The government speech forum: Forbes and Finley and government speech selection judgments

Iowa Law Review

Volumn 83, Issue 5, 1998, Pages 953-994

  Bezanson, Randall P ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 1542740752     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (220)

1. Charles E. Floete Distinguished Professor of Law, University of Iowa.
2. There have been, to be sure, substantial problems that have persisted in First Amendment doctrine, such as the test by which incitement is measured, see Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that the criminalization of the mere advocacy of crime and terrorism to accomplish political reform violates the First Amendment when it is not directed toward inciting lawless action); Dennis v. United States, 341 U.S. 494 (1951) (finding that provisions of an act making it a crime to knowingly and willingly advocate the overthrow of the government did not violate the First Amendment); or the distinction between regulations of speech and regulations of conduct, see United States v. O'Brien, 391 U.S. 367 (1968) (holding that incidental limitations of the First Amendment freedoms when conduct has both "speech" and "nonspeech" elements may be justified only by important governmental interest), to name but two examples. But these problems concern the definitional fringes of settled principles and tend to focus on technical rules of proof.
3. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974).
4. See Hurley v. Irish-American gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573-75 (1995) (describing a private organization's decisions regarding participants in a parade as reflecting choices of both what to say and what not to say).
5. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
6. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
7. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
8. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
9. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
10. Much has been written on the general subject of government expression and the First Amendment. Among the best writings, to which I am indebted, are the remarkable and groundbreaking book by Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983), and the insightful articles and books by Professors Canby, Post, Shiffrin, Stone, and Tribe. See Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); William C. Canby, Jr., The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Tex. L. Rev. 1123 (1974); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233; Laurence Tribe, Toward A Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).
11. 118 S. Ct. 1633 (1998).
12. 118 S. Ct. 2168 (1998).
13. See, e.g., Randall Bezanson, Herbert v. Lando, Editorial Judgment, and Freedom of the Press: An Essay, 1978 U. Ill. L. Forum 605; Randall Bezanson, Institutional Speech, 80 Iowa L. Rev. 735 (1995) [hereinafter Bezanson, Institutional Speech]; Randall Bezanson, The Quality of First Amendment Speech, 20 Hastings Comm. & Ent. L.J. 275 (1998) [hereinafter Bezanson, Quality of First Amendment Speech].
14. See, e.g., Randall Bezanson, Herbert v. Lando, Editorial Judgment, and Freedom of the Press: An Essay, 1978 U. Ill. L. Forum 605; Randall Bezanson, Institutional Speech, 80 Iowa L. Rev. 735 (1995) [hereinafter Bezanson, Institutional Speech]; Randall Bezanson, The Quality of First Amendment Speech, 20 Hastings Comm. & Ent. L.J. 275 (1998) [hereinafter Bezanson, Quality of First Amendment Speech].
15. See, e.g., Randall Bezanson, Herbert v. Lando, Editorial Judgment, and Freedom of the Press: An Essay, 1978 U. Ill. L. Forum 605; Randall Bezanson, Institutional Speech, 80 Iowa L. Rev. 735 (1995) [hereinafter Bezanson, Institutional Speech]; Randall Bezanson, The Quality of First Amendment Speech, 20 Hastings Comm. & Ent. L.J. 275 (1998) [hereinafter Bezanson, Quality of First Amendment Speech].
16. Forbes, 118 S. Ct. at 1639.
17. Id.
18. See, e.g, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (involving a challenge to a private association's refusal to allow an organization of gay, lesbian and bisexual individuals to participate in a St. Patrick's Day parade).
19. See, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) (involving a First Amendment challenge to a public official's refusal to grant a parade permit).
20. Compare Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (upholding an FCC order requiring a radio station to provide a person attacked on the air with airtime for response), and Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) (holding a statute allowing cable television operator to prohibit indecent or offensive material on leased access channels as constitutional and on public access channels as unconstitutional), with Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding unconstitutional a statute mandating that newspapers provide space for replies to printed attacks on a candidate's personal character).
21. Denver Area, 518 U.S. 727 (1996); FCC v. League of Women Voters, 468 U.S. 364 (1984) (holding a ban on editorializing on publicly funded television stations unconstitutional); Buckley v. Valeo, 424 U.S. 1 (1976) (holding some limits on a candidate's expenditures unconstitutional).
22. See Buckley v. Valeo, 424 U.S. 1 (1976) (holding that individual contributions can be limited constitutionally, but that limits on a candidate's own expenditures violate the First Amendment); Bezanson, Institutional Speech, supra note 8, at 745-47 (discussing the difference between speech by those supporting a candidate and speech purchased by a candidate).
23. See National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2179 ( 1998) (holding that a requirement that the NEA use "general standards of decency and respect . . ." in judging artistic merit is not unconstitutionally vague); Board of Educ. v. Pico, 457 U.S. 853 (1982) (holding that school boards may not exercise discretion in a political manner concerning library acquisitions); see generally Livingston v. Ewing, 455 F. Supp. 825 (D.N.M. 1978) (sustaining museum's restriction of acquisitions to particular theme or genre); Jennifer L. White, When It's OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses, 94 Mich. L. Rev. 1041 (1996).
24. I have previously written about various aspects of speech selection judgments, including: Randall Bezanson, The Atomization of the Newspaper: Technology, Economics and the Coming Transformation of Editorial Judgments About News, 3 Com. L. Pol'y 175 (1998) [hereinafter Bezanson, Atomization of the Newspaper]; Bezanson, Institutional Speech, supra note 8; Bezanson, Quality of First Amendment Speech, supra note 8. The issues have also been touched upon by others, including: Post, supra note 5; Yudof, supra note 5.
25. I have previously written about various aspects of speech selection judgments, including: Randall Bezanson, The Atomization of the Newspaper: Technology, Economics and the Coming Transformation of Editorial Judgments About News, 3 Com. L. Pol'y 175 (1998) [hereinafter Bezanson, Atomization of the Newspaper]; Bezanson, Institutional Speech, supra note 8; Bezanson, Quality of First Amendment Speech, supra note 8. The issues have also been touched upon by others, including: Post, supra note 5; Yudof, supra note 5.
