Board of Regents , University of Wisconsin System v. Southworth – Oral Argument – November 09, 1999

Media for Board of Regents , University of Wisconsin System v. Southworth

Audio Transcription for Opinion Announcement – March 22, 2000 in Board of Regents , University of Wisconsin System v. Southworth

del

William H. Rehnquist:

We’ll hear argument now in No. 98-1189, the Board of Regents of the University of Wisconsin System v. Scott Harold Southworth.

Ms. Ullman.

Susan K. Ullman:

Mr. Chief Justice, and may it please the Court:

The University of Wisconsin, like public and private universities across the country, has long had and encouraged a wide range of student activities.

At the University of Wisconsin, these activities are supported in part by disbursements from a student activity fund which is a viewpoint-neutral forum for student groups.

The First Amendment does not prohibit the University of Wisconsin from requiring all students to contribute to this viewpoint-neutral forum.

Anthony M. Kennedy:

Counsel, in… in the course of your argument, it seems to me that there are three different things happening here.

One is that the funds are allocated through the student council in a viewpoint-neutral manner, as you’ve just said.

Secondly, funding can result from a referendum.

Like WISPIRG had a referendum and the funds were paid by reason of the referendum, which it seems to me is not viewpoint-neutral.

And third… and third… some of the funds are used or may be used… I’m not sure… for what we might call quintessential political activity, hypothetically… this didn’t happen… going to the New Hampshire primary and attending rallies and so forth.

It seems to me that all three of those present maybe different problems, and at some point in your argument, if you could just address those.

Susan K. Ullman:

There are three different funding schemes.

The first is the GSSF funding, which is funding for organizations that provide services to significant numbers of students at the UW-Madison.

The second is…

Sandra Day O’Connor:

Now, as to that, are the funds paid out by the Board of Regents?

Susan K. Ullman:

The funds are allocated by a student group.

All the funds are in the State treasury and are paid.

They’re not paid in a lump sum to the group.

The group has to fill out a requisition form, and then the bill is paid by the fund.

Sandra Day O’Connor:

And are they limited to certain purposes?

Susan K. Ullman:

They are.

They are limited to services for significant numbers of students in the areas, of student health, student life on campus, that sort of thing.

Sandra Day O’Connor:

But I mean the funds that are paid out.

Are they paid out to support telephone bills or letter writing or what?

Susan K. Ullman:

Yes.

There are specific budgets, and they… for the service organizations, they are for… for example, they can be the bus service and that passes to all the students.

One of the groups they’ve challenged is the Campus Women’s Center.

That funds the physical place that the forum is, as well as the activities of the center.

David H. Souter:

Is it… is it fair to say that the ultimate control over the payment of funds in this category is retained by the university?

Susan K. Ullman:

The ultimate control, yes, but it is… it is a student group in all three that determine the funds and the university provides a check…

David H. Souter:

The university, at least in the first category, can… I guess they haven’t done it, but they could say, no, we’re not going to pay out the money for… for what you have selected in this respect.

Susan K. Ullman:

In all three categories, in theory the university could…

David H. Souter:

Including the referendum category?

Susan K. Ullman:

Yes.

David H. Souter:

Why don’t you argue, as some of the amici did, that in fact for that reason, you should analogize… we should analogize the position of the… the university to the university’s position when it decides how to spend its own money, how to choose its curriculum, how to invite speakers to the campus, if it does that?

Susan K. Ullman:

It…

David H. Souter:

Why don’t you argue?

Is there a reason not to argue that?

Susan K. Ullman:

It is analogous to that situation, but here it is the students that are choosing which groups will speak, and that is very important…

David H. Souter:

So, you’re saying the analogy is not perfect, in other words.

Susan K. Ullman:

Because the university itself is not speaking.

David H. Souter:

And do you… do you… do you wish to adopt the position that… that some of the friends of the Court have taken, or… or do you, in effect, wish us not to adopt that position?

Susan K. Ullman:

I think… I think we hold up under either position.

I think our position this Court doesn’t need to go as far as the position of some of the amici.

I think we hold up under the students determining where the money shall go.

Ruth Bader Ginsburg:

But who…

Antonin Scalia:

Ms. Ullman…

Ruth Bader Ginsburg:

performs the checking function?

You say in your brief that there’s one exception for partisan political activity.

And Justice Kennedy brought that up as one possibility.

Who exercises the check to determine whether these student groups are engaged in partisan political activity?

Susan K. Ullman:

There is a representative from the Dean of Students Office who participates at the committee meetings and someone from the Dean of Students Office who must sign off on the requisitions for the funds.

There hasn’t been any example in our record of the university turning down some funding because it’s politically partisan.

William H. Rehnquist:

That is against the guidelines, I take it.

If it were determined that a request for something was politically partisan, it would be turned down?

Susan K. Ullman:

It is against the guidelines.

Antonin Scalia:

Ms. Ullman, you say… you say it’s viewpoint-neutral.

What does that… I mean, somebody has to make a decision whether it’s the students or the university which speakers are going to be funded and which aren’t.

What if there is a… a student chapter of the KKK that… that applies for funding?

Antonin Scalia:

I assume somebody makes the decision that they will or will not get funding.

Right?

Susan K. Ullman:

Such a group would get funding, assuming that the group…

Antonin Scalia:

Automatically?

Susan K. Ullman:

If it comes to the forum and does its application correctly, is compliance… in compliance with the rules of being a registered student organization, doesn’t discriminate, can fulfill those requirements, then it will get funding.

Antonin Scalia:

See, that… that’s what I didn’t understand.

Is it the case that all of the groups that didn’t get funding under this program, didn’t request funding?

Susan K. Ullman:

That’s correct, with the handful of exceptions of groups who didn’t fill out their applications properly.

William H. Rehnquist:

I take it that even though partisan political activity is not to be funded by… lobbying activities, lobbying in the legislature is… may be.

Is that correct?

Susan K. Ullman:

Under one policy, it says lobbying should be excluded.

We haven’t found anything in this record that student activity funds paid for lobbying.

There was lobbying, but there was no evidence that the funds paid for it.

William H. Rehnquist:

Well, but I… I suppose funds could be given to an organization generally that engages in lobbying, and the… the organization could say, well, we get our lobbying money from somewhere else.

But then the student funds would simply supply other expenses of that organization.

Susan K. Ullman:

Yes.

The student funds generally went to postage and printing, office supplies, things of that nature.

David H. Souter:

Ms. Ullman, I have a basic question about why we should, in the first instance, adopt the… the forum analysis here.

It’s a metaphorical forum.

I mean, we start with that.

We’re not talking about a physical public forum.

And there… there are two ways of looking at what goes on.

One way, to be sure, is to look at it as a metaphorical forum, and another way is not to look at it as a forum and simply to look at it as a mechanism for funding various groups which have ideological and various partisan identifications.

