# Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0261%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 217 ## Text , be * i OY ~ ; he bd af oo _ ee : J FCN Apes ‘i , . On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit BRIEF OF THE NATIONAL SMOKERS ALLIANCE AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS BoaLT HALL SCHOOL OF LAW University of California CPS Berkeley, CA 94720 (510) 643-5089 » IT tet ti. | LAffili ti for * Counsel of Record Identification Purposes Only WILSON - Epes Pmntine Co., Inc. - ; - WasnimeTon, D.C. 20001 7 v TABLE OF CONTENTS TABLE OF AUTHORITIES ........ SUMMARY OF ARGUMENT .... I. Il. III. ete eenee —- THE UNIVERSITY CONTEXT DOES NOT JUSTIFY THE VIOLATION OF A CITIZEN’S FIRST AMENDMENT RIGHT AGAINST COMPELLED POLITICAL SPEECH ........ iil PETITIONERS’ FEE CANNOT SURVIVE FIRST AMENDMENT STANDARDS OF RE- WR tinticentehaevicstanintnadnantiedtbinatitmasmnctiiesnattes THE FIRST AMENDMENT’S ORIGINAL UN- DERSTANDING SUPPORTS THE PROHIBI- TION ON THE USE OF MANDATORY FEES TO FUND POLITICAL SPEECH .......0000000. CONCLUSION ...................-.-. hibciaesiicalaateiatipsg iecgeeninnieeain Page 15 CASES ii TABLE OF AUTHORITIES Page Abood v. Detroit Board of Education, 481 U.S. BOD CROCE) cxceniceccsisscecstsncnnsiiniaiaeseeaeen passim Buckley v. Valeo, 424 U.S. 1 (1976) ..00.0..00....----- 5, 19, 20 Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992)...... 9 Chicago Teachers Union v. Hudson, 475 U.S. 292 0) | ARTEL Edenfield v. Fane, 507 U.S. 761 (1998) .................. Ellis v. Brotherhood of Railway, Airline & Steam- ship Clerks, 466 U.S. 485 (1984) ..0000.0.. cee. Estate of Hemingway v. Random House, 23 N.Y.2d Se) are Everson v. Board of Ed. Of Ewing, 330 U.S. 1 CRD). xccnceceecccesecnernespecsiusuunpunanssianis InnnaannnnnnnnE Galda v. Rutgers, 772 F.2d 1060 (8d Cir. 1985)...... Glickman v, Wileman Brothers & Elliott, Ine., 117 BS. Ce. BABS CIGOGD): qcnconcerecscdusncsacwsnsisaseeeenen Horper & Row Publishers, Inc. v. Nation Enter- prices, €71 U.B. GEG COBB) ...cumcicicticcsees Hayvs County Guardian v. Supple, 969 F.2d 111 (Gita Cle. 2008) .eccacscarsevcescussetssuiiaieisnalnnaennnennnes 9 Hazelwood School District v. Kuhlmeier, 484 U.S. BOO CRGRB) ~.cecovcencecscsestssnseescnbeaninsninansiasnanee 11 Healy v. James, 408 U.S. 169 (1972) ....00000000...... 11, 12,13 Kania v. Fordham, 702 F.2d 475 (4th Cir. 1988)... 9 Keller v. State Bar of California, 496 U.S. 1 _ o ow C1GBD) acencesecccesssesecasecusseueiesninieieannnennannnnnnn passim Keyishian v. Board of Regents, 385 U.S. 589 CRO FD anneccccncsesvocnsnecosesnsedpsinneniienasnensniinanasanamnannnnan 12, 14 Lamb's Chanel v. Center Moriches Union Free School Dist., 508 U.S. 884 (1998) 2.000000. 25 Lehnert v. Ferris Faculty Association, 500 U.S. BOT CRGBE D ccncccnercnsatsosectantnececsdisnssannanannnanes 8 Los Angeles v. Preferred Communications, Inc., Bis Se Oy) | ee 10 Machinists v. Street, 8367 U.S. 740 (1961) —...0000..... 6 Miami Herald Publishing Co. v. Tornillo, 418 U.S. BED CEOTE) ceccoccentesetotussenuisitectainetioniesnneen 4 Pacific Gas & Electric Co. v. Public Utilities Com- mission, 475 U.S. 1 (1986) ..........-........c-eceeeccccceees 4,5 iii TABLE OF AUTHORITIES—Continued Page Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1978)... 11 R.A.V. v. St. Paul, 505 U.S. 877 (1992) —................ 17 Railway Employees’ Dept. v. Hanson, 351 U.S. 225 EEE SEES EE ee ee 6 Riley v. Nat'l Fed. of the Blind of North Carolina, CL 17 Rosenberger v. Rector and Visitors of the Univer- sity of Virginia, 515 U.S. 819 (1995) ................ passim Rust v. Sullivan, 500 U.S. 178 (1991) ..................... 13 Smith v. Regents of the University of California, 4 Cal.4th 843, 844 P.2d 500 (Cal.1993) ............ - 9 Southworth v. Grebe, 151 F.3d 717 (7th Cir. EL LEE 9 Southworth v. Grebe, 157 F.3d 1124 (1998) (de- nial of petition for rehearing en banc) ........... 9 Tinker v. Des Moines Independent School District, a easusbeteceneonse 11 Turner Broadcasting System v. F.C.C., 512 U.S. 2 (1994) .. . 20, 21 Verucnis School District 47d 0 v. . Acton, ‘B15 US. EEE 11 West Virginia Board of Education v. Barnette, 319 SS 4,14 Widmar v. Vincent, 454 U.S. 263 (1981) ........11, 18, 14 Wooley v. Maynard, 430 U.S. 705 (1977) ............... 4 OTHER AUTHORITIES 2 Papers of Thomas Jefferson 545 (Julian P. Boyd a 24, 25, 26, 27 Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (1982)... 23 Thomas Curry, The First Freedoms (1986) ......... 23 Leonard Levy, The Establishment Clause (1986). 24 Dumas Malone, Jefferson: The Virginian (1948). 24, 26 Leo Pfeffer, Church State and Freedom (revised I cercnesione 24 iv TABLE OF AUTHORITIES—Continued NATIONAL SMOKERS ALLIANCE The Viestaie Gtatate 4 , Page AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS irginia or Religious Freedom: Its : Evolution and Consequences in American His- The National Smokers Alliance is a non-profit member- tory (Merrill D. Peterson & Robert C. Vaughn | ship organization composed of adults who support the ac- 0, NID once eneemmenccsesnornemenennennnnnceprenenenion 24 | commodation of smokers and non-smokers in public places and in the workplace, and who oppose government-im- posed smoking bans and the excessive taxation and regu- lation of tobacco products. The National Smokers Alli- ance, which has a total membership of approximately 3,000,000, files this brief amicus curiae with the consent of the parties as provided for in the Rules of this Court.? SUMMARY OF ARGUMENT The First Amendment's protections for the freedom of speech include the right of each citizen not to speak. As part of this right, individuals cannot be forced to support, either through their actions, speech, or financial means, the dissemination of ideas with which they disagree. A particular threat to the right against compelled speech arises when the government imposes a discrete fee to be used to fund speech with which the fee-payers disagree. Where, as here, the state requires such a mandatory pay- ment, this Court has recognized only limited exceptions to the First Amendment's broad protections. None of the circumstances of this case justify expanding a narrow ex- ception to the Free Speech Clause to include the millions of students, faculty, and staff on the nation’s college and university campuses. Because the university setting is sharply different from the contexts within which this Court has permitted man- datory fees to fund speech, this Court should refuse to 1 No counsel for a party authored this brief amicus curiae in whole or in part, and no person or entity, other than the amicus — curiae, made a monetary contribution to the preparation or sub- mission of this brief. 