Freedom of Expression

at the National Endowment for the Arts

An interdisciplinary education project partially funded by the American Bar Association, Commission on College and University Legal Studies through the ABA Fund for Justice and Education

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.

Daniel Kelly, Counsel of Record for Family Research Institute of Wisconsin, McLario, Helm & Bertling, S.C., N88 W16783 Main Street, Menomonee Falls, Wisconsin 53051, (414)251­4210

Table of Authorities

Cases

Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)
Bowen v. Kendrick, 487 U.S. 589 (1988)
Bradfield v. Roberts, 175 U.S. 291 (1899)
Buckley v. Valeo, 424 U.S. 1 (1976)
Committee for Public Ed. v. Nyquist, 413 U.S. 756 (1973)
Everson v. Board of Education, 330 U.S. 1 (1947)
Finley v. National Endowment for the Arts, 100 F.3d 671, 688 (1996)
Finley v. National Endowment for the Arts, 795 F.Supp. 1457 (C.D. Cal. 1992)
Flast v. Cohen, 392 U.S. 83 (1968)
Keller v. State Bar of California, 496 U.S. 1 (1990)
Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
Lathrop v. Donohue, 367 U.S. 820 (1961)
Lee v. Weisman, 505 U.S. 577 (1992)
Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988)
Roemer v. Board of Public Works of Md., 426 U.S. 736, 741 (1976)
Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995)
Rust v. Sullivan, 500 U.S. 173 (1991)
School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)
U.S. v. Butler, 297 U.S. 1 (1936)
Westside Comm. Bd. of Ed. v. Mergens, 496 U.S. 226 (1990)
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)
Widmar v. Vincent, 454 U.S. 263 (1981)
Wooley v. Maynard, 430 U.S. 705 (1977)
Constitutional Provisions
U.S. Const. Amend I
United States Statutes
20 U.S.C. section 951
20 U.S.C. section 954
20 U.S.C. section 960
State Statutes
Va. Code Ann. sec. 57­1 (1950)
Supreme Court Rules
Supreme Court Rule 37.6

Other Authorities

William Blackstone, Commentaries
Irving Brant, James Madison: The Nationalist (1948)
The Federalist No. 31
The Federalist No. 79
Thomas Jefferson, Notes on the State of Virginia (2nd Amer. ed. 1794)
Henry Schofield, Essays on Constitutional Law and Equity (Faculty of Law, Northwestern University, ed. 1921)
Bernard Schwartz, The Bill of Rights: A Documentary History (1971)
Alexis de Tocqueville, Democracy in America (Phillips Bradley, ed. 1991)

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE FAMILY RESEARCH INSTITUTE OF WISCONSIN IN SUPPORT OF RESPONDENTS

Interest of Amicus Curiae

The Family Research Institute of Wisconsin, Inc., is a non­partisan, not­for­profit, pro­family, state legislative research institute. The Institute is dedicated to researching issues of interest to, and which have an impact on, Wisconsin families, and then disseminating that information to institutions and individuals. The Institute's goal is to strengthen and educate Wisconsin families.

The freedoms of speech, religion and the press are of inherent value to Wisconsin's families and, hence to the Family Research Institute. Specifically, when government becomes involved in the choice of ideas to be advanced in the marketplace of ideas with taxpayer funds derived, at least in part, from Wisconsin's families, the Family Research Institute believes it necessary to respectfully offer its views regarding the legal and historical principles underlying the treatment of First Amendment principles as they intersect with individual liberties.

Summary of Argument

Congress, in establishing the National Endowment for the Arts, created a financial forum. Forum analysis as it applies to a fund of money is an emerging field, requiring scrutiny of the source of funds going into the forum, and the objects on which it is spent. Purposes for which Congress may appropriate funds are limited by the characterization of the funds comprising the forum. If the contributions are compelled, Congress may use them only to advance goals germane to the purpose of the Federal Government. To do otherwise would violate the First Amendment's Free Speech Clause by compelling individuals to advance speech or ideas with which they may not agree. If the contributions are voluntary, Congress enjoys a broader latitude in what it may fund without offending the First Amendment.

