Viewpoint Discrimination in Free Speech Cases

Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Courts may also describe this constitutional requirement by saying that government laws and decisions must be ‘‘viewpoint neutral.’’ In recent decades, viewpoint discrimination has been distinguished from content or subject matter discrimination, which involves government regulation of an entire topic or subject, such as abortion, war, or sexual speech, either by punishing those who use this kind of speech (such as obscenity) or by completely excluding the subject from discussion on particular government property or in public forums.

Government laws and regulations that evince viewpoint discrimination generally receive the highest form of scrutiny under the free speech clause, because viewpoint discrimination threatens many of the purposes for protecting speech. For example, in RAV v. City of St. Paul, referring to Justice Holmes’ argument that the free speech clause ensures a marketplace of ideas that can compete for acceptance by citizens seeking the truth, the Court noted that the government may improperly try to use content or viewpoint discrimination to drive certain ideas out of the marketplace. In addition, government suppression of controversial viewpoints threatens the role of free speech in checking abusive government practices that might otherwise go unchallenged. Viewpoint discrimination also makes it difficult for citizens to engage in effective self-government by preventing them from hearing political speech that contradicts the government’s position and prevents citizens from ‘‘blowing off steam’’ by expressing their views under the ‘‘safety valve’’ rationale for the free speech clause.

By contrast, the RAV Court argued that excluding whole subject matters or categories of speech, particularly from certain nonpublic areas of government property, does not quite raise ‘‘the same concerns of government censorship and the distortion of public discourse presented by viewpoint regulations.’’ Therefore, the Court has more often upheld subject matter or content restrictions in limited public forums and nonpublic forums if no particular viewpoint is excluded by the government. For example, the Court has held that cities may impose zoning regulations on nonobscene sexual speech, Young v. American Mini Theatres, and may regulate indecent language in the media to protect children, FCC v. Pacifica Foundation, without violating the First Amendment.

On occasion, the Supreme Court has all but suggested that viewpoint discrimination is never permitted under the free speech clause; see Perry Education Association v. Perry Local Educators’ Association. On other occasions, particularly before the Supreme Court’s full elaboration of the public forum doctrine in cases such as Perry Education Association, the Court has discussed viewpoint discrimination under the rubric of content discrimination, see Chicago Police Department. v. Mosley and Carey v. Brown, or suggested that content and viewpoint discrimination will be subjected to the same standard of inquiry. For example, in Consolidated Edison Co. v. Public Service Comm’n, involving the Commission’s ban on utility bill inserts that commented on controversial public energy policy, the Supreme Court held, ‘‘[t] he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic....’’

However, viewing all of the Court’s cases as a whole, it is more accurate to say that although content discrimination is permitted in many circumstances, especially in limited public and nonpublic government-owned forums, viewpoint discrimination is rarely permitted and is normally subjected to the strictest standards of scrutiny.

As a threshold matter, a reviewing court must determine whether a government decision constitutes viewpoint discrimination, which is not always an easy matter. The most debated cases on whether a government content exclusion is actually viewpoint discrimination have been those in which a state has refused to extend privileges, such as funding or space, to religious groups. Usually, the government has denied space or funding because of its view that providing government assistance to a religious organization that wishes to worship or proselytize would violate the establishment clause. In at least three cases, the Court has held that providing government assistance or space to secular groups engaged in communicative acts while denying the same assistance to religious groups constitutes prohibited viewpoint discrimination. In Lamb’s Chapel v. Center Moriches Union Free School Dist, the Court held that a public school’s decision to permit school property to be used for the presentation of many views about family issues and child rearing but not those of a religious group constituted viewpoint discrimination. In Rosenberger v. Rector and Visitors of University of Virginia, the Court found viewpoint discrimination when a state university refused to fund a student religious newspaper when it funded secular student communication forums in violation of the free speech clause. Most recently, in Good News Club v. Milford Central School, the Court held that a public school’s refusal to permit a student group to gather for Christian education and worship in the school building after school hours, while providing the space to nonreligious community groups, violated the free speech clause. Consistent with these cases is Widmar v. Vincent, although in Widmar, the Court had characterized a university’s refusal to provide meeting space for a student religious group as a ‘‘contentbased exclusion,’’ which is not permitted in public forums except for compelling reasons. In Widmar, as in the later cases, the University failed to show that its regulation was necessary and narrowly drawn to serve the compelling state interest in avoiding establishment clause violations.

By contrast, the Court has often determined that a government’s decision to exclude certain speakers from public property does not constitute viewpoint discrimination, despite the fact that those groups are promulgating a message that contradicts the views of groups permitted to speak by the government. For example, in Perry Education Association, a rival teachers’ union requested that it be permitted to put fliers about its views on teachers’ rights and school interests in teachers’ mailboxes, just as the recognized teachers’ union was allowed to do.

