Viewpoints from Olympus

This Essay examines the Supreme Court\u27s treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy\u27s opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in viewpoint discrimination that was presumptively impermissible under the Free Speech Clause. It rejected the University\u27s contention that the discrimination was supported by a compelling interest in avoiding a violation of the Establishment Clause. I here concentrate on the free speech problem, and in particular on the Court\u27s conclusion that the University\u27s categorization involved viewpoint discrimination. Since no one denied that the University was engaged in some form of content discrimination, whether or not it amounted to viewpoint discrimination may seem to be a picky technicality; that characterization had practical importance for the case, however, and may carry significant implications for the future of First Amendment law. The core of the Court\u27s opinion is unconvincing because it fails to elaborate a plausible account of what constitutes viewpoint discrimination. The implausibility of the Court\u27s reasoning is apparent on the opinion\u27s face and is decisively demonstrated by Justice Souter\u27s dissent. Yet, the Court\u27s result might be based on two different conceptualizations of the danger posed to free speech by this type of regulation. Both these conceptualizations – one resting on a more complicated analysis of the state\u27s categorization, the other simply concluding that the distinctions drawn were unreasonable – are supported by material in the opinion. I inquire whether these alternative conceptualizations afford a desirable rendering of First Amendment principles and, more particularly, an appropriate understanding of the limitations on religious speech