TEXT: Now comes Family Research Institute of Wisconsin (FRI) and seeks leave to file this brief as Amicus Curiae. As grounds therefore, FRI would show that:

1. The Office of the Solicitor General of the United States has granted permission for FRI to file this brief, which letter is made a part of this motion;

2. Counsel for Respondents have denied permission for FRI to file this brief on the ground that FRI's interests are not aligned with theirs, which letter is made part of this motion;

3. FRI's interests are sufficiently aligned with those of Respondents that their denial of permission to bring this brief to the Court's attention ought not bar its filing.

Respondents seek the broadest flow of speech and other expressive conduct consistent with the parameters of the First Amendment. To that end, they challenged part of the NEA's enabling legislation as a content­based restriction on their right to free speech. Both the District Court for the Central District of California and the Court of Appeals for the Ninth Circuit agreed, and struck down the offending provision. Respondents appear before this Court to defend the broadened access to funding made possible by the courts below.

The Family Research Institute of Wisconsin also supports the greatest liberty possible in the free exchange of ideas consistent with the First Amendment. Specifically, FRI joins Respondents in proclaiming the importance of the arts, and the need for them to be free of governmental interference. Presumably, Respondents would join with FRI in decrying any attempt to further free speech issues through coercion. If any arts program is to survive constitutional review, it must fit within the parameters of the First Amendment. The FRI simply seeks to ensure that any governmental involvement does not jeopardize the freedom and liberty that are essential to the flourishing of the arts in a democratic society.

Both FRI and Respondents seek to have the Ninth Circuit's decision upheld by this Court. The fact that FRI advances a different rationale for affirmance does not mean its interests are insufficiently aligned with Respondents to allow filing of the brief. The FRI respectfully requests leave to file this brief.

Daniel Kelly

I. Introduction (1)

In 1965, Congress created the National Endowment for the Arts (hereinafter "NEA") as part of the National Foundation on the Arts and the Humanities. (2) In so doing, it provided the raison d'etre of the program, viz., to "transmit the achievement and values of civilization from the past via the present to the future, and make widely available the greatest achievements of art." (3) The NEA carries out this mandate by appropriating taxpayer funds and distributing them to, inter alia, individuals for productions, performances, workshops or other related activities. (4) The Chairperson of the NEA, in consultation with the National Arts Council, selects the recipients of this munificence. (5)

Amicus is in entire agreement with Congress' assignment of such great weight and importance to the arts and humanities, and favors the laudable goals expressed in the enabling legislation. However, good intentions notwithstanding, the current method of funding this financial forum and granting disbursements violates the First Amendment's guarantee of the freedom of speech. Amicus respectfully suggests that the Ninth Circuit's decision be upheld, but upon the grounds that form the basis for this brief.

II. Taxpayer Funding of the NEA Constitutes Compelled Speech

A. Financial Fora

This Court's opinions have nearly completed a very neat framework within which to analyze free speech issues touching on the creation of, and access to, various fora for the expression of ideas. Forum analysis for free speech cases is not limited to the traditional question of access to buildings, sidewalks or parks. As this Court noted in Rosenberger v. Rector and Visitors of the Univ. of Virginia, (6) it is possible to create a forum in a metaphysical sense through a pool of funds, which would implicate the same array of access questions as in a traditional forum. The emerging picture of what may be labeled "financial fora" is that they have two related but distinct aspects. The first treats the means by which the forum was funded, the second addresses how the money is distributed from the forum to its recipients. Such fora could be viewed as a ledger of transactions, tracking the source of income and the purposes for which the income is spent. Rosenberger itself provided the definitive accounting guidelines for the expense side of the ledger, holding that potential recipients may not be excluded on the basis of the viewpoint they advocate. It was also Rosenberger that identified the unanswered question on the rules for the income side of the financial forum ledger: "Finally, . . . I note the possibility that the student fee is susceptible to a Free Speech Clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees." (7) As a result of the NEA's statutory framework, this question must be resolved in the case at Bar so that the free flow of speech and ideas may continue unimpeded.

B. The NEA is a Financial Forum

Congress has created a financial forum through the appropriations authorized by 20 U.S.C. section 960. The distribution of funds brought into that forum is controlled by the terms of 20 U.S.C. section 954(c), which favors:

(1) projects and productions which have substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity and to the maintenance and encouragement of professional excellence;

(2) projects and productions, meeting professional standards or standards of authenticity or tradition, irrespective of origin, which are of significant merit and which, without such assistance, would otherwise be unavailable to our citizens for geographic or economic reasons;

(3) projects and productions that will encourage and assist artists and enable them to achieve wider distribution of their works, to work in residence at an educational or cultural institution, or to achieve standards of professional excellence;

(4) projects and productions which have substantial artistic and cultural significance and that reach, or reflect the culture of, a minority, inner city, rural, or tribal community;

(5) projects and productions that will encourage public knowledge, education, understanding, and appreciation of the arts;

(6) workshops that will encourage and develop the appreciation and enjoyment of the arts by our citizens;

(7) programs for the arts at the local level;

(8) projects that enhance managerial and organizational skills and capabilities;

(9) projects, productions, and workshops of the kinds described in paragraphs (1) through (8) through film, radio, video, and similar media, for the purpose of broadening public access to the arts; and

(10) other relevant projects, including surveys, research, planning, and publications relating to the purposes of this subsection. Additionally, "artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public . . . ." (8)

Amicus notes that the District Court concluded that "government funding of the arts is subject to the constraints of the First Amendment" (9) Respondents are troubled by the content restriction they see in the decency clause. In truth, though, this is of a kind with the standards enumerated in section 954(c)­­each mandates decisions based on the content and viewpoints of the material the applicants seek to have funded. (10) The infirmity of the decency clause is not that it, as opposed to the other standards, impermissibly impinges on the First Amendment, but rather that such restrictions are inconsistent with the method by which the financial forum is funded and the entity creating the forum, thereby contravening the strictures of the First Amendment.

C. Correlation Between how a Financial Forum is Funded and its Permissible Disbursements

Financial fora are created either through voluntary donations or compelled contributions. The method by which they are funded dictates what may be done with the money so received. For example, in Abood v. Detroit Bd. of Ed., (11) this Court addressed a legislatively mandated "agency shop" arrangement for local government employees. Whether a member of the union or not, employees were required to contribute equal amounts, some part of which was used to advocate ideas and positions not directly attributable to the core function of the union. It was concluded that to the extent contributions were compelled, the union was prohibited from using the money for any purpose not directly germane to the purpose of a labor union. On the other hand, so long as the contributions were voluntary, the union was free to put that money to whatever use it desired. Similarly, lawyers in an integrated bar may successfully preclude the State Bar from using part of the mandatory dues to advocate legislation and goals not related to the effective governance of the member attorneys. (12) If the member lawyer does not object, there is no proscription found against such advocacy.

In a case with aspects similar to the one at Bar, this Court addressed the public financing of presidential elections. (13) Unquestionably, such financing implicates the very heart of the Free Speech Clause­­political speech and elections. Funds from general revenue were appropriated to be provided to political parties, nominating conventions, and candidates willing to abide by the restrictions of the financing scheme. The program survived a First Amendment challenge because this Court found that it furthered, rather than abridged, "pertinent First Amendment values." (14) However, one of the key provisions of the program limited grants to the parties, conventions and candidates to the amount collected through the "check­off" option on taxpayers' income tax returns. Thus, the financial forum created by Subtitle H of the Internal Revenue Code consisted of funds voluntarily provided. Therefore, Congress was free to implement a full panoply of regulations respecting who the recipients would be and the terms upon which grants would be made without offending the First Amendment.

In Rust v. Sullivan, (15) this Court considered whether the First Amendment was transgressed when funds were appropriated from the general revenue to fund a family planning program. Part of the regulations prohibited any recipient of Title X funding from encouraging patients to consider abortion as an alternative to carrying the child until birth. It was concluded that Congress, when pursuing an otherwise legitimate purpose, may condition the grant of funds on complying with the terms of the grant, even when such terms included a content­based ban on speech. (16) In funding a program to accomplish a particular goal, it is not Constitutionally required to fund a program attempting to achieve the opposite result. Contextually understood, then, the impact on speech was merely incidental to Congressional pursuance of a goal germane to its authority.

The federal government's power to appropriate from the public fisc [sic] has been construed expansively beginning with this Court's decision in U.S. v. Butler, (17) in which it was concluded that public funds need not be spent to advance any particular object enumerated in the Constitution, and is limited only by the mandate that the purpose for the expenditure fit within the rubric of "the general welfare." (18) However, the expenditure must also submit to other provisions of the Constitution. Thus, this Court has consistently held that direct subsidies to sectarian activities violates the Establishment Clause of the First Amendment at its most fundamental level. (19)

This does not mean, though, that government trespasses on the First Amendment when governmental resources are used by individuals or organizations of faith. Thus, for example, outside organizations with a faith­based presentation of issues may have equal access to school buildings during non­instructional hours, (20) and school districts must make school facilities available to faith­based student organizations on the same terms as other student organizations. (21) As long as the resources were not created for the express purpose of advancing religion, there is no Constitutional harm in allowing equal access to all members of society. Nor is there a violation when the incidental effect of governmental expenditures assists such individuals or organizations. (22) Sotto voce, these cases recognize that when a forum's source of funds is compelled through the government's taxation authority, it may only put that money to uses germane to its core functions.

D. Historical Foundation for Financial Forum Analysis

These cases define the basic contours of the principles underlying financial forum analysis. When the contributions to the forum are compelled, the funds may be used only for purposes germane to the central functions of the creating entity. (23) On the contrary, when the funds are voluntarily given, disbursement can be made for a broader range of purposes without offending First Amendment principles. (24) The rationale for such treatment is lodged deep within our historical understanding of what is essential to a free society.

1. Governmental Compulsion in the Realm of Ideas

In comprehending that understanding, one must begin with a recognition that the right to refrain from advocating an idea is protected with as much fervor as the right to speak one's mind. (25) "The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'" (26) Further, for Constitutional purposes, it matters not whether the transgression on that freedom is accomplished by requiring an individual to verbally proclaim an idea he disbelieves, or by appropriating some measure of his property to the service of such an idea. (27) This protection, enshrined in the First Amendment's provision that "Congress shall make no law . . . abridging the freedom of speech" has a long and distinguished pedigree, as this Court's prior decisions make apparent.

Abood affirmed that "at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." (28) The centrality of this doctrine was emphasized when this Court reasoned that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (29)

As a touchstone, Abood reached back to James Madison's rhetorical question "'who does not see . . . that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?'" (30) Mr. Jefferson, drawing upon his survey of political history "swore upon the altar of God eternal hostility to every form of tyranny over the mind of man." (31) His down payment on that oath was the Virginia Act for Religious Liberty, cited by Abood, which provides, in pertinent part:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishment, or burthens, . . . tend only to beget habits of hypocrisy and meanness . . . ; that the impious presumption of fallible and uninspired men, . . . [have] set[] up their own opinions and modes of thinking as the only true and infallible, and as such endeavor[] to impose them on others . . . ; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical . . . ; that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry . . . . (32)

After its passage, Mr. Madison exulted that the Act's provisions "have in this country extinguished forever the ambitious hope of making laws for the human mind." (33) He may have spoken somewhat prematurely, for the goal was still a work in progress in 1794, when Mr. Jefferson opined:

The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws. But our rules can have no authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. (34)

Though Messrs. Jefferson and Madison were specifically addressing liberty of opinion regarding religion, it is clear that Mr. Jefferson understood this liberty to fully encompass the realm of ideas:

Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine and the potatoe [sic] as an article of food. Government is just as infallible too when it fixes systems in physics. Galileo was sent to the inquisition for affirming that the earth was a sphere: the government had declared it flat as a trencher, and Galileo was obliged to abjure his error. This error however at length prevailed, the earth became a globe, and Descartes declared it was whirled round its axis by a vortex. The government in which he lived was wise enough to see that this was no question of civil jurisdiction, or we should all have been involved by authorities in vortices. In fact, the vortices have been exploded, and the Newtonian principal of gravitation is now more firmly established, on the basis of reason, than it would be were the government to step in, and to make it an article of necessary faith. (35)

The error is of no lesser magnitude when civil authority, instead of prescribing by diktat [sic] what shall be orthodox, seeks to advance one opinion over another in the marketplace of ideas.

2. Impermissible Financial Compulsion

Civil authorities must: "presume that speakers, not the government, know best both what they want to say and how to say it. . . . Even with the purest of motives, [the government] may not substitute its judgment as to how best to speak for that of speakers and listeners . . . ." (36)

Buckley recognized that money is an integral part of speech: "making a contribution . . . enables like­minded persons to pool their resources in furtherance of common political goals." (37) If so, the opposite is a necessary corollary: mandating a contribution forces a person to combine with persons who are not necessarily like­minded in furtherance of a goal not necessarily sought by the contributor. This imposition on an individual's will has been roundly criticized for centuries.

