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Thursday, February 04, 2021

What Southworth hath wrought

Bd. of Regents v. Southworth is an odd case. The action was brought by students at a public university challenging the use of their student-activity fees to fund groups or expression to which they objected. The Court rejected the claim because the forum was viewpoint neutral. I believed (and wrote at the time) that this was the wrong approach. Students were not compelled to fund any speech, so there should not be any free speech problem; they were required to fund a forum that the government operated. No one's First Amendment rights were violated, because no one was required to fund any speech or to give money for any objectionable speech; they gave money to the government that the government used to enable private speakers. And that does not change if the forum is not viewpoint neutral. The thing funded remains a public forum, just a viewpoint-discriminatory public forum. Any First Amendment claim should lie with anyone denied access to the forum on viewpoint-discriminatory grounds has a strong First Amendment claim. But the funders should have nothing.

The grounds on which Southworth was decided leads, unavoidably, to Smith v. Regents of Univ. of Minnesota. The plaintiffs were students who paid the mandatory fees. Some of their claims survived 12(b)(6) to the extent they challenged the unbridled discretion that university administrators had in deciding who received money, space, or other services. These plaintiffs were not denied money or space or other funded services; they simply do not like who does  receive money, space, and services or how that decision was made.

This makes no sense, however we look at it. On the merits, this should not violate the First Amendment, because the plaintiffs have not been compelled to speak or to fund anyone's speech, nor have they been denied access to a public forum to which they are entitled. Any unlawfulness in running the forum does not change the lack of connection between the plaintiffs and any fund recipient.  Or we could wonder how the plaintiffs have  standing, since they have not been harmed in any concrete way by the way the money was spent (the injury is not to their pocketbook, since they must pay this money no matter how the funds were spent) and they will not get their money back if the school changes its procedures. Or we could say this recognizes a new form of taxpayer standing under the Free Speech Clause, despite the Court's extreme narrowing of taxpayer standing in recent cases. Anyway of looking at is wrong. And that Southworth and the current court talk about this in First Amendment merits rather than standing terms and that we could criticize this decision either shows, again, that there is no meaningful difference between them except when courts treat them as different.

To say one nice thing about this decision: There is a wonderful discussion (at pp. 13-18) about the standard for 12(b)(6), the meaning of Twiqbal, and the differences between legal and factual insufficiency; I already shared it with my Civ Pro students. Not surprising, as Judge Patrick Schiltz was a Civ Pro scholar in his prior life.

Posted by Howard Wasserman on February 4, 2021 at 02:15 PM in First Amendment, Howard Wasserman | Permalink


Putting aside that all standing is really merits and we really are arguing about what violates the Constitution, three responses.

First, I buy the descriptive explanation that the Establishment Clause is different as a unique limitation on how government can spend money, something the First Amendment does not do (although Robert Kamenshine years ago wrote an argument for an Establishment Clause for speech).

Second, the trend has been to narrow Flast almost out of existence. It would be entirely inconsistent to expand Flast to cover a different right, something I doubt the Southworth Court intended to achieve.

Third, alternatively, you have Flast for conservatives, while Flast for liberals is narrowed almost out of existence. I do not adhere to the behavioral model of judging, so I would strongly resist that explanation. Although it might explain why Souter, Stevens, and Breyer concurred only in the judgment.

Posted by: Howard Wasserman | Feb 10, 2021 10:43:50 AM

Howard - do you think it follows from your critique of Southworth that Flast v. Cohen (and the general idea that taxpayers have standing to challenge government spending -- e.g., voucher programs -- on Establishment Clause grounds) is wrong?

Posted by: Rick Garnett | Feb 10, 2021 10:24:53 AM

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