2 apply the analysis of Abood v. Detroit Board of Educa- tion, 431 U.S. 209 (1977). Instead, petitioners’ compul- sory fees should be subject to the standards of review that apply to government attempts to burden speech in the public sphere. Cases such as Abood and Keller v. State Bar of California, 496 U.S. 1 (1990), have allowed manda- tory fees because the state was advancing a government objective in which success was utterly dependent on the collective participation of all in the affected class. In such cases, compelled association and dues overcame free-rider problems that threatened to doom the very existence of a state-promoted institution. Here, by contrast, no state interest justifies the forced collectivization of student ef- forts and resources. This case’s setting in the college and university context demands that any state burdens on free speech rights re- ceive the strictest of scrutiny. Simply because respond- ents are in college, and not the public sphere, the state does not have greater freedom to trample their constitu- tional rights. Cases that have recognized reduced consti- tutional rights in schools usually have occurred in the primary and secondary school context, where the needs of educators to maintain order and safety are paramount. In the university setting, by contrast, students are adults who enjoy full political rights and are part of a commu- nity that should receive the same constitutional treatment as the public sphere. Application of the First Amendment's bar on compelled speech threatens neither the State’s right to make aca- demic choices nor the academic freedom of professors and students. Petitioners’ fee funds student-run activities that take place outside of the classroom; these student groups are not under direct faculty supervision, there are no classroom discussions or lectures, and there are no formal 3 evaluations of student performance. Prohibition of the fee does not prevent the university from deciding what courses to offer, nor does it interfere with classroom education. Petitioners’ mandatory fee should receive strict scru- tiny. In its other compelled speech cases, this Court im- plicitly has used this standard when plaintiffs have chal- lenged government efforts to force them to support speech with which they disagree. In such cases, the funding of other speech with which the objecting fee-payers might agree does not provide a cure for the violation of free speech rights. Instead, this Court has invalidated the fee automatically. The mandatory fee forces objecting stu- dents to replace the speech that they would support with their funds with speech chosen by the university and its student groups. Even if this Court were to conclude that petitioners’ funding scheme were content-neutral, recent cases support affirming the decision below. This Court has never held that the state can achieve the goal of cre- ating a virtual public forum—solely for the purnose of promoting the expression of diverse viewpoints—by com- pelling dissenting citizens to contribute financially through a special fee. It should not do so now. The limited evidence that we have concerning the orig- inal understanding of the First Amendment supports the principle that the government cannot use mandatory fees to support speech with which the payers disagree. In ex- amining these issues, Justices and legal scholars have lone looked to the Virginia “Assessment Controversy” for guidance as to the intentions and beliefs of those who wrote the First Amendment. While the Assessment Con- troversy occurred five years before the ratification of the Bill of Rights, its involvement of many of the leading founders, in the most important state of the early repub- 4 lic, and its airing of many of the key arguments and is- sues, justifies its relevance for interpretation of the First Amendment. Close examination of the Assessment Con- troversy indicates that some of the leading framers would have understood the emerging First Amendment to bar the imposition of discrete taxes to fund political or ideo- logical speech. Efforts by key founders, such as Thomas Jefferson and James Madison, to disestablish the Anglican church represented a broader belief that the state should not be in the business of shaping citizen’s minds and views. Central to their efforts was the idea that the gov- ernment could not force individuals to pay for the dis- semination of ideas with which they disagree. This singu- lar historical event lends important support for the same principle embodied in this Court’s case law and its appli- cation to the case at hand. ARGUMENT The First Amendment guarantees a citizen’s right to remain silent, just as it protects the right to speak. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), read the Free Speech Clause to prohibit states from compelling public school students to salute and pledge allegiance to the American flag. As Justice Murphy observed in Barnette, the First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Jd. at 645 (Murphy, J., concurring). Wooley v. Maynard, 430 U.S. 705 (1977), extended this principle to prohibit states from forcing drivers to display the state motto on their license plates, and Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986), invalidated a state rule that required a utility to distribute an unwanted consumer organization’s com- munication. See also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). As this Court declared ——— 5 in PG&E; “the essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas . . . There is necessarily . . . a con- comitant freedom not to speak publicly, one which serves the ultimate end as freedom of speech in its affirmative aspect.” 475 U.S. at 11 (quoting Harper & Row Publish- ers, Inc. v. Nation Enterprises, 471 U.S. 524, 559 (1985) (quoting Estate of Hemingway v. Random House, 23 N.Y. 2d 341, 348 (1968) (emphasis in original) ). As these cases demonstrate, the Free Speech Clause bars the government from compelling individuals to sup- port, either through their actions, speech, or financial means, the dissemination of ideas with which they dis- agree. This principle applies regardless of whether the government actually forces individuals to speak, as in saluting the flag, or compels them to pay funds that sup- port speech with which they disagree. See Keller, 496 U.S. 1; Abood, 431 U.S. 209. As this Court-recognized in Buckey v. Valeo, 424 U.S. 1 (1976), the First Amend- ment protects, as speech, financial contributions to an organization for the purpose of political speech. /d. at 22-23. Both forced speech and forced contributions, there- fore, strike at the very heart of the First Amendment “notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the state.” Abood, 431 U.S. at 235 (citations omit- ted). That core First Amendment principle is violated by the petitioners’ effort to force respondents to contribute financially to support political speech with which they disagree. 