Court takes a narrow view of viewpoint discrimination.

In two recent cases, the Supreme Court has narrowed the First Amendment's protections of freedom of speech by narrowly defining "viewpoint discrimination" within the meaning of the First Amendment.(1)

The Court frequently has declared that the very core of the First Amendment is that the government cannot regulate speech based on its content. In Police Department of Chicago v. Mosley, for example, the Court said, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."(2)

The Court has declared that "content-based regulations are presumptively invalid."(3) In Turner Broadcasting System, Inc. v. Federal Communications Commission, the Court said the general rule is that content-based restrictions on speech must meet strict scrutiny, while content-neutral regulations only need meet intermediate scrutiny.(4)

The requirement that the government be content neutral in its regulation of speech means that the government must be both viewpoint neutral and subject matter neutral.(5) Viewpoint neutral means that the government cannot regulate speech based on the ideology of the message.(6) For example, it would be clearly unconstitutional for the government to say that prochoice demonstrations are allowed in the park but antiabortion demonstrations are not allowed. In Boos v. Barry, the Court declared unconstitutional a District of Columbia ordinance that prohibited the display of signs critical of a foreign government within 500 feet of that government's embassy.(7) The law, in its very terms, limited certain speech based on viewpoint.

Subject matter neutral means that the government cannot regulate speech based on the topic of the speech.(8) A 1980 case, Carey v. Brown, is illustrative.(9) An Illinois statute prohibited all picketing in residential neighborhoods unless it was labor picketing connected to a place of employment. The Supreme Court held this regulation unconstitutional. The Court explained that the law allowed speech if it was about the subject of labor, but not otherwise. The Court said that whenever the government attempts to regulate speech in public places, it must be subject matter neutral.

As the law has developed, at times subject matter restrictions on speech have been upheld,(10) but viewpoint restrictions never have been upheld. Viewpoint restrictions pose "the inherent risk that the government seeks not to advance a legitimate regulatory goal but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion."(11)

The two recent Supreme Court decisions--Arkansas Educational Television Commission v. Forbes and National Endowment for the Arts v. Finley--are important because each narrowly defines viewpoint discrimination. The decisions will make it more difficult for individuals asserting free speech rights to prevail.

The state of Arkansas owns and operates a public television station. In 1992, the station sponsored a debate between candidates for a congressional seat but invited only the Democratic and Republican nominees to participate. Ralph Forbes, a minor party candidate with little public support, formally requested to be included in the debate. After being denied participation, Forbes sued and claimed that his exclusion violated the First Amendment.

The Supreme Court, in a 6-3 decision, ruled against Forbes. The decision turned on the issue of whether a public television station is a public forum. Public forums are government-owned properties that the government constitutionally must make available for speech.(12) Sidewalks and parks are classic examples. Designated public forums are places that the government can close to speech but that it chooses to open for First Amendment activities.(13) Nonpublic forums are places that the government can and does close to speech.

The Court concluded that the public television station was not a public forum and did not become a designated public forum by sponsoring the debate.(14) The law is clearly established that for nonpublic forums, government regulations are allowed so long as they are reasonable and viewpoint neutral.(15)

The Court, in a majority opinion by Justice Anthony Kennedy, concluded that the exclusion of the minor party candidate was viewpoint neutral and thus did not violate the First Amendment. The Court quoted the executive director of the station, who said that "Forbes' views had `absolutely' no role in the decision to exclude him from the debate."(16) The Court concluded: "There is no substance to Forbes' suggestion that he was excluded because his views were unpopular or out of the mainstream. His own objective lack of support, not his platform, was the criterion."(17)

The National Endowment for the Arts (NEA) provides grants to artists. Since 1965, when it was created, it has disbursed over $3 billion in funds to individuals and organizations.(18) The federal statute creating the NEA gives it substantial discretion in awarding funds. It is empowered to give money based on "artistic and cultural significance, giving emphasis to American creativity and cultural diversity," "professional excellence," and the encouragement of "public knowledge, education, understanding, and appreciation of the arts."(19) In 1990, the statute was amended to provide that the NEA also should take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public."(20)

Karen Finley was one of four performance artists who brought a First Amendment challenge to this latter requirement. The U.S. Court of Appeals for the Ninth Circuit ruled for Finley, concluding that the requirement was unconstitutionally vague and that it was impermissible contentbased discrimination.(21) The Supreme Court, with only Justice David Souter dissenting, reversed and upheld the "decency" and "respect for values" provision.

Justice Sandra Day O'Connor's opinion for the Court emphasized that the federal law did not require that the NEA consider decency and respect for values; rather, the statute merely permitted such consideration. The Court rejected the vagueness challenge and noted that "when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe."(22) In other words, when the government is giving subsidies, imprecise criteria are permitted, even if they would not be tolerated in a regulatory statute.

O'Connor also rejected the claim that the law was impermissible viewpoint discrimination. The Court stressed that the government must make choices among applicants and said the statute's language does "not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its face."(23) The Court said that there was no allegation of viewpoint discrimination in the application of the law and that facially the law was constitutional.(24)

What is viewpoint discrimination?

The Supreme Court never has defined what constitutes viewpoint discrimination. The two recent decisions are disturbing because both adopt a narrow definition of viewpoint discrimination/and give the government more latitude to regulate speech.

In the Forbes case, the Court concluded that excluding a minor party candidate from participating in a debate is viewpoint neutral. But what causes a candidate to be from a minor, rather than a major, party? The answer, of course, is that the views of a minor party candidate are favored by a much smaller percentage of the population than the views of a major party candidate. From this perspective, choosing whom to include in a debate based on whether the candidate is from a minor or a major party is all about viewpoint.

In Finley, the Court said a federal law that authorized the NEA to consider "decency" and "respect for values" was viewpoint neutral. Yet, these terms inherently focus attention on viewpoint. What is decent or indecent depends on the evaluator's views. Likewise, determining whether art shows respect for values requires a viewpoint-based assessment. It is hard to imagine this provision of the statute as doing anything other than authorizing the government to look at viewpoint.

Nothing is more inconsistent with freedom of speech than for the government to use its awesome power to advance some views and suppress or disfavor others. The two cases from last term are important because they narrow the definition of what constitutes viewpoint discrimination and make it harder for those raising some First Amendment claims to prevail.

Notes

(1.) National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998); Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633 (1998).

(2.) 408 U.S. 92, 95 (1972).

(3.) R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

(4.) 512 U.S. 622 (1994).

(5.) See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983).

(6.) See Amy Sabrin, Thinking About Content: Can It Play an Appropriate Role in Government Funding of the Arts? 102 YALE L.J. 1209, 1227-28 (1993).

(7.) 485 U.S. 312 (1988).

(8.) Sabrin, supra note 6, at 1227-28.

(9.) 447 U.S. 455 (1980).

(10.) See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding restriction on campaigning activity near polling places); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (allowing ordinance prohibiting political advertisements on buses, while permitting commercial advertisements).

(11.) Turner Broadcasting Sys., 512 U.S. 622, 641.

(12.) Forbes, 118 S. Ct. 1633, 1641.

(13.) Id.

(14.) Id. at 1641-42.

(15.) Perry Educ. Ass'n, 460 U.S. 37, 49.

(16.) 118 S. Ct. 1633, 1643.

(17.) Id. at 1644.

(18.) Finley, 118 S. Ct. 2168, 2172.

(19.) 20 U.S.C. [sections] 954(c)(1), (3), (5).

(20.) 20 U.S.C. [sections] 954(d)(1); see Finley, 118 S. Ct. 2168, 2173.

(21.) Finley v. National Endowment for the Arts, 112 F.3d 1015 (9th Cir. 1997).

(22.) 118 S. Ct. 2168, 2179.

(23.) Id. at 2176.

(24.) Id. at 2178-79.

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles.