Rosenberger: Viewpoint or Subject Matter (Content) Discrimination

A few years ago, a student asked a great question about whether the restriction ("manifests a particular belief in or about a deity") is best understood as subject-matter (mere content) or viewpoint discrimination.

Wide Awake published articles on the same type of topics as other student newspapers--racism, crisis pregnancies, stress, homosexuality, music reviews, and interviews with university professors. The problem was not the subject matter of the articles in the paper--but rather it was that Wide Awake approached these topics in a way that "manifested" its belief in Christianity by bringing a Christian worldview to each of these topics. This, said the Court, amounts to viewpoint discrimination even if all religious and anti-religious viewpoints are equally excluded.

The dissent's assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent's declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.

So, Christian worldviews (such as Wide Awake's) compete in the marketplace of ideas not just with other religious worldviews and atheistic worldviews, but with the socialist, and feminist, and LGBT, and libertarian, and vegetarian, and hedonistic worldviews among many others. To exclude all worldviews that "manifest" a view about God from a state-created forum distorts that marketplace of ideas on the basis of viewpoint.

Here again is how Prof. McConnel explained it:

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.

Finally, consider this hypo involving content vs viewpoint discrimination.

Suppose the University of Virginia decided to subsidize student publications concerning the history of the state of Virginia. So, groups writing about Virginia history could be funded, but not groups writing about national politics, or feminism, or socialism, or Christianity. 

Content? or Viewpoint?

But now, suppose Wide Awake wished to publish a student journal on Virginia History from a Christian perspective and was denied funding because its approach to the history of Virginia ""primarily promotes or manifests a particular belief in or about a deity or an ultimate reality."

Content? Or viewpoint?