Government Funding and the Free Speech Clause:

Occasionally I see people suggest that private universities are bound by the Free Speech Clause if they get government funding, in the form of various research grants, student loans, and the like. But that's not the law: The Free Speech Clause applies only to decisions by the government (including government-run institutions such as public universities). It generally does not apply when the government merely provides funds to a private institution, that then makes speech-restrictive decisions without command or pressure from the government. The Court squarely held this in Rendell-Baker v. Kohn (1982).

The government may by statute impose many conditions on the use of government funds -- that's what Congress did with Title VI and Title IX (which generally bar recipients of federal funds from discriminating based on race and sex) and with the drinking age. Congress thus probably could mandate that no university which receives federal funds may restrict student speech. (I say "probably" because there are some twists which I set aside for now.) But Congress hasn't enacted such a statute, and it is of course under no obligation to do so.

ShelbyC:

Congress thus probably could mandate that no university which receives federal funds may restrict student speech.


Such as statute would restrict funds to any universtiy that chose to engage in expressive association. Sounds like a problem to me.
5.22.2009 6:03pm
einhverfr (mail) (www):
Also we have things like speech restrictions associated with accepting government funding. For example, the Reagan-era restrictions on publicly funded medical clinics from recommending or even discussing abortion options.
5.22.2009 6:27pm
Paul Barnes (mail):
Another example is that of the Boy Scouts.
5.22.2009 6:41pm
Soronel Haetir (mail):
Paul Barnes,

In what way is BSA publicly funded? They seem to be having problems keeping even traditional military sponsorship programs.
5.22.2009 6:59pm
A Conceited Jerk:
Gene,

You used "which" incorrectly in the penultimate sentence of your post. You are normally so careful! What happened? Please be more careful in the future.
5.22.2009 7:04pm
Oren:



In what way is BSA publicly funded? They seem to be having problems keeping even traditional military sponsorship programs.

I know that the BSA by me used to (pre Dale) get a number of leases on public land for $1/year.
5.22.2009 7:26pm
troll_dc2 (mail):
Mr. Volokh, would you please address part V of Judge Friendly's decision in Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). Here is a link for you: text
5.22.2009 7:29pm
AJK:

Gene,

You used "which" incorrectly in the penultimate sentence of your post. You are normally so careful! What happened? Please be more careful in the future.


What is incorrect about that?
5.22.2009 7:30pm
Salvador:
What about public secondary schools? Free speech is routinely restricted by these institutions. Do they simply get a pass because in these cases the vast majority of students are minors unlike most university students?
5.22.2009 7:36pm
ShelbyC:

Do they simply get a pass because in these cases the vast majority of students are minors unlike most university students?




yes.
5.22.2009 7:37pm
Eugene Volokh (www):
ShelbyC: Maybe, maybe not; see this article on a related problem of public universities restricting student groups' expressive association.
5.22.2009 8:13pm
ras (mail):
"Which" is fine by me, although some purists would prefer either:

1.) "that;" or

2.) "which" preceded by a comma.
5.22.2009 9:16pm
Eugene Volokh (www):
troll_dc2: Judge Friendly's reasoning is closely tied to the peculiar circumstances of the college involved -- not just the state funding, but also the way the college is set up by statute. But in any case, even if the reasoning was focused chiefly on the presence of some (or even a lot of) government funding, the Supreme Court's Rendell-Baker v. Kohn decision would reject such reasoning.
5.22.2009 11:47pm
Question_Authority:
Practically, how many states lack a free speech clause in their state constitutions that would not fill the shoes of the First Amendment, and thereby impose the same effect on all state colleges?
5.23.2009 10:39am
Tritium (mail):
Don't Universities owe their existance as an education institution by way of law? Aren't all laws governed by the Constitution of the State, and aren't the state governments bound by the laws of the Constitution of the United States?

Those who are not created by law... i.e. mankind, are the only ones who aren't governed by the Federal Constitution... (Thus the rights being unlimited as far as the government is concerned.)

But what does it matter? It's not like our government is following the constitution anymore... It's a tyranny... and pretends to be doing for the people, while representatives rake in the cash.

One would think the legal community would be angered by the 16th Amendment. Considering the fact that the founding fathers thought that by adding a Bill of Rights, those rights would be secure... it seems absurd that an amendment could take those rights away by a subsequent congress and several state legislature. The Constitution cannot be altered by a subsequent law by a subordinate authority... yet it happened... and that's when our country was first in danger... and it continues to this day.
5.23.2009 11:07am
rosetta's stones:

Don't Universities owe their existance as an education institution by way of law? Aren't all laws governed by the Constitution of the State, and aren't the state governments bound by the laws of the Constitution of the United States?


I believe you're right, as was eloquently raised by the defense in Faber Disciplinary Council v. Delta
5.23.2009 11:36am
troll_dc2 (mail):
I was beginning to read the law review article on freedom of expressive association and government subsidies when I came across this paragraph:

"If this No Duty To Subsidize Principle applies to the right of expressive association, then the government may likewise decline to subsidize certain kinds of expressive association decisions. The Boy Scouts have the right to exclude homosexuals and the nonreligious from membership and therefore from camps, athletic events, meetings, and more. Yet the government may decide that its subsidy programs and its real estate—such as park facilities(except when used as traditional public fora for speech), marinas, [20] rooms in government buildings, and the like—should only be made available for events that are open to people without regard to their religion or sexual orientation."

There is pending a lawsuit in which the city of Philadelphia is seeking to oust the regional Boy Scouts organization from a city-owned building that the Boy Scouts had rented for a dollar a year. The problem is that the Boy Scouts refuse to comply with a city ordinance that bars discrimination on the ground of sexual orientation. Giving them a choice between moving or paying market-rate rent, the city claims that it does not have to give preferential treatment to an organization that discriminates in violation of its law. Needless to say, the Boy Scouts think that, in light of the Supreme Court's decisison in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000), it has a constitutionally protected right to exclude homosexuals from its leadership positions and membership. The city's motive is clear. So does the city have a constitutional duty to continue the previous arrangement on the ground that any change unduly burdens the Boy Scouts' First Amendment rights?

Notwithstanding your desire in footnote 2 not to discuss in detail the refusal of a government entity to provide benefits, either special or general, to a discriminating group, I am curious to know what you think of this case (to the extent that you are familiar with it).
5.23.2009 11:54am
M N Ralph:

"Which" is fine by me, although some purists would prefer either:

1.) "that;" or

2.) "which" preceded by a comma.


Even purists are OK with using "which" instead of "that" if the sentence already contains a "that," like professor Volokh's did. At least that's the way I recall the Texas Manual on Style.
5.23.2009 7:46pm
Cornellian (mail):
At least that's the way I recall the Texas Manual on Style.

Speaking of which, I think "y'all" ought to become part of standard English usage. We're in dire need of a plural, second person impersonal pronoun.
5.24.2009 10:41am
Eli Rabett (www):
youse
5.25.2009 6:12pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.