Viewpoint Discrimination

What is the difference between "viewpoint discrimination" and "content" or "subject matter" discrimination? This is an important distinction in the law of free speech and public forums, because viewpoint discrimination is prohibited in all types of fora, but subject matter discrimination is permitted in certain types of fora.

In Rosenberger, compare Justice Kennedy's majority opinion  with Justice Souter's dissent.

Is the subject or topic the speaker wishes to address permitted? If so, is the speaker being excluded from the forum only because of the viewpoint or ideological perspective from which he or she wishes to address the subject?

Here is a great quote from Prof. Michael McConnell on viewpoint discrimination:

"In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot."

Now relate this to Rosenberger. Notice the subjects of articles covered in Wide Awake--racism, crisis pregnancy, homosexuality, eating disorders, movie and record reviews, etc. These are all permissible subjects for student newspapers to write about in the U Va forum. Wide Awake was excluded not because of the subjects it wrote upon, but because the viewpoint it addressed those subjects from "manifested a particular belief in or about a deity or ultimate reality." Because U Va did not wish to fund any religious viewpoint on any subject, Wide Awake was put at a disadvantage with most of its ideological competitors in the marketplace of ideas (with environmentalists, and feminists, and secular conservatives, and secular liberals, and GLBT newspapers, and socialists, and all other non-religious perspectives). No?

Here is a quotation from McConnell's oral argument in Rosenberger:

"Just as there is a Marxist world view, there is a libertarian world view, there are a number of world views, and one is either convinced of the truth of those world views or not, and those world views have application to numerous issues, such as the questions that are addressed in this magazine."

And this one:

" The point is that the university may not use its power to skew the marketplace of ideas at the University of Virginia by favoring some viewpoints over others." 

And this one on conflict between EC and Free Speech:

"Indeed, it is not at all clear to me why one clause of the Constitution should be read to trump the other clause to begin with.

It seems to me much more sensible to take a step back and look at how the Establishment Clause and the Free Speech Clause and the Free Exercise Clause can be read as a consistent and harmonious whole, all of them designed to guarantee a neutrality between religion and its various ideological competitors in the marketplace of ideas." 

And the best rebuttal I have ever heard:

Mr. Chief Justice, I'd just like to conclude with a practical observation about the real impact of... on free speech of the Government's use of the power of the purse.

Effectively, Ronald Rosenberger and his fellow students were enabled to put together a newspaper, and there's a carrot dangling in front of them, and the carrot has attached to it something about their speech, that they can address issues if they want to, but if they want to receive the carrot, they have to do them in a particular way.

They have to censor their own religious viewpoints, they have to make sure that they don't quote from one book, the Bible.

They could quote from others.

They have to--

David H. Souter

I don't think that's what your brother is saying.

I think what your brother is saying is, they cannot cross that line between saying, this is the Christian viewpoint, and this ought to be your viewpoint.

Now, that may be a tough line to draw.

He certainly admits it.

But that, it seems to me, is the only censorship that we're talking about.

Michael W. McConnell

--Your Honor, if their viewpoint were secular, they're certainly entitled to write a magazine saying, this is our viewpoint, and you should share that viewpoint.

Animal rights groups are doing precisely that.

Feminist groups are doing precisely that.

Every other group is permitted to proselytize, which I'd just like to note is nothing but an ugly word for persuade, which is just exactly what the Free Speech Clause is designed to protect.