Freedom of Expressive Association and Government Subsidies

1. Freedom of Expressive Associationand Government Subsidies Eugene Volokh UCLA School of Law

2. No Duty to Subsidize Constitutional Rights • May pay for childbirth, but not abortions. • May pay for public education, but not private education. • May subsidize marriage, but not staying single. • May subsidize having children, but not remaining childless.

3. No Duty to Subsidize First Amendment Rights • May give tax exemptions to nonprofit speaking groups, but not those that electioneer. • May fund student-run groups, but not groups that include nonstudents as leaders. • May fund democratically run student groups, but not hierarchically run student groups.

4. No Viewpoint Discrimination • Exclusion based on group’s conduct. • Exclusion of mixed student/nonstudent groups. • Such exclusion reflects university’s viewpoint. • But all speech restrictions do that. • Such exclusion disproportionately affects certain kinds of viewpoints. • But disparate impact isn’t enough. • Test for content discrimination: whether law is “justified with reference to the content of the speaker’s speech.”

5. Justice Alito’s Argument • “[T]he Nondiscrimination Policy [generally] ‘permit[ted] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.’” • “But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. • “Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming.... • “This was patent viewpoint discrimination. ‘By the very terms of the [Nondiscrimination Policy], the University ... select[ed] for disfavored treatment those student [groups] with religious ... viewpoints.’”

6. Reasonableness • “[N]eed not be the most reasonable or the only reasonable limitation.” • Government may reserve forum for certain kinds of groups. • “[P]ublic funds, to which all taxpayers of all [identity groups] contribute, [should] not be spent in any fashion which ... subsidizes ... [identity group] discrimination.” • Promotes one vision of fostering debate, cooperation, and learning from each other.

7. Hostile Takeovers • How likely are they? • Does running the low risk of hostile takeovers really make a policy unreasonable? • If worry about hostile takeovers made the policy unconstitutional, wouldn’t it do the same for “democratically run groups only” policy?