SUBSIDIZED SPEECH

Americans customarily view freedom of speech as a matter of personal right. Afirst amendment thus conceived serves both the individual and the community—at least in the context of traditional command and control regulation. In this context, a person may wish to speak but the government commands him not to do so, on pain of punishment if that order is ignored. The person's right to speak, though, countermands the order. With this countermand, the individual gains as his or her will to speak is secured. As for the community, it gains as it receives the speech.

But consider personal rights in a context apart from that of traditional command and control regulation. This other context is that of our large public sector, wherein government-controlled wealth amounts to about one-third of the national economy. In this context, the government, instead of ordering a person not to speak, may "buy him off" by offering him some benefit for not speaking. Should a person accept the payment, and not speak, his "right" to speak will not have been taken, the reason being that personal rights are as a rule alienable. A person may transfer or forgo a personal right as he or she wishes, the object being, as Thomas Hobbes said, "some good to himself." To view a right as other than alienable would, as many have noted, be contrary to the principles of free choice and autonomy that underlie individual rights.

No personal right may be taken, but the community's interest is; as the speaker is bought off, the community is denied the speech. For instance, in rust v. sullivan (1991), federal funds were provided to family planning and maternal health clinics, but only on the condition that these clinics and their doctors not provide counseling to their clients about abortion. To a claim that these conditions violated the free speech rights of the clinics and their private sponsors, the Court responded that the clinics were not forced to forgo abortion counseling; rather, they might refuse the federal aid and speak as they wished. No free speech rights were taken by the government "offering that choice." Still in all, speech for a particular community, that of the clientele of the family clinics, had surely diminished.

The predicament, then, is that subsidized speech breaks the tie between the rights of the speaker and the interests of the community. This disconnect is one of the greater problems of modern First Amendment jurisprudence, for which problem there is, unfortunately, presently no reliable solution. There are, however, various approaches that may be discerned in the case law. One such approach has been a formal observation of the relation of rights, wherein the courts characterize government attempts to buy up speech not as an inducement (which would leave choice and free will intact) but as an order (coercion) that binds the speaker and thus amounts to a taking of personal speech. In speiser v. randall (1958), the Supreme Court reviewed a state law under which veterans might claim a tax exemption, but only on the condition that they forswear certain types of political association. The Court overturned that arrangement by characterizing the inducement respecting speech as a coercive taking of speech rather than as a matter of incentive and choice. As explained in the majority opinion, "the denial of tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech." But at other times, as in Grove City College v. Bell (1984), the courts have instead characterized a benefit conditioned on forgoing speech as offering the speaker a choice that in no sense violates the right to speak. This rights-oriented approach to subsidized speech has not yielded consistent results for it has required the courts to engage in psychological speculation as to when inducement shades over into coercion. Indeed, as noted by Justice antonin scalia, the decisions seem more the result of "idiosyncratic discretion."

Another, more promising approach, is that of rereading the First Amendment so that it does not establish free speech as solely a matter of personal right. Instead, the amendment impersonally provides that "Congress shall make no law … abridging the freedom of speech." In light of this text, we may plausibly view the First Amendment as establishing free speech as a common good, as a state of lively and unfettered discourse among the people that advances knowledge, politics, and culture to the benefit of all. The First Amendment simply precludes the government from "abridging" this good, whether by command or by purchase. The Supreme Court has approached this position in a number of cases by assessing whether a government benefit conditioned on speech might diminish speech as a common good. For instance, in rosenberger v. rectors and visitors of the university of virginia (1995), the Court held that an award of public funds could not be conditioned on the recipients' refraining from religiously oriented speech, because that condition "risks the suppression of free speech and inquiry in one of the vital centers for the nation's intellectual life, its college and university campuses." When Congress conditioned subsidies to public broadcasters on the stations' agreement to refrain from editorials, the Court, in Federal Communications Commission v. League of Women Voters (1984), overturned that arrangement on the grounds that "debate on public issues should be uninhibited, robust, and wide-open."

A third approach has to do not with speech per se, but with freedom of the press. The First Amendment provides that Congress shall not abridge "the freedom of speech, or of the press." This specific reference to the press may plausibly be taken as marking the press as a constitutionally protected business, independent and free of the government by virtue of being a for-profit enterprise. Consistent with this view, several decisions of the Supreme Court (mostly involving the print media) have struck down government subsidies (often in the form of special tax exemptions or other tax breaks); such subsidies would have diminished the independence of the press by making it beholden to the government. In these opinions, there is no talk of speech as a personal right that might appropriately be bought by the government. Instead, the focus is elsewhere, to how a subsidy might amount to a governmental derangement of the free-market basis of a free press.

William T. Mayton
(2000)

Bibliography

Kreimer, Seth F. 1984 Allocational Sanctions: The Problem of Negative Rights in a Positive State. University of Pennsylvania Law Review 132:1293–1397.

Mayton, William T. 1994 "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments. William & Mary Bill of Rights Journal 3:373–418.

Post, Robert C. 1996 Subsidized Speech. Yale Law Journal 106:151–195.

Van Alstyne, William W. 1968 The Demise of the Right-Privilege Doctrine in Constitutional Law. Harvard Law Review 81:1439–1464.