Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia
This is the third in a series of posts on now-retired Justice Souter’s positions on government speech. The first post was an introduction and the second addressed Rust v. Sullivan, 500 U.S. 173 (1991).
Rosenberger v. Rectors of the University of Virginia
Fours years after Rust, the Court held in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995), that a public university’s refusal to fund a student magazine with a Christian theme, while at the same time funding other student organization publications, was a violation of the Free Speech Clause of the First Amendment. The Court found that the Student Activity Fund from which the Christian magazine was applying for funds was a “metaphysical” limited public forum that was intended to enable private speech, and as such could not discriminate according to viewpoint. Though the university argued that it was discriminating according to content (permitted in a limited public forum), the Court rejected this argument and effectively held that religious belief was a viewpoint.
Rosenberger is often cited for its broad language describing the government speech doctrine implicit in Rust. Justice Kennedy, writing for the Court, said: “We recognized [in Rust] that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” 515 U.S. at 833 (citations omitted). However, Rosenberger itself was not a government speech case: the university had expressly stated that its speech was not at issue. In fact, one of the requirements imposed on student organizations for receiving funding was signing a disclaimer that distanced the university from the speech of the recipients.
Justice Souter’s Dissent: What is the Government’s Speech?
Justice Souter’s dissent focused primarily on the Establishment Clause and why a government’s financial contributions to a Christian magazine violated the central prohibition of the Establishment Clause. However, in a footnote, Justice Souter articulated for the first time his concern with properly identifying government speech. He observed, 515 U.S. at 893 n. 11:
The Court draws a distinction between a State’s use of public funds to advance its own speech and the State’s funding of private speech, suggesting that authority to make content-related choices is at its most powerful when the State undertakes the former. I would not argue otherwise, but I do suggest that this case reveals the difficulties that can be encountered in drawing this distinction. There is a communicative element inherent in the very act of funding itself, cf. Buckley v. Valeo, 424 U.S. 1, 15-19 (1976) (per curiam), and although it is the student speakers who choose which particular messages to advance in the forum created by the University, the initial act of defining the boundaries of the forum is a decision attributable to the University, not the students. In any event, even assuming that private and state speech always may be separated by clean lines and that this case involves only the former, I believe the distinction is irrelevant here because, as is discussed infra, this case does not involve viewpoint discrimination.
Justice Souter thus pointed out a problem that would arise later for the Court: what speech should be analyzed in assessing whether it is the government speaking? Was the speech at issue the initial funding because funding has a communicative element analogous to speech? Or was it the ultimate speech that was being funded? If the initial funding constituted government speech, then the exception would swallow the rule, making forum analysis and other First Amendment analysis exceptionally narrow. In a very real sense, then, Justice Souter anticipated the possible intrusion of the government speech doctrine on forum analysis.
Two Important Categories
At this juncture, it is worth making an analytical observation. In retrospect, Rust and Rosenberger represent two very different and important categories in government speech jurisprudence. Rust was a case in which the Court determined that it was the government that was speaking, with the result that the First Amendment prohibition on viewpoint discrimination was inapplicable. In contrast, Rosenberger was a case in which the Court determined that the government was not itself speaking: rather, it was enabling private speech. Here, the result was that conventional First Amendment forum doctrine was indeed applicable.
The decision of which category the particular challenged governmental act fell into was to become outcome-determinative, as it was, for example, in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), a case to be discussed in a subsequent post.