6 I. THE UNIVERSITY CONTEXT DOES NOT JUSTIFY THE VIOLATION OF A CITIZEN’S FIRST AMEND- MENT RIGHT AGAINST COMPELLED POLITICAL SPEECH A particular threat to the right against compelled speech arises when the government imposes a discrete fee to be used to fund political and ideological speech. Where, as here, the state requires such a mandatory payment, this Court has recognized only limited exceptions to the First Amendment's broad protections against compelled speech. In such cases, the Court has allowed mandatory fees only when the state was advancing a government objective that required the collective participation of all in the lim- ited, affected class in order to succeed. This case—which involves universities, rather than union shops or bar asso- ciations—bears no similarities to situations in which the Court has allowed mandatory fees. Because the univer- sity setting is vastly different from these other contexts, this Court should subject petitioners’ activities fees to the normal standards of scrutiny that apply when government burdens political speech. In the context of agency shop rules, for example, this Court has held that the government may compel non- union teachers to contribute financial dues to the union that negotiated their collective bargaining agreement. Abood, 431 U.S. 209. Although the non-union teachers held a right against compelled speech, this Court found that the government had a legitimate interest in promot- ing the union shop to prevent free-riding by non-union workers on a union’s collective bargaining efforts. /d. at 222: see also Railway Employees’ Dept. v. Hanson, 351 U.S. 225 (1956): Machinists v. Street, 367 U.S. 740 (1961). In order to accommodate both interests, Abood held that the union could use the funds of objecting non- union teachers for collective bargaining activities, but not 7 for the espousal of political or ideological causes, unre- lated to collective bargaining, with which the teachers disagreed. Jd. at 235-36. The mandatory fee prevents those who benefit from union representation from avoid- ing their fair share of the cost. Similarly, in the context of state bar associations, this Court has recognized that the Abood exception to the First Amendment’s ban on compelled speech applies only because of the role of the bar in regulating the legal pro- fession. In Keller v. State Bar of California, this Court found that lawyers benefited from the unique status of an integrated bar in a manner analogous to the way employ- ees gained from union representation. 496 U.S. at 12. State law required bar membership and dues as a condi- tion of practicing law in the state. In return, the bar engaged in a number of functions to regulate the practice of law, such as examining applicants for admission, for- mulating rules of professional conduct, and disciplining lawyers for misconduct. 7d. at 4-5. For an integrated bar to succeed in the self-regulation of the legal profes- sion, all practicing lawyers must be members; lawyers benefit by avoiding more direct state supervision and by being admitted to the practice of law. Jd. at 12-14. Thus, in cases where the bar is acting in its role as a profes- sional adviser to those ultimately charged with the regula- tion of the legal profession, the First Amendment does not prohibit the use of dissenting members’ funds. /d. at 15. But when those funds are used for political or ideo- logical speech unrelated to those goals, the Free Speech Clause is offended. As this Court noted, compulsory bar dues could not be used to endorse or advance “a gun control or nuclear weapons freeze initiative,” but they could be used for activities connected with disciplining members of the bar. Jd. at 16. This Court has allowed mandatory fees for compelled speech in only these two narrow circumstances. If the State interest in assuring successful regulation requires “compelled association,” id. at 13, then it can compel financial contributions for the support of speech, but only if that speech is related to the purpose of a valid regula- tory framework. In Ellis v. Brotherhood of Railway, Air- line & Steamship Clerks, 466 U.S. 435 (1984) and Chi- cago Teachers Union v. Hudson, 475 U.S. 292 (1986), this Court refined the Abood analysis to bar the expendi- ture of dissenting employees’ dues on speech that was not “sermane” to collective bargaining activities. See also Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991). As recent cases have explained, the state may use mandatory fees to fund speech only if the speech is “germane” to the regulation’s objectives, it is justified by the government's vital policy_interests, and it does not significantly burden free speech interests. See Lehnert, 500 U.S. at 519; Ellis, 466 U.S. 435; see also Glickman v. Wileman Brothers & Elliott, Inc., 117 S. Ct. 2130, 2146 (1997) (Souter, J., dissenting). Aside from the unique situations created by union shops and state bars, this Court has refused to broaden the narrow excention for compelled political speech. While the Court recently upheld a federal agricultural marketing program that compelled contributions in order to pay for generic advertising, Glickman vy. Wileman Brothers & Elliott, Inc.. 117 S. Ct. 2130 (1997), it found that the First Amendment's bar on compelled speech was not im- plicated because the advertising constituted commercial speech. /d. at 2138, 2140. Glickman does not apply where, as here. the compelled speech is of a political and ideological nature. The Court has never extended the Abvod analysis to the different. if not unique. context of the university—nor should it. 9 — Although the lower courts that have addressed this issue have adopted the Abood approach, see, e.g., South- worth v. Grebe, 151 F.3d 717, 722-23 (7th Cir. 1998); Galda v. Rutgers, 772 F.2d 1060, 1063-64 (3d Cir. 1985); Carroll v. Blinken, 957 F.2d 991, 997 (2d Cir. 1992); Hays County Guardian v. Supple, 969 F.2d 111, 123 (Sth Cir. 1992); Kania v. Fordham, 702 F.2d 475, 479-80 (4th Cir. 1983); Smith v. Regents of the Uni- versity of California, 4 Cal.4th 843, 844 P.2d 500, 511 (Cal.1993), they have done so without analyzing whether the standard of scrutiny that applies in the public sphere, rather than in the workplace, is more appropriate. To be- sure, in Rosenberger v. Rector and Visitors of the Uni- versity of Virginia, 515 U.S. 819 (1995), Justice O’Con- nor’s concurring opinion appeared to suggest that the Abood/Keller approach might apply to mandatory stu- dent fees. Jd. at 851 (O'Connor, J., concurring). But Justice O’Connor’s concurrence only cited Keller and Abood to make car that Rosenberger’s requirement— that a state university distribute student activity funds in a content-neutral manner—did not address the constitu- tionality of the collection of the fees themselves. /d. (“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 nct be compelled to pay for speech with which she disagrees.”). In this regard, the dissenting judges of the Court of Appeals for the Seventh Circuit, sit- ting en banc, incorrectly concluded that Rosenberger dic- tated an opposite outcome in this case. Southworth v. Grebe, 157 F.3d 1124, 1127-28 (1998) (denial of peti- tion for rehearing en banc) (Wood, J., dissenting). Rosenberger