After denominating a citizen's basic, fundamental rights as personal security, personal liberty and private property, William Blackstone observed that there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights[;] the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most excessive sense. (38) Alexander Hamilton, in writing an installment of the Federalist Papers, was surely cognizant of this fact when he noted that "in the general course of human nature, a power over a man's subsistence amounts to a power over his will." (39)

E. Disbursements by the NEA are Inconsistent With the Method by Which the Forum is Funded

Alexander Hamilton observed that:

In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasoning must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. (40)

Such are the preceding principles establishing the right of every person to be free in forming beliefs and opinions by one's own reason and conscience, and the concomitant right to not suffer a financial burden to advance ideas with which one does not agree.

The NEA is essentially a clearinghouse for funds appropriated from the general revenue, derived from taxpayers upon pain of prosecution should they fail to comply with the Internal Revenue Code. There is no option similar to the one addressed in Buckley in which taxpayers would be free to choose whether or not to fund the Agency's activities. Thus, the money entrusted to the NEA chair and Council for distribution comes entirely from compelled contributions. Congressional ipse dixit that this compelled speech is, in fact, good for the general welfare, cannot disguise the harm such a program wreaks on our First Amendment values. Blackstone understood that "every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny." (41) In fact, some have argued that the very fact the compelled contribution stems from a governing majority presents a greater, rather than a lesser, threat to the free flow of opinions and ideas:

It is in the examination of the exercise of thought in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Thought is an invisible and subtle power that mocks all the efforts of tyranny. At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent . . . . The reason for this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands and to conquer all opposition, as a majority is able to do, which has the right both of making and executing the laws. The authority of a king is physical and controls the actions of men without subduing their will. But the majority possesses a power that is physical and moral at the same time, which acts upon the will as much as upon the actions and represses not only all contest, but all controversy. (42)

M. de Tocqueville correctly identifies the awesome power the majority holds and its capacity to eviscerate all competing opinions when combined with the power of government. Indeed, as Mr. Carroll remarked in discussion of the Bill of Rights in the House of Representatives, "the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand . . . ." (43) While thought may mock all attempts at tyranny, the government has at its disposal, through the power to tax and spend, the means to deliver more than a gentle touch to the liberties of conscience.

Our Bill of Rights, a distinctly anti­majoritarian compilation of safeguards, was proposed so that the liberties of conscience would not suffer government's touch:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. (44) Although direct governmental promotion of matters of secular opinion through an exaction of taxes does not normally raise popular ire to the extent that direct financial subsidies of religious activities does, it should. In responding to an argument in which it was asserted that abridgements of the freedom of speech by a state government may be chimerical, Justice Black stated, "I can think of few plainer, more direct abridgments of the freedoms of the First Amendment than to compel persons to support candidates, parties, ideologies or causes that they are against." (45) As Mr. Jefferson has eloquently elucidated, freedom in both matters of faith and of opinion derive from precisely the same principle­­civil authority ought to have no power over matters of the mind.

Nor does the fact that the NEA funds a broad array of activities protected by the First Amendment do anything to reduce the offensiveness of the expenditures. Should the proponents of public funding in the Establishment Clause cases have argued that no harm was done because the appropriations were going to a profusion of organizations with differing views on religion, they would surely have found their position unavailing. The offense is in being compelled, in any degree, to directly support the advancement of religious speech or activity. So too, here, the transgression is not lessened because a wide variety of artistic endeavors receive financial support. Because the income side of the ledger for this financial forum is characterized by compulsion, the purposes for which those funds may be spent must be limited to matters otherwise germane to the federal government.

Congress, in creating the NEA, was pursuing no other goal than that expressed in its findings­­to enter the marketplace of ideas with the sole intention of promoting, with taxpayer funds, expressive conduct that garners insufficient support in the marketplace to have the impact Congress desires. Thus, it specifically declared the necessity to financially promote artistic endeavors that "without such assistance, would otherwise be unavailable to our citizens" (46) and to "enable [artists] to achieve wider distribution of their works . . . ." (47) The effect on speech is not incidental, it is the entire purpose of the program.

