South by Southworth
Today I learned that press-gallery seating for oral argument in the U.S. Supreme Court is allocated roughly according to those principles and protocols used by the Windsor family for royal weddings. Not since Mrs. Baker divided the fourth-grade into the Bunnies and the Bison has my rank in the universe been so manifest.
In fairness, Board of Regents vs. Southworth, which is being argued before the Supreme Court today, will be one of the most important cases the court hears this term, and the place is an uncharacteristic crush. The people at the end of the general-public line are more likely to get swept into one of the Capitol tours across the street than to find a seat in the court. In the Supreme Court’s press gallery, we reporters peep out from behind red velvet curtains, brass grillwork, and marble columns. The sensibility is more sultan’s harem than Hall of Justice. The great leveler is that everyone is stripped of cell phones, beepers, and tape recorders.
Still, Nina Totenberg isn’t behind a marble pillar.
The fact that the majority of the press is traveling in steerage and cannot see to identify which justice is speaking leads to a strange arrangement of speculative guessing for attribution. As a justice speaks, heads cock, eyes narrow, and someone dubiously offers: “Souter?” Someone hisses, “Souter …” and “Souter” it becomes; bumping down the line until, even if the question originated with Stevens, it came from Souter. Evidently, an 87 percent misattribution rate is a reasonable comfort margin for most of us.
Long live this Fifth Estate.
My own line of sight from the press gallery leads to Clarence Thomas, who speaks perhaps twice per term. Today I have an unimpeded view of Justice Thomas not speaking.
The case at hand: University of Wisconsin students pay a mandatory activity fee each semester. That money goes to a central student government which allocates the funds among various student groups on a viewpoint-neutral basis. During the 1995-96 academic year, some of Scott Southworth’s $167.75 funded 18 “political and ideological” organizations with whom he and some of his friends do not agree. These organizations range from WISPIRG (Wisconsin Student Public Interest Group) to the campus AIDS support network to the woolly-legged amazons at the Campus Women’s Center.
So, Southworth and some of his classmates filed an action arguing that using their student fees to finance these groups constitutes “compelled speech” under First Amendment doctrine. The handful of compelled-speech cases state that unions and bar associations can’t spend their members’ compulsory dues on political or ideological advocacy unrelated to the organization’s purpose. The cases have never been extended to say that schools can’t create a panoply of voices with which to educate their students (arguably a school’s purpose, with beer being a secondary purpose).
A federal district court agreed with Southworth, as did the Seventh Circuit Court of Appeals. The courts crafted an astonishing “opt-out” mechanism so that no Wisconsin student need ever again fund an organization with whose philosophy she disagrees. This of course raises the question: How can a student determine whether she agrees with the views of an organization if that organization was obliterated by the collective “opt-out” of prior Wisconsin students? The University of Wisconsin will have one heck of a marching band in three years when all the ideological and political groups have been opted-out of existence.
Oral argument at the Supreme Court is like a game of dodge ball. Except that each of the nine justices has his or her own red rubber ball; they are all allowed to peg them at once; and counsel is the only guy in the circle–there are no big, dumb, fearless kids to hide behind. Susan Ullman, counsel for the university’s Board of Regents, needs to make only one point: that the university is a public forum, different from a union or bar association. She needs to remind the court that when the state builds a soapbox, the state has to let everyone stand on it and that all of us have to fund that soapbox, whether or not we like the speaker. Ullman is trying valiantly to say all this, but almost before she has thanked the court, Justice Kennedy pegs her with a question about the three different streams into which the mandatory student fees are channeled. It seems that one of the ways student organizations can be funded is via student referendum. This is how WISPIRG was funded in 1995.
So what, you wonder? Well, the referendum thing is freaking out Justice Kennedy, and not long after, it’s freaking out Justices Scalia and O’Connor too. Soon, Justice Breyer is fretting about whether subsidizing speech through a referendum isn’t antithetical to First Amendment policy, which seeks to protect unpopular speech more so than any other kind. Good point, that one. The referendum may be a bad idea. Of course, it’s not the crux of this case. But still, everyone goes on talking about it.
Ms. Ullman tries once or twice to corral the arguments back into the issue of whether the university is creating a public forum. But her half-hour is over, and mostly we have decided a case about student referenda.
Jordan Lorence, who has staffed this case alone, with the assistance of Southworth and some of the other plaintiffs, has clearly been practicing with his Supreme Court flash cards, because he uses the justices’ names as he answers their questions. Justice O’Connor is quick on the trigger with another referendum question, but Justice Breyer staves off the whole inquiry by reminding the panel that the referendum question is not really before them. If I could do so through marble, I would blow Justice Breyer a kiss for that.
Justice Stevens asks questions so lengthy as to engender hopping and weaving by the attorneys before him. His question for Lorence is whether the university would still be “compelling” speech if it abolished student fees, raised tuition, and funded objectionable organizations that way. Lorence vacillates. Justice Kennedy booms out that this case is about the conflict between what the state can do in its role as educator and the individual’s right not to have his speech compelled. Then Kennedy and Scalia sort of double-team Lorence about the core and ancient function of the university–to generate a “babble of voices,” at which point Scalia suggests that student groups have probably been funded since the Middle Ages. I imagine Elizabethans for the Environment would have provoked the same objection from Southworth.
Justice Stevens launches into a three-part hypothetical involving a school whose fees are disbursed among the sports team, yearbook, and the newspaper, which is then “captured by a communist board of directors … happens all the time.” This slays them in the gallery, although Lorence is having trouble unraveling the strands of analysis. What he does come up with–and repeat, several times–is the following: “The university, as a state actor, has a duty to respect the right of conscience of its students.” In the Southworth view of the world, the individual student’s right to de-fund abhorrent speech actually trumps the school’s educational mission and the rights of other students to the kind of “babble of voices” from which true learning emanates.
I have to hand it to Southworth and Lorence: They have the courage of their convictions. They are willing to stand behind the proposition that their personal preferences are more compelling than the clank and clamor of a meaningful public forum. The case turns, in some way, on how much value you put on the still, small voice of your enemy, as a part of “learning.” The regents of the university urge that a panoply of bickering voices is at the heart of “learning.” Whereas insisting that you paid for the table so everyone there had better espouse your views is more “Archie Bunker’s Kitchen.”
The gavel goes down on Regents vs. Southworth. I won’t speculate as to how the votes will shake out, but I do offer this: If the court lets Wisconsin students opt out of funding speech they hate, then it should let the citizens of Skokie withhold the part of their taxes that goes to police protection for neo-Nazi protestors who parade down the city’s streets. Or better yet, let me withhold the fraction of my taxes that pays for a Supreme Court justice’s opinion, merely because I don’t like what he says. Or what I think he might be saying, on the other side of the velvet curtain.