only required the University of Virginia to disburse funds to groups in a content-neutral manner; as Justice O’Connor’s concurrence notes, Rosenberger ex- 10 pressly did not reach the constitutionality of the collection of the funds in the first place. In the absence of any commonalities among union shops, integrated bars, and universities, this Court should refuse to expand a narrow exception to the free speech rights of the nation’s citizens. Union shops and integrated bars share few, if any, similarities with the university set- ting. In the former case, compelled association and dues are necessary order to overcome free-rider problems that may doom the very purpose of state regulation. Here, by contrast, there is no vital state interest that requires the forced collectivization of student efforts and resources. Petitioners do not claim that respondents benefit from, without paying for, the efforts of other students in or- ganizing groups and engaging in campus debate in such a manner that defeats the objectives of the university. Re- spondent students do not want to free-ride; they want to exit. Further, the state does not have a vital interest in regu- lating the speech of college and university students by levying a mandatory speech tax. Achieving the state’s in- terest does not require the financial contribution of all university students. There is no showing that campus organizing and speech would seriously decline in the ab- sence of a compulsory fee. Mere speculation that a drop in such activity would occur cannot form the basis for the infringement of students’ free speech rights. Cf. Eden- field v. Fane, 507 U.S. 761, 770-71 (1993); Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986). In fact, unlike other compelled speech cases, here the state has conditioned the receipt of a public bene- fit—college and university education—on the payment of a fee that burdens students’ free speech rights. This Court should demand that compelling government interests are il at stake before it expands an exception to the First Amendment's guarantee for freedom of speech to the many public college and university students in the country. Close examination of the university context shows that the First Amendment does not permit the state to violate the free speech rights of university students. Respondents’ status as college students does not provide the state with greater freedom to trampel their constitutional rights. As this Court has made clear before, “state colleges and uni- versities are not enclaves immune from the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). To be sure, this Court has recognized that First Amendment rights must be analyzed “in light of the special characteristics of the school environment.” Ibid. In certain circumstances, the constitutional rights of students have less force in the face of reasonable reg- ulations designed to maintain educational goals, discipline and safety. Jd. at 507; Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); Hazelwood School District v. Kuhimeier, 484 U.S. 250 (1988). For the most part, however, these cases have found lesser protections for students’ constitutional rights in the context of primary and secondary schools, not colleges and universities. Cf. Rosenberger, 515 U.S. at 835-36; Widmar v. Vincent, 454 U.S. 263 (1981); Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973); Healy, 408 U.S. at 180. In contrast to pri- mary and secondary education, college and university stu- dents are adults who make many of the education and 12 lifestyle choices that schools and parents make for younger children. Most college and university students can vote, and hence they need the full panoply of political rights guaranteed by the Constitution to allow them to be ac- tive citizens. They participate in an educational com- munity based on the free exchange of ideas and criticism. “The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation's dedi- cation to safeguarding academic freedom.” Healy, 408 U.S. at 180-81. Allowing students to enjoy the full exer- cise of First Amendment rights constitutes an important part of their education and of the pursuit of truth. “The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). While this Court has recognized that the free expres- sion of ideas is central to the mission of the university, it has not found that the university can force students to take part in the vigorous give-and-take of extracurricular life. To do so would violate the First Amendment rights of students against compelled speech. In fact, compelled speech may cause more damage in the university setting, which is particularly devoted to the development of the intellect through speech, than in the ordinary public sphere. As this Court observed in Rosenberger, the “dan- ger” of the violation of First Amendment rights “is espe- cially real in the University setting, where the State acts against a background and tradition that is at the center of our intellectual and philosophic tradition.” 515 U.S. at 835. By collecting mandatory fees, and then re-distrib- uting them according to its own formula, the university has intervened in the marketplace of ideas. Such interven- 13 tion distorts the natural workings of the market for speech and ideas, just as surely as it would if the government taxed individuals and used the revenues to make produc- tion decisions for a consumer good. Without a showing of any “market failure” in the unfettered operation of the campus speech market, such heavy-handed government in- tervention invariably produces results that will vary from that which would obtain if students were free to make their own decisions. It would be ironic, to say the least, if this Court allowed a student's first introduction to the First Amendment to take the form of compelled speech, in the form of mandatory fees to pay for the speech of others. Further, while colleges and universities surely must maintain a certain level of order, it does not approach the level necessary in the primary and secondary school sys- tems. It is in regard to the education of the young and immature where the need of states and school officials to maintain order and safety is greatest. Even if this also were true at the college leve!, this Court has rejected the notion that the need for order justifies restrictions on free speech rights in the university. As this Court said in Healy, “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment proiections should apply with less force on college campuses than in the community at large.” Healy, 408 U.S. at 180. To be sure, this Court also has expressed concern for the “right of the University to make academic judgments as to how best to allocate scarce resources,” see Rosen- berger, 515 U.S. at 833-34; Widmar, 454 U.S. at 276, which it has recognized as a variant of the right of the state, when it is the speaker, to make content-based choices. Thus, the university may determine