Congress has settled on an impermissible mix of income type and subject of expenditure. The ledger does not balance. The power to tax and spend is so great that special care must be taken in ensuring government's hand does not even gently touch matters of conscience. In procuring expressive conduct for its own sake, Congress has re­entered the realm denied it by the First Amendment. Only in an Orwellian world­view would it be possible to argue that free speech is furthered on the back of compelled contributions. At an irreducible minimum, if Congress wishes to foster the expansion of the arts and their broader availability, the money going into the forum must be voluntarily given, a la the public financing of presidential campaigns approved in Buckley. Anything less fails to comport with Jefferson's admonition that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical . . . ." (48)

III. Conclusion

This Court has already held that a labor union, under the auspices of State law, may not compel the support of its members for non­germane purposes. Nor may a State Bar, created pursuant to State law. It would be ironic indeed if the Federal Government, with limited and enumerated powers, had wider latitude in compelling speech than would a State government, with plenary authority in its sphere, or one of its functionaries. The principles of free speech will suffer injury as long its proponents seek to further its goals via money extracted from unwilling donors. Amicus urges this Court to uphold the Ninth Circuit Court of Appeals' decision, but for the reasons herein advocated.

Respectfully submitted,

Daniel Kelly for Amicus Curiae, Family Research Institute of Wisconsin

NOTES

(1) Pursuant to Supreme Court Rule 37.6, counsel states that he has authored this brief in whole, and that the Alliance Defense Fund has made a monetary contribution to its preparation. Return to text

(2) 20 U.S.C. section 951 et seq. Return to text

(3) 20 U.S.C. section 951(11). As justification for the program, Congress made the following findings:

(1) The arts and the humanities belong to all the people of the United States.

(2) The encouragement and support of national progress and scholarship in the humanities and the arts, while primarily a matter for private and local initiative, are also appropriate matters of concern to the Federal Government.

(3) An advanced civilization must not limit its efforts to science and technology alone, but must give full value and support to the other great branches of scholarly and cultural activity in order to achieve a better understanding of the past, a better analysis of the present, and a better view of the future.

(4) Democracy demands wisdom and vision in its citizens. It must therefore foster and support a form of education, and access to the arts and the humanities, designed to make people of all backgrounds and wherever located masters of their technology and not its unthinking servants.

(5) It is necessary and appropriate for the Federal Government to complement, assist, and add to programs for the advancement of the humanities and the arts by local, State, regional, and private agencies and their organizations. In doing so, the Government must be sensitive to the nature of public sponsorship. Public funding of the arts and humanities is subject to the conditions that traditionally govern the use of public money. Such funding should contribute to public support and confidence in the use of taxpayer funds. Public funds provided by the Federal Government must ultimately serve public purposes the Congress defines.

(6) The arts and the humanities reflect the high place accorded by the American people to the nation's rich cultural heritage and to the fostering of mutual respect for the diverse beliefs and values of all persons and groups.

(7) The practice of art and the study of the humanities require constant dedication and devotion. While no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.

(8) The world leadership which has come to the United States cannot rest solely upon superior power, wealth, and technology, but must be solidly founded upon worldwide respect and admiration for the Nation's high qualities as a leader in the realm of ideas and of the spirit.

(9) Americans should receive in school, background and preparation in the arts and humanities to enable them to recognize and appreciate the aesthetic dimensions of our lives, the diversity of excellence that comprises our cultural heritage, and artistic and scholarly expression.

(10) It is vital to a democracy to honor and preserve its multicultural artistic heritage as well as support new ideas, and therefore it is essential to provide financial assistance to its artists and the organizations that support their work.

(11) To fulfill its educational mission, achieve an orderly continuation of free society, and provide models of excellence to the American people, the Federal Government must transmit the achievement and values of civilization from the past via the present to the future, and make widely available the greatest achievements of art.

(12) In order to implement these findings and purposes, it is desirable to establish a National Foundation on the Arts and the Humanities. 20 U.S.C. section 951. Return to text

(4) 20 U.S.C. sections 954(c), 960. Return to text

(5) Id. Return to text

(6) 515 U.S. 819, 830 (1995). Return to text

(7) 515 U.S. at 851 (O'Connor, J. concurring). Return to text

(8) 20 U.S.C. section 954(d)(1). Return to text

(9) Finley v. National Endowment for the Arts, 795 F.Supp. 1457, 1475 (C.D. Cal. 1992). Return to text

(10) See Finley v. National Endowment for the Arts, 100 F.3d 671, 688 (1996) (Kleinfeld, J. dissenting) ("artistic merit" and "artistic excellence" are content­based judgments). Return to text

