Abstract
Colleges love to compete by freely disclosing to students, and potential students, the costs of tuition and room and board.
They are often, however, less inclined to advertise mandatory student fees used to subsidize various academic, infrastructure, and student activities. Fees are typically collected for chemistry labs, the library, computer labs, new campus building, student health, athletics, and to fund student organizations. The fees are usually approved and justified by the governing board as relevant to the student’s overall educational experience because they are used to promote campus diversity and extracurricular activity. The fees, even to groups that support on and off-campus political activity, are said to be germane to the University’s educational mission. Some governing boards contend that to deny mandatory fees to student organizations that promote on campus and off-campus political activity violates that organization’s freedom of speech.
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Notes
- 1.
See, Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989) and UWM Post, Inc. v. Board of Regents, 774 F.Supp. 1163 (E.D. Wisc. 1991).
- 2.
151 F.3d 717 (7th Cir. 1998), Rehearing denied 157 F.3d 1124 (7th Cir. 1998).
- 3.
Id. At 719.
- 4.
Section 36.09 of the Wisconsin Code.
- 5.
151 F.3d 717 at 719.
- 6.
Id.
- 7.
Id. At 720.
- 8.
Id.
- 9.
Id. at 718.
- 10.
Id. at 720.
- 11.
Id. at 721.
- 12.
Id.
- 13.
See, Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), “There is no right to have speech subsidized by the government.”
- 14.
Southworth at 722.
- 15.
United States Constitution, Amend. I.
- 16.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Were this to be followed in a logically consistent manner, it would vitiate against laws compelling cigarette manufacturers to carry health warnings on their products.
- 17.
Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and Keller v. State Bar of California, 496 U.S. 1 (1990).
- 18.
515 U.S. 819 (1995).
- 19.
Id. at 825–27.
- 20.
Id. at 842.
- 21.
431 U.S. 209 (1977) and 496 U.S. 1 (1980).
- 22.
For the argument that unions, per se, are a violation of the law of free association, see Baird, Charles; Block, Walter “Labor Relations, Unions and Collective Bargaining: A Political Economic Analysis,” Journal of Social Political and Economic Studies, Vol. 16, No. 4, Winter 1991, pp. 477–507; DiLorenzo, Thomas, “Labor Markets and Liberty,” Proceedings of the Banff Conference, Vol. III in the Rating Economic Freedom Series, Stephen Easton and Michael Walker, eds., Vancouver: The Fraser Institute, 1992. Kauffman, Bill, 1992, “The Child Labor Amendment Debate of the 1920s; or, Catholics and Mugwumps and Farmers,” The Journal of Libertarian Studies, Vol. 10, No. 2, Fall, pp. 139–170; McGee, Robert W., “If Dwarf Tossing Is Outlawed, Only Outlaws Will Toss Dwarfs: Is Dwarf Tossing a Victimless Crime?,” American Journal of Jurisprudence, Vol 38, 1993, 335–358. n. 61, DTU; n. 89; Petro, Sylvester, The Labor Policy of the Free Society, New York, Ronald Press, 1957; Poulson, Barry W., 1982, “Substantive Due Process and Labor Law,” The Journal of Libertarian Studies, Vol. VI, No. 3–4, Summer/Fall, pp. 267–276; Reynolds, Morgan, 1982, “An Economic Analysis of the Norris-LaGuardia Act, the Wagner Act and the Labor Representation Industry,” The Journal of Libertarian Studies, Vol. VI, No. 3–4, Summer/Fall, pp. 227–266; Reynolds, Morgan O., Power and Privilege: Labor Unions in America, New York: Manhattan Institute for Policy Research, 1984; Reynolds, Morgan O., 1987, Making America Poorer: The Cost of Labor Law, Washington, D.C.: Cato Institute.
- 23.
431 U.S. 209 at 222.
- 24.
Id. at 235–36. This is all well and good. But it ignores the issue that some members of unions are coerced into joining these organizations themselves, “against their will.” On this see op. cit., footnote 22.
- 25.
496 U.S. 1 (1990).
- 26.
Id. at 13–14.
- 27.
Southworth v. Grebe, 151 F.3d 717, 723 (1998).
- 28.
496 U.S. at 14.
- 29.