One… or the question in my mind is what reason is there to adopt the… the forum metaphor rather than to look directly at who gets the money.

One reason that occurred to me would be that there was no other way or no practical way to have this sort of ferment of comment and… and speech except in this fashion.

And yet, that doesn’t seem to be the case because I think… what… 70 percent of the student organizations seem to get along without going through this process and availing themselves of the activity fund.

So, my… I’m left with the question of why should we adopt the forum metaphor as opposed simply to looking to where the money goes.

Susan K. Ullman:

I think there are several reasons for the forum metaphor.

First of all, in Rosenberger, this Court did recognize that a student activity fund is a forum like a park or any other forum.

Antonin Scalia:

Well, the legitimacy of the… of the practice as a whole was not at issue in Rosenberger, as I recall.

Antonin Scalia:

It was simply whether, if you have it, you have to provide it to… to particular religious groups, as well as to everybody else.

Susan K. Ullman:

That’s correct, and the parties here on both sides viewed this as a forum.

And in answer to your point about the hundreds of groups that don’t get funding, I don’t think that’s actually an accurate representation of what’s going on.

Here we have a snapshot of one year and these 125 groups get funding, but each year the groups that get funding change.

So, to say 70 percent of them don’t get funding, that might be true in a different…

David H. Souter:

Well, does it change… does it change radically?

I mean, are there years in which 98 percent get funding?

Susan K. Ullman:

I don’t know that the percent changes radically, but out of the 18 groups that the respondents objected to, 2 of those were not funded the next year.

So, that’s a large…

David H. Souter:

Okay.

Well, it still leaves me, I think, with… regardless of what the exact proportions may be, it still leaves me with a question, why we should adopt the… the forum metaphor.

And if… if the argument were you can’t have the kinds of speech which is valuable in a university setting without this practice, and hence the forum metaphor, in fact, is a way of describing a… a… at least a value of great importance, then I could understand that as a reason for adopting the metaphor.

But given the fact that there are so many organizations in which I presume speech is going on and people are coming to visit and speak and so on, who don’t avail themselves of this, I’m… I don’t have that reason.

At least it’s not obvious to me.

And I don’t know what the other reasons are for adopting that… that form of analysis.

Susan K. Ullman:

I… I’m not sure that your second statement is true, that these groups are having speakers come anyway.

Certainly the vast bulk of the speech that’s discussed in the record is all coming from these groups.

It takes money to invite a speaker.

So, the groups that are inviting speakers to campus do need some funding.

David H. Souter:

But do you have… and I don’t want to get picky about it, but do you have record support here for the proposition that you simply cannot get prominent outside voices who stimulate thought without this kind of centralized funding mechanism?

Susan K. Ullman:

I do have support from the Dean of Students who said that it takes an honorarium or travel expenses to get speakers…

David H. Souter:

Well, sure, but lots of organizations invite us to speak, and they come up with their own honorariums.

I don’t know why that necessarily implies the need for the university to… to be the middle man here.

Susan K. Ullman:

The university made the judgment that it is very important to it to have all of these different groups funded.

And the reason that the forum analogy works is because the students pay the money into a fund, and then all groups can speak.

William H. Rehnquist:

Well, Ms. Ullman, I’m curious to know… we’ve talked about having speakers come to campus and the… the forum analogy generally.

But I got the impression from the opinion of the court of appeals that a number of these funded groups don’t purport to put up speakers and invite everybody to come.

They simply go about their… their business, whatever it is.

Susan K. Ullman:

I don’t… I don’t agree that that’s true, but it… the forum is the pot of money.

It’s not… I’m not claiming that each individual group is holding a forum.

William H. Rehnquist:

Well, I was just… I was just curious factually, you know, whether or not it supports a forum analogy.

Aren’t there some of these groups who do not have big meetings on campus and invite speakers, but simply go about the work they’re supposed to go about?

Susan K. Ullman:

When I… in our joint appendix is an excerpt from the funding application of many of these objected-to organizations, and they all talk about how they want to educate other students and what they’ll do.

William H. Rehnquist:

Well, I’m sure how they want to, but what… what formal steps do they take to go ahead with this, I mean, other than just, you know, grab somebody while they’re walking between classes?

[Laughter]

Susan K. Ullman:

They do do that.

They use chalkings.

They do poster.

And they do invite speakers.

They have art exhibits.

They have photo exhibits.

So, they’re engaging in all sorts of types of…

Anthony M. Kennedy:

Well, I’d like to talk about WISPIRG for a moment.

Number one, that doesn’t match the public forum description you’ve given us so far because this was a direct referendum where 51 percent of the votes were enough to… to fund $ 40,000 plus to WISPIRG.

So that, it seems to me, is much different from the public forum argument that you’ve been making.

Secondly, just on the Chief Justice’s point, the WISPIRG application says that through its… through organizing new chapters throughout the State, this additional income will allow WISPIRG to hire professional staff necessary to play an even more effective role on environmental and consumer protection issues.

Now, if you’re… if you’re going to be candid with us to tell us what’s happening here, you should address that as well.

Susan K. Ullman:

All right.

WISPIRG did voluntarily have a referendum that went to the student body, and it was voted that they would get a certain amount from each student’s fees.

WISPIRG then had to go through the GSSF funding process.

It had to fill out the application.

It had to have a hearing before the committee where they would decide its funding.

The committee voluntarily views that referendum as binding, and they use that as a minimum…

Anthony M. Kennedy:

But that’s not… that’s not viewpoint-neutral… a viewpoint-neutral forum.

Susan K. Ullman:

That’s correct.

WISPIRG is getting the funding through the services.

Anthony M. Kennedy:

So, we have two cases here and not just one.

Susan K. Ullman:

That’s correct.

We have funding of services and we have funding of all groups as a forum.

Antonin Scalia:

Excuse me.

Antonin Scalia:

You say WISPIRG is just services?

Susan K. Ullman:

WISPIRG was funded through the mechanism for student…

Antonin Scalia:

I don’t care what… what mechanism it was funded through.

Was it just providing student services?

Susan K. Ullman:

Yes.

WISPIRG in its application says that in the past year it has served more than 20,000 people, 75 percent on the campus.

Antonin Scalia:

What… what does it serve them with?

Meals?

What?

Susan K. Ullman:

It says it’s offered them volunteer and internship programs for course credit and that they’ve had at least 5,000 students use their educational materials on environmental and consumer issues.

Antonin Scalia:

Well, I mean, you could call any speech serving students then, I mean, if… if that’s your definition of serving students, telling them things.

Susan K. Ullman:

The… we have a stipulation as to what the services organizations will do, and the respondents haven’t challenged that any particular…

Antonin Scalia:

Well, they’ve certainly challenged that… that this organization engaged in activities that didn’t constitute student services…

Susan K. Ullman:

Yes, and that…

Antonin Scalia:

including lobbying.

