Nahmod Law

University of Wisconsin v. Southworth

Two years after Finley, discussed in a prior post, University of Wisconsin v. Southworth , 529 U.S. 217 (2000) , presented a fact pattern similar to the one the Court had addressed in Rosenberger, also discussed in a prior post. This time, though, the First Amendment issue was raised by students who were being “taxed” to fund the speech of student organizations.

In Southworth, the Court, in an opinion by Justice Kennedy, held that a mandatory student activity fee assessed on students to support student organizations did not violate the First Amendment rights of students who objected to the political and ideological speech of certain funded organizations. Southworth was essentially a compelled speech/subsidy case, because the university had expressly declared that its disbursement of funds was not government speech. The Court therefore did not engage in government speech analysis.

A Possible Rationale for the Government Speech Doctrine: Political Accountability

Nevertheless, Justice Kennedy did discuss the government speech doctrine and its possible justification. He suggested that had Southworth involved government speech, it would have been outside the bounds of First Amendment scrutiny because political accountability, rather than judicial review, served to limit the government. “When the government speaks, for instance, to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” 529 U.S. at 235.

Justice Kennedy’s brief discussion of political accountability in Southworth represents an early instance–perhaps the first–in which a member of the Court attempted to ground the government speech doctrine jurisprudentially. In subsequent cases, a concern with political accountability would become central for Justice Souter.

Justice Souter’s Concurrence: Misplaced Deference to the Government

Concurring in the judgment in Southworth, Justice Souter agreed that the case did not implicate government speech. But he was uncomfortable with the Court’s apparent deference to, and reliance on, the university for that determination. He commented: “Unlike the majority, I would not hold that the mere fact that the University disclaims speech as its own expression takes it out of the scope of our jurisdiction on government directed speech.” 529 U.S. at 242 n. 8.

Interestingly, Justice Souter’s reluctance  in Southworth to rely exclusively on government assertions for government speech purposes is reminiscent of that of Justice Kennedy himself, the author of Southworth, in connection with designated public forums. Justice Kennedy, concurring in International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), maintained that in deciding whether government property is a designated public forum, the Court should not merely rely on the government’s statement of its purpose, but rather on how the government has actually treated the space. “In my view, the inquiry must be an objective one, based on the actual, physical characteristics and uses of the property.” 505 U.S. at 695. Justice Kennedy worried that government has incentives to claim that its property is not a designated public forum because of the costs of compliance with the First Amendment.

In Southworth, Justice Souter applied Justice Kennedy’s legitimate concern about designated public forums to government speech: there were comparable incentives for government to avoid First Amendment scrutiny in the government speech setting. For Justice Souter, whether the First Amendment applies should not turn simply on whether the government has identified the speech as its own or disclaimed it: that is, what the government says about the speech after the fact should not be dispositive.

It is true that Justice Souter did not explain in Southworth how the Court should determine whether government was in fact the speaker. In subsequent cases, however, he would address this issue from the perspective of the reasonable observer.

Next

The next posts on this topic explore Justice Souter’s views on the government speech doctrine as it comes of age.