First Among Equals (11 page)

It was the same discriminatory viewpoint all over again. Ten years after
Widmar,
the Court was now unanimous in striking down a school district's exclusionary policy. The equality principle had grown in strength, overpowering contrary interests. The Dobson film series fell entirely within the range of activities and programs that ought to be permitted as after-hours events by a school district.
Equality demanded that religious perspectives be treated the same as secular viewpoints.

But equality has not been the sole organizing principle of the Supreme Court's interpretation of the Free Speech Clause. Consider the story of Scott Southworth, who wasn't moved by the equality principle at all. He just wanted to be left alone. This was the core value of individual autonomy, which likewise informs the free-speech principle, tugging at the idea of equality. As a student at the University of Wisconsin's Madison campus in the mid-1990s, South-worth objected to paying student fees to support left-wing student organizations with which he vehemently disagreed. This compelled financial support, he felt, violated his rights of free speech. He should not be forced to subsidize the speech of groups to which he objected. Probably only in places like Madison could coerced student-fees support organizations such as the International Socialist Organization. These young socialists advocated, as was their First Amendment right, the overthrow of the government and the abolition of capitalism. In their view, the need was for “revolution, not reform.” The young socialists declared: “Reforms within the capitalist system cannot put an end to oppression and exploitation. Capitalism must be overthrown.” This was all highly offensive to Scott Southworth and four of his fellow students. They wanted out of Wisconsin's system of compulsory financial support.

Like other state universities, the University of Wisconsin imposed a nonrefundable student fee. The amount was $165 per semester. Students were told, in effect, “Pay it or else.” The money supported uncontroversial items such as student health services and athletic programs on a nondiscriminatory basis. The university had heard the message about equality. Virtually any group, religious or secular, could qualify for subsidy from student fees under the university's egalitarian approach.

This was the flip side of the free-speech coin. South-worth and his fellow students weren't complaining about discrimination of the kind faced by the students in the
Widmar
case. Instead, they objected to being forced to support ideological and political groups with which they disagreed.

The Madison students were complaining, in short, about
coercion.
Did the First Amendment, properly interpreted, include a freedom from the coercive influence of the state to support an ideological message?

The issue was complicated. Everyone understands that taxpayers cannot somehow opt out of supporting particular government programs they dislike. Quite apart from practical concerns, a taxpayer-veto system also runs into the principle of majority rule. We have elections decided by majority vote as opposed to demanding the impossible: unanimity or virtual consensus. In addition to free speech (and free-press) guarantees, the citizenry's protection against overbearing majoritarian rule lies in the
structure
of our national and state institutions.

Liberty, the founders believed, would be protected by, among other things, dividing Congress into two different houses, requiring bills to be presented to the president for approval (or veto, with the possibility of a super-majority override) before they become law, and providing for judicial review as to a law's constitutionality in the context of an actual “case or controversy.”

The problem in the
Southworth
case was that the University of Wisconsin is not the government writ large. The university could readily provide what the federal or state government could not: an opt-out or check-off system. Allowing students to have a vote with respect to financial support for voluntary student organizations seems fair. But the school officials apparently wanted nothing of the sort, preferring equality of support along with coercion of would-be conscientious objectors.

Lower courts were sympathetic to the students’ claims. Both a federal district court in Wisconsin and the federal appeals court in Chicago ruled in their favor. Coercion, those courts concluded, was constitutionally impermissible. As the lower courts saw the issue, the coercive fee system ran afoul of basic principles developed by the Supreme Court in its “freedom of speech” cases. In fact, the
equality principle
emerging in these very cases required, the lower courts believed, some kind of escape from an otherwise coercive regime.

The lower courts were influenced in particular by the Rehnquist Court's 1995 decision in
Rosenberger v. Rector
. In that case, involving the University of Virginia, the Court held—by a narrow margin—that a student newspaper with a Christian perspective could not be denied support from student fees collected under a system akin to the one at the University of Wisconsin. The principles from
Widmar
and
Lamb's Chapel
were controlling. For the lower courts in the Wisconsin case, the fact that Virginia had to fund all such groups, in the interest of equality, made the concern about Southworth's coercion all the more acute.

With special emphasis on the coercion issue, the Wisconsin students pointed to a Supreme Court case that, in their view, supported their exemption claims. The case (
Abood v. City of Detroit
[1977]) protected the right of a teacher to avoid paying fees to a union
to the extent that the fees subsidized the union's political activities.
The case arose out of a struggle between a teachers’ union, certified as the exclusive bargaining representative for public school teachers in Detroit, and non-union teachers who were required, under the collective bargaining agreement, to pay a “service fee” to the union. The fee was levied in place of union dues. The idea was to prevent “free riders,” with the non-union teachers receiving the union's services (such as negotiating higher wages and benefits) without paying for them. But the non-union teachers contended that they should not have to pay the service fee to the extent that it was devoted to the union's political efforts.

In the Detroit case, the Supreme Court was deeply divided over whether public-sector employees could be required, as a condition of employment, to be in a union shop. A narrow majority said they could be. But on the liberty-of-conscience issue the Court was unanimous. Appealing to fundamental principles of human liberty, the Court ruled in favor of the objecting teachers. Drawing from Thomas Jefferson's writings about liberty, the Court held broadly that the objecting teachers could not be required to pay any amount beyond that necessary to fund the core union dues. Electing pro-union candidates to public office exceeded the union's proper role in exacting dues. The union's task was to represent teachers in contract negotiations with the board of education and other labor-related activities.

