Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination
Posted: 10 Jun 2014
Date Written: August 2000
It would be impossible to list all the government benefits or subsidies that affect our lives today. As a consequence, much citizen speech occurs either in forums provided by the government or in connection with enterprises financed in part by government largesse. This creates a First Amendment dilemma. On one hand, the government naturally uses the power of the purse to discourage policies or behaviors with which it disagrees. On the other hand, the state sometimes chooses not to discontinue a controversial initiative, but rather to impose conditions on the use of public funds to bring the program in line with particular governmental objectives. The First Amendment becomes implicated when the government attempts to restrict private speech as part of its benefit package. According to the Supreme Court’s rhetoric, the government is free to condition its subsidies as it chooses, as long as it does so in a viewpoint-neutral manner.
The prohibition against viewpoint discrimination, then, should play a major role in restraining government censorship of private speech activities within government-funded subsidy or benefit programs. Indeed, in the general speech domain as well as the public forum setting, viewpoint discrimination has been defined in such a way as to provide substantial protection to private actors’ First Amendment rights. This has not always been the case in either the nonpublic forum or the subsidy arenas. This Article compares how the prohibition on viewpoint discrimination has been applied in these various contexts, and argues that the Court has erred in treating the First Amendment’s viewpoint neutrality mandate as a dead letter in nonpublic forums and nonforum government funding applications. The Article calls for the reanimation of viewpoint discrimination as a limit on the government’s ability to censor private speech in nonpublic forums and selective subsidy programs. Whether the state promotes citizen speech activities through a government-financed initiative or a government-sponsored forum, the First Amendment requires that those funding decisions comport with substantive standards of viewpoint neutrality.
Keywords: viewpoint discrimination, government subsidies, First Amendment, public forums, forum doctrine
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