The government (federal, state, and local) offers a wide range of benefits to groups. Some benefits are monetary subsidies. Some consist of access to government property such as university classrooms and bulletin boards. Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies. What sorts of speech-restrictive conditions may the government impose on such subsidies? May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art? May the government insist that benefited groups not discriminate in their choice of leaders or members? May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)?
This issue has divided the Court in a wide range of cases, such as Rust v. Sullivan, Rosenberger v. University of Virginia, NEA v. Finley, Christian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International. It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups. And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits.
The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention.
Free Speech: The First Amendment and Government Benefits
3:30 p.m. – 5:00 p.m.
- Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law
- Prof. David D. Cole, Professor of Law, Georgetown University Law Center
- Dr. John C. Eastman, Professor, Henry Salvatori Professor of Law and Community Service; Former Dean (2007-2010); Director, Center of Constitutional Jurisprudence, Chapman University School of Law
- Prof. Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center
- Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit
- Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC