Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth

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No. 98-1185

In the

Supreme Court of the Mnited States

—

Board of Regents, University of Wisconsin,

Petitioner,

Vv.

Scott Southworth, et. al.,

Respondents.

~

On Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

+

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION; RAYMOND L. BROSTERHOUS III;

WILLIAM G. HOLLINGSWORTH; LISA R.

HOLLINGSWORTH; AND JEFFREY D.

FERNANDES IN SUPPORT OF RESPONDENTS

—~

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

| (RECT AVAILADIC CPADyY Ee

i

QUESTION PRESENTED

Whether the First Amendment is offended by a policy or

program under which public university students must pay

mandatory fees that are used in part to support organizations that

engage in political speech.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .... 2. cc ccsccccccccvccens i

TABLE OF AUTHORITIES ........ ccc cccccccnveces iv

IDENTITY AND INTEREST OF AMICI... ........... I

PT ERIE dave cnsbsevevewesendisecvecvees 3

STATEMENT OF THE CASE ..... 2... cccccnscccces 3

SUMMARY OF ARGUMENT ..............000000e: 5

RTE CA CWS aw OM eRe Reh a SKdob eH ss necereses 7

A STATE UNIVERSITY’S INTRUSION

ON STUDENTS’ FIRST AMENDMENT

RIGHTS MUST BE SUBJECTED TO

ey i eekvewh ents eentccerevecs 7

A. Standard First Amendment Analysis

B.

C,

Requires Strict Scrutiny .............c0e00, 7

This Court’s Agency Shop Fee Cases

implicitly Require Strict Scrutiny ............ 9

Strict Scrutiny Should Apply Regardless of

Whether the Challenged Programs or

Activities Are Labeled “Political” or

Buckley v. Valeo’s Holding That Monetary

Contributions Are Entitled to Less Scrutiny

ls Inapplicable When an Individual Asserts

His First Amendment Right to Refrain from

Subsidizing Another’s Speech ............. 21

TABLE OF CONTENTS—C ontinued

Page

ll. IN THIS CASE THE UNIVERSITY

HAS NO CONSTITUTIONAL

JUSTIFICATION TO COMPEL

PAYMENT OF FEES TO PROMOTE

STUDENT EXPRESSIVE ACTIVITIES ......... 24

A. The University Has No Compelling

Interest in Coercing Students to

Subsidize Voluntary Organizations’

Political and Ideological Activities .......... 24

B. A State University May Permit

Voluntary Funding of Student Groups

as a Less Intrusive Method of

Promoting Such Groups on Campus ......... 26

Diced dccedapenes eens bbdveseteucedar 27

iv

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Board of Education,

Ge Ck Pe E réuneadénsedsucicetoee< 1,9, 13

Austin v. Michigan Chamber of Commerce,

Ge Gees CE. Sh etsddedndehedetacksouuns 22

Buckley v. Valeo, 424 U.S. 1 (1976) ............ 14, 22-23

Carroll v. Blinken, 957 F.2d 991 (2d Cir.),

cert. denied, 506 U.S. 906 (1992) ...........0055. 24

Chang v. Immigration and Naturalization

Service, 119 F.3d 1055 (3d Cir. 1997) .......... 17-18

Colorado Republican Federal Campaign

Commitiee v. Federal Election

Commission, 116 S. Ct. 2309 (1996) ........... 22-23

Elrod v. Burns, 427 U.S. 347 (1976)... . 2... oe ee. 7-8

Federal Election Commission v. National

Conservative Political Action Committee,

Ge ee I obdbdsddeed ooobd 0s Gabi cess 23

Glickman v. Wileman Brothers & Elliott,

ge ee err de 6, 14

Keller v. State Bar of California,

RE a i et 1-2, 10

Landmark Communications, Inc. v.

PO, Gaur Gs PTE 6 cb cccccenececoceces &

Lehman v. City of Shaker Heights,

Ses EDEN sé hb ccecenesdaceatectdsuscan 15

Lehnert v. Ferris Faculty Association,

ee ek En ct echcttdcdx 1, 4-5, 10-11, 13-14

Vv

TABLE OF AUTHORITIES—C ontinued

Page

Miller v. Air Line Pilots Association,

108 F.3d 1415 (D.C. Cir. 1997),

aff'd, 118 S. Ct. 1761 (1998) ...........20055. 19-20

People v. Mirmirani, 30 Cal. 3d 375 (1981) ........ 18-19

Perry Education Association v. Perry

Local Educators Association, Inc.,

er a ohn Cb Ke Seed dececdcokecentens &

Popejoy v. New Mexico Board of Bar Governors,

887 F. Supp. 1422 (D.N.M. 1995) ............505: 16

Procunier v. Martinez, 416 U.S. 396 (1974) ... 2... ..... 8

Quijano v. University Federal Credit Union,

org eh fe 7 ere 16

Riley v. National F ederation of the Blind,

Ps Cen ctcsnueutrabcecucdcsocacees 7

Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995) ....... 1,11

Rounds v. Oregon State Board of Higher

Education, 166 F.3d 1032 (9th Cir. 1999),

pet. for reh'g pending decision

in Southworth granted (May 3, 1999) ....... 9, 12, 21-22

Schneider v. Colegio de Abogados de Puerto Rico,

917 F.2d 620 (ist Cir. 1990) .......... eee eeeees 16

Schwartz v. Romnes, 495 F.2d 844 (2d Cir. 1974) ...... 16

Smith v. Regents of the University of

California, 4 Cal. 4th 843 (1993),

cert. denied, 510 U.S. 863 (1993)....... 1, 11-12, 16, 27

Southworth v. Grebe, 151 F.3d 717

CR Gis, BEBE ccc ccccccccccvcesess 3-5, 8, 13-16, 25

vi

TABLE OF AUTHORITIES—C ontinued

Page

Thiel v. State Bar of Wisconsin,

94 F.3d 399 (7th Cir. 1996) .. 2... 6. c eee ee eees 16

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council,

Bean, GE Ds CODES cv cc ascrcccvcdesss 14-15, 20

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) ..........0000ee. 7,27

Wilson v. Chancellor, 418 F. Supp.

