American Bar Association
Forum on Communications Law
Bruce J. Ennis, Paul M. Smith, and Nory Miller
On March 22, 2000, the Court announced a new standard for reviewing certain compelled speech claims, in Board of Regents of the University of Wisconsin System v. Southworth, No. 98-1189.1 The case involved a mandatory student activity fee imposed by a public university and used in part to fund student organizations, some of which engage in political or ideological speech. The fee was challenged by a group of students on compelled speech grounds. They claimed that the university must allow them to opt out of funding political and ideological speech that was offensive to their personal beliefs, relying on the line of union dues cases beginning with Abood,2 and the application of the same doctrine to bar association fees in Keller.3
Although fees at state universities may, in other circumstances, raise questions with respect to the "government speech" doctrine, the University of Wisconsin had disclaimed any responsibility for the speech at issue here, arguing instead that this was student speech. The Court therefore did not determine what limits, if any, govern a state-sponsored university's use of its own money, including tuition charges, to support political and ideological speech.
The University of Wisconsin's activity fee was segregated from tuition charges and a portion was made available to the student government to allocate among student organizations. In addition, student referendums could also fund or defund particular student organizations. The university had policies defining the types of expenditures that could be funded, which the parties had stipulated were viewpoint neutral.
The district court had found the challenge governed by the Abood and Keller line of cases and held that the fee program impermissibly compels students to contribute to political and ideological activity with which they disagreed. It enjoined the university from using student activity fees to fund any student organization that engaged in political or ideological speech. The Seventh Circuit agreed that the university was violating the constitutional rights of students, but modified the district court's order to prohibit the university from requiring objecting students to pay that portion of the fees used to fund organizations engaged in expression that they found objectionable.
The U.S. Supreme Court reversed, announcing a different standard of review, in an opinion authored by Justice Kennedy. The Court agreed with the lower courts that the interests of the objecting students were the same interests identified in Abood and Keller, but found the constitutional rules adopted in those cases inapplicable in the university context. The union dues cases, responding to objections from nonmembers required to pay "service fees" to unions operating at their place of employment, had drawn a line between activities germane to a union's bargaining representative purpose, which nonmembers could be required to support, and union-sponsored political speech, which they could not. Similarly, in Keller, the Court had drawn a line between activities germane to a bar association's mission of regulating the profession and political speech. Noting that these lines had been difficult to draw even in those contexts, the Court found that approach unworkable here because an important part of a university's mission is to stimulate a wide range of ideas. Any speech, therefore, would be arguably germane.
The Court therefore declined to apply Abood and Keller, and instead drew on its public forum cases for a rule that it found more workable, a requirement of viewpoint neutrality. In so doing, the Court saw an appropriate symmetry with Rosenberger,4 in which the Court held that access to funds generated by student fees must be viewpoint neutral. The Court declined to make any distinction between on-campus and off-campus activities, finding that universities possess significant interests in encouraging student involvement outside the university. Although the Court remanded for further proceedings to apply the new standard, it indicated that the referendum aspect of the program might not pass muster. However, it expressly held that permitting students to avoid paying for speech that they found offensive is not constitutionally required.
Justice Souter, joined by Justices Stevens and Breyer, concurred in the judgment. Justice Souter would have found the student fee constitutional (noting that the referendum issue was not adequately addressed in the courts below), without adopting viewpoint neutrality as the standard. Justice Souter opined that such a result is supported by the decisions upholding academic freedom, that recognize the First Amendment's protection of a university's right to shape its educational mission and by the case law invalidating compelled speech, that he viewed as very different from the student fee situation. Justice Souter found it significant that the relationship between the fee payer and the objectionable expression is more attenuated here than in Abood and its progeny where contributors were required to pay the very organization speaking the objectionable messages; that the government here (the university) has a legitimate interest in the educational value of the activities supported by the fee; and that the university context inevitably places students in the position of supporting speech that they may find objectionable. Justice Souter also would have considered the grant program within the context of government speech jurisprudence, viewing the fee as a tax, and finding government programs aimed at broadening public discourse permissible.
Because Southworth promulgates a new compelled speech standard for forced contributions, without overruling Abood and its progeny, it remains for future decisions to develop an analysis for determining which challenges are reviewed under which standard.
City of Erie v. "Kandyland"
On March 29, 2000, the U.S. Supreme Court issued a ruling in City of Erie v. Pap's A.M., TDBA "Kandyland,"5 involving the constitutionality of a municipal ordinance banning public nudity, as applied to suppress nude dancing in private establishments. Reversing the Pennsylvania Supreme Court, the Court upheld the ordinance under the First Amendment. In so doing, it reached the same result as it had in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), a fractured ruling that produced no mode of analysis supported by a majority of the Court. City of Erie helps somewhat to reduce the confusion in this area of the law, although the Court was still unable to muster a five-Justice majority willing to sign on to a single opinion explaining the reasons why the ordinance did not conflict with constitutional rights.
The key issue in the case was the standard of review applicable to a law that, on its face, banned public nudity generally, and thus was not limited to regulating expressive activity. Justice O'Connor, in a plurality opinion joined by the Chief Justice and Justices Kennedy and Breyer, took the view that the law was properly subject to intermediate scrutiny under the test set forth in United States v. O'Brien.6 That test is usually applied to laws that regulate conduct and have an "incidental" effect on expressive conduct. Here, although Justice O'Connor noted that the law was a "general prohibition on public nudity,"7 that was not the primary basis for her decision to apply O'Brien. Instead, her focus was on the fact that the stated goal of the city was combating "secondary effects" of nude dancing such as violence, drunkenness, and prostitution.8 Because, in her view, that goal does not relate directly to the suppression of expression, she argued that no form of scrutiny more stringent than intermediate O'Brien review was required.
Justice O'Connor also found that the four-part O'Brien test was satisfied.9 She recognized, first, that the nudity ban was within the general constitutional power of a state or one of its subdivisions. Second, Justice O'Connor found that the ban satisfied the requirement of furthering an important or substantial governmental interest. She noted that the city had a valid basis both in the prior case law and in its own findings for concluding that there is a linkage between nude dancing establishments and "secondary effects." And she was also willing to allow the city to make the judgment that merely requiring dancers to wear "pasties and G-strings" would somewhat reduce those effects. Third, Justice O'Connor concluded that the city's interest was unrelated to the suppression of expression. Finally, she stated that because any impact on expression was de minimis , the ordinance satisfied the requirement that its restriction of speech be no greater than essential to the furtherance of the governmental interest.
Justice Souter, albeit in dissent, provided a fifth vote for the application of O'Brien-level scrutiny.10 Applying the O'Brien standard, he concluded that the city had failed to develop the kind of evidentiary record required, in his view, to support empirical judgments that the ordinance would further the interest in reducing secondary effects and that no other less restrictive approach could do the job.11 Justice Souter expressly recognized that his concurring opinion in Barnes had not required such an evidentiary record and acknowledged that he had then erred. He added: "I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late."12
By contrast, the votes needed to form a majority upholding the constitutionality of the ordinance came in an opinion concurring in the judgment, authored by Justice Scalia and joined by Justice Thomas. Justice Scalia asserted that no degree of heightened First Amendment scrutiny was applicable to this kind of ostensibly general law regulating conduct, which happened to have an impact on some forms of expressive conduct.13 In so doing, he followed the approach that he had espoused in Barnes and elsewhere. He also found it insignificant that the ordinance included a preamble making clear that the target was nude expression . Indeed, Justice Scalia opined that even if the law did single out speech, it was constitutionally justified based on the city's legitimate judgment that "nude public dancing" is "immoral."14
At the other end of the spectrum, Justice Stevens, in a dissent joined by Justice Ginsburg, argued that the Court's O'Brien analysis was fundamentally flawed. He drew a distinction between laws that regulate conduct and incidentally burden some expressive conduct, that are properly tested under O'Brien by examining the state interest served by regulating the conduct and a law justified as reducing the secondary effects of a particular category of speech, here nude dancing.15 Justice Stevens explained that the two forms of analysis cannot be conflated. He went on to say that it was unprecedented and unjustifiable to uphold a ban on a category of speech based on its perceived secondary effects.16 He saw such a ruling as a dangerous extension of the cases allowing zoning regulation of the location of adult businesses designed to reduce secondary effects. In his view, it is nearly always improper for the government to attempt to suppress a category of speech altogether, based on its perceived "effects," secondary or otherwise.
1. 120 S. Ct. 1346 (2000).
2. Abood v. Detroit Bd. of Ed. , 431 U.S. 209 (1977).
3. Keller v. State Bar of Cal. , 496 U.S. 1 (1990).
4. Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 (1995).
5. Southworth, 120 S. Ct. at 1382.
6. 391 U.S. 367 (1968).
7. Southworth, 120 S. Ct. at 1391.
8. Id. at 1392-95.
9. Id. at 1395-98.
10. Id. at 1402.
11. Id. at 1405.
12. Id. at 1405-06.
13. Id. at 1398-1400.
14. Id. at 1402.
15. Id. at 1406-11.
Bruce J. Ennis, Paul M. Smith, and Nory Miller are partners of the Washington, D.C., office of Jenner & Block. Messrs. Ennis and Smith filed an amicus brief for the ACLU supporting the respondent in the City of Erie case.