26. I have previously written about various aspects of speech selection judgments, including: Randall Bezanson, The Atomization of the Newspaper: Technology, Economics and the Coming Transformation of Editorial Judgments About News, 3 Com. L. Pol'y 175 (1998) [hereinafter Bezanson, Atomization of the Newspaper]; Bezanson, Institutional Speech, supra note 8; Bezanson, Quality of First Amendment Speech, supra note 8. The issues have also been touched upon by others, including: Post, supra note 5; Yudof, supra note 5.
27. 118 S. Ct. 1633 (1998).
28. 118 S. Ct. 2168 (1998).
29. For a discussion of the many meanings of "quality" in the First Amendment context, see Bezanson, Quality of First Amendment Speech, supra note 8. I am here referring to quality in the form of judgments about the aesthetic merit of a work.
30. For insightful discussions of the problem of government-exercised editorial control, see Laurence Tribe, American Constitutional Law § 12-24, at 986-1010 (2d ed. 1988); Yudof, supra note 5, at 234-45; Canby, supra note 5.
31. Forbes, 118 S. Ct. at 1645 (Stevens, J., dissenting).
32. Id. at 1638.
33. Id. at 1638, 1643-44.
34. Id. at 1643-44.
35. Id. at 1649-50 (Stevens, J., dissenting).
36. Forbes, 118 S. Ct. at 1639.
37. The intricacies of public forum analysis, and the grounds for disagreement within the Court, can be seen clearly in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679-85 (1992). Two particularly insightful discussions of the public forum doctrines are Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. Rev. 1713 (1987), reprinted in Post, supra note 5 (discussing the history and present state of the public forum doctrine), and Stone, supra note 5 (discussing the public forum doctrine and the right of "access" by individuals).
38. Forbes, 118 S. Ct. at 1639, 1644.
39. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 255 (1974) ("The power of a privately owned newspaper to advance its own . . . views is bounded by only two factors: first, the acceptance of a sufficient number of readers . . . to assure financial success; and second, the journalistic integrity of its editors and publishers."); J. Herbert Altschull, From Milton to McLuhan: The Ideas Behind American Journalism (1990) (discussing how philosophers who have helped shape the American experience influenced contemporary American journalists and the selection of news stories); Bezanson, Atomization of the Newspaper, supra note 17, at 181 (arguing that journalism's role must be discriminating in order to provide information that is vital, rather than that which is available).
40. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 255 (1974) ("The power of a privately owned newspaper to advance its own . . . views is bounded by only two factors: first, the acceptance of a sufficient number of readers . . . to assure financial success; and second, the journalistic integrity of its editors and publishers."); J. Herbert Altschull, From Milton to McLuhan: The Ideas Behind American Journalism (1990) (discussing how philosophers who have helped shape the American experience influenced contemporary American journalists and the selection of news stories); Bezanson, Atomization of the Newspaper, supra note 17, at 181 (arguing that journalism's role must be discriminating in order to provide information that is vital, rather than that which is available).
41. See, e.g., CBS, Inc. v. FCC, 453 U.S. 367, 396-97 (1981) (concluding that the FCC rule did not impair "the discretion of broadcasters to present their views on any issue or to carry any particular type of programming"); Miami Herald Publ'g, 418 U.S. at 258 (holding that governmental intrusion into the editorial process violates the First Amendment); Columbia Broad. Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 116 (1973) ("[T]he [Radio Act of 1927] stands as a firm congressional statement that broadcast licenses are not to be treated as common carriers, obliged to accept whatever is tendered by members of the public."); New York Times Co. v. Sullivan, 376 U.S. 254, 292 (1964) (reaffirming a newspaper's editorial freedom).
42. Forbes, 118 S. Ct. at 1639; see Miami Herald Publ'g, 418 U.S. at 258 (holding that a newspaper's right to make editing decisions is protected by the First Amendment).
43. The Court did not justify the AETC's decision on the more traditional speech-unrelated purposes, such as traffic control, privacy, and the like. It instead rested the government justification on government's expressive purposes. See Forbes, 118 S. Ct. at 1640 (determining that the "First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming," thereby preserving the function of editing as expressive).
44. See Bezanson, Institutional Speech, supra note 8, at 821 (pointing out the necessary relationship between the rights afforded by the First Amendment and the presence of independent thoughts, expressed by or with a "communicative free will").
45. See Miami Herald Publ'g, 418 U.S. at 258 (finding a statute requiring a newspaper to publish a political candidate's response to that paper's criticism unconstitutional); Altschull, supra note 30, at 3; Bezanson, Atomization of the Newspaper, supra note 17, at 181; Vince Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521 (examining the historical use of free expression to check abuses of official power).
46. See Miami Herald Publ'g, 418 U.S. at 258 (finding a statute requiring a newspaper to publish a political candidate's response to that paper's criticism unconstitutional); Altschull, supra note 30, at 3; Bezanson, Atomization of the Newspaper, supra note 17, at 181; Vince Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521 (examining the historical use of free expression to check abuses of official power).
47. Of course, private individuals and organizations frequently make such regulatory speech selection decisions too. In many such cases, that private entities make the decision may serve to disqualify the organization from its claim to First Amendment protection. See Bezanson, Institutional Speech, supra note 8, at 742-57 (discussing private and public speech selection judgments).
48. See Post, supra note 5, at 199-267 (discussing the public forum doctrine and the managerial authority of the government).
49. E.g., Anderson v. Celebrezze, 460 U.S. 780, 806 (1983) (holding a statute setting an early filing deadline applicable only to independent candidates to impose an unconstitutional burden on voters' freedom of choice and of association); Lubin v. Panish, 415 U.S. 709, 717 (1974) (holding a State may not, without providing alternative means to gain access to the ballot, require an indigent candidate to pay filing fees); Williams v. Rhodes, 393 U.S. 23 (1968) (holding invalid election laws that required petition signatures from new political parties to gain assess to the ballot but not from the Republican and Democratic parties).
