defensive byproduct of speech that might be attributed to it. But see note 359 and accompanying text.
486. Cuffley, 208 F.3d at 709.
487. 529 U.S. 217 (2000) (discussed supra notes 184-213 and accompanying text).
488. 530 U.S. 640 (2000).
489. Cuffley, 208 F.3d at 708-09.
490. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 584 (1998).
491. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
492. Wooley v. Maynard, 430 U.S. 705 (1977).
493. Rust v. Sullivan, 500 U.S. 173 (1991).
494. 530 U.S. 640 (2000) (discussed infra notes 455-63 and accompanying text).
495. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 753-818 (1995). The Capitol Square case involved the Ku Klux Klan's erection of a cross in Capitol Square, "a 10-acre state-owned plaza surrounding the statehouse in Columbus, Ohio," which had been set aside as a public forum for speeches, gatherings, and unattended displays. Id. at 757. The State's justification for prohibiting the cross was that it would constitute an endorsement of religion by the State because "the forum's proximity to the seat of government . . . may produce the perception that the cross bears the State's approval." Id. at 763. The endorsement would occur, the Klan alleged, by the "attribut[ion] to a neutrally behaving government [of] private religious expression," which Justice Scalia writing for the plurality characterized as a "transferred endorsement" test. Id. at 764. While the plurality opinion rejected the attribution idea on the grounds that "endorsement" under the Establishment Clause applied only to the State's own speech, and that attribution was in any event legally foreclosed in a true public forum, Justice O'Connor, writing also for Justices Souter and Breyer in partial concurrence, disagreed with both conclusions. While they agreed that a reasonable, informed observer would not attribute the Klan cross to the State, and therefore there was no endorsement in the case, they were of the view that in other circumstances a reasonable, informed observer might attribute a private message to the State, even in a public forum, and that such an attributed message might constitute an endorsement if the State permitted it to be expressed even under neutral public forum standards. See id. at 772 (O'Connor, J., concurring in part and concurring in the judgment). The dissent argued that attribution - and thus impermissible endorsement - was possible and indeed occurred in the case. See id. at 802, 817-18 (Ginsburg/Stevens, JJ., dissenting). The claim the State might have pursued in Cuffley is very similar, though perhaps stronger. While the State's claim did not arise in the Establishment Clause setting, but in the free speech setting, it did not arise in a public forum (instead, at best, it occurred in a limited forum).
496. Indeed, it is even plausible that an attribution claim might have been fashioned in Finley, based on the idea that artists' work might be mistakenly attributed to the government that sponsored it, and thus withdrawal of NEA support was justified in order to avoid forced speaking by the government. While there is little basis for such a reading in the Court's opinion in Finley, it is not an implausible explanation for what happened. See supra text accompanying note 359; see also supra text accompanying notes 74-75.
497. Dale, 530 U.S. at 655-56.
498. Id. at 653.
499. Id. at 647-59. The associational claim, on reflection, seems only incidental to the Court's analysis. The Court treated the Boy Scouts as a First Amendment speaker and the nondiscrimination law as a direct abridgement of the Boy Scouts' speech, not an incidental burden on expressive conduct. O'Brien was deemed inapposite. Id. at 659.
500. Beliefs with which, the Court said, all members of the organization need not agree, as long as there were processes by which the beliefs were developed and inculcated. Id. at 655-56.
501. This approach was a major part of the divisions in the Court in the Pinette case, discussed supra note 454.
502. See infra note 466; see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472 U.S. 73, 76 (1985) (O'Connor, J., concurring in judgment).
503. Dale, 530 U.S. 696 (Stevens, J., dissenting).
504. See id. at 695-96 (Stevens, J., dissenting). As our earlier discussion indicated, attribution was apparently at the base of the students' First Amendment claim in Southworth, but there the argument received short shrift in view of the implausibility of third persons believing the students endorsed the position of organizations subsidized by student fees.
505. See supra Part III.B.
506. See U.S. CONST. amend. 1 ("Establishment Clause language").
507. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 309-12 (2000) (quoting Wallace v. Jaffree, 472 U.S. 73, 76 (1985) (O'Connor, J., concurring in judgment) (attributing student-initiated invocations at high school football games, on school grounds and at school sponsored activities to the government and concluding that they are a violation of the Establishment Clause); see also Capitol Square v. Pinette, 515 U.S. 753, 755-56 (1995).