what courses to offer. Cf. Rust v. Sullivan, 500 U.S. 173 (1991). To 14 husband its resources, it can impose reasonable time, place, and manner restrictions on speech, and it can de- cide to bar the use of university facilities to non-university personnel. Widmar, 454 U.S. at 268 n. 5. Somewhat re- lated to this doctrine is the First Amendment's protec- tion for academic freedom, which “does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyi- shian, 385 U.S. at 603. These doctrines, however, do not alter the First Amend- ment rights of adult students against compelled speech. Under the guise of making academic choices about teach- ing and research, petitioners could not force students to advocate required beliefs. Cf. Barnette, 319 U.S. at 634. Even in the name of academic freedom, professors and state officials could not use classroom instruction to force students to adopt specific tenets of belief, nor could they convert educational resources to advance their pre- ferred causes. Similarly, vague claims of academic free- dom or educational goals cannot allow petitioners to force objecting students to fund political or ideological speech, when the First Amendment would bar such compelled speech in the public sphere. This Court owes petitioners no deference in the definition and advancement of their compelled speech program. Furthermore, here neither the State’s right to make aca- demic choices nor the academic freedom of professors and students are jeopardized by a bar on mandatory speech fees. Petitioners’ compelled fee funds student-run activi- ties that take place outside of the classroom; these student groups are not under direct faculty supervision, there are no classroom discussions or lectures, and there are no formal evaluations of student performance. Prohibition of the fee does not prevent the university from deciding what courses to offer, nor does it interfere with classroom education. At worst, application of the First Amendment's 15 compelled speech doctrine only limits the means by which the university may establish a certain type of campus at- mosphere. Petitioners cannot show that, in the absence of the mandatory fee, vigorous debate and activity by student groups would cease. These groups are still free to continue as before; they just cannot force unwilling students to pay for their activities. Both the university and student groups are free to use other sources of reve- nue, so long as they do not originate from a discrete, mandatory fee to be used for speech purposes. II. PETITIONERS’ FEE CANNOT SURVIVE FIRST AMENDMENT STANDARDS OF REVIEW In order to prevail, therefore, the petitioners have the burden of showing why the university context is suffi- ciently analogous to Abood or Keller to justify employing Abood’s lower standard of review at all. Because the university context does not justify the reduction of indi- vidual rights, this Court should apply the usual level of First Amendment scrutiny to petitioners’ mandatory fee. Here, petitioners impose a fee that funds political and ideological speech with which respondent students dis- agree. First Amendment principles as well as established case law make clear that such a fee, imposed outside of a union shop or a bar association, violates the First Amendment. Wisconsin, for example, could not impose a discrete speech tax on its citizens to fund speech which promotes the political or ideological views of the gover- nor or the legislature. Otherwise, a Democrat- or Repub- lican-dominated government could fund speech that seeks to convince voters to join its party. Similarly, Wisconsin cannot impose a tax to support different interest groups because of their political or ideological positions, or to fund a number of interest groups to ensure a diversity of views in the marketplace of ideas. Such efforts would 16 run counter to the First Amendment ideal that an individ- ual’s views should be shaped by his mind, rather than coerced by the st. 2, Abood, 431 U.S. at 235, and the principle of popular sovereignty that the government should represent the views of the people, rather than im- pose its views on the people. This Court should apply strict scrutiny to petitioners’ mandatory fee. Even though petitioners’ speech programs do not appear to facially discriminate on the basis of content in distributing student activity funds—in fact, under Rosenberger, the First Amendment prohibits peti- tioners from doing so—nonetheless, strict scrutiny still applies. In cases where the government has imposed a mandatory fee to fund speech, this Court has not found a compelled speech violation to be cured by the funding of other speech with which the payers might agree. In Abood, for example, this Court found the First Amend- ment violated because some of the dues were used to fund political or ideological speech with which the plaintiffs disagreed. Plaintiffs in Abood did not need to show that all of the funds ‘were used for objectionable speech, Abood, 431 U.S. at 213, nor did the Court ask whether the plaintiffs agreed with some of the dues-funded causes and candidates. Similarly, in Keller, plaintiffs did not need to show that all of the state bar’s lobbying and liti- gation positions were objectionable, only that some of them were. As in Abood, the Court did not inquire into whether the bar’s other litigation and lobbying activities met with the plaintiffs’ approval. Neither Abood nor Keller deemed it relevant whether the collected funds were used for speech with which the plaintiffs agreed, as well as for speech with which they disagreed. This Court found that the rights of the object- ing employees were violated if some—not necessarily all 17 —of the speech, funded by the mandatory dues, was of a political or ideological nature with which they disagreed. Abood recognized an exception from this bar on the use of mandatory fees only for speech that is germane to the purpose of the institution collecting the fee. For speech that is non-germane—in other words, political and ideo- logical speech—this Court implicitly subjected the man- datory dues to strict scrutiny and invalidated them. Peti- tioners cannot cure the violation of respondents’ right against compelled speech by arguing that the funds go to non-objectionable as well as objectionable speech. Intermediate scrutiny, normally reserved for content- neutral regulations that impact upon speech, is not ap- propriate here. The state’s mandatory fee scheme orders students to support certain kinds of speech, and it pre- vents students from choosing for themselves the speech that they would prefer to fund. Students may not wish to support speech by the formula chosen by petitioners— forcing students to obey that formula distorts the message that the students themselves might choose were they mak- ing their own funding decisions. The mandatory fee forces objecting students to replace the speech that they would support with their funds with speech chosen by the uni- versity and its student groups, which amounts to a con- tent-based restriction. Cf. Riley v. Nat'l Fed. of the Blind of North Carolina, 487 U.S. 781, 795 (1988). Furthermore, the state pursues a goal that itself repre- sents a regulation of speech in regard to its content. To be sure, respondents established the speech scheme here to encourage the expression of a diversity of viewpoints, rather than to suppress speech. Even if the state, how- ever, were to possess a benign, rather than malign, moti- vation in choosing to fund certain classes of sneech, that does not entitle it to intermediate scrutiny. Cf. R.A.”