SO GE, TG vs nd dk cebinbdisinct cvccsedccs 18

Winters v. New York, 333 U.S. 507 (1948) ............ 14

Rules of Court

Supsemne Camst Rake S7 on. ccc cscs sc ccccccccsccecces l

SO OUD 466.0 64 04860 nda 69 046hbes 6bEbeeteedes l

Miscellaneous

The American Heritage Dictionary of the English

Language (Morris ed. 1981) ..... 2.2... ee ee ee ees 20

Black’s Law Dictionary (Sth ed. 1979) ............4.. 17

Bevilacqua, Public Universities, Mandatory

Student Activity Fees, and the First

Amendment, 24 J.L. & Educ. 1 (1995) ............. 26

R. Higgs, Crisis and Leviathan: Critical Episodes

in the Growth of American Government (1987) ... 20-21

La Fetra, Recent Developments in Mandatory

Student Fee Cases, 10 J.L. & Pol. 579 (1994) ....... 26

G. C. Lodge, The New American Ideology (1976) ....... 21

vii

TABLE OF AUTHORITIES—Continued

D. C. North, Structure and Change in

mamas TAI CUBED 5 oc civicccccccccccecess

A. J. Reichley, Conservatives in an Age

of Change: The Nixon and

Ford Administrations (1981) .............-....

Siemer, Lehnert v. Ferris Faculty Association:

Accounting to Financial Core Members: Much

A-Dues About Nothing? 60 Fordham L. Rev.

SCR aaa RR i De eR a

Webster’s Third New International

PE wahewcs bGnavauctdiaccausds

IDENTITY AND INTEREST OF AMICI

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation, Raymond L. Brosterhous_ Ill, William

Hollingsworth, Lisa Hollingsworth, and Je‘frey Fernandes

respectfully submit this brief amicus curiae in support of

Respondents Scott Southworth, et a/.' All parties consented to

the filing of the brief. The letters of consent have been lodged

with the Clerk of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of California

for the purpose of engaging in litigation in matters affecting the

public interest. PLF has adopted a legal policy objective that the

government may not force people to make involuntary payments

of funds that will be used for political or expressive purposes

To that end, PLF is submitting this brief to provide an additional

viewpoint with respect to the issues presented. PLF attorneys

were counsel of record in Keller v. State Bar of California,

496 U.S. 1 (1990), and have participated as amici in numerous

other compelled fee cases, including Rosenberger v. Rector and

Visitors of the University of Virginia, 515 U.S. 819 (1995);

Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991); and

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

PLF attorneys also represented the student objectors in Smith v.

Regents of the University of California, 4 Cal. 4th 843, cert.

denied, 510 U.S. 863 (1993). Except as otherwise noted, PLF

attorneys represent the other amici described below in their own

challenges to unconstitutional governmental uses of mandatory

fees.

' Pursuant to Supreme Court Rule 37.6, amici affirm that no counsel

for any party in this case authored this brief in whole or in part; and,

furthermore, that no person or entity has made a monetary

contribution specifically for the preparation or submission of this

brief.

2

Raymond L. Brosterhous III, was one of the plaintiffs in

Keller v. State Bar of California, 496 U.S. 1. In 1992, after the

State Bar failed to comply with the requirements of Keller, and

continued to compel individual attorneys to pay for lobbying and

other ideological activities unrelated to regulation of the legal

profession or improving the quality of legal services available to

Californians, Mr. Brosterhous sued again. That case,

Brosterhous v. State Bar of California, is pending in California

Superior Court for the County of Sacramento (Case

No. 527974). One of the issues in Brosterhous is the level of

scrutiny to be applied to the State Bar’s actions. On a pretrial

motion, the trial court ruled that this Court’s precedents

demanded strict scrutiny, but the State Bar continues to argue

that a far more deferential standard should be applied.

William Hollingsworth, Lisa Hollingsworth, and

Jeffrey Fernandes were students at Lane Community College in

Oregon. They objected to paying a mandatory fee to subsidize

the Oregon Student Public Interest Research Group (OSPIRG).

In an unpublished decision issued March 24, 1999 (Case

No. CV-95-6321-CO), the Ninth Circuit Court of Appeals

rejected their First Amendment claims against the college. In its

decision, the Ninth Circuit found that First Amendment claims

in the student activity fee context warranted only intermediate

scrutiny. The Hollingsworth students filed a petition for

rehearing in the Ninth Circuit pending this Court’s resolution of

this case.

Amici believe the significance of this case extends beyond

the context of mandatory student activity fees because it goes to

the heart of First Amendment jurisprudence applicable to all

types of compulsory funding. Amici seek to augment the

arguments in the parties’ briefs by concentrating on the legal

standard of strict scrutiny that must be applied in all First

3

Amendment cases, including those related to mandatory fees.

Moreover, amici believe that their litigation experiences

applying this Court’s precedents in both the integrated bar and

Student activity fee contexts will provide this Court with a

broader policy viewpoint than that presented by the parties and

believe that their broader viewpoint will aid this Court in the

resolution of this case.

OPINION BELOW

The opinion below is reported at Southworth v. Grebe,

151 F.3d 717 (7th Cir. 1998).

STATEMENT OF THE CASE

Students at the University of Wisconsin-Madison were

required to pay a student activity fee of $165.75 for the 1995-96

school year. A portion of this fee was allocated by the student

government to various politically active groups, including the

Wisconsin Public Interest Research Group (WISPIRG); the

Lesbian, Gay, Bisexual Campus Center; the UW Greens; the

International Socialist Organization; the Militant Student Union

of the University of Wisconsin; the Student Labor Action

Coalition; Student Solidarity; and Students of National

Organization for Women. Scott Southworth and other students

who disagreed with the political and ideological agendas of these-

organizations sued the university under various theories,

including the First Amendment right to refrain from subsidizing

these groups’ expressive activity.