Susan K. Ullman:

That’s factually disputed, whether they engaged in lobbying.

Antonin Scalia:

Yes.

We’re talking about what the other side claims.

Susan K. Ullman:

Right.

Ruth Bader Ginsburg:

Given the position of the district court and the court of appeals, we never got to the point of examining these discrete questions because both the district court and the court of appeals thought the whole thing was no good.

So, it may well be that this separate category bears further pretrial development.

But they didn’t have an opportunity to do that.

Susan K. Ullman:

That’s true.

The case was resolved on summary judgment, and the lower courts didn’t seem to acknowledge the separate funding…

Anthony M. Kennedy:

But if you… if you can’t defend WISPIRG on a public forum analogy, how do you defend it?

I’m still waiting for that?

Susan K. Ullman:

I’m… I’m defending it as being one of the services organizations funded through the service mechanism.

William H. Rehnquist:

Well, but why does… why does that make a difference?

You called it a service organization, and yet it’s just interested in propagating its views.

Susan K. Ullman:

I think that’s simplifying too broadly what WISPIRG does.

William H. Rehnquist:

Well, but it does do a good deal of propagating of its views I take it.

Susan K. Ullman:

Certainly, and it views… I mean, it views its own speeches educating the students, and that’s part of… what are faculties doing too with telling the students…

Anthony M. Kennedy:

Well, I’m sure the Republican and the Democratic parties think the same thing.

Antonin Scalia:

As well as the KKK.

Sandra Day O’Connor:

Could… could we go back to Justice Kennedy’s first question?

There are three different kinds of funding programs going on?

Susan K. Ullman:

That’s right.

Sandra Day O’Connor:

The GFF, which you say is analogous to a forum, and then the… the student referendum mechanism, and what’s the third?

Susan K. Ullman:

Sorry.

The first is GSSF, which is funding services, and the second is ASM, which is the forum.

That’s the Associated Students of Madison, the student government.

And the third was WISPIRG that had a referendum and then went through GSSF.

Sandra Day O’Connor:

There was a stipulation in the record that the activity fund is administered in a viewpoint-neutral fashion?

Susan K. Ullman:

That’s correct.

Sandra Day O’Connor:

Did that extend only to the GSFF money or what?

Susan K. Ullman:

It was for the ASM money.

Sandra Day O’Connor:

ASM.

Susan K. Ullman:

Which is the one that’s the forum.

And it extended to GSSF insofar as no group was discriminated against… no group… there’s no evidence a group was denied funding for its views, but they were screened as to whether they were service…

Sandra Day O’Connor:

But the stipulation does not extend to the student referendum mechanism I gather.

Susan K. Ullman:

Right.

Sandra Day O’Connor:

All right.

Ruth Bader Ginsburg:

And the referendum would also work to de-fund, as I understand it.

That the students could veto.

If somebody gets through the regular process and the students can have a referendum and say we don’t want that group funded.

Isn’t that so?

Susan K. Ullman:

I do know that the United States Student Association lost its funding by referendum the year after it got funding in here.

So, that must be true.

What happened was they asked for funding again and it was voted down.

Antonin Scalia:

What was that organization?

Susan K. Ullman:

It’s an organization of different student governments.

Stephen G. Breyer:

I guess the First Amendment is supposed to, in part, protect views that are unpopular.

Susan K. Ullman:

That’s correct.

Stephen G. Breyer:

But I would think a referendum would pick out the views that on campus were popular.

Susan K. Ullman:

That…

Stephen G. Breyer:

So, what is that you suggest we do about this campus referendum?

Susan K. Ullman:

I think the campus referendum for WISPIRG went through the student services organization, and I think funding services for significant numbers of students is a legitimate function for any university.

And if there’s a problem with a particular organization that got funding through that mechanism, that it’s not really a service or something like that, that’s a specific challenge to a case.

There’s no reason to throw out…

Stephen G. Breyer:

So, in your view the campus could have only liberal organizations which are just popular on campuses and the conservative ones, which happen to be very unpopular… they wouldn’t give any of the money to.

Susan K. Ullman:

No, that… that…

Stephen G. Breyer:

I mean, on… on this… on this… through this route.

You’d call it a service.

Is that… is that basically what you’re saying?

In other words, if it’s called a service, money for a service, in your opinion they could give them only to the liberal organizations which are popular and not give them to the conservative ones which are unpopular, if it’s called a service.

Susan K. Ullman:

I don’t… I don’t really think it’s fair to say if it’s called a service.

Stephen G. Breyer:

No, no, but I’m trying to elicit your view.

Susan K. Ullman:

Right.

Stephen G. Breyer:

What is… what is…

Susan K. Ullman:

If… if it could fit the criteria for being a service, which we had stipulated to what that includes…

Stephen G. Breyer:

And that criteria is?

Susan K. Ullman:

That it provides direct, ongoing services to significant numbers of UW-Madison students.

The funds should also contribute significantly to student health, safety, or academic success.

Anthony M. Kennedy:

But that includes hiring professional staff to have a more effective role in environmental and consumer protection issues.

Susan K. Ullman:

WISPIRG was…

Anthony M. Kennedy:

That’s a service in your view.

Susan K. Ullman:

Well, WISPIRG was able to show to this organization that it was providing a service.

The Dean of Students…

Anthony M. Kennedy:

That’s a service in your view, what I’ve just quoted.

William H. Rehnquist:

Yes.

Susan K. Ullman:

Everything WISPIRG is providing together is… yes…

William H. Rehnquist:

Well, then service is just a great, huge Mother Hubbard type of blanket.

[Laughter]

William H. Rehnquist:

Is… is… I mean, if… if that is the service, then presumably all sorts of organizations that may have quite partisan views and spend their time trying to persuade students of their… of their merit are all engaged in services to the students.

Susan K. Ullman:

No.

WISPIRG received its funding and the Dean of Students said it has… WISPIRG has been especially effective in helping students identify projects that fit with their academic work in the classroom so that students can experience both the service and learning around this same topic.

William H. Rehnquist:

Yes, but that was, by no means, all that that organization did, was it?

Susan K. Ullman:

It… no, it did a lot of things.

That’s for sure.

Antonin Scalia:

But let… let me understand what you’re saying.

Is it only the services branch of funding that can be mandated or vetoed by a student referendum?

I thought the student referendum could… could knock out somebody who gets another kind of funding as well.

Susan K. Ullman:

I don’t think the student referendum could just knock out any group, but that is not clear in our record.

Our…

Antonin Scalia:

Well, now…

Susan K. Ullman:

all the student groups are getting funding through the ASM.

Antonin Scalia:

Is… is it your statement that the student referendum only applies to the services category?

Is there somewhere where we can see this in the university regulations or something?

Susan K. Ullman:

I don’t know.