50. The explicit statement, in dicta, appeared in the Court's opinion in Rosenberger v. University of Virginia, 515 U.S. 819, 833-34 (1995), discussed infra at notes 118-22 and accompanying text. In Rosenberger, the Court noted that it had "permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message." Id. at 833.
51. 468 U.S. 364 (1984).
52. The Court's direct references to the government as a speaker in Forbes are, notably, lacking in case citation. The cases cited, such as Columbia Broadcasting System Inc. v. Democratic National Committee, 412 U.S. 94 (1973), or Turner Broadcasting System, Inc. v. FCC, 117 S. Ct. 1174 (1997), or Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 57 (1995), are really not on point. Many of the examples, given in dicta in Forbes, were mentioned previously in Rust v. Sullivan, 500 U.S. 173 (1991), a government subsidy case that was more on point, as the Court's decision turned on the government's ability, though not constitutional freedom under the First Amendment, to express policy preferences and to selectively spend (in support of speech) with those preferences in mind. See Bezanson, Institutional Speech, supra note 8, at 767-72 (discussing "representational speech" of the government in Rust v. Sullivan).
53. See Post, supra note 5, at 201-33 (discussing the history and evolution of the theory and rationale of the public forum doctrine).
54. See sources cited supra note 28.
55. See Post, supra note 5, at 1234-67 (discussing the role of government as manager of free speech).
56. See Forbes, 118 S. Ct. at 1641-43 (discussing the difference between a public forum and a nonpublic forum).
57. Another part of the line might be process and professional criteria and judgment, as with librarians and books, or faculty and tenure. See infra notes 165-67 and accompanying text (discussing academic freedom and the First Amendment in the classroom).
58. Compare Rust v. Sullivan, 500 U.S. 173, 192-201 (1991) (holding that limitations on abortion speech of employees of clinics that receive public funding do not violate the First Amendment) with Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 760-67 (1996) (holding that a provision permitting a cable television operator to prohibit patently offensive or indecent programming on public access channel violates the First Amendment).
59. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
60. See Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) (holding that the granting of parade permits is subject to First Amendment scrutiny).
61. Forbes, 118 S. Ct. at 1639.
62. Id.
63. Id.
64. See, e.g., National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2179 (1998) (determining that criteria for artists' receipt of governmental funding under the NEA is a speech selection judgment on the part of the government acting as patron); Rosenberger v. University of Va., 515 U.S. 819, 833 (1995) (stating in dicta that the government has the power to act as a speaker); Rust v. Sullivan, 500 U.S. 173, 192-201 (1991) (allowing the government to select speech for employees of a clinic that receives government funding).
65. See, e.g., Turner Broad. Sys., Inc. v. FCC, 117 S. Ct. 1174 (1997); Rust, 500 U.S. 173 (1991); FCC v. League of Women Voters, 468 U.S. 364 (1984).
66. 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, for in the traditional 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. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
67. Forbes, 118 S. Ct. at 1639; see also Rosenberger, 515 U.S. at 833-34 (recognizing, in dicta, the government's power to act as speaker and to make point of view distinctions in doing so).
68. Perhaps the most immediate consequence of the difference is in the burden of proof, which would fall upon government in all likelihood if its claim were for immunity, but which would fall, heavily perhaps, on the person challenging the government's action if it were an exercise of constitutionally guaranteed freedom.
69. Miller v. California, 413 U.S. 15 (1973) (holding that obscene speech is not protected by the First Amendment).
70. Schneider v. New Jersey, 308 U.S. 147 (1939) (determining that the government may enact regulations to further public health, safety, and welfare so long as such regulations do not unreasonably curtail free speech).
71. International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) (holding that an airport is not a public forum and that, therefore, speech within the airport can be restricted).
72. Connick v. Myers, 461 U.S. 138 (1983) (allowing the government, as employer, to balance the free speech rights of the speaker, as a citizen, against the state, as employer).
73. See Rust v. Sullivan, 500 U.S. 173, 192-201 (1991) (holding that a government ban on the dissemination of information on abortion by federally funded clinics was not violative of free speech).
74. See id.; see also National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998) (holding that NEA discretion in distributing funds does not violate the First Amendment).
75. See Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633 (1998) (holding that the exclusion of a third party candidate from a publicly funded televised political debate was not a violation of the First Amendment).
76. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974) (holding a statute requiring a newspaper to afford free space to a candidate who has been criticized to be unconstitutional); Columbia Broad. Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 124 (1973) (discussing the role of editorial judgment); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (upholding a newspaper's editorial selection rights).
77. Forbes, 118 S. Ct. at 1639.
78. Id.
79. Id.
80. Id.
81. Miami Herald Publ'g , 418 U.S. at 258.
82. Forte, 118 S. Ct. at 1644.
83. Id. at 1641. Public forum analysis is built on the necessary assumption that government is acting as a regulator or manager of speech on public property or in public programs, and is not acting as the speaker or as a competing speaker. See Post, supra note 5, at 244-67; Stone, supra note 5, at 238.
84. Forbes, 118 S. Ct. at 1647 (Stevens, J., dissenting).
85. FCC v. League of Women Voters, 468 U.S. 364 (1984).
86. Forbes, 118 S. Ct. at 1646 (Stevens, J., dissenting).
87. According to the dissent in Forbes: 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. Id. at 1647 (Souter, J., dissenting) (citation omitted). But as Justice Souter pointed out in his dissent in National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2191 (1998) (Souter, J., dissenting), the Court in Rosenberger v. University of Virginia, 515 U.S. 819, 833-34 (1995), had explicitly, though in dicta, recognized the status of government as speaker with the constitutional authority to engage in viewpoint discrimination.
88. Forbes, 118 S. Ct. at 1647 (Souter, J., dissenting).
89. Id. at 1646-47 (Souter, J., dissenting); see also Post, supra note 5 (discussing the public forum doctrine).
90. Surprisingly, Justice Souter's 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. Instead, Justice Souter disputed the application of the "government-as-speaker" analogy to the NEA grant process. Finley, 118 S. Ct. at 2191-93 (Souter, J., dissenting).
