Government Subsidized Expression

Opinions & Commentaries

Respondent was employed in a state college system for 10 years, the last four as a junior college professor under a series of one-year written contracts. The Regents declined to renew his employment for the next year without giving him an explanation or prior hearing. Respondent then brought this action in the District Court, alleging that the decision not to rehire him was based on respondent's public criticism of the college administration, and thus infringed his free speech right, and that the Regents' failure to afford him a hearing violated his procedural due process right. The District Court granted summary judgment for petitioners, concluding that respondent's contract had terminated and the junior college had not adopted the tenure system. The Court of Appeals reversed on the grounds that, despite lack of tenure, nonrenewal of respondent's contract would violate the Fourteenth Amendment if it was in fact, based on his protected free speech, and that, if respondent could show that he had an "expectancy" of reemployment, the failure to allow him an opportunity for a hearing would violate the procedural due process guarantee.

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Appellee Taxation With Representation of Washington (TWR) is a nonprofit corporation organized to promote what it conceives to be the "public interest" in the area of federal *542 taxation. It proposes to advocate its point of view before Congress, the Executive Branch, and the Judiciary. This case began when TWR applied for tax-exempt status under § 501(c)(3) of the Internal Revenue Code, 26 U. S. C. § 501(c)(3). The Internal Revenue Service denied the application because it appeared that a substantial part of TWR's activities would consist of attempting to influence legislation, which is not permitted by § 501(c)(3).[1]TWR then brought this suit in District Court against the appellants, the Commissioner of Internal Revenue, the Secretary of the Treasury, and the United States, seeking a declaratory judgment that it qualifies for the exemption granted by § 501(c)(3). It claimed the prohibition against substantial lobbying is unconstitutional under the First Amendment and the equal protection component of the Fifth Amendment's Due Process Clause.[2] The District Court granted summary judgment for appellants. On appeal, the en banc Court of Appeals for the District of Columbia Circuit reversed, holding that § 501(c)(3) does not violate the First Amendment but does violate the Fifth Amendment. 219 U. S. App. D. C. 117, 676 F. 2d 715 (1982). Appellants appealed pursuant to 28 U. S. C. § 1252, and TWR cross-appealed. *543 We noted probable jurisdiction of the appeal, 459 U. S. 819 (1982).[3]TWR was formed to take over the operations of two other nonprofit corporations. One, Taxation With Representation Fund, was organized to promote TWR's goals by publishing a journal and engaging in litigation; it had tax-exempt status under § 501(c)(3). The other, Taxation With Representation, attempted to promote the same goals by influencing legislation; it had tax-exempt status under § 501(c)(4).[4] Neither predecessor organization was required to pay federal income taxes. For purposes of our analysis, there are two principal differences between § 501(c)(3) organizations and § 501(c)(4) organizations. Taxpayers who contribute to § 501(c)(3) organizations are permitted by § 170(c)(2) to deduct the amount of their contributions on their federal income tax returns, while contributions to § 501(c)(4) organizations are not deductible. Section 501(c)(4) organizations, but not § 501(c)(3) organizations, are permitted to engage in substantial lobbying to advance their exempt purposes.

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Moved to action by a widely felt need to sponsor independent sources of broadcast programming as an alternative to commercial broadcasting, Congress set out in 1967 to support and promote the development of noncommercial, educational broadcasting stations. A keystone of Congress' program was the Public Broadcasting Act of 1967, Pub. L. 90-129, 81 Stat. 365, 47 U. S. C. § 390 et seq., which established the Corporation for Public Broadcasting, a nonprofit corporation authorized to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of that Act, as amended by the Public Broadcasting Amendments Act of 1981, Pub. L. 97-35, 95 Stat. 730, forbids any "noncommercial educational broadcasting station which receives a grant from the Corporation" to "engage in editorializing." 47 U. S. C. § 399. In this case, we are called upon to decide whether Congress, by imposing that restriction, has passed a "law . . . abridging the freedom of speech, or of the press" in violation of the First Amendment of the Constitution.

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The question presented in this case is whether a state sales tax scheme that taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals, violates the First Amendment's guarantee of freedom of the press.

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The University of Virginia, a public university, used public money to subsidize publishing costs for nonreligious student groups. The university denied funds to a Christian student group that requested financial assistance to publish a newspaper that would “challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.”

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In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider "general standards of respect and decency for the diverse beliefs and values of the American public" when awarding art grants. Four artists—Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the "NEA 4"—sued in federal court, claiming the so-called "decency clause" violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding. The trial judge ruled in favor of the "NEA 4," ruling that the decency clause was both unconstitutionally vague and overbroad. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed for "essentially the same reasons as the district court." The 9th Circuit determined the decency clause was void for vagueness and for violating the First Amendment’s general prohibition against content- and viewpoint-based discrimination. A bedrock principle of the First Amendment is that government may not prohibit speech just because it finds the speech offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989). Sexual expression which is indecent but not obscene is also protected by the First Amendment. Sable Communications of Cal., Inc. v. Sable, 492 U.S. 115 (1989). The First Amendment protects against viewpoint discrimination above other forms of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). When the government promotes a particular program and defines the limit of a program, it can fund speech that promotes its goals, even to the detriment of other goals. Rust v. Sullivan, 500 U.S. 173 (1991). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464 (1977).

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Congress created the nonprofit Legal Services Corporation (LSC) in 1974 to distribute federal funds to local legal-aid organizations as the primary means of providing basic legal services for the indigent. Restrictions on the use of funds precluded litigation concerning: abortion, political activity, criminal proceedings, school desegregation, and military desertion. In 1996, restrictions were extended to encompass challenges to welfare laws, although representation of individuals in suits-for-benefits were permitted. The 1996 Act also forbid LSC recipients from using non-LSC funds for those purposes, although such activity by an affiliate not under the control of the recipient was allowed. In 1997, legal-aid lawyers challenged the law as a violation of the First Amendment freedoms of speech and association and sought a preliminary injunction against its enforcement. The judge for the federal District Court in New York denied the injunction. The 2nd Circuit Court of Appeals agreed, with the exception of the suit-for-benefits provision. The 2nd Circuit ruled that the restriction on challenging the constitutionality of existing welfare laws constituted impermissible viewpoint discrimination. The government has greater leeway to selectively fund speech when the government is the speaker. Rust v. Sullivan, 500 U.S. 173 (1991). The First Amendment generally prohibits discrimination against speech based on viewpoint. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

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539 U.S. 194 (2003) UNITED STATES et al. v. AMERICAN LIBRARY ASSOCIATION, INC., et al.         No. 02-361. Supreme Court of United States.    Argued March 5, 2003. Decided June 23, 2003. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA*195 *196 *197 REHNQUIST, C. J., announced the… Read more

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For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment. In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the Government's own speech and therefore is exempt from First Amendment scrutiny.

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(Slip Opinion) OCTOBER TERM, 2012 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for… Read more

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The Texas Division of the Sons of Confederate Veterans (SCV) applied to sponsor a specialty license plate featuring a Confederate battle flag from the Texas Department of Motor Vehicles Board. The Board denied the plate because, at least in part, “public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” The SCV brought suit, alleging a violation of their First Amendment rights.

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