Pairwise Comparisons
A. Comparing (8) and (7)
We are assuming that the laws in (8) are violations of the right to freedom of expression. If so, what can be said of those in (7), where government subjects those advocating certain policies to restrictions that would be valid Track Two laws if applied to all? I suggested as an example a ban on using loudspeakers in residential neighborhoods.
Now one might conclude that a law requiring only those expressing particular views to do so quietly is an attempt to punish such expression and is thus really a Track One law. And indeed, the laws in (7) might be Track One laws if the government’s purpose in enacting them were punitive.[149]
Suppose, however, that government’s purpose were not punitive but were instead to protect people from disturbing noise while they are at home. That, of course, would explain the restriction on the law’s targets, but it would not explain why the law failed to restrict the myriad other groups and persons who might broadcast loud messages in residential neighborhoods. So we need an additional governmental purpose to go along with noise abatement.
Suppose government’s additional purpose were this: Government generally values the ability to communicate ideas more than it values noise abatement; but it values noise abatement more than it values the communication of certain ideas, such as that abortions, drug use, and prostitution are okay, or that free trade is not. In other words, government wishes to advance noise abatement, even at the cost of some ideas, though not at the cost of (most) others.[150]
Remember that we are assuming that government may permissibly value noise abatement in residential neighborhoods over the communication of all ideas. If that is the case, may government then place the communication of most ideas above noise abatement in terms of value, but at the same time place noise abatement above the communication of some ideas?
Now, of course, what immediately jumps to mind with respect to (7) is that the government is favoring some ideas over others.
In other words, as in (8), in (7) it is violating the principle of evaluative neutrality that I have argued must lie at the core of freedom of expression.[151]Indeed, the violation of evaluative neutrality was the ground on which the Supreme Court overturned St. Paul’s law against cross burnings conveying racist messages in R.A.V. v. City of St. Paul.[152] Technically, because the law discriminated within a category of expression (“fighting words”) that could have been completely banned because of its content, it was a discrimination within Track One, not Track Two. However, because the entire class of fighting words could have been validly suppressed, the law at issue in R.A.V. is analogous to selectively subjecting only certain messages to Track Two restrictions that could have been applied across the board.
If, however, it is the violation of evaluative neutrality that renders the laws in (7) violative of freedom of expression, the implications of this conclusion are farreaching indeed. For all Track Three laws - all the laws in (1) through (7) - violate evaluative neutrality. Therefore, before accepting that sweeping conclusion, we should ask whether any relevant distinctions among Track Three laws are identifiable, and whether Track Three laws in general are relevantly distinguishable from Track One laws.
B. Comparing (7) and (6)
Once we eliminate any punitive purpose behind the laws in (7), it is difficult to see how those laws are distinguishable from the laws in (6), which give exemptions from Track Two laws to certain government-favored speakers. After all, the laws in (6) are just like the laws in (7) except for the sizes of the groups exempted from the Track Two laws. And it is difficult to see how the size of the exempted group matters other than as some indication of the presence or absence of a punitive purpose. If we disregard punitive purposes, the laws in (7) and (6) seem identical.
Now how should we regard the laws in (6) (and hence in (7))? The United States Supreme Court has dealt with a number of cases involving laws of types (6) and (7).
Sometimes it has allowed regulatory preferences for certain classes of speakers or certain topics.[153] Sometimes it has not.[154] When it has, it has cited either the special value of the preferred speaker or topic[155] or the special disvalue of the dispreferred topic.[156] [157] When it has not, it has cited the requirement of evaluative neutrality vis-a-vis the ideas communicated.11 Needless to say, these rationales - the one allowing the government to attach value to ideas relative to other interests, the other enjoining the government to refrain from such evaluations - are deeply inconsistent.One concept that both courts and commentators have employed in analyzing the laws in (6) and (7) is that of a “public forum.” It is sometimes said that where government has created a public forum, it may not regulate the messages transmitted in that forum based on either viewpoint or, in some cases, content irrespective of viewpoint.[158] On the other hand, just because government has opened a forum for speech does not entail that it has created a public forum; it may have created a nonpublic forum for the benefit of certain speakers, subject matters, or viewpoints.[159]
The problem with public forum analysis is that determining whether a forum is public or nonpublic is unguided. Apparently, government may validly intend to create very limited public fora or purely nonpublic fora.[160] But if governmental intent is to be the touchstone of public forum analysis, then it is difficult to see why all type (6) and (7) laws would not be valid. After all, they create the precise type of forum the government intends to create. On the other hand, if government intent is not the touchstone of public forum analysis, what is, and why? What, for example, explains why government may sometimes, but not always, succeed in validly creating a forum for preferred speakers, subject matters, and viewpoints?