91. Columbia Broad. Sys. v. Democratic Nat'l Comm., 412 U.S. 94 (1973).
92. Forbes, 118 S. Ct. at 1647 (Stevens, J., dissenting).
93. This is a problem also noted by the Court in the setting of corporations. See Buckley v. Valeo, 424 U.S. 1, 58 (1976) (sustaining limits on individuals' contributions to political candidates); Bezanson, Institutional Speech, supra note 8, at 736-41 (discussing institutional or collective, in contrast to individual, speech). But see text accompanying notes 142-147 (discussing textual constitutional grounds for government's right to speak).
94. FCC v. League of Women Voters, 468 U.S. 364 (1984).
95. 118 S. Ct. 2168 (1998).
96. Finley, 118 S. Ct. at 2179 (majority opinion).
97. Id. at 2184 (Scalia, J. concurring).
98. Id. at 2191 (Souter, J., dissenting) (citing Rosenberger v. University of Va., 515 U.S. 819, 833-34 (1995)).
99. The Oxford English Dictionary defines "patron" as: 1. One who stands to another or others in relations analogous to those of a father; a lord or master; a protector. . . . 3. One who countenances, supports, or protects . . . ; one who takes under his favour and protection, or lends his influential support to advance the interests of, some person, cause, institution, art, or undertaking. . . . (Always implying something of the superior relation of the wealthy or powerful Roman patron to his client.) 5. A guardian saint (J); the special tutelary saint of a person, place, country, craft, or institution. 7 Oxford English Dictionary, (1961 Reprinting). Webster's Collegiate Thesaurus (1976) lists synonyms for "patron" as: "sponsor. . . ; backer. . . ; guarantor."
100. Rosenberger involved a University of Virginia student activity fee policy which supported the expressive and other activities of student groups, but excluded groups engaged in "religious activity" such as publishing a Christian student newspaper, proselytizing, or religious worship. 515 U.S. at 825. As the Court stated in Finley, "[T]he University . . . created a limited public forum" in which it "indiscriminately 'encourage[d] a diversity of views from private speakers,'" a forum "which was available to all student organizations that were 'related to the educational purpose of the University.'" Finley, 118 S. Ct. at 2178 (quoting Rosenberger v. University of Va., 515 U.S. 819, 824, 834) (1995).
101. The amendment obliges the NEA chairperson to ensure that "artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. . . ." 20 U.S.C. § 954(d)(1) (1994).
102. The amendment's history is surveyed in the Court's opinion in Finley, 118 S. Ct. at 2172-74.
103. Id. at 2173.
104. The Privacy Act claims, as well as the as-applied First Amendment challenge to the artists' grant disapproval, were settled before the district court's decision. Id. at 2174.
105. Id. at 2175.
106. Id. at 2179.
107. Finley, 118 S. Ct. at 2179.
108. Id.
109. The idea might be loosely analogized to the Court's "market participant" jurisprudence, discussed infra at note 129 and accompanying text. See South-Central Timber Dev. v. Wunnicke, 467 U.S. 82 (1984) (distinguishing between government acting as market participant and market regulator, and the consequences of the distinction). Also analogous are the constitutional limits on government's power to act as speaker or market participant. See id; Dan T. Coenen, Untangling the Market-Participant Exception to the Dormant Commerce Clause, 88 Mich. L. Rev. 395 (1989) (addressing the exception to the prohibition against state interference with interstate commerce when acting as a market participant).
110. The Court's public forum doctrine has evolved into a highly elaborate, yet often contested, set of First Amendment rules. See, e.g., International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (holding that the extent to which a governmental entity can restrict expressive activity on its property depends on the nature of the forum); Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985) (holding that public forum issue is not resolved merely by identifying the government property at issue); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (holding that the First Amendment is not violated by preferential access to inter-school mail system). For useful and insightful discussions of the public forum concept and the doctrine that has been built around it, see Lillian BeVier, Rehabilitating Public Forum Doctrine: In Defense of Categories, 1993 Sup. Ct. Rev. 79 (discussing the uncertainties and disarray surrounding the public forum doctrine); Dan Farber & John Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va. L. Rev. 1219 (1984); Post, supra note 29; Stone, supra note 5 (arguing that public forum analysis is confused and suggesting instead a three-tiered approach to First Amendment analysis).
111. The Court's public forum doctrine has evolved into a highly elaborate, yet often contested, set of First Amendment rules. See, e.g., International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (holding that the extent to which a governmental entity can restrict expressive activity on its property depends on the nature of the forum); Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985) (holding that public forum issue is not resolved merely by identifying the government property at issue); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (holding that the First Amendment is not violated by preferential access to inter-school mail system). For useful and insightful discussions of the public forum concept and the doctrine that has been built around it, see Lillian BeVier, Rehabilitating Public Forum Doctrine: In Defense of Categories, 1993 Sup. Ct. Rev. 79 (discussing the uncertainties and disarray surrounding the public forum doctrine); Dan Farber & John Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va. L. Rev. 1219 (1984); Post, supra note 29; Stone, supra note 5 (arguing that public forum analysis is confused and suggesting instead a three-tiered approach to First Amendment analysis).
112. See Rust v. Sullivan, 500 U.S. 173 (1991) (allowing the government to make speech selections for employees of a federally funded clinic); Connick v. Myers, 461 U.S. 138 (1983) (holding government employee's speech in the course of employment is not protected as exercise of employee's First Amendment liberty); Barr v. Mateo, 360 U.S. 564 (1959) (holding that a press release by a government director stating his intention to suspend empolyees was within his scope of duties). In Connick, the Court stated that: when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, . . . a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Connick, 461 U.S. at 147. For a discussion of the cases involving institutional speech, including speech by government, employees, agents, and other groups or agencies, see Bezanson, Institutional Speech, supra note 8, at 816-24 (arguing that institutional speech should be evaluated by the manner in which it contributes to society).
113. See generally Rust, 500 U.S. at 192-201 (holding that the government can ban abortion speech at a government-funded clinic); Board of Educ. v. Pico, 457 U.S. 853 (1982) (stating that the First Amendment confers discretion on local schools in choosing books for their libraries); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (holding that advertisement space on public transit is not a protected First Amendment forum).
