Sunday, November 07, 2021

Rust vs. Rosenberger

In cases concerning government funds being used to selectively subsidize speech, one of the major issues is to distinguish between Rust and Rosenberger. Ask yourself whether the case is more like Rust or more like Rosenberger (or perhaps it is not like either).

I think the crucial distinction between Rust and Rosenberger is that in the former case funds were being used to subsidize the Government's own message, while in the latter case funds were being used to facilitate private speech.

Here is how the Court in Rosenberger itself tried to explain its prior decision in Rust:


When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U.S., at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.

In other words, when the government funds private organizations to express or convey the government's message, Rust applies and the government can exercise control to insure that the private contractor properly expresses the government's message. However, when the government creates a fund to facilitate private speech, Rosenberger applies and the government may not engage in viewpoint discrimination of the funded private speech.

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