The Price of Free Speech:
Regents v. Southworth

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.

This construct was borrowed from conventional public forum analysis. Government is permitted to devote public resources for public use, so long as access to the public resource is made equally available for use. The usual circumstance is a public park. Taxes subsidize the maintenance, upkeep, and at times the creation of a park. Yet no one believes that all taxpayers support the various messages in the rallies or demonstrations in the park. And while many taxpayers may be genuinely offended by the speech taking place in the park, the answer is not to close the park or deny access to those with whom we disagree, even though they may be the Nazi party or the Ku Klux Klan.¹⁸ The First Amendment answer is to hold a counter demonstration to generate contrary speech and let the "marketplace of ideas" sort out the truth.¹⁹

Applying the public forum analysis to nonspatial fora such as pools of money was not entirely new. The Supreme Court had applied public forum analysis to require equal access to an internal mailbox system²⁰, and in Rosenberger had characterized the student fee system as a limited public forum, albeit one "more in a metaphysical than in a spatial or geographic sense."²¹ Southworth was a logical application from these cases. The decision places the university in the functionally equivalent position of the public park administrator who must allocate park or parade permits. So long as the university has opened a resource for public use, it must allow access to all groups equally whether or not the university agrees or disagrees with the group's message.

Grafting the viewpoint neutrality principle into the student fee context has a particular resonance in the university setting. Even more so than a public park, the university setting is traditionally thought of as a place for experimentation of ideas and vigorous:

"The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"²²

Not only have faculty been accorded wide First Amendment berth²³, but the First Amendment has protected the rights of students to gain equal access to facilities to conduct meetings for groups as controversial as the Students for a Democratic Society.²⁴

By the same reasoning, the requirement of viewpoint neutrality raises significant questions about the referendum process at U.W.-Madison that permitted students to vote on funding decisions. Since the point of viewpoint neutrality was to provide First Amendment protection to objecting students, it is easy to understand why a referendum allowing voting on funding is suspect. Minority viewpoints could, through funding restrictions, be swept away at the voting booth by majority rule.

Returning to the public park analogy, funding decisions based on popular vote would be akin to allowing the issuance of permits for parks and other public fora based on popular vote. In either case, the views of less popular groups would be voted down and the marketplace of ideas improperly skewed. Prior to Southworth, the analysis of referenda systems to allocate student fees had yielded mixed results. A system with a binding referenda had been struck down²⁵, while an advisory referenda system had been upheld.²⁶ Because the record was not fully developed on this issue, the Supreme Court ultimately remanded that issue for further consideration.

Future Program Guidance

Not all universities are alike. While a university is "entitled to impose a mandatory fee to sustain an open dialogue" to promote its educational mission, the Supreme Court was careful to state that a university is under no First Amendment obligation to offer a mandatory fee program to subsidize student groups. Like government generally, public universities have considerable, albeit not unlimited, freedom to choose what programs to support financially.²⁷

A university choosing to impose a mandatory student fee also has considerable leeway to structure a student fee program. Although not constitutionally required, a university is free to allow an optional payment or a refund mechanism. To take an example, a check-off system like the one approved in Buckley v. Valeo would seem to be permissible.²⁸ The question left unresolved is whether the check-off would apply generally to the fund, whether a student could refuse to contribute to particular groups, or whether students would be allowed to opt into subsidizing certain groups but not others.

As a constitutional matter, the Supreme Court rejected any geographic limitations on student fee programs, "[w]e make no distinction between campus activities and off-campus expressive activities of objectionable RSOs." That, however, does not foreclose restricting a student fee program to the campus confines. A university is also free to define whether the geographic limits of a program can extend beyond campus. The public forum model would support this limitation as a limited public forum.

Viewpoint Neutrality Is Essential

Implicit from the Court's analysis is the caution that viewpoint neutrality must be taken seriously. We have a rich and unfortunate history of dogged efforts to silence unpopular speech under various guises. Groups like the Nazi party and the Ku Klux Klan are the usual targets, and the Supreme Court has made it clear that the First Amendment is not selective in its application.²⁹ Student fee programs are subject to the same scrutiny if they are administered in such a way to prevent equal access to a student group for a viewpoint-based reason.

The possibilities are not difficult to imagine. Funding decisions could be manipulated so that less popular student groups with minority political or ideological views will receive lower levels of funding, or no funding at all. Although subtler than holding a binding referendum to de-fund a minority student group, the discriminatory effect is the same: the First Amendment protections of minority viewpoints are eliminated.

Southworth provides important precedent to challenge that type of conduct.

This Is Not Government Speech

While Southworth was a broad endorsement of free speech and debate in the university setting, there were explicit limitations. Most important, the challenged speech was not that of the University of Wisconsin, but was student speech:

"The University's whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors."³⁰

The difference matters.