The district court agreed with the objecting students and

found the collection and allocation of mandatory student activity

fees violate the First Amendment. On appeal, the Seventh

Circuit Court of Appeals affirmed the lower court opinion,

emphasizing that politically active groups can continue to speak

and act however they wish; however, the university cannot force

4

objecting students to subsidize those activities. Southworth,

151 F.3d at 721. The Seventh Circuit’s analysis began with the

general principles enunciated in Abood and Keller, and were

refined in Lehnert. The court below used the three-part Lehnert

analysis: To be constitutional, the expenditures must be

(1) “germane” to collective-bargaining activity;

(2) justified by the government’s vital policy interest

in labor peace and avoiding “free-riders;” and (3) not

significantly add to the burdening of free speech that

is inherent in the allowance of an agency or union

shop.

Lehnert, 500 U.S. at 519. The court found the university’s

practice of compulsory subsidization of political and ideological

groups violated all three prongs of this test.

First, the court held that the university could not prevail by

claiming that the political and ideological groups funded by the

student activity fee are germane to the university’s “educational”

purpose. Southworth, 151 F.3d at 725. The court recognized

that “everything is in a sense education{] . . . even if it merely

teaches you that you do not want to do it again.” /d. The court

concluded that the political and ideological groups, which are

private and open to students and nonstudents alike; which mirror

organizations existing outside the university setting; and which

have goals primarily concerned with the promotion of their

ideological beliefs, are not germane to legitimate university

goals. /d.

The mere incantation of the rubric “education” cannot

overcome a tactic, repugnant to the Constitution, of

requiring objecting students to fund private political

and ideological organizations.

Id.

Second, the court held that, even if the university could

surmount the “germaneness” hurdle, there is no vital interest in

5

compelling students to fund private organizations which engage

in political and ideological speech. /d. at 727. Moreover, the

court noted that

far from serving the school’s interest in education,

forcing objecting students to fund objectionable

organizations undermines that interest. In some

courses students are likely taught the values of

individualism and dissent. Yet despite the objecting

students’ dissent they must fund organizations

promoting opposing views or they don’t graduate.

Id. at 728.

Third, the court found that the specific expenditures of the

mandatory fee to fund the 18 challenged political and ideological

programs significantly added to the burdening of free speech

inherent in any compulsory payment of money. It relied on

Lehnert’s holding that using objecting employees’ funds to

lobby or otherwise garner public support for a position

“present|s] additional ‘interference with the First Amendment

interests of objecting employees.”” Lehnert, 500 U.S. at 521-22

(citation omitted). Relying heavily on the political and

ideological nature of the challenged programs, the Seventh

Circuit held that compulsory funding violated the students’ First

Amendment rights. Southworth, 151 F.3d at 730-31.

The university asked this Court to review the case, and the

petition for a writ of certiorari was granted March 29, 1999.

SUMMARY OF ARGUMENT

While the court below correctly decided this case, several

aspects of its analysis should be reviewed by this Court. First,

the court should have recognized that Lehnert, like the agency

shop fee and integrated bar cases before it, requires strict

scrutiny. Just like any other First Amendment case, courts

should apply strict scrutiny to mandatory student activity fees

used to subsidize groups engaging in expressive activity.

6

Students exercising their right to refrain from subsidizing others’

expressive activity are entitled to full First Amendment

protection. This is so despite the disturbing language in

Buckley v. Valeo that contributions are entitled to less First

Amendment protection than expenditures because someone else

is doing the actual talking. Whatever validity that distinction

may have had in the context of campaign contributions, certainly

the policy rationale for giving contributions less protection (to

prevent corruption) is wholly inapplicable when individuals wish

to refrain from contributing.

Second, the Seventh Circuit opinion unnecessarily

emphasized the political and ideological cast of the challenged

activities. This Court’s decisions in Abood and Glickman v.

Wileman Brothers & Elliott, 117 S. Ct. 2130 (1997), create

some confusion on this point, as Abood expressly declares that

no such political or ideological label is required, but Glickman

found the lack of such content important. To remedy this

inconsistency, this Court should acknowledge that Glickman was

inconsistent with Abood on this point; hold that, to the extent the

Glickman holding survives, that its emphasis on the lack of

political or ideological content to generic fruit advertisements is

limited to commercial speech. Alternatively, if the political or

ideological content of speech is held to be a necessary

precondition to First Amendment protection, then the Court

must define those terms so as to provide guidance to both the

universities and the lower courts as to the broad scope of activity

included within those genres.

Finally, applying strict scrutiny to the University of

Wisconsin fee, amici argue that the university does not have a

compelling interest to justify the fee in the first place. More-

over, even if the university has a compelling justification for

forcing students to subsidize voluntary activity groups, this

justification cannot extend to those groups which engage in the

activities challenged by the plaintiffs in this case.