In Perry Education Association, the Court held that in nonpublic forums, government officials’ exclusions of speakers were required only to be reasonably related to the government interests and not to discriminate on the basis of viewpoint. Despite the fact that the rival union wished to challenge many claims of the recognized teachers’ union, the Court held that the school’s exclusion of the rival union was not viewpoint discrimination. Rather, school officials had decided to permit and deny union speech on the basis of the status of the speaker: the recognized union had a role in the collective bargaining process and thus in school-related matters, whereas the non-recognized union had no official school role.

Similarly, in Ark. Education Television Commission v. Forbes, the Supreme Court refused to find viewpoint discrimination when a state agency operating public television stations excluded Congressional candidate Ralph Forbes from its televised candidate debates because the electorate did not evidence interest in his platform or candidacy. The Commission had made a decision to limit participation in the debates to ‘‘major party candidates or any other candidate who had strong popular support.’’ Construing the ‘‘viewpoint neutrality’’ requirement in nonpublic forums to mean that a government actor ‘‘cannot grant or deny access to a candidate debate on the basis of whether it agrees with a candidate’s views,’’ the Court held that the Commission’s decision was viewpoint neutral: Forbes was not excluded ‘‘because his views were unpopular or out of the mainstream’’ but because of ‘‘his own objective lack of support’’ among voters.

The fact that government excludes speakers because they may cause controversy is not sufficient to trigger the court’s viewpoint discrimination rule. In Cornelius v. NAACP Legal Defense and Educational Fund, Inc., the Supreme Court upheld the Reagan administration’s decision to prohibit groups from participating in its annual federal employee charitable giving campaign, the Combined Federal Fund, if they were ‘‘[a]gencies that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation....’’ Applying the Perry Education Association rule to conclude that the Fund was a nonpublic forum, the Court held that ‘‘[t]he First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose.’’ In the Court’s view, exclusion of these advocacy groups because their causes may be controversial to minimize workplace disruption caused by employee reactions to them and thereby ensure the fundraising effort’s success did not constitute viewpoint discrimination.

Similarly, in Hazelwood School Dist. v. Kuhlmeier, the Court refused to hold that a public school could censor student newspaper articles without running afoul of the ‘‘viewpoint neutrality’’ requirement. The Court held that educators might ensure that students ‘‘are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.’’ As a result, student speech on ‘‘potentially sensitive topics’’ or advocacy of ‘‘drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order,’’’ could be excluded without running afoul of the viewpoint neutrality rule. Justice Brennan, in dissent, expressed the view that a school’s ‘‘‘mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint’... or an unsavory subject...does not justify official suppression of student speech in the high school.’’

On the other hand, the Court has invalidated statutes on the basis of viewpoint discrimination even in cases in which the speech would otherwise be considered outside of the protection of the First Amendment. For example, in RAV v. City of St. Paul, the Court invalidated a statute that prohibited symbols such as a burning cross or swastika, which the speaker had reason to know would ‘‘arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’’ Despite the fact that this statute was construed to reach only fighting words, which normally have received only rational basis scrutiny under Chaplinsky v. New Hampshire, the Court held that the state may not punish fighting words on the basis of the viewpoint they represent. The majority rejected the argument that the St. Paul law punished speech on the basis of the status of the victim, for example, because the speech was fighting words directed at certain persons or groups. Rather, the Court claimed that the law prohibited only fighting words with ‘‘messages of ‘bias-motivated’ hatred’’ and ‘‘racial supremacy,’’ while permitting fighting words favoring racial equality and racial harmony, in violation of the viewpoint discrimination rule.

By contrast, in Virginia v. Black, the Court upheld a cross-burning statute against a claim of viewpoint discrimination. The Court there used a narrow distinction it had created in RAV: fighting words and other ‘‘unprotected’’ speech can be prohibited ‘‘‘when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable,’’’ because ‘‘‘no significant danger of idea or viewpoint discrimination exists.’’’ Thus, as the Court opined in RAV, it is not viewpoint discrimination to punish only the most prurient obscenity or the most serious threats, for example, threats against the president, because the reasons that obscenity and threats are not protected especially apply to the worst forms of obscenity and threat. The Black Court held that because threats or intimidations are not protected by the First Amendment, and burning a cross with the intent to intimidate is a ‘‘particularly virulent form of intimidation,’’ the state could ban cross-burning without running afoul of the viewpoint discrimination rule.

In Cornelius, however, the Court did acknowledge the fact that when the government limits access to government property because of the possibility of disruption, the government’s action may call into question whether the regulation ‘‘is in reality a facade for viewpoint-based discrimination.’’ Thus, for example, the Court would be required to scrutinize whether, for example, the school district in Perry Education Association excluded the rival union because it did not like the rival union’s views about teacher’s rights and roles. In City Council of Los Angeles v. Taxpayers for Vincent, the Court also held that there was no evidence that the city ordinance proscribing private signs on public utility poles was directed at the viewpoints of the political candidate who tried to post them.

