Vol. 73, No. 6, June 2000

The Price of Free Speech:
Regents v. Southworth

In Regents v. Southworth the U.S. Supreme Court determined that so long as access to student fees is allocated to registered student organizations on a viewpoint-neutral basis, the First Amendment compelled speech doctrine does not prohibit a university from imposing a mandatory student fee.

by Jon G. Furlow

he First Amendment forms the foundation for what many consider to be defining American traits: individualism, boundless creative expression, and the spirit of protest. The right to speak freely is a cornerstone of the U.S. Constitution, even when that speech could legitimately be considered vulgar.¹ Justice Black captured the point in his defense of the Communist party: freedom of speech "must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish."²

So too the First Amendment protects the rights of individuals from being compelled to speak or support causes that violate our freedom of conscience. This right not to speak has been jealously guarded since Thomas Jefferson's pointed warning in the early days of our democracy:

"[T]hat to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical."

This principal finds its contemporary application in the endless litigation over payment of mandatory dues to unions and bar associations, including our own State Bar of Wisconsin.³

The Southworth Dispute

These two principles collided in Board of Regents of the University of Wisconsin System v. Southworth.⁴ Southworth was a dispute over whether students at the U.W.-Madison could be compelled to pay a mandatory student fee that is used in part to fund student groups that engage in political and ideological speech.

Like many public universities, the University of Wisconsin requires students to pay a student fee as a condition of graduation. A portion of the fee is used to fund registered student organizations, known as RSOs. All RSOs are eligible to receive funding by submitting an application, and many do. The system also allows for a referendum process that can be used to fund or de-fund RSOs at the ballot box. Except for the referendum process, the parties agreed that the process for an RSO to obtain funding was viewpoint neutral; that is, funding was available equally to all RSOs, without regard to the RSO's particular views.

The Clash of First Amendment Principles

The objecting students were three U.W.-Madison law school students. They advanced a basic First Amendment claim well known to Thomas Jefferson: the mandatory fee system compelled them to subsidize political and ideological speech of RSOs that they found offensive. Either the mandatory student fee system must go or, like union and state bar members, the students had a First Amendment right to withhold their student fee from these groups.

The University of Wisconsin posited an equally compelling First Amendment defense. The use of student fees to subsidize RSOs serves a core purpose of the University to facilitate a wide range of speech on innumerable subjects. This essential purpose had been recognized by the U.S. Supreme Court⁵, and was explicitly defined in Wisconsin Statutes section 36.01. Far from infringing free speech, the subsidy system advanced First Amendment goals by facilitating more speech.

Beneath the Constitutional principles, the underlying dispute in Southworth was political. The law students were self-described Christian conservatives who were reportedly funded and represented by a conservative organization dedicated to de-funding the left. The students wanted to win the right to withhold funding from groups at the U.W.-Madison campus such as the U.W. Greens (a left-leaning environmental group), the Wisconsin Public Interest Research Group (a left-leaning public policy group), the Women's Center, Lesbian/Gay/Bisexual Campus Center, and the Madison AIDS Support Network. At bottom, the dispute recognized the direct relationship, well known in political circles, between funding and effective speech.

The Legal Landscape

The debate over mandatory fees was not new. The question had been squarely addressed in the union and bar association context where use of mandatory fees was limited. Mandatory fees also were at issue and upheld for generic advertising that arose from the Agricultural Marketing Agreement Act.⁶ As to student fees, there was a healthy split of authority, both in state and federal courts, on whether mandatory student fee programs were constitutional. The California Supreme Court and the Third Circuit had ruled that such programs were unconstitutional⁷, the Second, Fourth, Fifth, and Ninth Circuits, joined by the Washington Supreme Court, had found similar student fee programs constitutional.⁸

The U.S. Supreme Court had acknowledged the difficulty of this issue in a student fee case involving the University of Virginia, Rosenberger v. Rector & Visitors of the University of Virginia.⁹ The question there was not whether students could be compelled to pay a mandatory fee; the question was whether the University of Virginia could prevent the use of the funds to defray costs of a student-run religious publication on the basis that the funding would violate the First Amendment Establishment Clause.