7

ARGUMENT

I

A STATE UNIVERSITY’S INTRUSION

ON STUDENTS’ FIRST AMENDMENT RIGHTS

MUST BE SUBJECTED TO STRICT SCRUTINY

A. Standard First Amendment

Analysis Requires Strict Scrutiny

Standard First Amendment analysis follows strict scrutiny,

regardless of whether the First Amendment right is positive (one

may speak freely) or negative (one may refrain from speaking or

refrain from subsidizing others’ speech). These two aspects of

the free speech guarantee are usually considered to be two sides

of the same coin, as this Court taught in West Virginia State

Board of Education v. Barnette, 319 U.S. 624 (1943), holding

that school children could not be required to salute the American

flag. See also Riley v. National Federation of the Blind, 487

U.S. 781, 796-97 (1988) (“the First Amendment guarantees

‘freedom of speech,’ a term necessarily comprising the decision

of both what to say and what not to say”) (applying strict

scrutiny to statute requiring professional fund-raisers to disclose

financial and donor information). Moreover, just as compelled

silence is constitutionally indistinguishable from compelled

speech, so too are compelled statements of fact constitutionally

indistinguishable from compelled statements of opinion. Riley,

487 U.S. at 797.

Thus, under the usual First Amendment analysis, the

presumption of constitutionality gives way to a presumptive

prohibition on infringement. Elrod v. Burns, 427 U.S. 347, 360

(1976). This is especially true in cases involving political belief

and association, which constitute the core of those activities

protected by the First Amendment. /d. at 356. Encroachment

on First Amendment rights may be justified only if they survive

strict scrutiny. Riley, 487 U.S. at 788 (strict scrutiny is

“standard First Amendment analysis”). Such restrictions are

8

valid only if “necessary to serve a compelling state interest

and .. . narrowly drawn to achieve that end.” Perry Education

Association v. Perry Local Educators Association, Inc.,

460 U.S. 37, 45 (1983).

The interest advanced must be paramount, one of vital

importance, and the burden is on the government to show the

existence of the interest (not on the individual attacking the

restriction to show that such an interest does not exist). Elrod,

427 U.S. at 362. Even the usual deference to a legislative

finding cannot limit judicial inquiry when First Amendment

rights are at stake. Landmark Communications, Inc. v. Virginia,

435 U.S. 829, 843 (1978). In addition, the means chosen to

further the governmental interest must be closely drawn to avoid

unnecessary abridgment of First Amendment freedoms. The

government has the burden to show that its interest is furthered

by a means that is least restrictive of First Amendment rights.

Elrod, 427 U.S. at 363. See also Procunier v. Martinez,

416 U.S. 396, 413 (1974) (limitation on First Amendment rights

may be “no greater than is necessary or essential to the

protection of the particular governmental interest involved”). In

the compelled fee context, then, the government must show its

actions are least restrictive of dissenting students’ right to

withhold financial support from groups’ expressive activities.

Although this Court has never ruled specifically on the

issue of activities funded by mandatory student fees, cases in the

agency shop fee and integrated bar context provide a framework

for analyzing the appropriate use of mandatory student fees. In

the compelled fees context, there has been some confusion as to

whether and how to apply this analysis. The court below noted

that the Plaintiffs in this case urged the application of strict

scrutiny, but having already found the university violated First

Amendment rights using the Lehnert analysis, the Seventh

Circuit found it unnecessary to apply the more exacting scrutiny.

Southworth, 151 F.3d at 731 n.13. Actually, the Lehnert test

appears to be a form of strict scrutiny specifically designed for

9

agency shop fee cases. This Court’s omission in explicitly

Stating this, however, has led some courts to conclude that lesser

scrutiny is sufficient. See, e.g., Rounds v. Oregon State Board

of Higher Education, 166 F.3d 1032 (9th Cir. 1999) (petition for

rehearing pending decision in Southworth granted May 3, 1999);

Siemer, Lehnert v. Ferris Faculty Association: Accounting to

Financial Core Members: Much A-Dues About Nothing?

60 Fordham L. Rev. 1057, 1078-79 (1992) (identifying cases

where federal courts had trouble applying Lehnert). This case

presents the opportunity to this Court to:state explicitly what its

agency shop fee and integrated bar cases have held implicitly:

that objectors’ First Amendment challenges must be analyzed

under strict scrutiny.

B. This Court’s Agency Shop Fee Cases

implicitly Require Strict Scrutiny

In Abood v. Detroit Board of Education, 431 U.S. at 231,

this Court held that

the fact that [individuals] are compelled to make,

rather than prohibited from making, contributions for

political purposes works no less an infringement of

their constitutional rights.

Abood involved nonunion public school teachers who were

compelled to pay an agency shop fee to the teachers’ union. The

court upheld the requirement for all teachers in a bargaining unit

to support the collective bargaining representative, but ruled that

the Constitution was violated if nonmembers were compelled to

pay for political or ideological activities that were unrelated to

collective bargaining, contract administration, and grievance

adjustment. /d. at 235-36.

These same principles apply to attorneys who are forced,

by state law, to belong to and pay dues to a bar association. In

Keller v. State Bar of California, this Court dismissed

arguments that the Bar was not bound by prior case law

concerning compelled union dues. The Bar had argued that

10

the union fee cases should be distinguished from compelled bar

dues on the grounds that the Bar assertedly served a more

substantial public interest than the union’s private economic

interest. Keller, 496 U.S. at 13. This Court replied that

legislative recognition that the agency-shop arrange-

ments serve vital national interests in preserving

industrial peace, indicates that such arrangements

serve substantial public interests as well. We are not

possessed of any scales which would enable us to

determine that the one outweighs the other

sufficiently to produce a different result here.

/d. (citations omitted). This Court then announced the guiding

standard for determining challenges to the Bar’s expenditures:

[W]hether the challenged expenditures are

necessarily or reasonably incurred for the purpose of

regulating the legal profession or “improving the

quality of the legal service available to the people of

the State.”

Id. at 14.

Keller was followed by Lehnert v. Ferris Faculty

Association, 500 U.S. 507. In that case, a plurality of this Court

formulated a three-part test to be used in compulsory fee

challenges. This Court ruled that an expenditure is chargeable

to dissenters if (1) it is germane to the activity for which

compelled fees are permissible; (2) it is justified by the

government's vital policy interest that justified the compelled

fees; and (3) it does not significantly add to the burdening of free

speech already occasioned by the compelled fee. /d. at 518.

All of these cases were extremely important vindications of

the nghts of Americans to refrain from subsidizing speakers who

advocate ideas with which they disagree. The facts of the

Lehnert case in particular demonstrate why these principles must

be applied with equal vigor in the mandatory student fee context.

1]

The plaintiffs in Lehnert were state college professors who paid

agency shop fees to the faculty union. Upon their challenge to

the union’s practice of using compelled fees for all union

could not be compelled to subsidize any activities outside the

limited scope of contract ratification or implementation, even

matters as closely related to the union’s interests as taxes for the

support of public education. Lehnert, 500 U.S. at 520, 526. The

symmetry of public university professors and the students they

instruct in relation to the same First Amendment rights requires

the same vigilance in protecting those rights for both groups.

In 1995, Justice O’Connor noted that lower court decisions

applying the Abood-Keller-Lehnert line of cases resulted in a

split of authority among the lower courts as to whether an

objecting student may be forced to pay for political and

ideological speech with which they disagree.

Finally, although the question is not presented

here, | note the possibility that the student fee is

susceptible to a Free Speech Clause challenge by an

objecting student that she should not be compelled to

pay for speech with which she disagrees. There

currently exists a split in the lower courts as to

whether such a challenge would be successful.