(11) 431 U.S. 209 (1977). Return to text

(12) Keller v. State Bar of California, 496 U.S. 1 (1990). Return to text

(13) Buckley v. Valeo, 424 U.S. 1 (1976). Return to text

(14) Id. at 92. Return to text

(15) 500 U.S. 173 (1991). Return to text

(16) 500 U.S. at 193­94. Return to text

(17) 297 U.S. 1 (1936). Return to text

(18) Id. at 65­66. Return to text

(19) See Everson v. Board of Education, 330 U.S. 1, 15­16 (1947) (The Establishment Clause means, at a minimum, that "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion"); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985) (The "[Establishment] Clause does absolutely prohibit government­financed or government­sponsored indoctrination into the beliefs of a particular religious faith"); Committee for Public Ed. v. Nyquist, 413 U.S. 756, 780 (1973) ("In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid"); id., at 772 (Primary evil against which the Establishment Clause protects is the sponsorship and active or financial involvement of the government in things religious.); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) ("The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty") (emphasis in original); Flast v. Cohen, 392 U.S. 83, 103­104 (1968) ("Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general"). Return to text

(20) Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993). Return to text

(21) Widmar v. Vincent, 454 U.S. 263 (1981); Westside Comm. Bd. of Ed. v. Mergens, 496 U.S. 226 (1990). Return to text

(22) See Bowen v. Kendrick, 487 U.S. 589, 617 (1988) (grants to non­profit organizations with religious affiliations for sex education); Roemer v. Board of Public Works of Md., 426 U.S. 736, 741 (1976) (grants to colleges with religious affiliations); Bradfield v. Roberts, 175 U.S. 291, 299­300 (1899) (funding of health care for indigent patients at a hospital with a religious affiliation). Return to text

(23) Rust, 500 U.S. 173; Abood, 431 U.S. 209; Keller, 496 U.S. 1. Return to text

(24) Buckley, 424 U.S. 1. Return to text

(25) West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943). Return to text

(26) Wooley v. Maynard, 430 U.S. 705, 714 (1977). Return to text

(27) See Abood, 431 U.S. 209 (union may not force members to financially support non­germane advocacy); Keller, 496 U.S. 1 (State Bar may not force member attorneys to fund non­germane advocacy); Wooley, 430 U.S. 705 (motorist may not be compelled to display on his license plate a message he finds distasteful); Barnette, 319 U.S. 624 (school may not compel student to recite Pledge of Allegiance). Return to text

(28) 431 U.S. at 234­35. Return to text

(29) Barnette, 319 U.S. at 642. Return to text

(30) 431 U.S. at 234­35 n.31 (quoting 2 The Writings of James Madison 186 (Hunt ed. 1901)). Return to text

(31) II Henry Schofield, Essays on Constitutional Law and Equity 363 (Faculty of Law, Northwestern University, ed. 1921). Return to text

(32) Va. Code Ann. sec. 57­1 (1950) (originally enacted January 16, 1786) (emphasis added). Return to text

(33) Irving Brant, James Madison: The Nationalist 354 (1948). Return to text

(34) Thomas Jefferson, Notes on the State of Virginia 231 (2nd Amer. ed. 1794). Return to text

(35) Jefferson, supra at 232­33. Return to text

(36) Riley v. Nat. Fed. of Blind, 487 U.S. 781 (1988). Return to text

(37) 424 U.S. at 22. Return to text

(38) I William Blackstone, Commentaries * 129. Return to text

(39) The Federalist No. 79, at 528 (emphasis in original). Return to text

(40) The Federalist No. 31, at 193 (Easton Press 1979). Return to text

(41) I Blackstone, supra at * 126 (emphasis added). Return to text

(42) I Alexis de Tocqueville, Democracy in America 263 (Phillips Bradley, ed. 1991). Return to text

(43) II Bernard Schwartz, The Bill of Rights: A Documentary History 1088 (1971) (quoting debates of the House of Representatives on August 14, 1789). Return to text

(44) Barnette, 319 U.S. at 638. Return to text

(45) Lathrop v. Donohue, 367 U.S. 820, 873 (1961) (Black, J. dissenting). Return to text

(46) 20 U.S.C. section 954(c)(2). Return to text

(47) 20 U.S.C. section 954(c)(3). Return to text

(48) VA Code Ann. sec. 57­1. Return to text

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