Subsidized Speech

Abstract

In 1931, at the very dawn of First Amendment jurisprudence, Chief Justice Hughes presciently observed that "[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" was "a fundamental principle of our constitutional system." Since that time, the First Amendment has been interpreted by courts primarily as a guarantor of the ongoing legitimacy of democratic self-governance in the United States. As Justice Cardozo remarked in 1937, freedom of expression is "the matrix, the indispensable condition, of nearly every other form of freedom." To view the First Amendment "as the guardian of our democracy," however, is to adopt a particular image of the American polity. It is to imagine that democratic legitimacy flows from the accountability of the state to the public opinion of its population. From its inception, therefore, First Amendment doctrine has primarily sought to protect from government regulation an independent realm of speech within which public opinion is understood to be forged. The consequence of this orientation is that traditional First Amendment doctrine has had rather little to say about the speech of the government itself. In this Essay, I shall explore the corner of this perplexing territory in which are located the difficult constitutional questions raised by government subsidies for speech. Subsidized speech challenges two fundamental assumptions of ordinary First Amendment doctrine. It renders uncertain the status of speakers, forcing us to determine whether speakers should be characterized as independent participants in the formation of public opinion or instead as instrumentalities of the government. And it renders uncertain the status of government action, forcing us to determine whether subsidies should be characterized as government regulations imposed on persons or instead as a form of government participation in the marketplace of ideas.