The…

Antonin Scalia:

As far as we know, the student referendum applies to all… all of these three different sorts of funding.

Susan K. Ullman:

I guess in theory it could.

Stephen G. Breyer:

That’s quite a big problem, isn’t it?

I mean, your… your own amici have run away from you on this WISPIRG issue.

Susan K. Ullman:

Right.

Stephen G. Breyer:

And… and so now if this student referendum applies to the whole business, it’s going to be pretty hard to get the minorities funding.

Susan K. Ullman:

Well, the… the important mechanism that’s getting funding here is this forum.

It wouldn’t be practical for groups that are getting just very small amounts to go try to set up this referendum process.

It would cost them more to do that than they are getting in this funding.

Hundred… more than a hundred groups are getting funding from the forum, and they express all different views.

Susan K. Ullman:

And the university wants those minority groups to be… or unpopular groups to be able to speak too.

And that’s…

Anthony M. Kennedy:

And that’s… all that… all that is a service.

Susan K. Ullman:

No.

That is the Associated Students of Madison forum funding.

Anthony M. Kennedy:

In… in your view was the newspaper in the Rosenberger case a service?

It sounds to me like it is as you define it, and I simply can’t buy that argument.

Susan K. Ullman:

I… I don’t think it needed to be a service.

It was part of the forum in that case, and in this case the 125 student groups are part of… the vast bulk of the groups that are funded are through the forum.

They aren’t funded through this service organization.

If I could reserve some time.

Ruth Bader Ginsburg:

Ms. Ullman, would you just clarify one point for me?

Will you tell me how the university defines partisan political activity?

What falls under that label that’s not permitted to be funded?

I mean, one question came up about lobbying, and I wasn’t sure whether you said yes or no to that.

Susan K. Ullman:

The… there are two policies.

One is for the GSSF student funding, that mechanism, and it says the organization does not have a primarily political orientation, i.e., it is not a registered political group, and shall not use SUFAC funds for any lobbying purposes.

Ruth Bader Ginsburg:

So, lobbying is definitely one.

Susan K. Ullman:

Using the funding for those purposes.

David H. Souter:

Well, is it only to prevent… I… I take it that partisan organizations are excluded from these benefits not merely because they… they lobby but because they are partisan political organizations.

Susan K. Ullman:

That’s correct.

David H. Souter:

Well, if that… and… well, maybe I shouldn’t get ahead of myself.

Why… why does the university so accept them?

What’s the reason for that?

Susan K. Ullman:

The university has traditionally excluded partisan political and religious activities.

After Rosenberger, its policy…

David H. Souter:

Well, let’s leave religion out for a minute and… and just talk about politics.

I mean, you know, the core First Amendment value is in political speech.

Why is political speech excluded?

Susan K. Ullman:

Only partisan political speech.

David H. Souter:

Partisan political speech.

Susan K. Ullman:

And that…

David H. Souter:

Why is it excluded?

Susan K. Ullman:

Because the university wants to avoid the appearance of political favoritism.

The Wisconsin legislature provides hundreds of millions of dollars to the university each year.

David H. Souter:

But it’s not that the university believes there’s a First Amendment reason for the exclusion.

Susan K. Ullman:

I don’t…

David H. Souter:

It just doesn’t want politics in any way that might be identified with the university.

It doesn’t want to get in Dutch with the legislature basically I guess.

Susan K. Ullman:

That’s right.

It wants to confine the forum to the purposes that it defined it for.

In Rosenberger, they also excluded political activities of electioneering and lobbying.

David H. Souter:

If you’re excluding that kind of politics, what does that do to your… to your forum analysis?

Susan K. Ullman:

I don’t think it harms the forum analysis.

David H. Souter:

It’s rather than an odd forum, isn’t it?

Susan K. Ullman:

No.

It only excludes a very narrow band of partisan political.

David H. Souter:

It excludes a narrow band which in fact is the… is the principal object in the first instance of First Amendment protection.

Susan K. Ullman:

Yes, but there’s still at this forum a wide range of speech that can be heard.

And the… this Court has recognized that you can exclude a class of speech in Cornelius v. the NAACP.

David H. Souter:

All right.

Can the… do you take the position that the university could exclude funding for an avant garde arts organization?

Susan K. Ullman:

I don’t think so.

That sounds like it would be viewpoint-based rather than…

David H. Souter:

That’s… that’s right.

That’s the way it sounds to me and it sounds to me as though you’ve got the same point with your political exclusion.

Susan K. Ullman:

No.

We’re excluding an entire class of speech, an entire category.

We’re not excluding a particular viewpoint.

Antonin Scalia:

Just partisan political, though.

Antonin Scalia:

That’s… that’s a viewpoint it seems to me.

If I hold these views but I’m not a Democrat, I can… you know, I can spew them.

But if… if I… and get funded for it.

But if I… once I affiliate with a party, then I can’t.

Susan K. Ullman:

I… I think the… the university has limited the partisan political.

The respondents haven’t challenged that category of funding.

They’ve challenged the funding mechanism.

If there’s a problem with excluding partisan political, then that’s a Rosenberger type case that isn’t here.

Thank you.

William H. Rehnquist:

Very well, Ms. Ullman.

Mr. Lorence, we’ll hear from you.

Jordan W. Lorence:

Mr. Chief Justice, and may it please the Court:

For each one of the three parts of the university’s funding system, the referendum, the services that are funded under GSSF, and the ASM system, the same constitutional principle applies.

The university violates the… the principle against compelled funding of political and ideological speech laid out in Abood and Keller.

With the referendum system, we do not even have a Rosenberger issue at all because it arguably cannot be a forum at all.

Rosenberger is relevant to the GSSF services aspect and the ASM, but in both cases they are mainly… the main part of both of those is to fund the political and ideological activities and advocacy of these groups.

Services…

Sandra Day O’Connor:

Well, I thought there was stipulation in the record that the funding process is administered in a viewpoint-neutral fashion.

Jordan W. Lorence:

That’s right.

Sandra Day O’Connor:

Is there such a stipulation?

Jordan W. Lorence:

Yes, Justice O’Connor.

Sandra Day O’Connor:

Okay.

I guess that doesn’t extend to the referendum process.

Jordan W. Lorence:

It… it does not.

Sandra Day O’Connor:

Okay.

Stephen G. Breyer:

Can we leave that referendum out of it on the theory that it isn’t really developed fully in front of us in the lower court opinions in anything and simply express no view on it and deal with the rest of it?

What would be wrong with doing that?

Jordan W. Lorence:

I think you have sufficient… Justice Breyer, sufficient things in the record to see that these groups that are funded by the referendum, WISPIRG, engage in very obvious political and ideological speech.

The students are compelled to fund it.

Stephen G. Breyer:

Yes, yes.

Stephen G. Breyer:

All that’s true.