508. See, e.g., Pinnette, 515 U.S. at 763-64; Agostini v. Felton, 521 U.S. 203, 222-27, 234-35 (1997); Board of Educ. v. Mergens, 496 U.S. 226, 250-52 (1990). For a discussion of attribution in free speech contexts, see also Boy Scouts of America v. Dale, 530 U.S. 640, 650-51 (2000) and Board of Regents v. Southworth, 529 U.S. 217, 229-33 (2000).
509. 403 U.S. 15 (1971).
510. 491 U.S. 397 (1989).
511. See supra notes 140-63 and accompanying text.
512. See supra notes 457-58 and accompanying text.
513. See supra note 150 and accompanying text. This is only an implication in Hazelwood, as the Court did not specifically address the disclaimer argument made by the dissenters, but instead folded the question into the general issue of reasonableness of the principal's action in the particular circumstances.
514. Treating Cuffley as a straightforward First Amendment case, Missouri might have justified its refusal to accept the KKK highway adoption participation on the ground that it had a compelling interest in suppressing racism. Cf. Bob Jones Univ. v. United States, 461 U.S. 574, 595-96 (1983) (recognizing a compelling interest in denying federal tax exemption to a racially discriminating university); R.A.V. v. City of St. Paul, 506 U.S. 377, 395-96 (1992). But the least restrictive alternative requirement would not have been satisfied. See R.A.V., 505 U.S. at 395; Cuffley v. Mickes, 208 F.3d 702, 705 n.2 (8th Cir. 2000); Texas v. Knights of the Klu Klux Klan, 58 F. 3d 1075, 1079-80 (5th Cir. 1995) (denying participation in highway adoption program to KKK which was attempting to intimidate residents of adjacent housing project undergoing desegregation).
515. 418 U.S. 405, 410-11 (1974).
516. For a strong attack on this test, see generally Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2353, 2363-66 (2000).
517. For example, this test was not used and the particular message conveyed was not identified in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), where the Court found a parade communicated protected First Amendment speech, or in Barnes v. Glen Theatres, 501 U.S. 560 (1991), where the Court found that nude dancing implicated First Amendment speech.
518. An imposing body of literature on the "expressive" dimensions of law has made it clear that government communicates messages by its legal actions, and it is often far from clear whether the government intends to do so or whether its intention is important. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000); Mathew Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000); Symposium, The Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives, 60 MD. L. REV. 465 (2001).
519. An imposing body of literature on the "expressive" dimensions of law has made it clear that government communicates messages by its legal actions, and it is often far from clear whether the government intends to do so or whether its intention is important. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000); Mathew Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000); Symposium, The Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives, 60 MD. L. REV. 465 (2001).
520. An imposing body of literature on the "expressive" dimensions of law has made it clear that government communicates messages by its legal actions, and it is often far from clear whether the government intends to do so or whether its intention is important. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000); Mathew Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000); Symposium, The Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives, 60 MD. L. REV. 465 (2001).
521. See Howard Kurtz, Drug Office Ad Deal Included Newspapers; Times, Post Among Those Given Credits, WASH. POST, Jan. 20, 2000 at C1.
522. See Bd. of Educ. v. Pico, 457 U.S. 853, 864 (1982) ("[P]ublic schools are vitally important 'in the preparation of individuals for participation as citizens,' and as vehicles for 'inculcating fundamental values necessary to the maintenance of a democratic political system.'") (citation omitted).
523. See id. at 887 (Burger, C.J., dissenting) (disputing the notion that "if a writer has something to say, the government through its schools must be the courier").
524. See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 755-57 (1996) (noting the effects that the "segregate and block" provision has in skewing the channels of distribution).
525. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52 (1974) (holding that under First Amendment defamation law, making determinations of whether an individual is a public figure for the purposes of libel cases rests in part on the basis of access of the defamee to a forum through which a reply will be possible).
