Legislative Retaliation against University Speech

[Parry, John]

I agree generally with Mitch, except that I wonder what it means in this
context to be the bearer of a right.  Consider a state legislature that is
unhappy with the manner in which a law school clinic conducts itself, and
declares that no state money can be spent on that clinic.  The state has no
obligation to fund the university at all, and no obligation to fund the
clinic -- so it seems to follow that the clinic and its employees have no
general right to state funding.  Does the fact that the legislature acts out
of opposition to the clinic's legal activities, including its speech on
behalf of politically disfavored clients, create a right to funding where
none existed before?  I take it Mitch's answer is yes, becaue the exercise
of free speech and legal advocacy is the reason for making the clinic worse
off (not-state-funded) than it was before (when it was funded).

But then I wonder whether, even if there is a right to continued funding
under these circumstances, how many public-supported entities will be
willing to go to court to insist on funding?  The adverse political
consequences could be enormous.  Victory might well lead to even less
funding over time, based on purportedly neutral concerns about state
finances and funding priorities.

If so, then the unconstitutional conditions argument has a certain due
process of law-making quality -- the legislature can reduce funding if it
articulates the right reasons, and the point of unconstitutional conditions
litigation is to force the legislature to reduce funding only when it can do
so.  (Perhaps, too, such litigation allows courts to overturn rash decisions
after a cooling-off period, with the hope that they will not be reinstated).

John Parry

-----Original Message-----
From: Mitch Berman [mailto:MBerman at MAIL.LAW.UTEXAS.EDU]
Sent: Friday, April 05, 2002 2:07 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Legislative Retaliation against University Speech


WARNING: shameless plug below.

I argued in a recent article that part of what it must mean to have a
constitutional right is that the bearer of the right not be penalized for
exercising it, in the particular sense that the state not treat her worse
than it otherwise would have treated it, with a purpose of discouraging or
punishing exercise of that right.  I won't bore all readers by presenting
the details of my argument here.  If interested, see my "Coercion Without
Baselines: Unconstitutional Conditions in Three Dimensions," 90 Georgetown
L.J. 1 (2001), esp. pp. 32-36.  That the Missouri legislature has run afoul
of this principle seems pretty plain, at least if that principle is
expanded (as I contended it should be) to accommodate cases in which the
adverse consequence is imposed on some third party who stands in certain
sorts of "close relations" to the right holder.

Because your facts essentially present an unconstitutional conditions
problem, don't be surprised (as I'm sure you won't be) to find case law
more or less on point that cuts both ways.

Mitch Berman

Mitchell Berman
Assistant Professor of Law
The University of Texas at Austin
727 E. Dean Keeton St.
Austin, TX 78705
512/232-3525

At 12:30 PM 4/5/2002 -0600, you wrote:
>Hi everyone, I'd like your thoughts on the following:
>
>The University of Missouri is currently experiencing an incident that
>raises some interesting questions.  In response to certain activities of
>University employees, there is a legislative budget proposal reducing the
>University's operating budget by about $700,000.  The most interesting
>incident involves the University of Missouri's publicly-supported NBC
>affiliate -- KOMU.  After September 11th the manager of the station sent
>out a memo stating that the student-reporters who work on the local news
>could not wear flag pins while on air.  The manager's reason was that he
>wanted the reporters to maintain objectivity while reporting the
>news.  This caused quite a stir in Missouri and legislators at the time
>threatened to retaliate.  They appear to have done so, claiming that a
>$500,0000 reduction in the budget for is a direct response to the KOMU
>manager's memo.
>
>The other interesting incident involves the fact that the legislature cut
>$100,000 because of a professor's "controversial writings on pedophilia."
>
> From a legal standpoint, I'm unsure how to analyze this.  If this were a
> refusal to fund a particular program (similar to Rosenberger), I would be
> reasonably comfortable arguing that these cuts are retaliatory against a
> particular viewpoint (which the legislature proudly owns up to I might
> add) and probably a constitutional problem (although I could be
> wrong).  But since this is just a reduction in the gross allocation to
> the university, I'm not sure.  The university is still free to allocate
> funds within its programs as it sees fit and KOMU/the professor may be
> absolutely unharmed in a monetary sense.
>
>Bottom line question:  What constitutional analysis is appropriate for a
>gross reduction in the university's overall budget based upon the
>legislatures' anger about certain speech?
>
>For those interested, you can find relevant news articles at:
>
>http://www.showmenews.com/2002/Apr/20020404News001.asp
>http://www.showmenews.com/2002/Apr/20020404News006.asp
>
>-Chris Wells
>
>Christina Wells
>Enoch N. Crowder Professor of Law
>University of Missouri-Columbia
>Columbia, Missouri   65211
>(573 )882-8375