What I’m thinking is that most of the case, except for that, is presented to us in terms of what the First Amendment requires in respect to a system that’s viewpoint-neutral.

The problem with that referendum is… is perhaps it isn’t.

And so, would it make sense for us and can we in this case leave that part of it out, say it isn’t developed fully in the record or in… in the courts below, even if it is in the record, and deal with the rest of it?

Jordan W. Lorence:

I think it’s an easier case.

I think it’s more straightforward.

I think it’s an obvious issue of compelled speech, and I think this Court could easily separate that out and say the other ones may be a closer call because of a Rosenberger issue, but the… the referendum is definitely way over the compelled speech line of Abood and Keller.

And I think that you could handle it that way.

Now, the other one…

John Paul Stevens:

May I ask… may I ask this…

Jordan W. Lorence:

Yes.

John Paul Stevens:

general question, if… some of these things obviously are troubling that have been identified in the questions.

I’m wondering if they are troubling just because it’s financed by student speech or would it be equally troubling if it was financed out of the general tuition or appropriation by the legislature.

Would you think a program would be valid if it were financed with State funds?

Jordan W. Lorence:

There would be no First Amendment claim… challenge that could be brought if it was funded by taxation…

John Paul Stevens:

I understand that, but that… I’m trying to leave that out and ask you whether you think the program has these vices in it that would survive no matter how it was funded.

Jordan W. Lorence:

Well…

John Paul Stevens:

As long as it’s State money or student money, either one.

Jordan W. Lorence:

If it’s… if it’s tuition money, I think it would depend on how it’s done.

John Paul Stevens:

It’s done exactly the same as in this case.

Jordan W. Lorence:

I think that then it would mean there’s no government… they’re not agents of the government.

They don’t come under the government speech doctrine.

They’re not part of the university program.

Even though they’re being paid by tuition, it’s basically they’re giving them money and say, do what you want, promote…

John Paul Stevens:

So, that would…

Jordan W. Lorence:

your own agenda.

John Paul Stevens:

Could they salvage the program by abolishing student fees and increasing the tuition in exactly the same amount?

Would you have a constitutional objection to the program if they did that?

Jordan W. Lorence:

It… Justice Stevens, it would depend on how they do it.

John Paul Stevens:

They do it just the way they do it in this record.

Jordan W. Lorence:

I think that we could because… but it would be a… it would be shifting tuition to pay for a group in a way that they… they have not used tuition ever before.

John Paul Stevens:

Yes, but… but a fairly simple solution.

I’m just wondering if you think it would be a valid solution.

Jordan W. Lorence:

Well, if they’re going to make these groups agents of the university, then…

John Paul Stevens:

They’re going to do exactly what they do here except they just raise the money a little different…

Jordan W. Lorence:

Then I think there would still be a challenge because they… they would be giving government… they would be giving private money to private groups to do their… that are independent of the university to pursue their own political and ideological…

John Paul Stevens:

See, the thing that strikes me about the case is I’m not… I’m wondering if the source of the funds is really the problem or the way in which their program is administered is the real problem.

That’s what I’m trying to sort out in my mind.

Jordan W. Lorence:

Well, I think that the… the government speech doctrine I think provides a line here that maybe this is… I’m trying to discern what you might be getting at here… that… if we’re talking about things that the university is funding with its academic program with tuition where it says, this is the University of Wisconsin, these are our agents, that type of thing, I think that would be a government speech issue.

There would be no challenge to that.

There would be no First Amendment right to opt out of funding something like that.

Sandra Day O’Connor:

Well, what if the university uses tuition money to have speakers that come from all these various perspectives at a university auditorium?

Jordan W. Lorence:

I think that that…

Sandra Day O’Connor:

They use the tuition money to do that.

Jordan W. Lorence:

That would be acceptable because, from what I understand, it would be part of the government… it would be the University of Wisconsin extending its agency or sponsorship or something over that event.

And I don’t think there could be a challenge.

Sandra Day O’Connor:

Well, what if the university does that and lets a student group meet to decide what speakers will be invited?

Jordan W. Lorence:

Some of these issues in the middle, I’m not exactly sure.

The facts would have to be specific, but I think the issue… where the line would be drawn, as it was in Rosenberger and Rust, is, is this a government speech, is this a government actor with the authority or the sponsorship, agency of the university…

Sandra Day O’Connor:

Well, if the university is saying, we want every student to pay $ 50 a semester to an activity fund and we require that and it’s going to be used for these activities, then why isn’t that government speech?

Jordan W. Lorence:

Because there is… it’s clear from the… the student operations handbook, which is in the record.

It’s not in the joint appendix… that the… the registered student organizations are distinct, separate, independent, private, that they… they are… they’re talked about how they are not university actors.

In fact, they could not be sued… the university could not be sued to say one of your groups did something wrong.

They’re clearly separate from the government here, from the university.

So, the…

Sandra Day O’Connor:

But I don’t understand that.

Surely the government can invite an outside group to come and give a speech or put on a presentation using government money, tuition money to ask them to do that.

Jordan W. Lorence:

That’s correct.

Sandra Day O’Connor:

And you’d have the same situation.

Jordan W. Lorence:

Yes.

Jordan W. Lorence:

I… I think that it would… I think the issue would be sponsorship.

Is this the University of Wisconsin sponsoring this event?

Then I think it would be a government speech… it would be protected under the government speech doctrine.

If it’s, well, we’re kind of inviting you in an informal way, but the sponsorship is with the private organization, then I think it would be private speech still.

David H. Souter:

What do you mean by sponsorship?

In other words, what… what is this magical quality of sponsorship?

Isn’t the only issue is… is speech being promoted and… and who, in effect, is… is responsible for paying for it?

Jordan W. Lorence:

Well, as… as I understand the government speech doctrine from Rust… and it was discussed somewhat in Rosenberger… that the… that there’s no claim to challenge the government’s own speech or when the government designates agents…

David H. Souter:

Right, right.

Jordan W. Lorence:

to be their speakers.

David H. Souter:

Yes.

Jordan W. Lorence:

So, if there’s an invitation by the university for someone off campus to come on and speak, maybe the… the speaker is controversial… I think the… and I think the issue would be is this… is there some sort of sponsorship.

Is this the government…

David H. Souter:

What you’re getting at I think is… is the government ultimately responsible for this.

Isn’t that it?

I mean, if the government is… if… if the government authority is being used to raise the money and… and thereby to make the invitation possible and the government approves this use, the government establishes the means by which selection shall be made, it sounds like government speech.

And the… you’re… you’re introducing at least a rhetorical element of sponsorship, and I just don’t understand what sponsorship might be in addition to these items I’ve just checked off.

Jordan W. Lorence:

Justice Souter, what you said I think is what I’m trying to get at.

I think to…

David H. Souter:

Okay.

Jordan W. Lorence:

to capsulize it in one word, I’m having some difficulty doing that.