However, in many areas in which discretion is normally given to government officials, the Court will not probe deeply into whether the choices made by state actors constitute viewpoint discrimination. For example, teachers will be given broad discretion to determine what is educationally suitable for children of various ages, according to Hazelwood, without being heavily scrutinized by the Court. Similarly, the Court held that broadcasters have wide editorial discretion to make choices about how to represent diverse views on public programs, in Ark Ed. TV; and it seems that the Court will not probe deeply into whether their choices might actually constitute viewpoint discrimination. Moreover, in National Endowment for the Arts v. Finley, the Court held that the government’s duty to make discretionary aesthetic decisions permitted it to choose which work should be funded, even using such arguably vague criteria as ‘‘general standards of decency and respect for the diverse beliefs and values of the American public.’’

The one significant exception to the general rule that viewpoint discrimination is subject to the highest scrutiny is in the area of government-funded programs. In Rust v. Sullivan, the Supreme Court held that the government may choose to subsidize programs that essentially convey a government-preferred point of view about a controversial public subject, while refusing to subsidize the contrary view. In Rust, medical providers challenged the so-called ‘‘gag rule’’ that prohibited providers receiving Title XX federal family planning funds from ‘‘engaging in abortion counseling, referral, and activities advocating abortion as a method of family planning.’’ The rule also required that such providers segregate Title XX projects from any abortion-related activities through separated facilities, personnel, and accounting. Plaintiffs argued that this rule constituted quintessential viewpoint discrimination, because it prohibited them from advocating or discussing one method of birth control—abortion—while funding them to advocate other methods of birth control as well as childbirth.

In Rust, because of the Court’s view that the Government could constitutionally ‘‘make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds,’’ Maher v. Roe, the choice to allocate funds to support certain views on family planning but not views advocating or advising about abortions was not viewpoint discrimination. The Court held that the government ‘‘has merely chosen to fund one activity to the exclusion of another’’ and its ban on speech about abortion ‘‘simply ensure[s] that appropriated funds are not used for activities, including speech, that are outside the federal program’s scope.’’

In Legal Services Corporation v. Velazquez, however, the Court reiterated an earlier limitation to general rule that the government may favor one viewpoint over another in the subsidies and grants it makes. The Court held that viewpoint discrimination is permissible in government subsidy cases when the government is itself the speaker, as well as cases in which the government uses private speakers to convey its own information pertaining to programs it subsidizes.

However, the Velazquez Court held that, consistent with Rosenberger, viewpoint restrictions are improper ‘‘when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.’’ The regulation in Velazquez prohibited federally funded lawyers representing indigent clients from advising clients in cases involving welfare benefits or filing a lawsuit—speaking for their clients— in such cases, if the representation related to a legal or political challenge to existing statutes or regulations. The Court held, as in Rosenberger, that this was a program ‘‘designed to facilitate private speech’’ of the lawyer’s ‘‘private, indigent client,’’ under ethical strictures requiring that the lawyer exercise independent judgment for the client. It was not speech of the government or third-party speech subsidized by the government to promote a governmental message. Because the government was subsidizing ‘‘private speech,’’ the Court invalidated the restrictions on legal representation because of their viewpoint discrimination.

Critics of the Court’s recent viewpoint decisions have argued that viewpoint discrimination in federally subsidized programs is just as problematic as viewpoint discrimination in other public forums. They claim that government should demonstrate neutrality toward political and social viewpoints at least when the government itself is not speaking. Because government so pervasively influences public life through its subsidy programs, courts’ willingness to permit governments to choose whether to subsidize offensive or controversial speech invites government officials to control free speech through public funding. Whether the Rust decision’s government funding exception to the general rule against viewpoint discrimination will hold in light of criticisms remains to be seen.

MARIE A. FAILINGER

References and Further Reading

  • Greenawalt, Kent, Viewpoints from Olympus, Columbia Law Review 96 (1996) 697–709.
  • Heins, Marjorie, Viewpoint Discrimination, Hastings Constitutional Law Quarterly 24 (Fall 1996), 99–169.
  • Jacobs, Lesie Gielow, Clarifying the Content-Based, Content Neutral and Content/Viewpoint Determinations, McGeorge Law Review 34 (2003): 595–635.
  • Redlich, Norman, John Attanasio, and Joel K. Goldstein, Understanding Constitutional Law. 3rd ed. New York, NY: Matthew Bender, 2004, pp. 652–658.

Cases and Statutes Cited

  • Arkansas Education Television Commission v. Forbes, 523 U.S. 666 (1998)
  • Carey v. Brown, 447 U.S. 455 (1980)
  • Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)
  • City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
  • Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U.S. 530 (1972)
  • Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985)
  • F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978)
  • Good News Club v. Milford Central School, 533 U.S. 98 (2001)
  • Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
  • Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
  • Legal Services vs. Velazquez, 531 U.S. 533 (2001)
  • Maher v. Roe, 432 U.S. 464 (1977)
  • National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)
  • Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983)
  • Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92 (1972)
  • R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
  • Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995)
  • Rust v. Sullivan, 500 U.S. 173 (1991)
  • Virginia v. Black, 538 U.S. 343 (2003)
  • Widmar v. Vincent, 454 U.S. 263 (1981)
  • Young v. American Mini Theatres, Inc. 427 U.S. 50 (1976)

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