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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 217

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0261%3A10. Public record. Not legal advice.