Legislative Retaliation against University Speech

[Mitch Berman]

The question is not whether there exists a right to state funding but
whether there exists a right of speech.  If so, then there necessarily
exists a right not to be treated worse for having exercised one's speech
rights when such worse treatment is supported by the wrong sorts of
reasons.  Put another way, funding might be a benefit that the state is
free to give or withhold -- but no putative benefit can be withheld *for
any reason at all.*  And among the set of proscribed reasons are the
reasons of discouraging or punishing exercise of a right.  Or so I argue.

Marty Lederman points out that my analysis, as applied to this particular
context, presupposes that the U of M radio station does have a First
Amendment right vis-a-vis the state, such that once established, the radio
station enjoys some degree of constitutionally protected editorial
discretion.  I do in fact assume that though I have not advanced any
arguments to support it.

Mitch

At 03:09 PM 4/5/2002 -0500, you wrote:
>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