114. See generally 47 U.S.C. §§ 303, 307(a), 308(b) (1994); Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) (holding that FCC policies favoring minority ownership do not violate equal protection); Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (holding that an order requiring radio stations to allow time for response to a person who had been attacked on the air did not violate the First Amendment).
115. 395 U.S. 367 (1969).
116. The cases cited were the familiar, recent ones of Forbes, 118 S. Ct. 1633 (1998); Rust, 500 U.S. 173 (1991); Regan v. Taxation with Representation in Washington, 461 U.S. 540 (1983); Pico, 457 U.S. 853 (1982); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The principal case used as negative authority to distinguish Finley from the conventional cases involving government-as-regulator was Rosenberger v. University of Virginia, 515 U.S. 819 (1995).
117. Finley, 118 S. Ct. at 2176-78.
118. According to the Court, "Section 954(d)(1) adds 'considerations' to the grant-making process; it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful,' nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application." Id. at 2175.
119. Id.
120. Id.
121. This is how Justice Scalia put the point: [F]actors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the "take into consideration" clause "cannot be regarded as mere surplusage; it means something." . . . This unquestionably constitutes viewpoint discrimination. That conclusion is not altered by the fact that the statute does not "compe[l]" the denial of funding. . . any more than a provision imposing a five-point handicap on all black applicants for civil service jobs is saved from being race discrimination by the fact that it does not compel the rejection of black applicants. Id. at 2181 (Scalia, J., concurring) (quoting Potter v. United States, 155 U.S. 438, 446 (1894)).
122. For a discussion of these criteria, see Hynes v. Mayor, 425 U.S. 610 (1976) (finding ordinance vague); Cohen v. California, 403 U.S. 15 (1971) (holding that state may not prohibit the use of a word because it would offend persons who saw it); Schneider v. New Jersey, 308 U.S. 147 (1939) (finding statutes vague); Lovell v. Griffin, 303 U.S. 444 (1938) (finding ordinance overbroad).
123. See cases cited supra note 110; see also Kolander v. Lawson, 461 U.S. 352 (1983) (finding statute vague); Broadrick v. Oklahoma, 413 U.S. 601 (1973) (discussing overbreadth principles and finding a statute not to be overbroad); Terminiello v. Chicago, 337 U.S. 1 (1949) (finding ordinance overbroad); Henry P. Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1 (discussing overbreadth principles and facial challenges).
124. Finley, 118 S. Ct. at 2176-78.
125. "The NEA's mandate is to make aesthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart. . . from . . . objective decisions on allocating public benefits. . . ." Id. at 2178.
126. Id. at 2172, 2175.
127. Id. at 2184 (Scalia, J., dissenting). For an analysis of the role of "quality" in measuring the protection accorded speech under the First Amendment, and various forms that "quality" may take, see Bezanson, Quality of First Amendment Speech, supra note 8.
128. See Cohen v. California, 403 U.S. 15 (1971).
129. Finley, 118 S. Ct. at 2178.
130. Rosenberger v. University of Va., 515 U.S. 819, 827 (1995).
131. Finley, 118 S. Ct. at 2178.
132. Id. (quoting Rosenberger v. University of Va., 515 U.S. 819, 834 (1995)).
133. Finley, 118 S. Ct. at 2178.
134. This is the thrust of the Court's argument about the inherent nature of merit-based, aesthetic, or other qualitative judgments, which depend upon unconfined exercises of discretion. Id. at 2176-77.
135. See 20 U.S.C. § 951(5) (1994).
136. Finley, 118 S. Ct. at 2179 (quoting Rust v. Sullivan, 500 U.S. 173, 193 (1991)).
137. Id.
138. See supra note 88.
139. Id.
140. See, e.g., South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) (holding that when the state acts as a market participant, it is not limited by the Commerce Clause); Reeves, Inc. v. Stake, 447 U.S. 429 (1980) (recognizing the basic distinction between the state acting as market participant and as market regulator).
141. Finley, 118 S. Ct. at 2179.
142. The idea that government's role can be additive or contributory only, and not exclusive or monopolizing, is similar to the thesis underlying Lee Bollinger's defense of government regulation of the broadcast media, and especially the fairness doctrine. Lee Bollinger, Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 Mich. L. Rev. 1 (1976).
143. Finley, 118 S. Ct. at 2172.
144. See, e.g., Rosenberger v. University of Va., 515 U.S. 819 (1995) (reaffirming that viewpoint discrimination based on speaker's ideology or religious belief is constitutionally prohibited); Lee v. Weisman, 505 U.S. 577 (1992) (holding that school-sponsored commencement prayer is coercive, and thereby violative of the Establishment Clause); Allegheny County v. ACLU, 492 U.S. 573 (1989) (reaffirming that the endorsement of religion by the State is prohibited).
145. See supra notes 57-64 and accompanying text (discussing the difference between government as speaker and government as regulator).
146. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (holding that limitations on speech on public property not opened as a forum for expression must be "reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view").
147. The NEA (the United States) did not stress this argument before the Court, instead choosing to argue that the amendment was nonmandatory and could be fully satisfied by procedural changes in the selection process, and therefore should not be subject to First Amendment scrutiny as a content or point-of-view based speech restriction. See Finley, 118 S. Ct. at 2179; supra notes 107-08 and accompanying text.
148. See Cohen v. California, 403 U.S. 15, 26 (1971) (holding that under the First Amendment the government may not criminalize a "four-letter" word absent a compelling reason); Miller v. California, 413 U.S. 15 (1973) (holding that state statutes designed to regulate obscenity must be narrowly limited under the First Amendment).
149. Rust v. Sullivan, 500 U.S. 173 (1991). For a discussion of the protection that should be given this subsidized speech, see Bezanson, Institutional Speech, supra note 8, at 764-81.
150. See Finley, 118 S. Ct. at 2179 (stating that the government may attach criteria to competitive funding that would be impermissible were the criteria imposed as a regulation of speech).
151. I do not mean to imply, by the very framing of the question, that government should be seen to possess constitutional rights of expression as against competing individual claims and interests. Indeed, there are very good reasons to reject, or at least strictly limit, government speech "rights." For a thorough and groundbreaking discussion of those reasons, as well as the general question of government rights to speak, see Yudof, supra note 5, at 141-57. While I will occasionally refer to government expression protected by the First Amendment, it is not essential that the source of the government's expressive rights be the First Amendment as opposed to other or more general constitutional provisions. What is important is that the government's authority to speak appears to alter the conventional first amendment analysis. See infra notes 143-48 (discussing the protection government speech receives under the First Amendment).
152. As Justice Brandeis put it in his concurring opinion in Whitney v. California, 274 U.S. 357, 377 (1927): "Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution."
153. See supra note 139.
154. U.S. Const, art. II, § 4; see also Barr v. Mateo, 360 U.S. 564 (1959) (holding that statements made by government officials in the line of duty are not subject to libel).
155. See Buckley v. Valeo, 424 U.S. 1 (1976) (sustaining executive lawmaking authority in administrative agencies); United States v. Nixon, 418 U.S. 683 (1974) (pointing out that the courts will give the utmost deference to executive action); Humphrey's Ex'r v. United States, 295 U.S. 602 (1935) (holding that when Congress provides for officers whose functions are not executive in nature, the president may not remove them); Myers v. United States, 272 U.S. 52 (1926) (determining that the removal of executive officials is an executive function).
156. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (allowing a court to close criminal proceedings when necessary to assure a fair trial for defendant); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (determining that a court acted within its scope when it issued a protective order restricting the dissemination of pretrial discovery information); Sheppard v. Maxwell, 384 U.S. 333 (1966) (holding that the freedom of the press must not be allowed to divert a trial from its purpose); United States v. Hastings, 695 F.2d 1278 (11th Cir. 1983) (upholding a court rule that did not permit the use of electronic audiovisual equipment during trial).
157. U.S. Const, art. I, § 6, cl. 1.
158. See, e.g., Gravel v. United States, 408 U.S. 606 (1972) (stating that the purpose of the Speech and Debate Clause is to provide the Legislative Branch wide freedom of speech "without intimidation or threats from the Executive Branch"); Powell v. McCormack, 395 U.S. 486, 505 (1969) (reasoning that the protection given in the Speech and Debate Clause is to "insure that the legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions").
159. Barr, 360 U.S. at 569.
160. National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2179-80 (1998).
161. This, of course, is the very argument made by the plaintiffs in the Finley case, and accepted by the court of appeals. Id. at 2173-74.
162. For a discussion of the mediums through which Legislative, Executive, and Judicial Branches speak, and control their speech, see Yudof, supra note 5, at 5-19, 176-203.
163. See id. at 183-84.
164. See Standards of Professional Conduct Within the Seventh Fed. Judicial Cir. (Jan. 1, 1994); Standards of Professional Conduct, Iowa Rules of Ct. (Apr. 10, 1996); Michigan Rules of Ct., Local Rules of the U.S. District Ct. for the Eastern District of Michigan, Civ. Principles (Feb. 5, 1996); authorities cited supra note 144.
165. See Standards of Professional Conduct Within the Seventh Fed. Judicial Cir. (Jan. 1, 1994); Standards of Professional Conduct, Iowa Rules of Ct. (Apr. 10, 1996); Michigan Rules of Ct., Local Rules of the U.S. District Ct. for the Eastern District of Michigan, Civ. Principles (Feb. 5, 1996); authorities cited supra note 144.
166. See authorities cited supra note 28 (citing sources for public forum analysis).
167. See, e.g., International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677 (1992) (recognizing that the government can control some speech when acting as proprieter); Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (same, when government acting as editor and teacher); cf. Edwards v. Aguillard, 482 U.S. 578 (1987) (explaining statute requiring teaching of creationism along with evolution is invalid for lack of secular purpose, but schools have substantial authority to specify content of curriculum if based on educational grounds); Board of Educ. v. Pico, 457 U.S. 853, 863-65 (1982) (acknowledging school board discretion in selection of library materials).
168. See Post, supra note 5, at 199-267. Robert Post's view, in part, is that limited public forums - those in which only certain types of speech are permitted - reflect government's necessary role as manager of places, property, programs, and policy. He brilliantly surveys the various theories of the public forum and develops his own explanation, which is largely based on instrumental justifications. Id. at 1-22, 199-267.
169. Id. The degrees of scrutiny vary depending on whether the forum is a public forum (strict scrutiny), a limited public forum (reasonableness in limiting the forum, strict scrutiny in judging discrimination among permitted speech), or a non-public forum (reasonableness). For an overview of the complex doctrine and its many contested features, see International Soc'y for Krishna Consciousness, 505 U.S. 672 (1992).
170. Few of the "government speech" cases could survive any substantial degree of scrutiny, given a requirement that a restriction on speech be grounded in a speech-neutral justification. See, e.g., Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633 (1998) (holding that a state-owned television station could use content-based, but viewpoint-neutral journalistic discretion to exclude a political candidate from a television debate); Rust v. Sullivan, 500 U.S. 173 (1991) (holding that viewpoint-based government regulations banning speech about abortion in federally funded clinics was not impermissible); Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) (holding that the government may choose not to grant tax exemptions to all groups that influence legislation or carry on propaganda).
171. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (holding that limitations on campaigning at polls serve the compelling state interest of preventing voter intimidation); International Soc'y for Krishna Consciousness, 505 U.S. 672 (1992) (holding that a ban on solicitation in airports "need only satisfy a standard of reasonableness"); Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 801 (1985) (holding that the government did not violate the First Amendment when selecting groups that could participate in charity drives); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (holding that ad space on a city transit system is not a public forum because it is "a part of a commercial venture").
172. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (stating that school mail facilities are public property, but not a public forum).
173. See Post, supra note 5, at 199-268; Stone, supra note 5; authorities cited supra notes 158-59.
174. Compare Finley, 118 S. Ct. at 2172 (discussing benign purposes of the NEA grant program and its minor role in support for artistic expression nationally), with Forbes, 118 S. Ct. at 1643-44 (limiting editorial judgments to content neutral ones in light of the unique expressive forum [broadcast debate] and thus the monopoly possessed by the government speaker). See Yudof, supra note 5, at 240-45 (discussing government purpose as a criterion by which editorial functions are performed by government); Canby, supra note 5, at 1124-25, 1133-34 (distinguishing legitimate, institutional government purposes being achieved through expression, and government expression whose purpose is to frustrate free expression).
175. See supra note 161. The distinction between government expression that monopolizes or excludes competing ideas and that which is participatory or additive to the quantum of speech on a subject, especially in the education setting, was nicely developed by Mark Yudof in his groundbreaking book, When Government Speaks, supra note 5, at 292-99.
176. See Bollinger, supra note 130. Bollinger's thesis would justify such limits of a medium under the government-as-regulator model, however. The government speech forum idea in Finley, however, limits the imposition of such speech restrictions to government-owned or government-subsidized media.
177. See Finley, 118 S. Ct. at 2178-79.
178. See William Buss, Schools and the First Amendment, 74 Iowa L. Rev. 505, 533-43 (1989) (explaining that academic freedom has always been difficult to explain under the First Amendment, largely because, in public educational institutions, it is claimed by government employees, or agents, with respect to speech communicated in the course of employment.)
179. Trying to impose one's personal philosophy in the classroom is generally not protected by academic freedom as that concept is recognized by the AAUP and most major public universities. See Cohen v. San Bernardino Valley College, 883 F. Supp. 1407 (C.D. Cal. 1995); American Assoc. Univ. Professors, 1940 Statement of Principles on Academic Freedom and Tenure, with 1970 Interpretive Comments.
180. Mark Yudof suggests a similar distinction between the dangers of government indoctrination in the educational setting, in which government speech is directed to a captive audience, and government expression that affords ample opportunity for competing views. Yudof, supra note 5, at 292-99; cf. Edwards v. Aguillard, 482 U.S. 578 (1987) (holding that a state law forbidding the teaching of evolution without the teaching of creationism is invalid because it lacks a secular purpose).
181. Finley, 118 S. Ct. at 2176-77.
182. Id. at 2176.
183. Compare Finley, 118 S. Ct. at 2178-79 (pointing out that because of the nature of NEA funding the government must make content-based decisions), with Forbes, 118 S. Ct. at 1640-41 (noting that because of the nature of a publicly broadcasted political debate, any limitations on participants must be viewpoint neutral).
184. See C. Edwin Baker, Human Liberty and Freedom of Speech (1989) (arguing that viewing freedom of speech as an individual liberty excludes protection for most advertisements and corporate or commercial speech); Bezanson, Institutional Speech, supra note 8, at 755-57, 764-65 (discussing meaning of institutional speech). Individual speech is protected not so much because of its value but rather because it manifests individual liberty of thought and belief. The expression of the speaker's own free will is placed largely beyond government reach because such immunity is necessary for individual freedom. In contrast, government speech, like other forms of institutional speech, is not an expression of individual free will but instead of "corporate" purpose abstracted from the individuals who comprise the institution or who speak as its agents. Id. at 785-93.
185. See Bezanson, Institutional Speech, supra note 8, at 785-93; see also Rust v. Sullivan, 500 U.S. 173, 192-201 (1991) (allowing the government to ban selected abortion speech by employees of federally funded clinic while they are working at the clinic); Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657 (1990) (pointing out that speech by corporations can be restricted consistently with the First Amendment); Buckley v. Valeo, 424 U.S. 1, 55-57 (1976) (sustaining limits on contributions in support of speech because the contributions are transformed into speech by others).
186. See supra note 171.
187. See supra note 171 and accompanying text.
188. See supra notes 160-70 and accompanying text (discussing distinction between government acting as regulator and government acting as speaker).
189. See Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990) (upholding a statute that prohibited corporations from using their own funds for independant expenditutes in supporting or opposing candidates); Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258-62 (1986) (discussing the difference between political expenditures made by business corporations and nonprofit political organizations); Bezanson, Institutional Speech, supra note 8 (discussing public and private speech selection judgments).
190. See Massachusetts Citizens for Life, 479 U.S. 238 (1986) (discussing the difference between political expenditures made by business corporations and non-profit political organizations); Buckley v. Valeo, 424 U.S. 1 (1976)
191. Massachusetts Citizens for Life, 479 U.S. 238 (1986); see also Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (allowing a union to speak for its members).
192. Austin, 494 U.S. 652 (1990).
193. See, e.g., United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (holding government can restrict honoraria for speeches of government employees only if the speech is related to their government positions); Rust v. Sullivan, 500 U.S. 173 (holding that a government imposed ban on abortion speech did not violate the First Amendment because the speech was only banned when the employees were using government funds); Austin, 494 U.S. 652 (1990) (holding that when members of Chamber of Commerce do not specifically authorize a political endorsement, prohibition on endorsements by chamber and other corporations does not violate the First Amendment); Massachusetts Citizens for Life, 479 U.S. 238 (1986) (holding that single-issue, ideological organization can be viewed as speaking for each of its members and therefore its speech is fully protected by the First Amendment in the interest of its individual members); Connick v. Myers, 461 U.S. 138 (1983) (holding that a public employee's free speech rights must be determined by balancing the interests of the citizen and the State, as an employer).
194. See Rust, 500 U.S. 173 (1991) (holding that restrictions on abortion speech did not violate employee's First Amendment rights because they were still able to speak outside of work); Connick, 461 U.S. 138 (1983) (holding that a public employee's rights of free speech must be determined by balancing the interests of the employee as a citizen, and the State, as an employer); Pickering v. Board of Educ., 391 U.S. 563 (1968) (holding that a teacher's interest as a citizen must be weighed against the State's interest as an employer when determining free speech rights in public comments).
195. See Rust, 500 U.S. 173 (1991) (holding that a prohibition on the use of federal funds for abortion speech does not violate free speech); Connick, 461 U.S. 138 (1983) (holding employee speech, qua employee, is treated differently from speech of a private citizen); cf. United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (finding that statute broadly prohibiting federal employees from receiving honoraria from speeches and articles is violative of free speech).
