Discriminatory Paycheck Protection
20 Pages Posted: 16 Jun 2020 Last revised: 31 Jul 2020
Date Written: June 16, 2020
Lobbyists and strip club owners have both gone to court recently to challenge their exclusion from the $659 billion Paycheck Protection Program, one of Congress's largest responses yet to the economic devastation unleashed by the COVID-19 pandemic. So far, surprisingly, strip club owners have been successful while political lobbyists have failed. Appeals are pending in several circuits, with more surely to come.
This Essay argues that when it comes to the Constitution, these split decisions get things exactly right: strip clubs have a stronger free speech claim than lobbyists do, despite the fact that lobbyists engage in expression closer to the core of the First Amendment. Seeing why requires us to answer what the Supreme Court recently referred to, and dodged (in Matal v. Tam), as a "notoriously tricky question of constitutional law": how to draw the line between selective subsidies for expression and targeted attempts to suppress it. The strip club cases ask when the government's funding priorities become a form of discrimination--an abridgment of speech rather than an ordinary decision about what to support during the current crisis.
Keywords: First Amendment, free speech, viewpoint discrimination, CARES Act, Paycheck Protection Program, administrative law
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