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Lesson 59 - Free Speech 20:

GOVERNMENT AS SUBSIDIZER OR SPEAKER

GOVERNMENT AS SPEAKER -- UNLIMITED DISCRETION: When the government is itself the speaker, government officials have virtually unlimited discretion in what the government says. Of course, this means that some government employee has to actually say it: Speak it, print it, or post it on the Web site. The employee might be unhappy about having to do this, or might prefer to say, print, or post something else.

Too bad. The Webmaster at the Drug Enforcement Agency has no right to respond to the anti-drug advocacy on the Web site with pro-drug (or anti-criminalization) advocacy of his own. One can see this as viewpoint discrimination, but the government is entitled to discriminate among viewpoints in choosing what it wants to say.

GOVERNMENT AS SUBSIDIZER -- UNLIMITED DISCRETION: Likewise, if the government is subsidizing speech, it may subsidize some forms of speech and not other forms. It might, for instance, give Planned Parenthood $50,000 to develop a Web site giving information on contraception but not abortion, or offer grants to anyone who wants to put together chat rooms focused on ending racial strife but not chat rooms focused on continuing it.

The careful reader might notice that there's some tension between this principle -- the government may subsidize some speech and not other speech -- and the "designated public forum" principle. After all, if the government offers classrooms or Web sites to its students, it's in a sense subsidizing their speech, but there it can't pick and choose among viewpoints (or even contents). How are government cash subsidies different?

The Court has never fully answered this, but it seems that the distinction is whether the speech is in some sense ascribable to the government. If the government is funding contraceptive information, it's choosing the message it wants to send -- here is how to get contraceptives -- and just using someone else to articulate the message. That's not far from the government as speaker; the government is subsidizing speech with a message that it in large measure chose.

But if the government is funding all student Web sites, it's not choosing any message, but only enabling students to communicate their own messages. In this situation, the government is seen as proprietor of a designated public forum, and is significantly constrained in how it may restrict speech in that forum. Perhaps an unsatisfactory distinction, but it's more or less the one we've got.

SUBSIDIES -- LIMITATION: One *important* caveat: While the government can freely impose conditions on how a speaker uses a subsidy (e.g., use this money to advocate racial harmony and not racial strife), it's much more restrained in imposing conditions on how the subsidized speaker uses *other* money. Thus, the government can't just say: "We'll give you $50,000 to put together a Web site with information on abortion, but only if you promise not to put up any Web site -- even with your own money -- with information on contraception." It can't leverage a grant of $50,000 into control over the speaker's *other* resources.

Exactly how much the government is constrained in these sorts of conditions is unclear, but it seems that it's as constrained as it would be when acting as sovereign: Highly constrained indeed.

authors:
Larry LessigDavid PostEugene Volokh



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