Vol. 73, No. 6, June 2000

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The Price of Free Speech: Regents v. Southworth

This construct was borrowed from conventional public forum analysis. Government is permitted to devote public resources for public use, so long as access to the public resource is made equally available for use. The usual circumstance is a public park. Taxes subsidize the maintenance, upkeep, and at times the creation of a park. Yet no one believes that all taxpayers support the various messages in the rallies or demonstrations in the park. And while many taxpayers may be genuinely offended by the speech taking place in the park, the answer is not to close the park or deny access to those with whom we disagree, even though they may be the Nazi party or the Ku Klux Klan.¹⁸ The First Amendment answer is to hold a counter demonstration to generate contrary speech and let the "marketplace of ideas" sort out the truth.¹⁹

Applying the public forum analysis to nonspatial fora such as pools of money was not entirely new. The Supreme Court had applied public forum analysis to require equal access to an internal mailbox system²⁰, and in Rosenberger had characterized the student fee system as a limited public forum, albeit one "more in a metaphysical than in a spatial or geographic sense."²¹ Southworth was a logical application from these cases. The decision places the university in the functionally equivalent position of the public park administrator who must allocate park or parade permits. So long as the university has opened a resource for public use, it must allow access to all groups equally whether or not the university agrees or disagrees with the group's message.

Grafting the viewpoint neutrality principle into the student fee context has a particular resonance in the university setting. Even more so than a public park, the university setting is traditionally thought of as a place for experimentation of ideas and vigorous:

"The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"²²

Not only have faculty been accorded wide First Amendment berth²³, but the First Amendment has protected the rights of students to gain equal access to facilities to conduct meetings for groups as controversial as the Students for a Democratic Society.²⁴

By the same reasoning, the requirement of viewpoint neutrality raises significant questions about the referendum process at U.W.-Madison that permitted students to vote on funding decisions. Since the point of viewpoint neutrality was to provide First Amendment protection to objecting students, it is easy to understand why a referendum allowing voting on funding is suspect. Minority viewpoints could, through funding restrictions, be swept away at the voting booth by majority rule.

Returning to the public park analogy, funding decisions based on popular vote would be akin to allowing the issuance of permits for parks and other public fora based on popular vote. In either case, the views of less popular groups would be voted down and the marketplace of ideas improperly skewed. Prior to Southworth, the analysis of referenda systems to allocate student fees had yielded mixed results. A system with a binding referenda had been struck down²⁵, while an advisory referenda system had been upheld.²⁶ Because the record was not fully developed on this issue, the Supreme Court ultimately remanded that issue for further consideration.

Future Program Guidance

Not all universities are alike. While a university is "entitled to impose a mandatory fee to sustain an open dialogue" to promote its educational mission, the Supreme Court was careful to state that a university is under no First Amendment obligation to offer a mandatory fee program to subsidize student groups. Like government generally, public universities have considerable, albeit not unlimited, freedom to choose what programs to support financially.²⁷

A university choosing to impose a mandatory student fee also has considerable leeway to structure a student fee program. Although not constitutionally required, a university is free to allow an optional payment or a refund mechanism. To take an example, a check-off system like the one approved in Buckley v. Valeo would seem to be permissible.²⁸ The question left unresolved is whether the check-off would apply generally to the fund, whether a student could refuse to contribute to particular groups, or whether students would be allowed to opt into subsidizing certain groups but not others.

As a constitutional matter, the Supreme Court rejected any geographic limitations on student fee programs, "[w]e make no distinction between campus activities and off-campus expressive activities of objectionable RSOs." That, however, does not foreclose restricting a student fee program to the campus confines. A university is also free to define whether the geographic limits of a program can extend beyond campus. The public forum model would support this limitation as a limited public forum.

Viewpoint Neutrality Is Essential

Implicit from the Court's analysis is the caution that viewpoint neutrality must be taken seriously. We have a rich and unfortunate history of dogged efforts to silence unpopular speech under various guises. Groups like the Nazi party and the Ku Klux Klan are the usual targets, and the Supreme Court has made it clear that the First Amendment is not selective in its application.²⁹ Student fee programs are subject to the same scrutiny if they are administered in such a way to prevent equal access to a student group for a viewpoint-based reason.

The possibilities are not difficult to imagine. Funding decisions could be manipulated so that less popular student groups with minority political or ideological views will receive lower levels of funding, or no funding at all. Although subtler than holding a binding referendum to de-fund a minority student group, the discriminatory effect is the same: the First Amendment protections of minority viewpoints are eliminated.

Southworth provides important precedent to challenge that type of conduct.

This Is Not Government Speech

While Southworth was a broad endorsement of free speech and debate in the university setting, there were explicit limitations. Most important, the challenged speech was not that of the University of Wisconsin, but was student speech:

"The University's whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors."³⁰

The difference matters.