Rosenberger v. Rector and Visitors of the University of Virginia,

515 U.S. at 851 (citations omitted) (O’Connor, J., concurring).

One of the lower court cases identified by Justice O’Connor is

Smith v. Regents of University of California, 4 Cal. 4th 843.

Smith involved a challenge by students to the University of

California’s practice of funding political and ideological groups

with mandatory student fees.” The California Supreme Court

* At issue in Smith were 14 groups, including Amnesty International,

Campus Abortion Rights Action League, Spartacus Youth League,

(continued...)

12

determined that the university’s use of compelled student fees to

fund political and ideological speech and activities was subject

to strict judicial scrutiny. “Because the use of a mandatory fee

implicates freedom of association, strict scrutiny applies.”

Smith, 4 Cal. 4th at 853 (emphasis added).

On the contrary, in both Hollingsworth and Rounds, the

Ninth Circuit expressly rejected the claim that the use of

mandatory fees to fund political and ideological activities is

subject to strict scrutiny.

The district court did not err in declining to apply

strict scrutiny to the funding of OSPIRG EF through

mandatory fees imposed upon the students at Lane by

the Board of Education. As we held in Rounds, even

if Abood v. Detroit Board of Education, 431 U.S. 209

(1977), and its progeny are applicable, they do not

endorse the application of strict scrutiny.

Hollingsworth, Memorandum Opinion at 3. See also Rounds,

166 F.3d at 1037.

Because competing constitutional interests are

implicated and significant governmental interests

impacted, an intermediate level of scrutiny is appro-

priate, assessing first the interference with First

Amendment rights imposed on those objecting to the

expenditures and then determining “whether they are

nonetheless adequately supported by a governmental

interest.”

This analysis is incorrect. There are no “competing constitu-

tional interests.” Rather, the students have a well-settled

constitutional right to refrain from subsidizing political and

ideological activities with which they disagree. Whatever

*(...continued)

and Students Against Intervention in E] Salvador. Smith, 4 Cal. 4th

at 850.

13

interest the university asserts is not a constitutional interest; it is

simply a governmental interest that must rise to the level of

“compelling” if it is to survive the first prong of standard First

Amendment analysis. This Court should determine that

mandatory funding schemes are to be strictly scrutinized (as in

Smith) instead of subjected to intermediate scrutiny (as in

Rounds and Hollingsworth) or analyzed through the three-

pronged test articulated by this Court in Lehnert (as in

Southworth) in favor of strict scrutiny.

C. Strict Scrutiny Should Apply Regardless of

The decision of the court below rested heavily on the fact

that the 18 challenged programs are easily identified as political

or ideological in nature. Southworth, 151 F.3d at 730-31. This

premise was wholly unnecessary, however, in light of this

Court’s holding in Abood that

our cases have never suggested that expression about

philosophical, social, artistic, economic, literary, or

ethical matters to take a nonexhaustive list of labels

is not entitled to full First Amendment protection.

. . » Nothing in the First Amendment or our cases

discussing its meaning makes the question whether

the adjective “political” can properly be attached to

those beliefs the critical constitutional inquiry.

Id. at 231-32. See Lehnert, 504 U.S. at 516, 521-22.

Unions have traditionally aligned themselves with a

wide range of social, political, and ideological

viewpoints, any number of which might bring

vigorous disapproval from individual employees. To

force employees to contribute, albeit indirectly, to the

promotion of such positions implicates core First

Amendment concerns. ... First Amendment protec-

14

tion is in no way limited to controversial topics or

emotionally charged issues.

See also Buckley v. Valeo, 424 U.S. 1, 14 (1976) (citing

Winters v. New York, 333 U.S. 507, 510 (1948)) (First

Amendment protections are not confined to the “exposition of

ideas”).

This Court’s decision in Glickman v. Wileman Brothers &

Elliott, 117 S. Ct. 2130, however, cast some confusion on this

matter. Glickman involved a challenge by independent fruit

growers who objected to regulations requiring they pay for

generic fruit advertising. While the four dissenting justices in

that case made it perfectly plain that the First Amendment

protects against the government compelling individuals to fund

private speech whether or not the speech at issue is political or

ideological (117 S. Ct. at 2147 (Souter, J., dissenting)), the rule

to be taken from the majority is less clear and to the extent it

conflicts with Abood, this Court should reaffirm Abood. In

Glickman, the Court upheld the assessment in part because it did

not compel the fruit growers to endorse or finance any political

or ideological views. /d. at 2138. While the court below found

this aspect of the regulation to be of the “utmost significance to

the Court’s ruling” (Southworth, 151 F.3d at 730), what actually

seeins to be of the greatest importance in that case was that the

federal government had a longstanding practice of thoroughly

regulating this particular field of commerce. Glickman, 117 S.

Ct. at 2138-39.

Commercial price and product advertising differs

markedly from ideological expression because it is

confined to the promotion of specific goods or

services. The First Amendment protects the

advertisement because of the “information of

potential interest and value” conveyed, rather than

because of any direct contribution to the interchange

of ideas.

-

15

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 779-80 (1976) (Stewart,

J., concurring) (internal citation omitted, footnote omitted).

This purported line between commercial and ideological

speech, however, is indistinct at best, and more frequently

wholly indeterminate. As Justice Brennan noted in Lehman v.

City of Shaker Heights, 418 U.S. 298, 319-20 (1974) (Brennan,

J., dissenting) (a case involving a city’s ordinance forbidding

political advertisements on buses while permitting other types of

advertisements):

The line between ideological and nonideological

speech is impossible to draw with accuracy. By

accepting commercial and public service advertise-

ments, the city opened the door to “sometimes

controversial or unsettling speech” and determined

that such speech does not unduly interfere with the

rapid transit system’s primary purpose of transporting

passengers. In the eyes of many passengers, certain

commercial or public service messages are as

profoundly disturbing as some political advertise-

ments might be to other passengers.