526. The objector, being made to carry a government message and thereby unintentionally speaking that message, must first identify himself as an objector. For instances of this reasoning, see West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-42 (1943) and Wooley v. Maynard, 430 U.S. 705, 714-17 (1977).
527. See Bd. of Educ. v. Mergens, 496 U.S. 226, 263 (1990) (Marshall, J., concurring) (arguing that to avoid an Establishment Clause violation, a school must dissociate itself from the religious speech of a student organization by a disclaimer of endorsement).
528. See supra Part IL.B.1.
529. See MEIKLEJOHN, supra note 20, at 9.
530. See AMY GUTMANN, DEMOCRATIC EDUCATION 72-79 (1999); Shiffrin, supra note 1, at 653.
531. Most recently stated in Santa Fe Independent School District v. Doe, 530 U.S. 290, 302-09 (2000).
532. Post, Subsidized Speech, supra note 22, at 151 (emphasis added).
533. In his article, Post draws the distinction we also draw between government as regulator (manager) and government as speaker (participant in the realm of expression, advancing community self definition, i.e., commonly shared norms about the mode of expressing, or content of ideas). Post, Public Forum, supra note 22, at 176-94. Post ultimately opts for giving "ample scope to the value of community self-definition in the [limited] context of NEA subsidies, and . . . cautio[n] in characterizing the decency clause as a conduct rule" - i.e., as an instance of government as regulator. Id. at 194. Post's reason for his conclusion is perhaps grounded in an expansive, and largely benign, view of government's role in modern society. "Because I set a high value on encouraging and empowering the government to establish institutions designed to further norms like artistic excellence, I would myself lean toward giving ample scope to the value of community self-definition in the context of NEA subsidies." Id.
534. A conception, it should be said, to which Post does not entirely subscribe.
535. U.S. CONST. amend I.
536. 360 U.S. 564, 575-76 (1959) (holding the utterance of a federal public official to be absolutely privileged if made within the scope of his official duties).
537. Means such as the publication of the Congressional Record and other periodical publications, and press releases.
538. 426 U.S. 833, 852 (1976) (holding that the 1974 amendments to the Fair Labor Standards Act were not a valid exercise of Congress's Commerce Clause power, usurping state's ability to make essential decisions about the conduct of integral functions of government), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
539. See Va. Pharmacy Bd. v. Va. Citizens Consumer Council, 425 U.S. 748, 771-73 (1976); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389-92 (1969). See generally MEIKLEJOHN, supra note 20, at 22-27.
540. Cf. FEC v. Mass. Citizens for Life (MCFL), 479 U.S. 238, 263-64 (1986) (viewing the organization's speech as simply the amplification of the specific ideas of each individual member, and thus distinct from an ordinary corporation's speech).
541. Under the Court's theory in the campaign finance cases, the relation between an organization's speech and the views of its individual members must be more than generally consistent or broadly representative in order for the organization to claim that its speech is really just an amplification of the views, and thus the First Amendment speech, of individuals -people holding a view joining together to make their voice stronger. The Court's decisions suggest that where a group speaks for its members directly, which means that the members' own views on a specific matter are being directly voiced, the group's speech claim is strongest, because it qualifies as an individual speech claim. Where that is not the case, the degree of First Amendment protection is reduced. Under this test it seems clear that government speech would not meet the specificity requirement. Examples would surely include the competing "government" and "public" attitudes toward abortion and campaign finance reform.
542. This is similar to the Chamber of Commerce in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657-60 (1990).
543. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 771-77, 783-84 (1978); cf. Va. Pharmacy Bd., 425 U.S. at 771-73.
544. Under the still operable test of Central Hudson & Electric Corporation v. Public Service Commission, 447 U.S. 557, 566 (1980), the courts must determine that a substantial interest is being served directly and in a reasonably tailored fashion.
545. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 575-79 (1998).
546. See Willard S. Boyd, Museums as Centers of Controversy, 128 DAEDALUS 185, 219-23 (1999).
547. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375-86 (1969).
548. Rust v. Sullivan, 500 U.S. 173 (1991).
549. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 40 (1999).
550. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 676-78 (1998).
551. See Pac. Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S 1, 26 (1986) (Rehnquist, J., dissenting).
552. Post, supra note 22 at 151.