In a splintered 5-4 opinion, the U.S. Supreme Court decided against the University of Virginia. The Court concluded that the fee system was akin to a public forum. As such, withholding funds from a participant in the forum was impermissible viewpoint discrimination that was not otherwise justified by the Establishment Clause concerns that arose from providing funds to support a religious viewpoint.¹⁰ The teaching from Rosenberger was that once a university opened a forum, it was required by the First Amendment to allow all student groups, regardless of viewpoint, to participate in the forum, even if it meant that funds would be used for defraying printing costs for a religious publication.

The Lower Court Decisions in Southworth

The students in Southworth prevailed in both the district court and the Seventh Circuit. Both courts adopted the analysis from the union and bar association cases to protect students from being compelled to support organizations that engage in political and ideological speech with which the students objected.¹¹

The Seventh Circuit denied the motion for rehearing and suggestions for rehearing en banc, although three members of the Seventh Circuit, Judges Rovner, Wood, and Evans, dissented from the denial of rehearing on the basis that the fee system that makes a subsidy available to all student groups alike furthers the purpose of the First Amendment by enhancing speech.¹²

The Supreme Court Decides

The Supreme Court granted certiorari and, in a unanimous decision with a concurrence, reversed on the merits and remanded the portion of the case that involved the referendum process.

The Supreme Court did not abandon the compelled speech doctrine from the union and state bar cases, but used them as the "beginning point of the analysis"¹³ to highlight the need to provide First Amendment protection to the students. In the union and bar cases, the members' First Amendment rights were protected by limiting the use of the mandatory dues to only those activities "germane" to the functions of the bar or union. This requirement ensured that members would be required only to contribute to the core facets of the organization from which they draw some benefit.¹⁴ They would not be forced to violate their freedom of conscience by making compelled contributions to objectionable partisan political or ideological causes.

Defining the core mission of a university in Southworth posed a more difficult problem, and the Supreme Court decided that the "germaneness" standard was unworkable in the University context. Already the Supreme Court had been experiencing difficulty applying the germaneness test to union and state bar activity, as demonstrated by the fractured opinion in Lehnert v. Ferris Faculty Ass'n.¹⁵ To now export that standard to the university setting would compound the difficulty. Unlike the relatively focused missions of a union or a state bar, the mission of a university is far broader, more undefined and is "distinguished not by discernable limits but by its vast unexplored bounds."¹⁶

Another form of protection was needed for the objecting students, and it came in the form of viewpoint neutrality. So long as access to the pool of funds generated by the student fees is allocated to RSOs on a viewpoint neutral basis, the Supreme Court concluded that the First Amendment compelled speech doctrine does not prohibit a university from imposing a mandatory student fee. This rule directly addressed the concern of the compelled speech doctrine: to protect an individual's freedom of conscience by preventing the state from forcing an individual to become associated with an objectionable message.

The paradigm is the New Hampshire statute that prohibited motorists from obscuring the motto "Live Free or Die" on their license plate.¹⁷ The motorist prevailed, and the statute was struck down because the state had forced the motorist to carry the state's ideological message. Likewise, in the union and state bar cases the members won the right to limit the use of funds to prevent the organization from using their funds to support a singular, partisan objective.

By contrast, imposing a viewpoint neutral requirement on a student fee system eliminated the concern of a student being misidentified with an objectionable message. It is just as likely that the funded speech supports one viewpoint (for example, a Campus Republican rally or Federalist Society Meeting) as it does another, conflicting viewpoint (for example, Campus Democrats or the U.W. Greens). Put another way, the constitutional links between the individual and the message that it required in a compelled speech case does not exist if the message is a babel.

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