If, however, this Court maintains that, in the commercial

context, a challenged activity must have political or ideological

content to be subject to strict scrutiny under the First

Amendment, the Court should clarify that this holding is

applicable in the commercial realm only. In the agency shop fee,

integrated bar, and student activity fee cases, core First

Amendment rights may not be infringed regardless of whether

a court labels challenged activities as “political” or “ideological.”

Nonetheless, even in agency shop fee and similar cases,

and despite Abood’s caution to the contrary, courts frequently

employ the phrase “political and ideological” to describe the

challenged activities in compelled dues cases. This is probably

due in large part to the fact that the plaintiffs in these cases often

16

challenge only those activities which are blatantly political or

ideological. See, e.g., Southworth, 151 F.3d at 720 (challenging

only 18 programs); Smith, 4 Cal. 4th at 850 (challenging 14 out

of 150 programs)). At least two federal appeals courts flatly

contradict Abood by requiring proof of political or ideological

content before permitting members of an integrated bar to

challenge the bar’s use of their dues for expressive purposes

with which they disagree. Thiel v. State Bar of Wisconsin,

94 F.3d 399, 404-05 (7th Cir. 1996); Schneider v. Colegio de

Abogados de Puerto Rico, 917 F.2d 620, 633 (ist Cir. 1990)

(approving lobbying on “technical” legislation); see also

Popejoy v. New Mexico Board of Bar Governors, 887 F. Supp.

1422, 1429-31 (D.N.M. 1995).

If the First Amendment is going to be held to apply only to

“political or ideological” activities,’ however, this Court should

provide guidance as to the types of activities these adjectives

encompass. As shown below, however, attempting to define

“political” and “ideological” demonstrates just how broad those

words are; and why Abood’s holding that such adjectives are

unnecessary makes so much sense. For example, the word

“political” covers a wide range of expressive activity; it is not

limited to lobbying or campaign contributions.

“One rarely abandons the path of logic and commonsense

when Webster is consulted for the precise meaning of a term.”

Quijano v. University Federal Credit Union, 617 F.2d 129, 131

(Sth Cir. 1980). The Second Circuit did just that in Schwartz v.

Romnes, 495 F.2d 844, 860 n.6 (2d Cir. 1974), quoting from

Webster’s Third New International Dictionary (1961), the

following definitions of “political” and “politics”:

* Such a requirement, however, would prove devastating to the values

the First Amendment was designed to protect. Political dissent would

be easy to suppress if speakers were first required to prove in court

that this message met the current definition of “political” or

“ideological.”

LR NE Me NT SN a ATOR N SSE NE CHES TE er ae eee een a Nee Re

17

[P]olitical . . . la: of or relating to government, a

government, or the conduct of governmental affairs;

b: of or relating to matters of government as

distinguished from matters of law . . . c: engaged in

civil as distinguished from military functions .. .

d: of, relating to, or concerned with the making as

distinguished from the administration of govern-

mental policy . . . 3a; of, relating to, or concerned

with politics; b: of, relating to, or involved in party

politics .. ..” “politics . . . la: the art or science of

government: a science dealing with the regulation and

control of men living in society: a science concerned

with the organization, direction, and administration of

political units (as nations or states) in both internal

and external affairs: the art of adjusting and ordering

relationships between individuals and groups in a

political community; b(1): the art or science

concerned with guiding or influencing governmental

policy . . . 4a(1): political affairs or business; specif:

competition between competing interest groups or

individuals for power and leadership (2): activities

concerned with governing or with influencing or

winning and holding control of a government... .

(3): activities concerned with achieving control,

advancement, or some other goal in a

nongovernmental group (as a club or office) . . ..

Similarly, to determine whether a Chinese national could

properly seek asylum because he feared persecution in China for

his “political” opinions, the Third Circuit relied on the defini-

tion of “political” in Black’s Law Dictionary (Sth ed. 1979):

Pertaining or relating to the policy or the administra-

tion of government, state or national. Pertaining to,

or incidental to, the exercise of the functions vested

in those charged with the conduct of government;

relating to the management of affairs of state, as

18

political theories; of or pertaining to exercise of

rights and privileges or the influence by which

individuals of a state seek to determine or control its

public policy ....

Chang v. Immigration and Naturalization Service, 119 F.3d

1055, 1069 n.5 (3d Cir. 1997).

In Wilson v. Chancellor, 418 F. Supp. 1358, 1368 n.11

(D. Or. 1976) (reviewing a school district policy banning

“political” speakers at school), the court noted that

the word “political” itself connotes different things to

different people, not excluding judges and editors of

dictionaries. . . .

Without more, the word political is too vague and

its meaning too elusive to tolerate in regulations

aimed at protected conduct.

The California Supreme Court (also relying on Webster’s) struck

down as unconstitutionally vague a statute criminalizing threats

made to further social or political purposes in People v.

Mirmirani, 30 Cal. 3d 375, 384 (1981) (citations omitted):

“Political” is defined as of or relating to “govern-

ment,” “the conduct of governmental affairs,” or

“politics.” Politics is “the art or science of govern-

ment,” “the regulation and control of men living in

society,” and the “total complex of interacting and

(usually) conflicting relations between men living in

society.”

Applying this definition, the court went on to say:

The main problem with the statute is that it is all-

inclusive. It is virtually impossible to determine what

conduct by an individual in a democratic society

could not in some way be construed as an attempt to

-_

19

achieve a “social” or “political” goal. At first glance,

it might be argued that one who threatened another

after a barroom brawl would not be included within

the scope of the statute. However, if the brawl started

because of a racial epithet and one of the participants

hoped to deter members of a certain racial group

from coming to that bar, would such threats be made

to achieve a goal related to “human society” or to the

“conflicting relationships” among men and women in

society? Clearly the statute provides no guidance to

the police, prosecutor, judge or jury who must decide

whether the conduct was motivated by the desire to

achieve a social or political goal.

Despite the apparent intent to limit the scope of

the statute to threats aimed at achieving “social or

political goals,” those words in fact provide no

limitation at all. They are all-encompassing.

Id. (emphasis added).