500 U.S. 507 (1991).
- 30.
Id. at 519.
- 31.
_____U.S._____, 118 S. Ct. 1761 (1998).
- 32.
Even if the Regent’s views of germaneness were upheld, this would still not account for the left-wing ideological bias of the funding at the University of Wisconsin. In other words, given that politics and ideology is germane to the educational mission, why should this be almost totally confined to one end of the political–economic–philosophical spectrum. Why, that is, should there not be equal funding for groups such as the National Rifle Association, Phyllis Schlafley’s Eagle Forum, The Mises Institute, the Libertarian Party, the Four H Clubs, the Boy Scouts, the Young Republicans, the American Conservative Union, the Objectivist Society, and so on.
- 33.
496 U.S. at 15–16.
- 34.
500 U.S. at 520.
- 35.
500 U.S. at 522.
- 36.
500 U.S. at 516.
- 37.
Southworth v. Grebe, 151 f. 3d 717, 725 (1998).
- 38.
500 U.S. at 520.
- 39.
Keller, 496 U.S. at 13–14.
- 40.
500 U.S. 521.
- 41.
Id.
- 42.
It is not necessarily true that union and nonunion members share the common cause of negotiating pay scales, working conditions, and so on. To buy into this is to believe that unions are necessary and/or sufficient to better the lives of workers. But remuneration and safety protection and so on are high and rising in such industries as computers, banking, and insurance, which have never been unionized, and low and/or falling in such smoke stack and rust belt industries as steel, autos, and rubber, which have been. Moreover, as wages and working conditions in the United States have been improving, the rate of unionization has been falling.
- 43.
151 f.3d at 728.
- 44.
Id.
- 45.
Id. at 729.
- 46.
For a critique of the free rider concept, particularly as the justification for public policy, see Hoppe, Hans-Hermann, “Fallacies of the Public Goods Theory and the Production of Security,” in The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, Boston: Kluwer, 1993; Hoppe, Hans-Hermann, The Private Production of Defense, Auburn, AL: The Mises Institute, 1998; Hoppe, Hans-Hermann, 1989, A Theory of Socialism and Capitalism, Boston, Kluwer; Hummel, Jeffrey, 1990, “National Goods vs. Public Goods: Defense, Disarmament and Free Riders,” The Review of Austrian Economics, Vol. IV, pp. 88–122; Block, Walter, 1983a, “Public Goods and Externalities: The Case of Roads,” The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. VII, No. 1, Spring, pp. 1–34; Block, Walter, 1989, “The Justification of Taxation in the Public Finance Literature: A Critique of Atkinson and Stiglitz, Due, Musgrave and Shoup,” Journal of Public Finance and Public Choice, No. 3, Fall, pp. 141–158; Block, Walter, 1993a, “Canadian Public Finance Texts Cannot Justify Government Taxation: A Critique of Auld & Miller; Musgrave, Musgrave & Bird; McCready; and Wolf,” Canadian Public Administration, Vol. 36, No. 1, Fall, pp. 225–262.
- 47.
Id.
- 48.
500 U.S. at 521–22.
- 49.
Id.
- 50.
Southworth v. Grebe, 151F 3d at 729.
- 51.
Id. at 729.
- 52.
Id., see, Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) that holds that the Constitution does not confer an entitlement to funds that might be necessary to realize all the advantages of Free Speech. It is ironic that a school with a “hate speech” code advances a “hateful speech” argument.
- 53.
Abood, 431 U.S. at 234–235 n. 31 quoting Irving Brant, James Madison: The Nationalist 354 (1948).
- 54.
Southworth, 151F. 3d at 730.
- 55.
____U.S.____, 117 S. Ct 2130 (1997).
- 56.
Id. at 2138.
- 57.
Id. at 2140.
- 58.
There are problems with this finding, however. If these expenditures really benefitted the Wileman brothers, why did they object? Obversely, their objection constitutes evidence that they did not benefit. Suppose A takes a shower and bills B, his neighbor, for the soap costs on the ground that B “benefits.” Should B be compelled by a court to pay A? Not in a court of law which recognizes private property and contract rights. Under such jurisdictions, B is forced to pay only for goods and services he agreed to purchase, not for those which in the view of third parties, even Supreme Court judges, he “benefits.” Were we to extend the doctrine that free riders must be forced to pay for their alleged benefits to its logical conclusion, we would open up a Pandora’s Box. Anyone, pretty much, could charge anyone else for services rendered. If we brush our teeth and drink our mild and take our vitamins, this presumably benefits many people. Should we attempt to charge them for these services, we would be laughed out of any rational court. Thank goodness this pernicious doctrine has not been carried out consistently through our legal system.
