Prof. Eugene Volokh, UCLA Law School
Yesterday the Supreme Court confronted a recurring free-speech question: When may the government route our money to support speech that we dislike? The general answer is "often." The government funds speech aimed at encouraging patriotism, discouraging racial prejudice, condemning the use of drugs, tobacco and alcohol, and accomplishing many other worthy aims. The money used for this speech comes from taxpayers, some of whom are bound to disagree bitterly with the message the government seeks to communicate. But that's democracy.
Still, the court has concluded that people sometimes do have a constitutional right not to have their money routed to such advocacy. The leading decision on this issue is Abood v. Detroit Board of Education (1977), in which the justices held that a government employer may not require employees to give funds to a union that will spend the money for political purposes. The government could demand that employees pay for collective bargaining and other activities "germane" to the union's core functions -- but not for lobbying or ideological advocacy. The court later applied the same principle to lawyers' mandatory payments to bar associations.
Yesterday's decision in Board of Regents v. Southworth concluded that the rule was different for university students. University of Wisconsin students had to pay an "activity fee" of $330 a year, separate from tuition; 20% of the money was then given to student groups, and much of that was used for political advocacy. (Such programs are common at state universities.) The government thus directed students' money to support speech with which many students disagreed. But the court upheld the practice, for two reasons.
First, both parties litigated the case on the assumption that the program was "viewpoint neutral": Republicans and Democrats, socialists and capitalists all were equally eligible to get funds. Second, though the requirement of "germaneness" might work for unions, it can't work for university funding programs like this. The program's purpose was to "stimulate the whole universe of speech and ideas" -- and everything is "germane" to that.
Of course, such programs aren't necessarily viewpoint-neutral. Even in this case, the court cast serious doubt on one of the university's funding mechanisms -- a student referendum on funding or defunding any particular group. Such a vote, the Court suggested, invites viewpoint discrimination. One can likewise wonder whether student-government organizations that make decisions on groups' funding requests can really be free of viewpoint discrimination. If students at some school think there is such discrimination, they may still sue, and some probably will.
But let's step back and ask: What is the free-speech problem here in the first place? Say the University of Wisconsin student government allocates a special fund to subsidize student advocacy against racism, against alcoholism or in favor of cheese. Even with this sort of blatantly viewpoint-discriminatory funding program, do students really have a complaint that their constitutional rights are being violated?
After all, all of us pay taxes that routinely go to the government's viewpoint-based advocacy campaigns. Likewise, as Justice David Souter pointed out in his concurring opinion, students' tuition helps pay professors' salaries, and professors often teach from particular perspectives. The principles of academic freedom (which might or might not be protected by the Constitution) may sometimes lead the university to define course content viewpoint-neutrally -- but only sometimes.
Surely a university may bar astronomy teachers from teaching that the positions of astronomical bodies control people's personalities, or bar chemistry professors from teaching the phlogiston theory of fire. A university may even insist that a microeconomics class be taught from a classical perspective rather than a mercantilist one. These are choices to foster viewpoints that the university thinks are right, and they're carried out with tuition and tax revenues. And yet students and taxpayers who disagree may not demand a refund of their payments.
The Constitution secures our freedom of speech, and this necessarily also secures some freedom related to money. The government may not, for instance, ban our spending money to fund speech we like (such as buying ads supporting political candidates), since such a ban would stop us from speaking effectively. But by the same token, just as the government may speak itself, so it may use money -- necessarily others' money, since that's the only money it has -- to speak, or to subsidize speech. Whether the money comes from taxes, tuition, segregated "activity fees," bar-association dues or deductions from government employees' paychecks seems irrelevant. There's no economic difference between such payments.
Freedom of speech is extremely important, and unfortunately these days many of the institutions that should protect it have begun to abandon it. (In the late 1980s, the same University of Wisconsin that now aims to "stimulate the whole universe of speech and ideas" adopted a broad campus speech code that was eventually struck down in court.) But to keep free-speech protections strong, we must properly distinguish cases that genuinely involve free speech from those that don't. To claim that government funding programs -- or, for that matter, laws against conduct like sleeping in public parks -- violate free speech only waters down our core constitutional protections.
The Constitution stops the government from outlawing or punishing speech because of its viewpoint. It also, as the court reiterated yesterday, bars the government from excluding a few disfavored viewpoints from a public forum that's supposed to further the speech of a wide range of groups. This viewpoint-neutrality requirement in public forums must apply regardless of where the money comes from, be it taxes, tuition, or fees, for it focuses on the rights of speakers, not the rights of taxpayers.
But when the question is only
whether we may be exempted from a fee because we don't like the
ideological purpose for which it's used, the free-speech clause
shouldn't be in the picture. Taxes can be foolish or
oppressive -- but they aren't abridgements of free speech.