. 18 v. St. Paul, 505 U.S. 377, 386 (1992). Although the state may not have an interest in suppressing speech, it still has engaged in the regulation of speech in relation to the content of the speech. Here, petitioners have sought to promote speech that it believes adds to the diversity of viewpoints expressed on campus, Promoting speech for the sake of diversity represents regulation based on the communicative impact of the speech as much as a law that barred certain speech for the purpose of suppressing diversity in the marketplace of ideas. Petitioners have not even shown that the fees are dis- tributed in a neutral manner. Every registered student organization that seeks funding is not guaranteed fund- ing; rather, the university is distributing funds in order to ensure that certain viewpoints are represented on cam- pus. In fact, the great majority of funds regularly goes to a relatively small number of groups. If the government collects a fee to fund speech, it cannot distribute the funds on the basis of content. Therefore, even if this Court were to allow mandatory fees that force payers to support speech with which they disagree, it should not do so in this case. While increasing the amount of campus speech arguably might rise to the level of an important govern- ment interest, it is by no means a compelling one. The lack of a compelling, or even a substantial, interest is demonstrated by the lack of evidence that any problems exist involving the level or diversity of campus speech in the absence of petitioners’ mandatory activities fee. Even if this Court were to conclude that the state had a compelling interest in promoting speech, petitioners have failed to demonstrate that their program is narrowly tail- ored to achieve this goal. Student groups, which have their own incentives and resources to engage in speech. are not going to disappear in the absence of petitioners’ compelled speech program. The state also has failed to 19 demonstrate that the university lacks alternati student activities that Soa dite ain spondents right against compelled speech. For example, the university could seek voluntary contributions from students or donations from alumni or outside organiza- tions. If this Court is to allow the state to engage in programs that promote certain types of speech, its cases require that the state do so in a manner that is least in- trusive upon the free speech rights of dissenting students. The First Amendment rights of respondents require peti- tioners to resort to alternative means to fund their speech program that do not compel contributions from unwill- ing students. Even if this Court were to conclude that petiti , funding scheme was content-neutral, recent oth an peeard affirmance of the decision below. Petitioners, and the dis- senting en banc judges below, claim that the mandatory fee is entitled to intermediate scrutiny because the funds are used to create a virtual public forum that does not discriminate on the basis of the content of speech. This Court has never held, however, that the state can achieve the goal of creating a virtual public forum by compelling dissenting citizens to contribute to-it financially. In the most analogous case to address government-subsidized third-party speech, this Court suggested that a voluntary contribution system saved the legislative scheme from First Amendment problems. In Buckley v. Valeo, 424 US. 1 (1976), this Court upheld the 1974 Federal Elec- tion Campaign Act’s provision for the public financing of presidential election campaigns. Under the statute, the federal government agreed to fund a presidential cam- paign if the candidate accepted spending and contribu- tion limitations. Id. at 88. The Court found that the law did not involve any “compulsion upon individuals to finance the dissemination of ideas with which they dis- 20 agree,” id. at 91 n.124, because the federal campaign contribution was funded by a voluntary check-off box on individual income tax returns. The Buckley Court also noted that taxpayers had no broad right to object to the expenditure of general revenue taxes for the general wel- fare. Id. at 90-92. A challenge to a spending program, however, could prove quite different if only a certain class of taxpayers were forced to pay by means of a specific, mandatory fee. Turner Broadcasting System v. F.C.C., 512 U.S. 622 (1994), also should not be read to eae eat an nein in h-promoting activities paid for by dissenti fedividuall. | aa Foateer Broadcasting, this Court upheld the “must-carry” provisions of the 1992 Cable Act, even though they amounted to compelled speech on the part of cable operators. Id. at 643-44. The Court concluded that the legislative scheme burdened speech without ref- erence to content. Turner Broadcasting, however, did not address whether the government could impose a discrete fee, rather than dip into general revenues, for the specific creation of a speech-promoting program. In this respect, Turner Broadcasting was consistent with Buckley's effort to protect the federal government's control over its gen- eral revenues, without reaching the question of the con- stitutional rights of dissenting taxpayers when a specific fee is levied to pay for speech. The government programs in Buckley and Turner, and public forum cases generally, are different from petitioners compelled speech scheme in another important respect. In Buckley and Turner, the central object of the legislative program was not simply to enhance speech. In Buckley, Congress regulated the federal~ Campaign contributions and expenditures in order to prevent corruption and ew guard the integrity of the electoral process. Buckley, 42 21 U.S. at 23-28. In Turner, Congress enacted the Cable Act's must-carry provisions to sustain the local television broadcast industry, which plays an important role in the dissemination of information and in the competition over television programming. Turner, 512 U.S. at 662-64. Taxes that pay for physical public forums, such as sta- diums, parks, government buildings, and sidewalks, cer- tainly create public spaces that can be used for speech, but the purpose for their construction is not solely, or even primarily, devoted to the promotion of speech. Rather, in all of these circumstances, the government has created a system, mechanism or place that benefits the public in ways