C.
Comparing (6) and (5)The laws in (6) give particular speakers a regulatory subsidy by exempting them from Track Two laws. The governmental acts in (5) give the favored speakers a monetary subsidy. Is there any difference between the two types of subsidies that is material to a right of freedom of expression?
It is difficult to see how there is. In both (6) and (5) the favored speakers receive something that is of value in communicating their ideas. In the case of (6), they receive a permission to intrude on the interests of others to a greater extent than other speakers are permitted. The permission could theoretically be given a monetary value - perhaps the value of what it would cost the speakers to buy permission from those whose interests (in, say, noise abatement) were at stake. In the case of (5), they receive a cash payment from the public fisc.[161] In both cases, resources are taken from the public - peace and quiet in one case and money in the other (which could be used to soundproof homes). In both cases, the resources are transferred to the preferred group.
The United States Supreme Court has again been quite inconsistent in dealing with governmental acts of type (5). In some cases it appears to endorse “if the government pays the piper, the government may call the tune.” In Rust v. Sullivan,[162] for example, the Court upheld a requirement that clinics receiving governmental funds to promote family planning must convey the message that government prescribes and no other. And in N.E.A. v. Finley,[163] [164] the Court upheld a government subsidy of the arts that was restricted to non-offensive art. On the other hand, the Court in Southeastern Promotions, Ltd., v. Conrad1 held that a municipally-owned playhouse could not restrict its offerings to family-suitable plays. Moreover, in Rosenberger v. Rector and Visitors of University of Virginia,[165] the Court held that the University of Virginia could not subsidize the publications of only those student groups that had secular perspectives on public issues and refuse to subsidize student groups that had religious perspectives on those issues. And in Legal Services Corp. Finally, there are times when government subsidizes expression, not because it endorses the message, but because it wishes to increase the message’s influence vis-a-vis opposing messages. This is frequently the case with political campaign advertising, where government seeks to “equalize” candidates’ ability to advertize by subsidizing those candidates with fewer resources to spend on advertising. Such policies have met with conflicting judicial responses in the United States when challenged on First Amendment grounds.[167] D. Comparing (5) and (4) The only difference between (5) and (4) is in the form of the subsidy to favored speakers. In (5), the subsidy is in the form of money. In (4), the subsidy is in the form of a reduction in taxation, which, of course, equates to money. It is difficult then to see how it could be the case that a subsidy of type (5) might be valid, but a comparable subsidy of type (4) might not be valid, or vice versa. Whatever holds for (5) should hold for (4). Interestingly, in an opinion upholding a selective tax exemption for one lobbying group - no other group that engaged in lobbying received a tax exemption - the United States Supreme Court took a very hands-off posture: Congressional selection of particular entities or persons for entitlement to this sort of largessee “is obviously a matter of policy and discretion not open to judicial review.” The reasoning... is simple: “although government may not place obstacles in the path of a [person’s] exercise of... freedom of [speech], it need not remove those not of its own creation.”... “[Constitutional concerns are greatest when the State attempts to impose its will by force of law.” Where governmental provision of subsidies is not “aimed at the suppression of dangerous ideas,”... It is difficult, however, to square that statement in Regan with the results in Conrad, Rosenberger, and Velasquez, all of which involved monetary largesse.[169] And if we take the view that monetary largesse is no different from regulatory largesse, then the statement is inconsistent with a much larger set of decisions.