But what you’re saying I think is what I’m trying to say.

Antonin Scalia:

Well, I don’t… I don’t… I didn’t understand that to be government speech.

I thought the government speech doctrine applied to speech which the government does not disclaim.

I mean, I’m sure when… when they have these forums of the sort you’re discussing now, the university says, you know, when we bring in whoever it is, his views are not necessarily those of the university.

As far as I’m concerned, that’s the end of the government speech doctrine.

The purpose of the government speech doctrine is to enable the government to take positions on… on public issues against the KKK, against all sorts of things that the government thinks is bad.

And that doesn’t violate the First Amendment.

The government is entitled to take positions.

But what the… the hypothetical that’s been posed to you does not involve the university taking positions.

Antonin Scalia:

It just involves the university sponsoring it.

I don’t… I don’t see that that invokes the government speech doctrine.

Jordan W. Lorence:

Well, Justice Scalia, what you’re saying is… is definitely the application of how the doctrine has been done in the cases of this Court.

But I think that it would also be within the parameters of that doctrine to say that the university can operate a system where it has speakers, professors, outsiders that come in and speak views, and the university can protect them in a sense from a case like this…

Antonin Scalia:

I can see that too where… where the university selects professors and decides what courses will be… will be taught and so forth as part of its instructional mission and with… you know, with an eye to the subject matter.

It won’t let any subject matters be taught and so forth, nor any views.

I mean, it’ll… you know, scientifically worthless views it won’t let in.

That’s not viewpoint-neutral, but it’s part of the university’s instructional program.

And if the hypothetical were the university establishes a forum in which it selects the speakers, then… then I could understand that that’s part of its instructional program.

But when the university just sets up a forum and says, we’ll pay the money, the students can decide what… what speakers they want, you… you say that still comes within government speech because it is, quote, sponsored by the university.

I don’t… I don’t see that at all.

Jordan W. Lorence:

I… I think that I’m not talking about mere labels.

I’m thinking about the reality of what’s going on, of the situation.

If it’s basically the university or the government pulling the strings, operating it, then I think it comes under the government speech doctrine.

And this… that’s a limitation, I think, on the… the cause of action…

Antonin Scalia:

I agree with that, if… if what you mean by pulling the strings and operating it is selecting the speakers.

Jordan W. Lorence:

Yes, yes.

David H. Souter:

What about the situation in which the university says, we think a babble of voices is a very good thing?

Is… and we are going to pay for those voices.

We are going to pay to get them here.

You can see that and I thought you were saying that too would fall within the umbrella of government speech, or it should.

Jordan W. Lorence:

Well, I think…

David H. Souter:

Is that your position or isn’t it?

Jordan W. Lorence:

Yes.

I mean, I think that the…

David H. Souter:

Okay.

Antonin Scalia:

That’s a government that has nothing to say.

[Laughter]

Antonin Scalia:

I mean…

Jordan W. Lorence:

The… the point of this is so that the government… the university can have a State university system if it wants.

Jordan W. Lorence:

The difference here, under Abood and Keller, is that people cannot be compelled to fund private speech of independent entities which is what we have here.

Ruth Bader Ginsburg:

Why aren’t they doing that if they… if there is no student activity fee and it just comes out of tuition?

I mean, they’re compelled to pay for all kinds of things they may not believe in that are being taught on the campus.

Jordan W. Lorence:

I think tuition itself does not answer the question, that it’s paid by tuition.

I think, Justice Ginsburg, it has to be… is there some level of university control over this because the university said in its brief that it uses tuition money to pay for the instructional program of the university.

So, I think if it was paying for these groups with tuition money, it would transform them into agents of the university.

They would be part of the instructional program, which I think most of these groups would object to.

They want their independence.

They want to be able to freely lobby at the Wisconsin legislature on their issues.

John Paul Stevens:

But I don’t understand why the university couldn’t say we’ll run it exactly as we’ve been running it.

We’ll delegate the authority to make the decisions of the various student groups, but instead of using a student activity fee, we’ll just put in a pot of money at their disposal.

Jordan W. Lorence:

Well…

John Paul Stevens:

I think you’d still have the same objection.

Jordan W. Lorence:

Well, the…

John Paul Stevens:

Or maybe you wouldn’t.

You haven’t really made it clear to me whether you would or…

Jordan W. Lorence:

The university as a State actor may have an educational mission that’s broad, but it still has a constitutional…

John Paul Stevens:

It’s whatever the mission of this program is.

They just say, we’re going to finance it in a different way.

Would it become all right or wouldn’t it?

I can’t figure out from your… you’ve given me a lot of legal answers, but I don’t know, it seems to me it’s a yes or no question and I don’t…

Jordan W. Lorence:

I… Justice Stevens, I don’t think I can give a straight answer in that it would depend on exactly how they’re doing it.

I think…

Antonin Scalia:

They’re doing it just the way they’re doing it now.

John Paul Stevens:

Just the way the record shows in this case.

Jordan W. Lorence:

If they’re doing it the same way they’re doing it now with tuition money, I still think there would be a cause of action…

Antonin Scalia:

Of course… of course…

Jordan W. Lorence:

because the groups would be independent of the university.

John Paul Stevens:

Now, I think you’re right.

I mean, that’s… that’s… but that… if you agree with that, then I don’t think the fact that your people object to some of the speech has anything to do with the case.

John Paul Stevens:

It’s just that the… the program as a whole is objectionable because it’s slanted one way or another and funds certain activities.

Jordan W. Lorence:

Well… well, it’s… it’s because they’re funding the speech of these organizations as opposed to some sort of conduit for it, that the speech is converted into the speech of… the message of these groups.

Anthony M. Kennedy:

I… I take it there are two principles.

One is that the State university can teach what it wants as it wants to teach it.

Jordan W. Lorence:

Yes.

Anthony M. Kennedy:

The other is that it violates the First Amendment to compel a private person to speak when he or she does not want to.

Jordan W. Lorence:

That’s exactly right, yes.

Anthony M. Kennedy:

And we’re trying to accommodate these two principles.

Jordan W. Lorence:

Yes.

Anthony M. Kennedy:

And it’s a question of proximity and degree.

There are going to be some close calls.

Jordan W. Lorence:

Yes.

Anthony M. Kennedy:

This case in your view is not a close call because we’re not using tuition funds.

Jordan W. Lorence:

That’s right.

That’s exactly right, Justice Kennedy.

Stephen G. Breyer:

Well, then why… why… if you can… I can understand how you analogize it to Abood and the bar cases…

Jordan W. Lorence:

Yes.

Stephen G. Breyer:

because you’re saying that here, as a condition for going to the State university…

Jordan W. Lorence:

Yes.

Stephen G. Breyer:

you have to give money, let’s say, to the IWW, the… the Wobblies, or something…

Jordan W. Lorence:

Right.