Government speech is subject to a separate First Amendment analysis, and the Court explicitly warned that the viewpoint neutrality standard does not apply when examining First Amendment challenges to the decisions by a university or its faculty.³¹ Those decisions are governed by the government speech doctrine that does not require viewpoint neutrality, but recognizes that government has wide discretion to fund programs and speech that it values, and decline funding for speech it does not value.³² The only limitation is when government has allocated its funding in such a way to discriminate invidiously in an effort to aim at the suppression of dangerous ideas.³³

The Concern Over Speech Codes

The concurring opinion by Justice Souter, joined by Justices Stevens and Breyer, hinted at another concern: university speech codes.³⁴ The concern was aimed at limiting the broad-based principle that a university is well within its bounds in the interest of academic freedom to pursue programs that facilitate a broad array of student speech. While expansive, the authority of the university to define its missions is not unlimited, particularly when it does so in a way to burden First Amendment rights.

Jon G. Furlow, Minnesota 1986, is a partner in the litigation group at the Madison office of Michael Best & Friedrich LLP. He was counsel of record for the ACLU of Wisconsin, an amicus party, throughout the Southworth case, and counsel of record for ACLU and People for the American Way in the U.S. Supreme Court Southworth proceedings. In addition to his practice involving commercial litigation, he is often involved in First Amendment issues.

Speech codes come into play. They often have been justified as necessary to protect the right to an open academic environment free from hostile or demeaning harassment.³⁵ Even though speech codes arguably further academic freedom like student fees, they undeniably operate to restrict rather than expand speech. To warn against taking the broad endorsement academic freedom in Southworth too far, the concurring opinion was clear that Southworth should have been decided on narrower grounds with the academic freedom reasoning as only an important consideration in the First Amendment analysis.

The Debate Is Not Over

While Southworth provided clear guidance in student fee programs, the debate is not over. It will now move to the student government where RSOs will clamor to get a fair share of funding to put out their own message. That would be a welcome First Amendment response.

Endnotes

¹ Cohen v. California, 403 U.S. 15 (1971).

² Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 137 (1961).

³ Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Keller v. State Bar of California, 496 U.S. 1 (1990); see also Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996).

⁴ Board of Regents of the Univ. of Wis. Sys. v. Southworth, __ U.S. __, 120 S. Ct. 1346 (2000).

⁵ Keyishian v. Board of Regents, 385 U.S. 589 (1967); Sweezy v. New Hampshire, 354 U.S. 234 (1967).

⁶ Glickman v. Wileman Brothers & Ellioti Inc., 521 U.S. 457 (1997).

⁷ Smith v. Regents of the Univ. of California, 4 Cal. 4th 843, 844 P.2d 500 (Sup. Ct.) cert. denied, 510 U.S. 863 (1993); Galda v. Rutgers, 772 F. 2d 1060 (3d Cir. 1985) cert. denied, 475 U.S. 1065 (1986).

⁸ Carroll v. Blinken, 957 F. 2d 991 (2d Cir.) cert. denied, 506 U.S. 906 (1982); Kania v. Fordham, 702 F. 2d 475 (4th Cir. 1983); Hays County Guardian v. Supple, 969 F. 2d 111 (5th Cir. 1992), cert. denied, 506 U.S. 1087 (1993); Rounds v. Oregon State Bd. of Education, 166 F. 3d 1032 (9th Cir. 1999); Good v. Associated Students of the Univ. of Washington, 86 Wash. 2d 94, 542 P.2d 762 (Sup. Ct. 1975).

⁹ Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995).

¹⁰ Id.

¹¹ Southworth v. Grebe, No. 96 C 292S, slip op. (W.D. Wis. filed Nov. 29, 1996); Southworth v. Grebe, 151 F. 2d 717 (7th Cir. 1998).

¹² Southworth v. Grebe, 157 F. 3d 1125 (7th Cir.1998).

¹³ Southworth, 120 S. Ct. at 1354.

¹⁴ E.g. International Machinists v. Street, 367 U.S. 740, 778 (1961).

¹⁵ Southworth, 120 S. Ct. at 1355; Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991); see also Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996).

¹⁶ Southworth, 120 S. Ct. at 1355.

¹⁷ Wooley v. Maynard, 430 U.S. 705 (1977).

¹⁸ Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978).

¹⁹ Keyishian v. Board of Regents, 385 U.S. 589 (1967).

²⁰ Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).

²¹ Rosenberger, 515 U.S. at 830.

²² United States v. Associated Press, 52 F. Supp. 362, 372.

²³ Keyishian v. Board of Regents, 385 U.S. 589 (1967); Sweezy v. New Hampshire, 354 U.S. 234 (1967).

²⁴ Healy v. James, 408 U.S. 169 (1969).

²⁵ Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986).

²⁶ Carroll v. Blinken, 957 F.2d 991 (2d Cir.) cert. denied, 506 U.S. 906 (1992).

²⁷ E.g. Regan v. Taxation with Representation, 461 U.S. 540 (1983).

²⁸ Buckley v. Valeo, 424 U.S. 1 (1976).

²⁹ Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).

³⁰ Southworth, 120 S. Ct. at 1354.

³¹ Id. at 1357.

³² Regan v. Taxation with Representation, 461 U.S. 540 (1983); Rust v. Sullivan, 500 U.S. 173 (1991).

³³ Cammarano v. United States, 358 U.S. 498 (1959).

³⁴ Southworth, 120 S. Ct. at 1357 fn. 5 (Souter concurring).

³⁵ Dambrot v. Central Michigan Univ., 55 F. 3d 1177 (6th Cir. 1995); UWM Post v. Board of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).