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Freedom of Expressive Association and Government Subsidies

Freedom of Expressive Association and Government Subsidies. Eugene Volokh UCLA School of Law. No Duty to Subsidize Constitutional Rights. May pay for childbirth, but not abortions. May pay for public education, but not private education. May subsidize marriage, but not staying single.

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Freedom of Expressive Association and Government Subsidies

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  1. Freedom of Expressive Associationand Government Subsidies Eugene Volokh UCLA School of Law

  2. No Duty to Subsidize Constitutional Rights • May pay for childbirth, but not abortions. • May pay for public education, but not private education. • May subsidize marriage, but not staying single. • May subsidize having children, but not remaining childless.

  3. No Duty to Subsidize First Amendment Rights • May give tax exemptions to nonprofit speaking groups, but not those that electioneer. • May fund student-run groups, but not groups that include nonstudents as leaders. • May fund democratically run student groups, but not hierarchically run student groups.

  4. No Viewpoint Discrimination • Exclusion based on group’s conduct. • Exclusion of mixed student/nonstudent groups. • Such exclusion reflects university’s viewpoint. • But all speech restrictions do that. • Such exclusion disproportionately affects certain kinds of viewpoints. • But disparate impact isn’t enough. • Test for content discrimination: whether law is “justified with reference to the content of the speaker’s speech.”

  5. Justice Alito’s Argument • “[T]he Nondiscrimination Policy [generally] ‘permit[ted] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.’” • “But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. • “Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming.... • “This was patent viewpoint discrimination. ‘By the very terms of the [Nondiscrimination Policy], the University ... select[ed] for disfavored treatment those student [groups] with religious ... viewpoints.’”

  6. Reasonableness • “[N]eed not be the most reasonable or the only reasonable limitation.” • Government may reserve forum for certain kinds of groups. • “[P]ublic funds, to which all taxpayers of all [identity groups] contribute, [should] not be spent in any fashion which ... subsidizes ... [identity group] discrimination.” • Promotes one vision of fostering debate, cooperation, and learning from each other.

  7. Hostile Takeovers • How likely are they? • Does running the low risk of hostile takeovers really make a policy unreasonable? • If worry about hostile takeovers made the policy unconstitutional, wouldn’t it do the same for “democratically run groups only” policy?

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