Stephen G. Breyer:

you know, or…

Jordan W. Lorence:

Yes.

Stephen G. Breyer:

That would be very analogous.

Jordan W. Lorence:

Yes.

Stephen G. Breyer:

But then the reply is, that’s not what’s happened here.

It’s not that you’ve giving money to a union or the Wobblies or somebody.

Rather, what you’re doing is giving money to a bunch of organizations so that all, in a viewpoint-neutral way, have a chance to engage the students in a certain amount of activity that is at least distantly related to a educational objective.

And so, why doesn’t that difference make the difference?

Whether you call it a public forum, whether you don’t call it a public forum, who cares?

Stephen G. Breyer:

Basically the difference is what I just described, and why doesn’t that make the difference in terms of the First Amendment?

Jordan W. Lorence:

Justice Breyer, because the students have a First Amendment right not to speak.

So, to fund some voices that they agree with or don’t care about and some that they disagree with, I still think violates the… the principle.

Anthony M. Kennedy:

But in the concept… context of the university setting from… from ancient times, universities have been places where ideas, including political ideas…

Jordan W. Lorence:

Yes.

Anthony M. Kennedy:

are debated.

That’s part of the life of the university.

And it seems to me the difficulty with your position is that you’re asking us to do something which is against the tradition of universities for many, many years, many centuries.

Jordan W. Lorence:

Well, Justice Kennedy, I… I think that it is clear from the record that wide-range debate will not disappear or be significantly diminished by allowing objecting students to opt out.

Antonin Scalia:

Gee, I’m not… you accept the proposition that this is a… a timeless function of universities?

I don’t know, from the Middle Ages they have funded student groups to…

Jordan W. Lorence:

No, no.

[Laughter]

Anthony M. Kennedy:

No, they’ve had diverse speech.

They’ve had diverse… of course, they…

Antonin Scalia:

Yes, they have diverse professors whom they hire and… and who are speaking on behalf of the university presumably.

This is…

Jordan W. Lorence:

I… I would point out to this Court on this matter that at the joint appendix 300, the university states that the mandatory fee system is not the… the primary way that groups are funded.

The primary sources of funding for most student organizations are membership dues and other fund raising ideas.

This is from the student handbook that’s distributed to all the student organizations.

It’s at page 300 of the joint appendix.

So, even the university doesn’t view the mandatory fee system as essential or critical to the existence of this.

Antonin Scalia:

How… how old is… is this fee?

I just wonder whether universities are going to crumble if… if they can’t do this kind of thing.

How… is this a longstanding tradition in… in universities?

Jordan W. Lorence:

No.

In fact, from what we can tell, it’s… it’s… it may have started at the beginning of the university, but the funding of these kinds of groups can only be traced back to the Vietnam War era from the Wisconsin Attorney General opinions and stuff like this.

So, this is a very recent innovation to fund these kind of ideological advocacy groups on campus.

David H. Souter:

Mr. Lorence, you… you have and members of the Court have from time to time invoked or mentioned the principle of the right not to speak.

Jordan W. Lorence:

Yes.

David H. Souter:

And I’d like you to comment on this.

I at least have understood the right not to speak to be a right not to a vow of silence, but rather a… a right not to espouse a position.

If that is correct, then the argument that you keep being met with, that in fact there is such a variety of voices here, that this funding mechanism simply cannot be analogized to being forced to speak a particular position, adopt a particular position, or sponsor a particular position.

Would you comment on that?

Is that, as I have just characterized it, a proper way of looking at the… at the right not to speak, and… and if so, why are you not vulnerable to the argument that when there is no one voice, the principle really does not support you?

Jordan W. Lorence:

Well, a couple of things.

I think in Abood and Keller, Justice Souter, that if the union or the bar association had been funding multiple candidates or differing points of view to… to kind of be more inclusive or something like that, this problem still would remain, that there… there would still be a violation there.

David H. Souter:

Well, I don’t know.

Antonin Scalia:

Well, do you accept that the… the right not to speak is simply the right not to have yourself associated with… with that view?

I thought… I thought we had a case that said a newspaper could not be compelled to accept advertising that would obviously be representing the views of somebody else and not of the newspaper itself.

Jordan W. Lorence:

That’s correct.

It’s… it’s…

Antonin Scalia:

So, it isn’t just a matter of your being identified with that… with that view.

You shouldn’t… you shouldn’t have to have your… your means used to espouse it if you don’t want to.

Jordan W. Lorence:

Yes.

Your… you have a constitutional right, Justice Scalia, to just stand back and say, I’m going to not enter into this debate, and I’m not going to fund a position in this debate…

David H. Souter:

Well…

Jordan W. Lorence:

that I don’t agree with.

David H. Souter:

But you don’t… you don’t place your… your objecting students, I take it, in the same position as a newspaper which is asserting a peculiar editorial freedom.

Maybe you do.

Jordan W. Lorence:

Well, they’re promoting the message of the organizations.

Maybe they’re not being identified, that Scott Southworth supports the views of the socialist organization, but they’re definitely…

David H. Souter:

Well, they’re promoting… you’re… you’re right.

They’re promoting a message, but that doesn’t describe the totality of what’s going on.

They are facilitating the promotion of a series of messages which may be, indeed, quite inconsistent as among themselves.

And whatever that is, that is something different from being compelled as a union member or a bar association member to take a particular… to fund a particular position in the course of… of partisan political activity.

Jordan W. Lorence:

Well, in… in light of Rosenberger, that the university cannot discriminate on the basis of viewpoint, which means that students… it would be impermissible for students to lobby the student government or the university and say, cut off funding to the… the X group because we don’t agree with them.

They have to be funded on a viewpoint-neutral basis.

I think that the only… that Rosenberger points to a Abood/ Keller type solution here so that dissenters who object to these groups have a way to protect their right of conscience.

If… if we don’t do that, then that means, as was brought up earlier, the African American students can be compelled to support the KKK, the Jewish students can be compelled to support a group that wants to put Israel…

David H. Souter:

Well, but again, your… the force of your argument depends on denying that what you are… what your students are supporting is a funding mechanism, is a pot from which money is taken.

Instead, you analyze it down immediately to the individual groups.

And I’m, in effect, asking you the converse of the question that I asked the… the lawyer on the other side.

Why is it that I should look at this… why should I analyze this case as being funding for individual groups as opposed to funding for a… a pot of gold from which quite disparate and inconsistent voices can have access?

Jordan W. Lorence:

Well, Your Honor, that… let me try this, Justice Souter, that if there’s a campus auditorium and a group speaks there, at the end of the meeting, the auditorium remains, it’s under university control, and the group goes home.

Under this system, if this is a forum of money, the money is given over to the group and is converted into their message.

The money becomes the speech…

David H. Souter:

Well, but the value of the auditorium, in a way, is converted into messages.