that are unrelated to speech, but which also has speech-enhancing side effects. Thus, a sidewalk can be used for a public demonstration, but the govern- ment built the sidewalk in the first place for foot traffic and safety reasons. Behind these examples is a distinction between a con- duit for speech and the content of the speech itself. In a normal public forum case involving a physical forum, such as a park or a government building, or even a case involving an intangible forum, such as the realm of tele- vision programming, the government has created a facility that serves as the conduit for the expression of different ideas, without regard to the speech itself or its content. In this case, however, the petitioners’ compelled speech program funds the favored speech itself, not the method for its communication. Without the petitioners’ scheme, different student groups would simply engage in less speech overall, vis-a-vis other student groups on campus. A true public forum—one that served as a communica- tions conduit that operated without regard to the content of speech—would raise the amount of speech for all groups in an equal proportion. Petitioners’ speech scheme thus stands in sharp contrast to a system, akin to the one 22 in Rosenberger, in which the university funds a facility for the printing of leaflets or the creation of web pages that are equally available to all student groups. Also unlike a normal public forum, here the petitioners have imposed a discrete, mandatory fee solely to promote a diversity of speech on campus. Creating speech is the only purpose of the state’s program. In such circum- stances, the use of the mandatory fee is all the more in- vasive of dissenting students’ rights against compelled speech, because none of the fee goes toward other uses that might benefit them, as with the construction of a public facility or a communications network. Petitioners have not shown that the achievement of this goal is im- portant enough to justify a fee that forces students to support speech with which they disagree. If the govern- ment intends to promote political and ideological speech, even if it does so in a content-neutral manner, it either should pay for it out of general revenues or, if it chooses to use a discrete fee, it should impose the fee only on those who agree with the speech. In the absence of any showing of a vital problem or need to create political speech, the First Amendment requires that the govern- ment promote speech in a manner that avoids the forced contributions of those who disagree. At the very least, this Court should make clear that if the government is going to fund speech for the sake of speech, it must do so in a content-neutral manner. Ill. THE FIRST AMENDMENT’S ORIGINAL UNDER- STANDING SUPPORTS THE PROHIBITION ON THE USE OF MANDATORY FEES TO FUND POLITICAL SPEECH The limited evidence that we have concerning the origi- nal understanding of the First Amendment supports the principle that the government cannot use mandatory fees intentions and beliefs of those who wrote the First Amend- ment. See, e.g., Everson v. Board of Ed. of Ewing, 330 U.S. 1, 74 (1947) (appendix to dissent of Rutledge, J.); Abood, 431 U.S. at 234 n.31; Rosenberger, 515 U.S. at 853 (Thomas, J., concurring); id. at 868 (Souter, J., dis- senting). While the Assessment Controversy occurred five years before the ratification of the Bill of Rights, its in- volvement of many of the leading founders, in the most important state of the early republic, and its airing of many of the key arguments and issues, justifies its rele- vance for interpretation of the First Amendmént. Close examination of the Assessment Controversy indicates that some of the leading framers would have understood the First Amendment to bar the imposition of discrete taxes to fund political or ideological speech. In the 1786 Assessment Controversy, Thomas Jefferson, the author of the Declaration of Independence, and James Madison, the future father of the Constitution and the drafter of the Bill of Rights, successfully convinced the Virginia legislature to enact a statute guaranteeing reli- gious freedom and to reject a tax assessment bill for the support of an established church. In light of Jefferson and Madison’s involvement and the political importance of Virginia in the early years of the Republic, judges and scholars properly have considered the events of the Assess- ment Controversy to be an important piece of evidence in construing the First Amendment. See, e.g., Thomas Curry, The First Freedoms 134 (1986); Robert L. Cord, Separation of Church and State: Historical Fact and 24 Current Fiction 20-23 (1982); The Virginia Statute for Religious Freedoms: Its Evolution and Consequences in American History (Merrill D. Peterson & Robert C. Vaughn eds., 1988); Leonard Levy, The Establishment Clause 51-60 (1986); Leo Pfeffer, Church State and Freedom 104-14 (revised ed. 1967); Dumas Malone, Jefferson: The Virginian 274-85 (1948). In brief, the Assessment Controversy had its roots in revolutionary Virginia’s struggle over the proper relation- ship between church and state. Following the break with Great Britain, Thomas Jefferson led efforts to break the state’s ties with the Anglican church, which was the estab- lished church of the colony. In 1779, Jefferson’s Bill for Establishing Religious Freedom, which prohibited the state from compelling any citizen from attending or sup- porting religion and which guaranteed each individual's freedom to profess his own religious beliefs, was intro- duced in the state legislature but did not pass. 2 Papers of Thomas Jefferson 545 (Julian P. Boyd ed. 1950). That same year, other legislators proposed a bill provid- ing for a general assessment to fund the operations of Christian churches throughout Virginia. After British op- erations in the state had ceased, the state legislature in 1784 turned to consideration of the proposed assessment. Assuming Jefferson’s mantle, James Madison led the fight in the legislature against the assessment. In June, 1785, he issued his famous Memorial and Remonstrance Against Religious Assessments as part of a successful strategy that defeated the tax. 8 Papers of James Madison 298-306 Robert A. Rutland ed. Once Madison had organized a groundswell of popular opposition to the assessment, the legislature tabled it and instead enacted Jefferson’s Statute for Religious Freedom, which ended efforts in Virginia to impose a mandatory fee for the support of an established church. 