One recent free speech controversy centers on the use of government funds to encourage certain types of speech. Unfortunately, this debate reflects a First Amendment misunderstanding that government funding of certain types of speech is a government restriction of free speech.
In 2004, Congress passed the Solomon Amendment which took some federal funding from law schools that did not give military recruiters equal time and opportunity as other career recruiters. Several schools had begun discriminating against military recruiters in protest of military policy regarding homosexuals. Remembering Tinker v. Des Moines School District's statement that "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the law schools responded to the statute by filing suit, claiming that their right to free speech had been violated. In Forum for Academic and Institutional Rights, Inc. (FAIR) v. Rumsfeld, the Supreme Court sided with Congress and left the law intact.
Government use of funds became a free speech issue even before the Solomon Amendment. The National Endowment for the Arts (NEA) was created by Congress in 1965 to encourage culture by funding superior artists. Since its creation, the NEA has given hundreds of millions of dollars to "projects and productions which have substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity."
Following a 1990 controversy involving sexually explicit photographs, Congress enacted a statute preventing NEA funds from going to "materials which in the judgment of [the NEA] may be considered obscene." This law was soon struck down by a Federal District Court in Bella Lewitzky Dance Foundation v. NEA. The case was not appealed by the NEA, so the ruling stood. However, Congress made another law which said that NEA grants would take "into consideration general standards of decency and respect for the diverse beliefs and values of the American public." Artists complained again that this violated their free speech, but the Supreme Court upheld this law in NEA v. Finley.
Both of these situations fit into the same issue: may the government affect the marketplace of ideas through discriminatory funding? It is important to note that the government action of has no direct link with First Amendment. The Constitution states that "Congress shall make no law . . . abridging the freedom of speech." Neither the NEA nor the Solomon Amendment are abridgements on the freedom of speech because neither limits who is allowed to speak or what they are allowed to say. The First Amendment focuses on what government may not do, and says nothing about what it may do. Thus, rewarding certain speech with federal funds is a constitutionally tolerable action.
Besides, it is unavoidable for the government to discriminate to some extent. The Supreme Court sees no problem in Congress's choice in funding one organization or project over another. Logically, it would be impossible for Congress to fund anything if it had to fund everything. In the situation of the NEA, there is simply too much art to fund. Thus, funding may excusably be done unfairly. In NEA v. Finley, the Supreme Court ruled that "Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." In other words, things like criminal prosecution must be equal for everyone, but funding need not be.
By funding certain speech, the government makes no impact on what people are allowed to say. This is especially obvious in the FAIR case. The schools were still allowed to openly disagree with military policy, whether in their classes or their publications. The government's discrimination was only against one type of action (not giving military recruiters equal access) and not against the idea behind the action. In United States v. Brien, the Court rejects that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Thus, the fact that the schools intended to protest military policy regarding homosexuals is no defense, since banning recruiters is not "inherently expressive" of that idea. As the FAIR Court writes, "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds."
It is important to realize that the First Amendment is a sweeping regulation on government, but it does not reject every government action regarding speech. It only rejects legislation that directly restricts free expression. Additional funding for certain speech does not fall into this category. Therefore, additional funding for certain speech cannot be labeled unconstitutional.
Note:
My gut says that it is foolish to expect true freedom of speech anywhere there is government funds. Government involvement, by its very nature, is counter to the idea of free speech. That is why it finds its way into our Constitution as a completely negative command, a governmental inability. Indeed, this is why there is a First Amendment in the first place. Thus, expecting to find freedom in government programs, even in public education, is somewhat misguided (though that is how things ought to be). For the safety of the marketplace of ideas, the safest legal action is to keep government out of it altogether. Unfortunately, in this issue, the Constitution does not give us the tools to do this.
ATTENTION ASPIRING POETS:
The NEA funded this poem. It is indeed seven letters long. Apparently, one can make a living by misspelling words.
2 comments:
My comment will refer to you "Note."
I may be wrong about this, but I believe that you are in my PS 101 class. So you'll be able to, if you made it to class yesterday, understand what I'm saying. While it may not be the same, the ideas are somewhat similar.
The President is able to use the Bully Pulpit tactic. He can raise funds for a congressman or see that a certain project successfully be completed in the congressman's district. He does this to sway said politician's opinion or vote to reflect what it is the President would like accomplished. If the congressman will get something out of friending the President, why would he ever speak poorly of the President? Especially, if funding by the President is what allowed the politician to retain his seat in congress at the next election.
I must agree with your note. I do believe that offering funding does not blatantly restrict First Amendment rights, but I believe it can offer a blurred opinion.
If I were given even a hundred dollars by the government to voice my opinion, why in the world would I risk not receiving that funding the next time around by speaking negatively about the funder?
Compelling argument that government funding is not a restriction on free speech...
I completely agree that giving military recruiters equal time is an action, not an expression of speech, and does not prevent the law schools from expressing their disagreement with military policy in other methods. However, doesn't giving military recruiters more time to disseminate their message equate to depriving other recruiters of speaking time? No favoritism is shown when equal time is given to all, but disfavor is shown when one group is discriminated against...nonetheless, it is still action and not speech.
In regards to your note, I agree in general with the comment Jen made. I believe that a key function of lobbyists is to give money (and information) to entice legislators to create laws they support and to espouse their views. However, in the case of President, there is the consideration that his tenure in office is limited to two terms and a legislator's is not. One can be shady and accept money and then vote for another candidate to serve one's own interests...it doesn't look good, but just because a group donated money to you does not mean that you are forced to espouse their views. In the case of the President, I believe that most Congressman who have received his funds in the past are now eager to dissociate themselves from him due to his low popularity (Iraq).
However, this also reminds me of another controversial issue--governmental informants. During the McCarthy era especially, there were paid informants who were trained by the government to memorize testimony word for word in exchange for money. Sounds very scandalous, right? These people were paid and some even became star witnesses to say that they saw the defendant at some Communist meeting or to smear them with allegations to prove that they were Communist or Communist-sympathizers. Yet secrets like these cannot be kept for long, and it must've been hilarious for reporters to read aloud the scripted lines of answers to questions posed to the witnesses before the witnesses could answer themselves in the case of Edward Lamb's trial. Lamb was a labor lawyer rich enough to hire investigators who obtained copies of these false testimonies and gave them to reporters. The government can abuse its funding of speech, but that does not mean that it'll get away with it.
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