I mean, if you want to take the long view, at some point auditoriums wear out and they fall down with use.

So, you can say that every group that packs the auditorium is taking something out of the fabric and… and is using it for the… for the purpose of… of espousing the group’s message.

The only difference, it seems to me, one of time.

Jordan W. Lorence:

Well, I… I think there’s more to it than that, Justice Souter.

I mean, I think it’s just not that we’ve got some wear and tear on an auditorium when a group uses it.

I think that when you’re giving money to them, you’re funding the… what they’re… what they’re given money for is to fund their overhead expenses, to… underwrites their whole basic mission of what they’re pushing here.

David H. Souter:

Yes, but the… the argument… well, but… that… that… let’s… let’s say you… you may have two arguments here.

One, that the funding is going further than the funding should go for purposes of speech.

That’s one argument I think you were getting at at the end.

And I… I don’t mean to dismiss that.

But if you put that to the side for the moment, the… the argument that the… that the money is being used to… to fund and espouse a particular speaker’s viewpoint, is simply a way, I think a… perhaps a… is… the answer to that is simply the same answer as the auditorium answer.

The auditorium answer would be, look, we can’t have a babble of voices without an auditorium for the… for them to speak.

And with respect to your objection, the university would say, we simply cannot have this variety of speakers without some underwriting.

We’ve got to get them here.

They… they won’t come otherwise, and we ought to have this speech.

So that it seems to me that the… again, the… the university’s role in supplying the auditorium and… and a funding mechanism is essentially the same.

Jordan W. Lorence:

Well, Your… Your Honor, I… I think that there’s still direct funding here, that… I don’t think, for example, the union in Abood could have said, we’re funding both the Republican and the Democratic candidates because we think it would enhance the electoral process to have both voices…

David H. Souter:

We would have had some new union officers, if they had been doing that.

Jordan W. Lorence:

That’s right.

[Laughter]

That… that’s correct, Your Honor.

That they couldn’t somehow disassociate themselves and say, these objecting union members in Abood, they have nothing to complain about.

Jordan W. Lorence:

They agree with one side or the other.

So, we’ve somehow put enough buffer between here that we can… that there’s no First Amendment claim.

I just don’t want to compound the problem.

David H. Souter:

Well, I didn’t want to get into this, but if… if you get to that point, then you get to… really to the question of… of your analogy with… with Abood.

And… and the… the union organization, in fact, is… is a… is a membership organization.

And we don’t have that feature here.

And… and so, when… when you carry the… the argument as you did, the question would then come up in the union or the bar association case, is… is this going to the very justification for compelling the membership or the… or the support for activities?

So, I think your… I think that… I think that injects another element in the argument.

Jordan W. Lorence:

Well, and I would say that the university as a State actor has a constitutional duty to respect the… the right of conscience of the students.

Their education mission must be subordinate to that, that… they… they cannot view the students’ right of conscience as some sort of roadblock between education…

John Paul Stevens:

May I ask you about an activities fee?

90 percent goes for sports events, 5 percent for the annual yearbook, and 5 percent for the student newspaper.

Would that be permissible?

Because… and the student newspaper gets captured by a communist board of directors in editorial policy.

[Laughter]

John Paul Stevens:

That happens all the time.

[Laughter]

Jordan W. Lorence:

That’s right.

John Paul Stevens:

At least it did when I was in school.

Anthony M. Kennedy:

But… but they call it…

[Laughter]

Anthony M. Kennedy:

And… and when it does, they call it a service.

[Laughter]

John Paul Stevens:

What about that answer?

What about that hypothetical?

Jordan W. Lorence:

Your Honor, let me just speak…

John Paul Stevens:

And I might say also there’s a greater danger that the student will be identified as associated with the views of the school paper than when you got an indirect thing like this.

Jordan W. Lorence:

That’s about three hypos in one here, Your Honor, that… Justice Stevens, that… I would say it this way.

There’s no Abood complaint against non-speech activities.

So, I think the athletic stuff would be fine.

Jordan W. Lorence:

If… if there’s… there’s no…

Antonin Scalia:

That’s the easy part.

Jordan W. Lorence:

Right.

John Paul Stevens:

The newspaper is the hard part.

[Laughter]

Jordan W. Lorence:

The Abood case… there’s no Abood claim for government speech.

The newspapers may fall into that, the student newspapers, if it’s the official university one.

We don’t have that case here, and I… I know that all the lower courts have resolved it the other way.

And the third thing… I don’t recall, Justice Stevens… was?

John Paul Stevens:

Well, it’s… it’s captured by a group with which the person who has to pay the activity fee violently disagrees, particularly because it’s the University of Chicago Daily Maroon that’s associated with all students of the University of Chicago.

Of course, that’s not a State…

Jordan W. Lorence:

I think that if there were… I do not know the answer to it because I think there’s a government speech issue.

If you have Rosenberger’s newspaper, I think people could object to funding its Christian proselytizing.

Antonin Scalia:

But we were talking here about a university newspaper.

Isn’t the argument available that this is one of the instructional devices at the university…

Jordan W. Lorence:

Yes, yes.

Antonin Scalia:

and that it should take particular views is… is no more extraordinary than that you should have a communist professor?

Jordan W. Lorence:

That’s right, Your Honor.

Antonin Scalia:

Which also happens.

Jordan W. Lorence:

That’s right, Justice Scalia, yes.

That’s right, Your Honor.

In conclusion, the Seventh Circuit correctly ruled that the University of Wisconsin’s mandatory fee system violates the Abood and Keller rights of the students.

The university may have an educational mission, but it has a greater First Amendment duty to protect and recognize the right of conscience of each individual student.

Anthony M. Kennedy:

If you allowed opt-out as… as Abood, and then you have students that don’t opt out, so you still have a fund…

Jordan W. Lorence:

Yes.

Anthony M. Kennedy:

Could the students who opt out then make a demand for viewpoint-neutral funds?

Jordan W. Lorence:

If the… if the funds were…

Anthony M. Kennedy:

You’re a Wobbly.

You… you opt out and so your funds aren’t used.

Can they then demand that the funds that are used still be used on a viewpoint-neutral basis?

Jordan W. Lorence:

There might be a free rider question there, Your Honor.

I’m not sure.

William H. Rehnquist:

Thank you, Mr. Lorence.

Ms. Ullman, you have 1 minute remaining.

Susan K. Ullman:

Setting aside WISPIRG, the other groups that were funded through GSS were services and there’s no claim that there was any viewpoint discrimination there.

The University of Wisconsin…

Antonin Scalia:

You mean really services.

Susan K. Ullman:

Yes.

The University of Wisconsin has determined that it is important to facilitate the speech of diverse groups, that this furthers the university’s educational mission and First Amendment values.

Thank you.

William H. Rehnquist:

Thank you, Ms. Ullman.

The case is submitted.