In particular, the government forcefully argues that a public library's decision to limit the content of its digital offerings on the Internet should be subject to no stricter scrutiny than its decisions about what content to make available to its patrons through the library's print collection. According to the government, just as a public library may choose to acquire books about gardening but not golf, without having to show that this content-based restriction on patrons' access to speech is narrowly tailored to further a compelling state interest, so may a public library make content-based decisions about which speech to make available on the Internet, without having to show that such a restriction satisfies strict scrutiny. Plaintiffs respond that the government's ability to restrict the content of speech in a designated public forum by restricting the purpose of the designated public forum that it creates is not unlimited. Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001) ("Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."). As Justice Kennedy has explained: If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it, the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation. . . . The power to limit or redefine forums for a specific legitimate purpose does not allow the government to exclude certain speech or speakers from them for any reason at all. Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 801 (1996) (Kennedy, J., concurring in the judgment).
Although we agree with plaintiffs that the First Amendment imposes some limits on the state's ability to adopt content-based restrictions in defining the purpose of a public forum, precisely what those limits are is unclear, and presents a difficult problem in First Amendment jurisprudence. The Supreme Court's "cases have not yet determined . . . that government's decision to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny. Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)? The answer is not obvious." Denver, 518 U.S. at 750 (plurality opinion); see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 572-73 (1975) (Rehnquist, J., dissenting) ("May an opera house limit its productions to operas, or must it also show rock musicals? May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?"). We believe, however, that certain principles emerge from the Supreme Court's jurisprudence on this question. In particular, and perhaps somewhat counterintuitively, the more narrow the range of speech that the government chooses to subsidize (whether directly, through government grants or other funding, or indirectly, through the creation of a public forum) the more deference the First Amendment accords the government in drawing content-based distinctions.
At one extreme lies the government's decision to fund a particular message that the government seeks to disseminate. In this context, content-based restrictions on the speech that government chooses to subsidize are clearly subject to at most rational basis review, and even viewpoint discrimination is permissible. For example, "[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U.S.C. Sec. 4411(b), it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism." Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government used private speakers to transmit information pertaining to its own program.") (internal quotation marks and citation omitted). Although not strictly controlling, the Supreme Court's unconstitutional conditions cases, such as Rust and Velazquez, are instructive for purposes of analyzing content-based restrictions on the use of public fora. This is because the limitations that government places on the use of a public forum can be conceptualized as conditions that the government attaches to the receipt of a benefit that it offers, namely, the use of government property. Public forum cases thus resemble those unconstitutional conditions cases involving First Amendment challenges to the conditions that the state places on the receipt of a government benefit. See Velazquez, 531 U.S. at 544 ("As this suit involves a subsidy, limited forum cases . . . may not be controlling in the strict sense, yet they do provide some instruction.").
Even when the government does not fund the dissemination of a particular government message, the First Amendment generally permits government, subject to the constraints of viewpoint neutrality, to create public institutions such as art museums and state universities, dedicated to facilitating the dissemination of private speech that the government believes to have particular merit. Thus, in NEA v. Finley, 524 U.S. 569 (1998), the Court upheld the use of content-based restrictions in a federal program awarding grants to artists on the basis of, inter alia, artistic excellence. "The very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applications, and absolute neutrality is simply inconceivable." Id. at 585 (internal quotation marks and citation omitted). Similarly, as Justice Stevens explained in his concurring opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First Amendment does not necessarily subject to strict scrutiny a state university's use of content-based means of allocating scarce resources, including limited public fora such as its meeting facilities: Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. Id. at 278 (Stevens, J., concurring in the judgment).
The more broadly the government facilitates private speech, however, the less deference the First Amendment accords to the government's content-based restrictions on the speech that it facilitates. Thus, where the government creates a designated public forum to facilitate private speech representing a diverse range of viewpoints, the government's decision selectively to single out particular viewpoints for exclusion is subject to strict scrutiny. Compare Rosenberger, 515 U.S. at 834 (applying heightened First Amendment scrutiny to viewpoint-based restrictions on the use of a limited public forum where the government "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"), with Finley, 524 U.S. at 586 ("In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately encourage a diversity of views from private speakers.") (internal quotation marks and citation omitted). Similarly, although the government may create a designated public forum limited to speech on a particular topic, if the government opens the forum to members of the general public to speak on that topic while selectively singling out for exclusion particular speakers on the basis of the content of their speech, that restriction is subject to strict scrutiny. For instance, in City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the Court held that where a school board opens its meetings for public participation, it may not, consistent with the First Amendment, prohibit teachers other than union representatives from speaking on the subject of pending collective-bargaining negotiations. See id. at 175 (noting that the state "has opened a forum for direct citizen involvement"); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for purposes of determining the appropriate level of First Amendment scrutiny, a televised debate in which a public broadcasting station exercises editorial discretion in selecting participating candidates from a debate that has "an open-microphone format").
Finally, content-based restrictions on speech in a designated public forum are most clearly subject to strict scrutiny when the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics, while selectively excluding particular speech whose content it disfavors. Thus, in Conrad, the Court held that a local government violated the First Amendment when it denied a group seeking to perform the rock musical "Hair" access to a general-purpose municipal theater open for the public at large to use for performances. See also Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment) (suggesting that strict scrutiny would not apply to a local government's decision to "build[] a band shell in the park and dedicate[] it solely to classical music (but not jazz)," but would apply to "the Government's creation of a band shell in which all types of music might be performed except for rap music"). Similarly, in FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), the Court subjected to heightened scrutiny a federal program that funded a wide range of public broadcasting stations that disseminated speech on a wide range of subjects, where the federal program singled out for exclusion speech whose content amounted to editorializing. As the Court later explained: In FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium.
Velazquez, 531 U.S. at 543.
In sum, the more widely the state opens a forum for members of the public to speak on a variety of subjects and viewpoints, the more vulnerable is the state's decision selectively to exclude certain speech on the basis of its disfavored content, as such exclusions distort the marketplace of ideas that the state has created in establishing the forum. Cf. Velazquez, 531 U.S. at 544 ("Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases . . . ."). Thus, we believe that where the state designates a forum for expressive activity and opens the forum for speech by the public at large on a wide range of topics, strict scrutiny applies to restrictions that single out for exclusion from the forum particular speech whose content is disfavored. "Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812 (2000); see also Denver, 518 U.S. at 782 (Kennedy, J., concurring in the judgment) (noting the flaw in a law that "singles out one sort of speech for vulnerability to private censorship in a context where content-based discrimination is not otherwise permitted"). Compare Forbes, 523 U.S. at 679 (holding that the state does not create a public forum when it "allows selective access for individual speakers rather than general access for a class of speakers") (emphasis added), with Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.") (emphasis added).
We note further that to the extent that the government creates a public forum expressly designed to facilitate the dissemination of private speech, opens the forum to any member of the public to speak on any virtually any topic, and then selectively targets certain speech for exclusion based on its content, the government is singling out speech in a manner that resembles the discriminatory taxes on the press that the Supreme Court subjected to heightened First Amendment scrutiny in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987), and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), which we explain in the margin. 4. Reasons for Applying Strict Scrutiny
1. Selective Exclusion From a "Vast Democratic Forum"