196. See National Treasury Employees Union, 513 U.S. 454 (1995) (upholding a law prohibiting federal employees from accepting compensation for speeches or articles related to their public positions).
197. See Bezanson, Institutional Speech, supra note 8, at 772-77 (discussing the difference between institutional speech and individual speech and the implications of that distinction).
198. The association, or attribution, problem has been addressed by the Court in a number of settings, though the Court's treatment of it cannot be described as systematic at this point. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992) (O'Connor, J., Kennedy, J., and Souter, J., plurality opinion) (holding that requirement that physician provide information to patient does not violate the physician's First Amendment rights because such physician/patient speech takes place "only as part of the practice of medicine . . . ."); Keller v. State Bar of Cal., 496 U.S. 1 (1990) (holding the same for compulsory bar dues, a portion of which was used to support causes with which the bar member disagreed but would be forced to support); Austin, 494 U.S. 652 (1990) (finding speech of membership corporation cannot be attributed, or traced, to the speech intentions of the individual members because the corporation's expressive aims were too diffuse); Communications Workers v. Beck, 487 U.S. 735 (1988) (holding union member has right to withhold portion of dues that support views unrelated to the union's bargaining responsibilities); Massachusetts Citizens for Life, 479 U.S. 238 (1986) (holding that speech by single-purpose ideological organization, related to positions known and subscribed to by the members, can be attributed to the members and thus qualify as members' speech, not the organizations alone); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (finding that union member has the right not to pay portion of dues unrelated to collective bargaining in order to avoid attribution to the speech purchased by the dues); Wooley v. Maynard, 430 U.S. 705 (1977) (holding that license plate motto would be attributed to the owner of the vehicle, thus violating the owner's right to express only ideas he or she chooses); Buckley v. Valeo, 424 U.S. 1 (1976) (finding that a contribution is not speech because resulting speech by another cannot be attributed to the speech intentions of the contributor).
199. See Rust, 500 U.S. 173 (1991) (holding that restrictions on abortion counseling did not violate the free speech rights of employees of government subsidized clinic).
200. 500 U.S. 173 (1991); see also authorities cited supra note 8.
201. 42 U.S.C. § 300a-6 (1994); 42 C.F.R. § 59(8)(a)(1)-(3) (1997).
202. See Rust, 500 U.S. at 199 (noting that the limitation on employees' expression is a consequence of their decision to accept employment on a project).
203. Id.
204. E.g., Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992) (pointing out that doctor's speech is subject to those limitations imposed by licensing and regulation by the state); Board of Educ. v. Pico, 457 U.S. 853 (1982) (holding that the government can make a professional selection of library materials); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a newspaper is allowed to print information if there is an honest belief in truth).
205. See Sherbert v. Verner, 374 U.S. 398 (1963) (holding that conditions placed on the receipt of public assistance could not interfere with free exercise of expression). For an insightful and thorough discussion of the cases and the underlying theory, which is clearer in its expression than in its actual enforcement, see Kathleen Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); see also Lyng v. UAW, 485 U.S. 360 (1988) (upholding limits on food stamps for families in which member is on strike, on grounds that condition resting on speech activity (striking) was closely related and limits would not prevent affected persons from engaging in collective activity).
206. See Elrod v. Burns, 427 U.S. 347 (1976) (finding that forcing a public employee to relinquish his rights to political association as the price of holding a public job violates the First Amendment); Perry v. Sindermann, 408 U.S. 593 (1972) (holding that a teacher had a First Amendment claim when his contract was not renewed after he criticized the school); Keyishian v. Board of Regents of the Univ. of the State of N.Y., 385 U.S. 589 (1967) (finding that a law making Communist Party membership prima facia evidence of disqualification for employment in the public school system was overbroad, and therefore unconstitutional).
207. E.g., United States v. National Treasury Employees Union, 513 U.S. 454, 478-79 (1995); Connick v. Myers, 461 U.S. 138 (1983) (balancing the interests of the government, as employer, and the interests of the employee, as an individual, when determining a government employee's free speech rights); Cole v. Richardson, 405 U.S. 676 (1972) (upholding a statute requiring that public employees take an oath); see also authorities cited supra note 180.
208. See National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998) (requiring consideration of general standards of "decency and respect" for the diverse beliefs of the American public when granting applicants NEA funds is not unconstitutional); Glickman v. Wileman Bros. & Elliot, Inc., 117 S. Ct. 2130 (1997) (holding that the First Amendment is not violated by government requirement that tree fruit growers pay for generic advertisement); Rust, 500 U.S. 173 (1991) (finding a ban on abortion speech for clinics and their employees who receive public funding constitutional).
209. Rust, 500 U.S. 173 (1991).
210. One might attempt to craft a limit prohibiting government from attaching speech conditions to social welfare or other categorical funding programs, but upon scrutiny the distinction between "discretionary" funding and "categorical" programs breaks down. And many categorical programs, such as aid to educational institutions, have speech restrictions (e.g., in the form of sexual harassment policy requirements).
211. These two arguments at the center of Finley's challenge were rejected by the Court. Finley, 118 S. Ct. at 2176-78.
212. Rust, 500 U.S. 173 (1991). The government's position, reflected in its speech limitations, was that abortion should not be used as a means of birth control - indeed it should be used in only the most limited of circumstances - notwithstanding the woman's constitutional right to have an abortion in most of the so discouraged circumstances. Id. at 192-201.
213. See Sullivan, supra note 192.
214. Rust, 500 U.S. at 200.
215. Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1636 (1998).
216. See New York Times Co. v. United States, 403 U.S. 713 (1971) (upholding a newspaper's freedom to make editorial decisions); Marbury v. Madison, 5 U.S. 137 (1 Cranch) (1803) (establishing the concept of judicial review of the acts of the coordinate branches of government).
217. Rust, 500 U.S. 173 (1991).
218. See O'Hare Truck Serv. v. City of Northlake, 518 U.S. 712 (1996) (holding that an independent contractor had a cause of action under the First Amendment when its name was removed from a city rotation list because of its support for a political candidate).
219. As it might do by sponsoring a thematic program or art display.
220. National Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2179-80 (1998).