Posted by Eugene Volokh:
Columbia and the First Amendment:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190678272
The [1]New York Sun reports that New York city and state government
officials are threatening to retaliate against Columbia -- for
instance, by cutting off various government subsidies for Columbia all
its students -- for its inviting Ahmadinejad to speak:
[T]he speaker of the Assembly, Sheldon Silver, said lawmakers,
outraged over Columbia's insistence on allowing the Iranian
president to speak at its World Leaders Forum, would consider
reducing capital aid and other financial assistance to the
school....
"There are issues that Columbia may have before us that obviously
this cavalier attitude would be something that people would
recall," Mr. Silver said. "Obviously, there's some degree of
capital support that has been provided to Columbia in the past.
These are things people might take a different view of ... knowing
that this is that kind of an institution."
Mr. Silver faulted Columbia for "attempting to legitimize this
individual," saying, "We have an obligation because of the U.N. to
allow him to come to this country. It doesn't mean we have to make
him welcome. We don't have to give him a forum." ...
"Bollinger made a big mistake, and there should be consequences for
him for making that decision," the chairman of the New York City
Council's Finance Committee, David Weprin, said in an interview.
"We should look at everything involving Columbia, whether it be
capital projects, city and state, or other related things that we
do in the city for them," he said....
Albany awards Columbia millions of dollars a year in student
financial aid and also provides funding for smaller-scale capital
projects. Last year, Albany awarded the school $10 million for
nanotechnology center and $12 million for a cancer center in
Washington Heights.
Columbia uses the state Dormitory Authority to borrow money at low
interest rates. Mr. Silver could use his influence over the
authority to weed out Columbia bonding projects before they are
submitted for approval.
The school is also seeking approval from city lawmakers for its
plan to expand into a 17-acre swath of land in West Harlem. Albany
also has the power to use eminent domain to facilitate Columbia's
expansion....
Naturally, the government is not obligated to provide most subsidies
to Columbia. It can also insist that some subsidies not be used for
speech of which the government disapproves: For instance, it can
require that certain subsidies be used for speech about prenatal care
but not for speech about abortion.
But the government may not say, "We'll give you this subsidy, but only
if you promise not to say X, Y, or Z using your own money." That's
what the Court held in [2]FCC v. League of Women Voters, when it held
that Congress can't say to public broadcasters, "We'll give you money,
but only if you promise not to editorialize even using your own
money." This is surely at least equally true if the extracted promise
were viewpoint-based, for instance that the broadcaster (or, here, the
university) wouldn't carry speech by enemies of America, or Holocaust
deniers, or anti-Semites.
Here, the government isn't saying, "We'll give you this subsidy, but
only if you don't invite anti-Semitic Holocaust deniers." Rather, it
seems to be threatening to say, "We won't give you future subsidies
because you invited anti-Semitic Holocaust deniers." But the latter
ought to be at least as constitutionally troublesome as the former
(perhaps even more so because it requires subsidy recipients to guess
as to what speech will cause them to lose their subsidies).
Now if the government were to say, "Here's a subsidy, which we want
you to use for praise of racial and religious tolerance," then it
could insist that this subsidy isn't used for other speech. If
Columbia then wanted to invite Ahmadinejad to speak, it would have to
make sure that all his funding came from sources other than this
subsidy. But the government can't use its funding as a means to
constrain all of Columbia's speech, without regard to whether that
speech took advantage of that government funding. And that sounds like
what the New York officials are trying to do.
And such a result strikes me as quite right. Federal, state, and local
governments take about 25-30% of the GNP and then redistribute them.
Nearly everyone, including speakers, receives a huge amount of
government subsidies. If the government could deny subsidies to those
who expressed views the government dislikes (not just using government
money, but also using entirely private money) then it could restrict
what university officials, university professors, corporate officials
and employees, and others say on a wide range of topics. Imagine the
deterrent effect if a legislature stripped universities of benefits
whenever university officials, or even professors or guests whom the
universities had invited, suggested that there might be cognitive
differences between men and women, that race-based affirmative action
is a bad idea, that certain religions were dangerous, that the threat
of global warming is overstated, or whatever else.
So my bottom line: Criticize or praise Columbia's invitation of
Ahmadinejad as you will. But don't threaten government retaliation for
Columbia's speech, or the speech of people whom Columbia has invited.
References
1. http://www.nysun.com/pf.php?id=63232&v=3234760911
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=468&invol=364
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