Specifically in the context of agency shop fees, the District

of Columbia Circuit also recognized the broad definition of

“political” for purposes of determining whether union expendi-

tures are germane. In Miller v. Air Line Pilots Association,

108 F.3d 1415, 1422 (D.C. Cir. 1997), aff'd, 118 S. Ct. 1761

(1998), the appellate court held:

The union would have us see its lobbying on safety-

related issues as somehow nonpolitical because all

pilots share a common concern with these activities.

But we cannot possibly assume that to be true. All

pilots are surely interested in airline safety, but it

would certainly not be unexpected that pilots would

have varying views as to the desirability of

government regulation--including those regulations of

airlines that pertain to safety. The benefits of any

regulation include trade-offs, and certain pilots might

20

be reluctant to pay the costs either directly or

indirectly of increased regulations, just as others

might oppose relaxed regulations that could expand

work opportunities. Some, of course, might even

object to such regulations on principle.

Further confusion and potentially unwarranted limitation on

First Amendment rights result when lower courts treat “political”

and “ideological” as synonyms. At the very least, lower courts

should be aware that the definition of ideological includes all

social programs, even those which may lack discernible political

content. The common dictionary definition of “ideology” is “the

body of ideas reflecting the social needs and aspirations of an

individual, group, class, or culture.” The American Heritage

Dictionary of the English Language at 654 (Morris ed. 1981).

Justice Stewart defined “ideological expression” as follows:

Ideological expression, be it oral, literary, pictorial, or

theatrical, is integrally related to the exposition of

thought that may shape our concepts of the whole

universe of man.

Virginia State Board of Pharmacy, 425 U.S. at 779 (Stewart, J.,

concurring). Scholars define “ideology” in varying ways, but all

stress the social aspect of ideological thought:

* “{Aj distinct and broadly coherent structure of values,

beliefs, and attitudes with implications for social

policy.”

A. J. Reichley, Conservatives in an Age of Change: The Nixon

and Ford Administrations at 3 (1981), cited in R. Higgs, Crisis

and Leviathan: Critical Episodes in the Growth of American

Government at 36 (1987) (Higgs).

* “[A] collection of ideas that makes explicit that

nature of the good community. . . . [T]he framework

by which a community defines and applies values.”

21

G. C. Lodge, The New American Ideology at 7 (1976), cited in

Higgs at 36.

* “{Ajn economizing device by which individuals come

to terms with their environment and are provided

with a ‘world view’ so that the decision-making

process is simplified. [It is] . . . imextricably

interwoven with moral and ethical judgments about

the fairness of the world the individual perceives.”

D. C. North, Structure and Change in Economic History at 49

(1981), cited in Higgs at 36-37.

At a minimum, therefore, “ideological” activities that cannot be

funded with compelled fees would include those seeking social

change, “good” government, or “fairness” in the way the world

operates.

D. Buckley v. Valeo’s Holding That Monetary

Contributions Are Entitled to Less Scrutiny

Is Inapplicable When an Individual Asserts

His First Amendment Right to Refrain

from Subsidizing Another’s Speech

The Ninth Circuit decisions in Rounds and Hollingsworth

relied in part on the notion that monetary contributions are

entitled to less First Amendment protection because someone

else is making the actual speech: ;

The challenge in this case does not present an

instance of compelled personal speech, for no

personal speech is compelled from anyone. ... For

this reason, contrary to the Students’ argument, strict

scrutiny is not required. When personal speech is

compelled, as in Wooley v. Maynard and West

Virginia State Board of Education v. Barnette, state

action is valid only if it is “a narrowly tailored means

of serving a compelling state interest.” PG&E

Company v. Public Utilities Corporation, 475 U.S. 1,

22

19 (1986). Because mandatory exactions do not

involve personal endorsements, such exacting

scrutiny is not required.

Rounds, 166 F.3d at 1037-38 and 1038 n.4. To arrive at this

holding, the Ninth Circuit misapplied this Court’s holding in

Buckley v. Valeo, 424 U.S. 1.

In Buckley, this Court upheld federal statutory limits on

campaign contributions. The Court found that the government

had a compelling interest in preventing corruption or the

appearance of corruption and that the limits were related to this

interest. Buckley, 424 U.S. at 26. The Court expressly declined

to subject these Jimits to strict scrutiny because “a contribution

serves as a general expression of support for the candidate and

his views, but does not communicate the underlying basis for the

support.” /d. at 21. Campaign expenditures, on the other hand,

were held to be core political expression fully protected by the

First Amendment.

In the first place, this Court should revisit this oft-criticized

distinction between the constitutional scrutiny applied to contri-

butions and expenditures.

We do little but engage in word games unless we

recognize that people . . . spend money on political

activity because they wish to communicate ideas, and

their constitutional interest in doing so is precisely the

same whether they or someone else utters the words.

Id. at 244 (Burger, J., concurring in part and dissenting in

part). See also Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 678 (1990) (Stevens, J., concurring) (the

distinction “should have little, if any, weight in reviewing

corporate participation in candidate elections”); Colorado

Republican Federal Campaign Committee v. Federal Election

Commission, 116 S. Ct. 2309, 2326 (1996) (Thomas, J.,

23

concurring and dissenting) (“Contributions and expenditures

both involve core First Amendment expression .... When an

individual donates money to a candidate or to a partisan

organization, he enhances the donee’s ability to communicate a

message and thereby adds to political debate, just as when that

individual communicates the message himself. Indeed, the

individual may add more to political discourse by giving rather

than spending, if the donee is able to put the funds to more

productive use than can the individual.”). See also Federal

Election Commission v. National Conservative Political Action

Committee, 470 U.S. 480, 495 (1985) (where the “proxy”

speech is endorsed by those who give, that speech is a fully

protected exercise of the donors’ associational rights). (“To say

that their collective action in pooling their resources to amplify

their voices is not entitled to full First Amendment protection

would subordinate the voices of those of modest means as

opposed to those sufficiently wealthy to be able to buy expensive

media ads with their own resources.”)

In the second place, the Buckley Court held that

contributions are entitled to less constitutional protection

because of the state’s interest in preventing the possibility of

corruption or the appearance of corruption. Buckley, 424 U.S.

at 26. But this justification makes no sense in the reverse case--

where a person wishes to exercise his or her right to refrain from

making a contribution. In this case, and lacking any counter-

vailing compelling state interest, the freedom of speech right is

entitled to full First Amendment protection.

24

IN THIS CASE THE UNIVERSITY HAS NO

CONSTITUTIONAL JUSTIFICATION TO COMPEL

PAYMENT OF FEES TO PROMOTE STUDENT

EXPRESSIVE ACTIVITIES

A. The University Has No Compelling Interest

in Coercing Students to Subsidize Voluntary

Organizations’ Political and Ideological Activities

While a university may well have a compelling interest in

exposing students to various conflicting viewpoints, it does not

have a compelling interest in coercing support for those

viewpoints.

[T]he freedom to keep silent as well as to speak is

grounded in something broader than a national fear of

the state. It is equally the product of our view of

personhood, which encompasses what the Supreme

Court later referred to as “freedom of thought,”

“freedom of mind” and a “sphere of intellect and

spirit.” Were there no state at all, or were it

inalterably benign, our conception of what it means to

be human would still lead us to respect the individual

autonomy of intellect and will enshrined in the First

Amendment.

Carroll v. Blinken, 957 F.2d 991, 996 (2d Cir.), cert. denied,

506 U.S. 906 (1992) (citations omitted). By coercing support

for political groups, the university sends a troubling message to

students: If students want to advance a political position for

which they cannot find support, the government will give them

money to propagate their unpopular views. This is an

illegitimate lesson for a public university to teach its students.

ee NT ee

25

The defendants in Abood and Keller understood that mandating

support for an organization smothers, rather than stokes,

contrary speech. Moreover, the university, let alone the political

groups themselves, does not create a free marketplace or forum

for the expression of ideas. Rather it requires students to be the

financial sponsors of someone else’s speech. Indeed, the notion

that a free marketplace of ideas can be created and encouraged

by involuntary contributions is an oxymoron. The strength of an

idea (Le., its acceptance in the marketplace) is best measured by

how many people will volunteer to spread the idea or to help

finance its propagation.

The university’s position also implies that the First

Amendment has only limited application within the confines of

a public university campus. As the court below noted,

far from serving the school’s interest in education,

forcing objecting students to fund objectionable

organizations undermines that interest. In some

courses students are likely taught the values of

individualism and dissent. Yet despite the objecting

students’ dissent they must fund organizations

promoting opposing views or they don’t graduate.

Southworth, 151 F.3d at 728. If the university really wants

students to learn practical civics lessons, it should encourage

politically active groups to learn the art of fund-raising. In real

political campaigns, opponents of the message do not give

money to the cause.

26

B. A State University May Permit Voluntary

Funding of Student Groups as a Less Intrusive

Method of Promoting Such Groups on Campus

Universities are free to adopt any system of funding student

activities that avoids constitutional defects. The best system,

howev. is the “positive check-off” voluntary system. Such a

check-off could be designed in a number of ways. For example,

it could list each recognized student group eligible for funding

and permit students to choose which particular groups they wish

to subsidize. Alternatively, it could simply provide a single box

which, if checked, would mean that the student assents to

funding all eligible student groups. By requiring students to

designate affirmatively that they wish to fund particular groups,

either individually or as a whole, the university advances several

compelling goals. First, it requires thought on the part of the

student, rather than mindless contributions to groups the student

may not even be able to identify. Second, it encourages student

groups to organize and articulate their messages clearly so as to

attract as much financial support as possible.* Third, and most

importantly, it sends a strong message to the entire student body

that the university respects the constitutional rights of ail

students and has taken the strongest measures possible to protect

those rights. La Fetra, Recent Developments in Mandatory

Student Fee Cases, 10 J.L. & Pol. 579, 612-13 (1994).

Supporters of compelled funding have derided such a

method, complaining that

* The groups benefit in another way: if they suffer a funding shortfall

when their opponents are no longer forced to subsidize their

activities, the groups will likely turn to their own members to make

up the difference. A person who pays a membership fee to belong to

one of these groups will have a more personal stake in the group’s

successful attainment of its objectives. Bevilacqua, Public

Universities, Mandatory Student Activity Fees, and the First

Amendment, 24 J.L. & Educ. 1, 29-30 (1995).

27

funding will soon devolve into a political popularity

contest. Thus, in a setting where provocative ideas

should receive the most support and encouragement,

precisely the opposite will occur; student groups will

be subject to an ideological referendum, and the most

marginal groups will receive the least financial

assistance. This is truly Orwellian.

Smith, 4 Cal. 4th at 881 (Arabian, J., dissenting).

Justice Arabian’s reasoning is backwards. What is Orwellian is

a Situation in which marginal groups are presented to the

community as having support where there is none and presented

as mainstream rather than extreme. Giving these ideas the cover

of legitimacy and acceptability because of coerced subsidization

from students who oppose the message perpetrates a great

disservice. Students who wish to attract adherents to unconven-

tional ideas must do so by convincing others of the soundness of

their theories. Giving these unconventional thinkers the

unwilling financial support of their dissenters grants them the

means to speak more loudly than their actual support would

permit. .

CONCLUSION

The students in West Virginia State Board of Education v.

Barnette, by being forced to salute the flag, were more than

exposed to patriotism; they were forced to support it with a

raised hand. Like them, the students at UW-Madison were not

simply exposed to divergent views, they were forced to reach

into their pockets to finance their opponents views. Ideas that

could not win adherence through persuasion and reason were

thus kept alive by the state by imposing fees on those who do not

support the idea in question. The First Amendment was

designed to prevent just such an exercise of state power.

Attempts by the government, whether through a public

agency, a legislature, or a court, to force individuals to finan-

cially support political and ideological activities with which they

28

disagree have been rejected from the time of Thomas Jefferson

to the present. This Court has on numerous occasions protected

the rights of teachers, attorneys, and nonunion agency shop fee

payers to refrain from supporting speech which they oppose.

Students are entitled to no less protection.

For the reasons expressed above, the decision of the

Seventh Circuit Court of Appeals should be affirmed.

DATED: June, 1999.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae