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77 Tul. L. Rev. 163 (2002-2003)
Compelled Expression and the Public Forum Doctrine

handle is hein.journals/tulr77 and id is 179 raw text is: Compelled Expression and the Public Forum Doctrine Howard M. Wasserman' This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a thre-part model for determning when the fiwe speech ights of an objecting payer have been trggered Under that model, FirstAmendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of a specific private speaker for some use that, in itself should be understood as expressive. This model strikes a necessary balance between the inportant theoretical underpinnings of the protection against being compelled financially to support private speech and the First Amendment commitment to the dissemnation of the maxinum amount of individual expression. The model shows how to resolve FistAmendment challenges to the use ofgovernment- compelled funding of public forums-including streets and parks, public University student activities fee programs, and the National Endowment for theArts-when those forums are used by objectionable speakers or for offensive speech. The key is that the payer is not compelled to fund any objectionable speech or speaker The payer funds only the public forum, the physical place and services associated with that place or the pool ofmoney in the subsidy progrm, none of which is expressive. Under this model, all compelled-expression challenges to the estabhshment and fundng ofpublic forums must fail I. INTRODUCTION .......................... ..... 164 II. COMPELLED EXPRESSION: AN OVERVIEW ..............1 69 A. Categories of Compelled Expression ...................... 169 1. Compelled Utterance or Presentation of Message .. ............................ 169 2. Compelled Subsidization of Private Expression...... 174 3. Compelled Subsidization of Expression Pursuant to Government Programs ................. 179 4. Compelled Subsidization of Government's Expressive and Nonexpressive Activities ................. 182 B. Theoretical Bases of Compelled Expression ... ..... 190 1. Individual Liberty ............................. 190 2. Marketplace of Ideas ............... ..... 193 C Linitig the Category of Compelled Expression............. 196 1. Funds Used for Expression ................ 201 * Visiting Assistant Professor, Florida State University College of Law. B.S. 1990, J.D. 1997, Northwestern University. My thanks to Steven Gey, Paul LeBel, Peter Oh, Martin Redish, and Nat Stem for their reviews and comments on earlier drafts of this Article. 163

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