- 59.
Southworth v. Grebe, 157 F. 3d 1124 (1998).
- 60.
Id. at 1125.
- 61.
Abood, 431 U.S. at 237.
- 62.
Southworth, 151 F. 3d at 732.
- 63.
Patrick Healy, U. of Wisconsin Will Ask Supreme Court to Uphold Broad Use of Mandatory Student Fees, The Chronicle of Higher Education, P. 7, col. 3, Nov. 9, 1998.
- 64.
515 U.S. at 851. Justice O’Connor, concurring, “Finally, although the question is not presented here, 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.”
- 65.
On this see Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973a; Rothbard, Murray N., The Ethics of Liberty, Humanities Press, Atlantic Highlands, N.J., 1982; Hoppe, Hans-Hermann, A Theory of Socialism and Capitalism: Economics, Politics and Ethics, Boston: Kluwer, 1989; Hoppe, Hans-Hermann, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, Boston: Kluwer, 1993.
- 66.
Known, affectionately, as “Blockhead U.”
- 67.
Subject, of course, to the usual proscriptions against murder, fraud, etc.
- 68.
On the case for road privatization, see Block, Walter, “Public Goods and Externalities: The Case of Roads,” The Journal of Libertarian Studies, Vol. VII, No. 1, Spring 1983a, pp. 1–34; Block, Walter E. and Matthew A. Block. 1996. “Roads, Bridges, Sunlight and Private Property Rights,” Journal Des Economistes Et Des Etudes Humaines, Vol. VII, No. 2/3, June-September, pp. 351–362; Block, Walter E. 1998. “Roads, Bridges, Sunlight and Private Property: Reply to Gordon Tullock,” Journal des Economistes et des Etudes Humaines, Vol. 8, No. 2/3, June-September, pp. 315–326; Block, Walter, “Road Socialism,” International Journal of Value-Based Management, 1996, Vol. 9, pp. 195–207; Block, Walter, “Theories of Highway Safety,” Transportation Research Record, #912, 1983b, pp. 7–10; Block, Walter, “Congestion and Road Pricing,” The Journal of Libertarian Studies, Vol. IV, No. 3, Fall 1980, pp. 299–330; Block, Walter, “Free Market Transportation: Denationalizing the Roads,” Journal of Libertarian Studies, Vol. III, No. 2, Summer 1979, pp. 209–238; Cadin, Michelle, and Block, Walter, (1997), “Privatize the Public Highway System,” The Freeman, February, Vol. 47, No. 2., pp. 96–97; Gunderson, Gerald, “Privatization and the 19th-Century Turnpike,” Cato Journal, Vol. 9, No. 1, Spring/Summer 1989, pp. 191–200; Klein, Dan, “The Voluntary Provision of Public Goods? The Turnpike Companies of Early America,” Economic Inquiry, October 1990, pp. 788–812; Klein, Dan, Majewski, J., and Baer, C., “Economy, Community and the Law: The Turnpike Movement in New York, 1797–1845,” The Journal of Economic History, March 1993a, pp. 106–122; Klein, Dan, Majewski, J., and Baer, C., “From Trunk to Branch: Toll Roads in New York, 1800–1860,” Essays in Economic and Business History, 1993b, pp. 191–209; Klein, Dan and Fielding, G.J., “Private Toll Roads: Learning from the Nineteenth Century,” Transportation Quarterly, July 1992, pp. 321–341; Klein, Dan and Fielding, G.J., “How to Franchise Highways,” Journal of Transport Economics and Policy, May 1993a, pp. 113–130; Klein, Dan and Fielding, G.J., “High Occupancy/Toll Lanes: Phasing in Congestion Pricing a Lane at a Time,” Policy Study, No. 170, Reason Foundation, November 1993b; Roth, Gabriel, The Private Provision of Public Services in Developing Countries, Oxford: Oxford University Press, 1987; Roth, Gabriel, Paying for Roads: The Economics of Traffic Congestion, Middlesex, England: Penguin, 1967; Roth, Gabriel, A Self-financing Road System, London, England, The Institute of Economic Affairs, 1966; Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973; Woolridge, William C., Uncle Sam the Monopoly Man, New Rochelle, N.Y.: Arlington House, 1970. On the case for the privatization of mail delivery, see Adie, Douglas K., The Mail Monopoly: Analysing Canadian Postal Service, Vancouver: The Fraser Institute, 1990; Adie, Douglas K., Monopoly Mail: Privatizing the United States Postal Service, New Brunswick, N.J.: Transaction, 1988; Adie, Douglas K., “Why Marginal Reform of the U.S. Postal Service Won’t Succeed,” in Free the Mail: Ending the Postal Monopoly, Peter J. Ferrara, ed., Washington, D.C.: The Cato Institute, 1990; Moore, Thomas Gale, “The Federal Postal Monopoly: History, Rationale and Future,” in Free the Mail: Ending the Postal Monopoly, Peter J. Ferrara, ed., Washington, D.C.: The Cato Institute, 1990; Priest, George, “The History of the Postal Monopoly in the United States,” Journal of Law and Economics, 18, no. 33, 1975; Butler, Stuart M., “Privatizing Bulk Mail,” Management, 6, No. 1, 1986; Moore, Stephen, “Privatizing the U.S. Postal Service,” in Stephen Moore and Stuart Butler, eds., Privatization, Washington: Heritage Foundation, 1987.
- 69.
See on this Benson, Bruce L., 1989, “Enforcement of Private Property Rights in Primitive Societies: Law Without Government,” The Journal of Libertarian Studies, Vol. IX, No. 1, Winter, pp. 1–26; Spooner, Lysander, No Treason, Larkspur, Colorado, (1870) 1966; Tannehill, Morris and Linda, The Market for Liberty, New York: Laissez Faire Books, 1984; Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973a; Rothbard, Murray N., The Ethics of Liberty, Humanities Press, Atlantic Highlands, N.J., 1982; Hoppe, Hans-Hermann, A Theory of Socialism and Capitalism: Economics, Politics and Ethics, Boston: Kluwer, 1989; Hoppe, Hans-Hermann, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, Boston: Kluwer, 1993; Barnett, Randy E., The Structure of Liberty: Justice and the Rule of Law, Oxford: Clarendon Press, 1998.
- 70.
Schumpeter, Joseph A., Capitalism, Socialism and Democracy, New York: Harper, 1942, p. 198.
- 71.
Friedman, Milton, “The Role of Government in Education,” Capitalism and Freedom, Chicago: University of Chicago Press, 1962, pp. 85–107; Friedman, Milton, Tyranny of the status quo / by Milton & Rose Friedman, San Diego: Harcourt Brace Jovanovich, 1984; Friedman, Milton, There’s no such thing as a free lunch, LaSalle, Ill.: Open Court, 1974; Friedman, Milton, Politics and tyranny: lessons in the pursuit of freedom, Friedman et al.; edited with an introduction by David J. Theroux. San Francisco, Calif.: Pacific Institute for Public Policy Research, c1984; Friedman, Milton, The optimum quantity of money, and other essays. Chicago, Aldine Pub. Co. [1969]; Friedman, Milton, Money mischief: episodes in monetary history New York: Harcourt Brace Jovanovich, c1992; Friedman, Milton, Money and economic development, New York, Praeger [1973]; Friedman, Milton, Monetarist economics, Oxford, UK; Cambridge, Mass., USA: Blackwell, 1991; Friedman, Milton, Free to choose: a personal statement / Milton and Rose Friedman. New York: Harcourt Brace Jovanovich, c1980; Friedman, Milton, Dollars and deficits; living with America’s economic problems, Englewood Cliffs, N.J., Prentice-Hall [1968].
- 72.
How many free market economists do it take to change a light bulb? None. They leave it to market forces.
- 73.
The authors wish to express a debt of gratitude to Michael Edelstein and Nando Peluci for this insight.
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Block, W.E., Whitehead, R. (2019). Forcing Some to Pay for the Free Speech of Others. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_6
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