Rosenberger v. University of Virginia, 515 U.S. 810; 115 S. Ct. 2510; 132 L. Ed. 2d 700 (1995)
Facts—While providing funding through student activity fees for a variety of student groups, the University of Virginia denied such funding to Wide Awake Productions (WAP) for publication of an evangelical Christian newspaper. WAP appealed the university’s decision. The U.S. District Court upheld the denial of funds against charges that it was unconstitutional view- point discrimination. The U.S. Fourth Circuit Court of Appeals held that the university’s guidelines did discriminate on the basis of content but upheld them because of the state’s “compelling interest” in maintaining separation of church and state.
Question—Did the university’s denial of student activity funds to an organization publishing a religious newspaper violate the free speech clause of the First Amendment?
Decision—Yes.
Reasons—J. Kennedy (5–4). “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Once the state establishes an open forum, it must make it available to all. Kennedy cited the precedent in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). It is not the state’s business to examine the ideas expressed in publications like those at issue here. Subsidies for student publications are permissible as long as they are applied neutrally. Here the university had already gone out of its way to indicate that the publications it was supporting were not reflecting the university’s viewpoints by paying outside printers for such services and providing such support to a wide variety of points of view. The university’s guidelines would, if applied with any consistency, have prevented support for student “contributors named Plato, Spinoza, and Descartes” as well as for “Karl Marx, Bertrand Russell, and Jean-Paul Sartre.” The university’s denial of funding represented unconstitutional “viewpoint discrimination.” The support provided to WAP was “neutral toward religion.” That distinguished these fees “from a tax levied for the direct support of a church or group of churches.” Rather, “The University provides printing services to a broad spectrum of student newspapers . . . by reason of their officers and membership.” Denial of funding would deny “the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires.”
J. O’Connor, concurring, noted the difficulty the Court encountered “when two bedrock principles [no viewpoint discrimination and no state funding of religious activities] conflict.” She observed that in this case, the student organizations remained independent of the university, that assistance was given only for permissible purposes, that support had been given to a variety of publications, including a newspaper that satirized Christianity and one that promoted a better understanding of Islam, and that the support could still be challenged on the basis that students should not have to support views with which they disagreed.
J. Thomas, concurring, questioned the accuracy of the dissenters’ analysis of James Madison’s views on state funding of religion. He believed that Madison’s position was consistent with that of religious neutrality. He cited what he believed to be the nation’s “tradition of allowing religious adherents to participate in evenhanded government programs.”
J. Souter, dissenting, viewed this as the first time the Court had approved “direct funding of core religious activities by an arm of the State.” He focused on the openly evangelical content of the newspaper in question and argued that “[u]sing public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money.” Souter based much of his analysis on James Madison’s opposition to funding of religion. Souter did not find the presence of “neutrality” to be dispositive in establishment clause cases. He distinguished the provision of a forum from funding of such forums and considered the direct state subsidization of religious evangelism to be “a flat violation of the Establishment Clause.” He would limit subsidies of advocacy of any religious viewpoints applying “to Muslim and Jewish and Buddhist advocacy as well as to Christian.” He further feared the “momentum” that this case might give to constitutional theory in this area.