Government speech is subject to a separate First Amendment analysis, and the Court explicitly warned that the viewpoint neutrality standard does not apply when examining First Amendment challenges to the decisions by a university or its faculty.³¹ Those decisions are governed by the government speech doctrine that does not require viewpoint neutrality, but recognizes that government has wide discretion to fund programs and speech that it values, and decline funding for speech it does not value.³² The only limitation is when government has allocated its funding in such a way to discriminate invidiously in an effort to aim at the suppression of dangerous ideas.³³

The Concern Over Speech Codes

The concurring opinion by Justice Souter, joined by Justices Stevens and Breyer, hinted at another concern: university speech codes.³⁴ The concern was aimed at limiting the broad-based principle that a university is well within its bounds in the interest of academic freedom to pursue programs that facilitate a broad array of student speech. While expansive, the authority of the university to define its missions is not unlimited, particularly when it does so in a way to burden First Amendment rights.

Speech codes come into play. They often have been justified as necessary to protect the right to an open academic environment free from hostile or demeaning harassment.³⁵ Even though speech codes arguably further academic freedom like student fees, they undeniably operate to restrict rather than expand speech. To warn against taking the broad endorsement academic freedom in Southworth too far, the concurring opinion was clear that Southworth should have been decided on narrower grounds with the academic freedom reasoning as only an important consideration in the First Amendment analysis.

The Debate Is Not Over

While Southworth provided clear guidance in student fee programs, the debate is not over. It will now move to the student government where RSOs will clamor to get a fair share of funding to put out their own message. That would be a welcome First Amendment response.

Endnotes

¹ Cohen v. California, 403 U.S. 15 (1971).

² Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 137 (1961).

³ Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Keller v. State Bar of California, 496 U.S. 1 (1990); see also Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996).

⁴ Board of Regents of the Univ. of Wis. Sys. v. Southworth, __ U.S. __, 120 S. Ct. 1346 (2000).

⁵ Keyishian v. Board of Regents, 385 U.S. 589 (1967); Sweezy v. New Hampshire, 354 U.S. 234 (1967).

⁶ Glickman v. Wileman Brothers & Ellioti Inc., 521 U.S. 457 (1997).

⁷ Smith v. Regents of the Univ. of California, 4 Cal. 4th 843, 844 P.2d 500 (Sup. Ct.) cert. denied, 510 U.S. 863 (1993); Galda v. Rutgers, 772 F. 2d 1060 (3d Cir. 1985) cert. denied, 475 U.S. 1065 (1986).

⁸ Carroll v. Blinken, 957 F. 2d 991 (2d Cir.) cert. denied, 506 U.S. 906 (1982); Kania v. Fordham, 702 F. 2d 475 (4th Cir. 1983); Hays County Guardian v. Supple, 969 F. 2d 111 (5th Cir. 1992), cert. denied, 506 U.S. 1087 (1993); Rounds v. Oregon State Bd. of Education, 166 F. 3d 1032 (9th Cir. 1999); Good v. Associated Students of the Univ. of Washington, 86 Wash. 2d 94, 542 P.2d 762 (Sup. Ct. 1975).

⁹ Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995).

¹⁰ Id.

¹¹ Southworth v. Grebe, No. 96 C 292S, slip op. (W.D. Wis. filed Nov. 29, 1996); Southworth v. Grebe, 151 F. 2d 717 (7th Cir. 1998).

¹² Southworth v. Grebe, 157 F. 3d 1125 (7th Cir.1998).

¹³ Southworth, 120 S. Ct. at 1354.

¹⁴ E.g. International Machinists v. Street, 367 U.S. 740, 778 (1961).

¹⁵ Southworth, 120 S. Ct. at 1355; Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991); see also Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996).

¹⁶ Southworth, 120 S. Ct. at 1355.

¹⁷ Wooley v. Maynard, 430 U.S. 705 (1977).

¹⁸ Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978).

¹⁹ Keyishian v. Board of Regents, 385 U.S. 589 (1967).

²⁰ Cornelius v. NAACP Legal Defense & Educ. Fund Inc., 473 U.S. 788 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).

²¹ Rosenberger, 515 U.S. at 830.

²² United States v. Associated Press, 52 F. Supp. 362, 372.

²³ Keyishian v. Board of Regents, 385 U.S. 589 (1967); Sweezy v. New Hampshire, 354 U.S. 234 (1967).

²⁴ Healy v. James, 408 U.S. 169 (1969).

²⁵ Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), cert. denied, 475 U.S. 1065 (1986).

²⁶ Carroll v. Blinken, 957 F.2d 991 (2d Cir.) cert. denied, 506 U.S. 906 (1992).

²⁷ E.g. Regan v. Taxation with Representation, 461 U.S. 540 (1983).

²⁸ Buckley v. Valeo, 424 U.S. 1 (1976).

²⁹ Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).

³⁰ Southworth, 120 S. Ct. at 1354.

³¹ Id. at 1357.

³² Regan v. Taxation with Representation, 461 U.S. 540 (1983); Rust v. Sullivan, 500 U.S. 173 (1991).

³³ Cammarano v. United States, 358 U.S. 498 (1959).

³⁴ Southworth, 120 S. Ct. at 1357 fn. 5 (Souter concurring).

³⁵ Dambrot v. Central Michigan Univ., 55 F. 3d 1177 (6th Cir. 1995); UWM Post v. Board of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).

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