[170] Indeed, it is inconsistent with its own decision in Arkansas Writers’ Project, Inc. v. Ragland,[171] in which it struck down an Arkansas tax exemption that applied to some, but not all, magazines. E. Comparing (4) and (3) Is a government subsidy to private individuals and groups for the expression of government-favored views different in any meaningful way from government’s fostering such views in its role as educator or librarian? It is hard to see how it is. After all, in one case the government says to a private person, “If you will express message X, government will provide you with the resources to do so.” In the other, the government says to its employees, “The government is paying you to teach X in the schools and to purchase only books whose messages are consistent with X.” In both cases, the public is taking the dollars and using them to advocate for X and against not-X. It is amplifying some views with resources taken in part from those who hold opposed views. The United States Supreme Court has been of two minds about governmental acts of type (3). On the one hand, it deemed violative of freedom of expression a public school board’s decision to remove from a school library books with content that the board found troubling.[172] Yet in the same case the Court thought that the result might be different were the board’s decision one not to acquire the books initially (for the same reasons that led to their removal from the library).[173] And the Court thought that content control in classroom instruction and materials could permissibly be premised on the same reasons that rendered the book removal impermissible.[174] But although the Court expressed a hands- off position regarding value inculcation in the classroom, one suspects that the Court itself would find, say, mandated instruction in the superiority of the Republican Party to be troubling on freedom of expression grounds.[175] It is hard to see why the inventory of a library and the content of a classroom are materially different. Both require that government employ principles of content selection. There is, of course, neither the time to teach all points of view (assuming it is even meaningful to count points of view), nor the resources to purchase every book in existence. (With respect to monetary subsidies, it is likewise impossible to fund all artists, academics, and so forth.) Nor are there neutral criteria for deciding what to teach. And if government may teach what it wants in the classroom, why may it not employ the libraries it funds as adjuncts to its mission of espousing certain ideas and opposing others? F. Comparing (3) and (2) It is difficult once more to see any material difference in terms of free expression between these neighboring types of laws. In (3), government “speaks” - takes a partisan stance - in its role of educator and librarian. In other words, it speaks through particular governmental institutions. In (2), government speaks as the government rather than as a particular component thereof. But that distinction appears to be one without a difference insofar as freedom of expression is concerned. We are accustomed to government speaking. Advertising promoting enlistment in the armed forces is ubiquitous. (“Be all that you can be; join the Army.”) Is there anything offensive to freedom of expression in such activities that is not also present in (3) through (7)? Alternatively, is there something offensive to freedom of expression in (3) through (7) that is absent from pure government speech? Is there a difference material to freedom of expression between government’s spending tax dollars to urge young people to join the armed forces or to stay off drugs and its spending tax dollars to urge us to vote Republican? If the former seems benign to most people, the latter, I predict, does not. (I made the same point with respect to teaching in the public school: It will strike many people as objectionable for the public schools to teach the virtues of the Republican Party; it will strike fewer as objectionable to teach the virtues of capitalism, and still fewer to teach the virtues of democracy.) But wherein lies the difference between them? If it is merely that more people agree with the benefits of military service than agree with the platform of the Republican Party, that hardly seems to be relevant to freedom of expression, which is, whatever else, surely not ordinarily understood as a protector of the opinions of the majority. people disagree fervently. A public school teacher who teaches Darwinism implicitly teaches that Creationism and the religious views on which it rests are mistaken. And a teacher who instructs her class that 9/11 was a moral horror will be implicitly condemning any reading of the Koran to the contrary. G. Comparing (2) and (1) Can (2) be distinguished from (1)? If government may pass laws and adopt policies, it surely may inform us why it does so. That is, it can give us its reasons for passing those laws. But to give reasons for taking a stance - and the passing of laws and the adoption of policies surely are the taking of stances - is to advocate that stance. And that is, after all, what the government is doing in (2). So (1) and (2) appear indistinguishable. III.