The American Spectator

The Spectacle Blog

Eugene Volokh argues that there may indeed be constitutional problems with denying public funds to Columbia as punishment for inviting Ahmadinejad. The distinction is supposed to be between attaching conditions to how a subsidy may be spent and attaching conditions to how a subsidized institution may spend other, private funds. Money being fungible, this makes no sense. Of course, lots of things the courts do make no sense, and Volokh, who knows as much about First Amendment law as anyone alive, is undoubtedly right about what the Supreme Court has said. That doesn't mean the Court has been right.

Incidentally, the losing side in the case that Volokh cites as a precedent was represented by Sam Alito. The only justice who is still on the Court, John Paul Stevens, dissented. Perhaps this precedent isn't entirely secure.

UPDATE: Stevens's dissent starts thus:

The court jester who mocks the King must choose his words with great care. An artist is likely to paint a flattering portrait of his patron. The child who wants a new toy does not preface his request with a comment on how fat his mother is. Newspaper publishers have been known to listen to their advertising managers. Elected officials may remember how their elections were financed. By enacting the statutory provision that the Court invalidates today, a sophisticated group of legislators expressed a concern about the potential impact of Government funds on pervasive and powerful organs of mass communication. One need not have heard the raucous voice of Adolf Hitler over Radio Berlin to appreciate the importance of that concern.

The reference to a dictator's speech is interesting.

P.S. Volokh writes:

Imagine the deterrent effect if a legislature stripped universities of benefits whenever university officials, or even professors or guests whom the universities had invited, suggested that there might be cognitive differences between men and women, that race-based affirmative action is a bad idea, that certain religions were dangerous, that the threat of global warming is overstated, or whatever else.

That would raise the cost of taking government subsidies. This is a problem because...?

topics:
Religion, Global Warming, Constitution, Law, Supreme Court