25 In Abood, this Court correctly recognized that the roots of the Assessment Controversy concerned not just religion, but the larger issues of freedom of speech and of thought. At the time of the framing, organized religion was one of the primary means whereby the state engaged in speech, and, in the absence of modern ideologies and permanent political parties, religion was one of the few organized systems of thought. To Jefferson and Madison, however, religious belief—like political and ideological belief— ought to be the product of the workings of the rational mind, not the command of the state. The same intellec- tual freedom from state-imposed orthodoxy allowed the individual citizen to develop and maintain both religious and political beliefs. Religious freedom thus became in- tertwined with freedom of thought, of conscience, and of speech, a development that recent cases have recognized in prohibiting the state from discriminating against reli- - gious speech. See, e.g., Rosenberger, 515 U.S. at 830-37: Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993). Jefferson’s Statute for Religious Freedom provided the philosophical and political justification not just for the idea of religious toleration, but for the broader right of the individual to intellectual liberty. Protecting religious liberty was simply one component of the protections for political and ideological liberty and speech. “Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.” 2 Papers of Jefferson at 545-46. Jefferson wrote that religion had to be independent of the state because “the opinions and be- lief of men depend not on their own will, but follow invol- untarily the evidence proposed to their minds,” and that “all attempts to influence [the mind] by temporal punish- ments or burthens, or by civil incapacitations, tend only to beget habits of hyprocrisy and meanness.” 2 id. at 545. As 26 Madison wrote in his Remonstrance, “[t]he Religion then of every man must be left to the conviction and con- science of every man; and it is the right of every man to exercise it as these may dictate.” 8 Madison Papers at 298. Madison believed this right to be “inalienable” be- cause “the opinions of men, depending only on the evi- dence contemplated by their own minds cannot follow the dictates of other men.” Jd. The human mind, Jefferson, and Madison believed, must remain free from the power of the state. Declared Jefferson’s bill: “the opinions of men are not the object of civil government, nor under its jurisdiction.” 2 Papers of Jefferson at 546. If the state is barred from influencing the opinions of its citizens, Jefferson and Madison concluded, it should also be prohibited from imposing a specific tax for the support of speech designed to propagate certain beliefs. In the course of defending the freedom of the human mind, Jefferson’s bill declared “[t]hat to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” 2 id. at 545. Mandatory fees violated the individual’s freedom of thought, even if some of the funds supported speech with which an individual agreed, because they deprived the citizen of the freedom to choose which speech to support. Even if it were only forcing the citizen to contribute to a “teacher of his own religious persuasion,” the bill declared, the government still violates the citizen’s rights because it “is depriving him of the comfortable liberty of giving his contributions to the par- ticular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteous- ness.” Id. Jefferson and Madison feared that any govern- ment interference at all in the area of speech would dis- tort what we today call the marketplace of ideas: “truth is great and will prevail if left to herself; that she is the > 27 to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and de- Id. at 546. Civil government should interfere ciples break out into overt acts against peace and good order.” /d. In the end, these arguments carried the day and convinced Virginia's legislature to reject the assess- ment in favor of Jefferson's declaration of religious free- _ Efforts by founders such as Jefferson and Madison to dis-establish the Anglican church represented a broader belief that the state should not be in the business of shap- ing a citizen’s mind and views. To be sure, other states in the revolutionary and critical periods maintained estab- lished churches, and we cannot definitively conclude that all of the framers who voted for the First Amendment in Congress and the state ratifying conventions believed it to codify the lessons of the Virginia experience. Nonethe- less, this Court has and should take the Assessment Con troversy as a guide to the understandings of two of the principle motivating minds behind the Declaration of Independence, the Constitution of 1787, and of the Bill of Rights concerning the concepts of freedom of religion, freedom of speech, and freedom of thought. Jefferson and Madison believed that these rights prohibited the State from imposing a mandatory fee on its citizens to be used to fund political or ideological speech with which they disagreed. As such, their views lend important sup- port from the framing for the same principle in this Court’s case law. Indeed, the facts of this case underscore the interrelated purposes of the religion and speech clauses of the First Amendment. Out of their religious convictions, respond- ent students do not wish to support the political speech disseminated by some student groups. Respondent stu- dents’ religious views give rise to certain political and ideological views; political and ideological speech can offend an individual's religious as well as his or her politi- components of the freedom of thought at the core of the First Amendment. Any asserted public forum justification would not have altered this application of Jefferson and Madison’s views. Both Jefferson and Madison opposed the general assess- ment, even though it would have benefited all Christian churches, rather than only the Anglican church. A broader funding scheme did not alleviate the violation of individual rights that arose from compulsory fees to pay for views with which the payers disagreed. Jefferson and Madison would not have believed the violation of the . dissenting students’ rights to be cured if the state took a portion of the money and provided it to student groups whose views the students shared, just as Jefferson and Madison would not have thought the general assessment to have been constitutional if Virginia had distributed the tax dollars to each Christian sect. To them, the constitu- tional violation would have occurred when the state coerced any citizen to provide a single dollar to support views with which he or she disagreed. Where, as here, this is what the government has done, the original under- standing of the First Amendment suggests that this Court must invalidate the mandatory payments. 29 CONCLUSION For the reasons stated above, the judgment of the United States Court of Appeals for the Seventh Circuit should be affirmed. Respectfully submitted, RENEE GIACHINO * NATIONAL SMOKERS ALLIANCE 901 N. Washington St. Suite 400 Alexandria, VA 22314 (703) 739-1324 JOHN Yoo BoALT HALL SCHOOL oF LAW University of California Berkeley, CA 94720 (510) 643-5089 Institutional Affiliation for * Counsel of Record Identification Purposes Only --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0261%3A21. Public record. Not legal advice.