Here, the Court engaged in line-drawing. Some union activities were lawful and appropriate, but teachers who wanted no part of the union's vision of the good society more broadly didn't have to pay for them. Years later, the Court drew a similar distinction in
Keller v. California
(1990). The case involved an “integrated” bar association to which all practicing lawyers in California were required to belong. The bar association could require lawyers to pay an annual fee, but it could not use the money to finance anything other than its efforts to regulate, discipline, and control the bar and seek improvements in the administration of justice. Supporting, for example, a nuclear-weapons freeze was a political activity that went well beyond the scope of what bar associations were organized to do. To be sure, opposing nuclear-weapons proliferation was a perfectly lawful undertaking, and the bar association was at liberty to engage in such lobbying if its members so chose (and state law so permitted). But objecting lawyers could not be made to pay for that kind of lobbying activity. As a result, the Court decided that some sort of rebate system or check-off system (which the Court left to the discretion of the California bar) was necessary.

Abood
and
Keller
were especially relevant in the Wisconsin case, for in both cases the Court had unanimously embraced a vigorously libertarian vision of free speech. Freedom of speech included, the Court said, a freedom from coerced support of speech with which the individual disagrees. This spirit infused the Court's landmark 1943 decision in
West Virginia v. Barnette,
where in soaring language the Court held that children in public schools could not be required, against their conscience, to participate in a flag salute or Pledge of Allegiance ceremony. It was permissible for public schools to have such ceremonies, but freedom of conscience—what Justice Robert Jackson eloquently called the “freedom of the mind”—required government to allow an exception for those who didn't want to participate. This same libertarian sentiment guided the Court a generation later, in the mid-1970s, to uphold the right of a liberty-minded New Hampshire citizen to tape over the state's motto, “Live Free or Die,” which had been stamped on his automobile license plate. The individual could not be forced, the Court held, to be the unwilling conveyor of an ideological message.

Scott Southworth and his fellow UW-Madison students relied on those well-established freedom-of-conscience cases, and the two lower courts in the Midwest sided with them. But a unanimous Supreme Court disagreed. Without retreating from its precedents condemning coercive-fee regimes, the High Court reached its “coercion-is-okay-here” conclusion based on the unique nature of a university. Colleges and universities exist to foster opportunities for students to pursue a wide variety of interests: social, political, and ideological. This is far different from unions and bar associations, which have a much more limited role. But at the same time, the Court agreed that the students had a legitimate interest: their desire not to be coerced into supporting certain groups. And that interest could not be dismissed out of hand. The answer to the constitutional issue the Madison students raised was: equality. If the university were truly even-handed, funding all groups on a completely equal basis, then this egalitarian approach would provide the objecting students with sufficient First Amendment relief. Although the students couldn't get (a portion of) their money back and would have to tolerate their contributions funding radical groups, the students were not left entirely without a remedy. To the contrary, they could insist that the university be genuinely open and even-handed in the financing of all student groups.

This was a significant step under the First Amendment.

The Court, speaking through its most ardent defender of free speech, Justice Kennedy, imported from other First Amendment cases (such as
Lamb's Chapel
) the principle of equality in the doctrinal form of “viewpoint neutrality.” Government could not discriminate against speakers, or forced contributors, on the basis of viewpoint. The equality principle again had triumphed.

At the same time, the Wisconsin decision, although unanimous, exposed fault lines on the Court, sharply separating the Court's center from its four-member left wing. Justices O'Connor and Kennedy viewed the objecting Madison students’ situation with great empathy. It would not do to slough off their claims as unimportant. To the contrary, concerns about coercion, as illustrated by the Detroit teachers’-union case and the California-bar case, were of a very high order. But thanks to the equality principle, they agreed, it was acceptable for Wisconsin to administer an otherwise unconstitutional regime.

This balanced, nuanced approach stood in stark contrast to that taken by the Court's four left-leaning justices. Speaking through Justice Souter, the liberals could scarcely hide their disdain for the Wisconsin students’ claims. Universities cannot be compared to teachers’ unions and bar associations. Students can be forced to pay for speech they don't like.

Still and all, this was intramural scuffling. The nine justices did agree on the bottom line: The university, being the kind of institution it is, could require students to pay for speech activities that they found objectionable.

But how far might coercion go? How far would the Court let it go? The Court answered this question in
Boy Scouts of America v. Dale,
which it handed down a few months after
Southworth
(and which we introduced in Chapter Two). James Dale, an assistant Scout leader enrolled at Rutgers University, became a student activist in a gay and lesbian students’ organization. When news of Dale's on-campus role reached his Scout troop, he was expelled. His gay lifestyle, which he made public as a campus leader, was deemed incompatible with the Boy Scouts’ dedication to the “morally straight” life, as embodied in the organization's famous oath.

Dale, whose Scout service had been exemplary, successfully argued that his expulsion violated New Jersey's public accommodations law, a broad antidiscrimination statute. But the victory in the left-leaning New Jersey supreme court was short-lived as the Supreme Court, speaking through Chief Justice Rehnquist, held in favor of the Scouts. Freedom to associate had great force, here protecting traditional views that were unpopular among the cultural elite who trumpeted the gay-rights agenda.

In the
Scouts
case, the Court (albeit by a narrow 5-4 majority) was uncompromisingly on the side of associational liberty. It stood against government regulation. It was willing to bear the inevitable criticism flowing from its taking the “wrong” side in the culture wars. At the same time, this was the cautious, prudent Court unwilling to rock the boat. It had a core idea—individual autonomy—and would not, as the Warren Court might well have, bring about a fundamental change in American traditions. Flag-burners could be tolerated easily enough; that was at the core of free expression. Trampling over venerable organizations such as the Boy Scouts would have been viewed in much of the country as unwarranted and unwise. Where the stakes were high, the Court would show restraint.