Compelled Expression and the Public Forum Doctrine

Abstract

This Article undertakes a comprehensive analysis of the doctrine and theory underlying the First Amendment protection against being compelled to utter or present an unwanted message or to fund another private speaker's message. The particular focus is on how that protection applies or should apply to the use of government-compelled payments - such as taxes, assessments, or university student activities fees - to fund traditional and designated public forums when those forums are used by objectionable or offensive speakers. The premise is that a broad protection against the compelled funding of public forums threatens the feasability and existence of places and programs established and maintained by Government for the purpose of facilitating and enhancing private expression. The article creates a three-part model for determining when an objecting payer's free speech rights have been triggered, looking to 1) whether there has been an actual government compulsion; 2) whether the payer is required to give money to, or for the benefit of, a specific private speaker or whether the payer gives money only to the government; and 3) whether the use of the funds can, itself, be understood as expressive. The model recognizes that the right against compelled funding of expression is triggered only when the immediate use of the funds is expressive and is not triggered when the immediate user of the funds is the Government, as opposed to a private speaker. This model reaches a necessary balance between the important theoretical underpinnings of the protection against compelled expression and the First Amendment commitment to the dissemination of the maximum amount of individual expression. The Article applies this model to show how the Supreme Court should have rejected the First Amendment challenge in Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (rejecting, but on different and unworkable grounds, challenge by students at a State University to the use of their mandatory student activities fees to fund speaking programs by student organizations), as well as possible future challenges to the funding of other public forums, in the University and in the community at large, including parks and sidewalks, auditoriums, and expressive subsidy programs such as the National Endowment for the Arts. Under this approach, no payer may object to having her mandatory payments used to create and maintain a public forum, because the establishment, administration, and maintenance of the forum is not itself expressive (as distinct from the speech that may occur in that forum). The payer funds only the physical place and services associated with that place or the pool of money in the subsidy program, none of which is expressive. The payer is not compelled to fund any actual objectionable speech or speaker.