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Rust v. Sullivan, 500 U.S. 173, 194 (1991); see also Velazquez, 531 U.S. at 541 (
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) (internal quotation marks and citation omitted). Although not strictly controlling, the Supreme Court's unconstitutional conditions cases, such as Rust and Velazquez, are instructive for purposes of analyzing content-based restrictions on the use of public fora. This is because the limitations that government places on the use of a public forum can be conceptualized as conditions that the government attaches to the receipt of a benefit that it offers, namely, the use of government property. Public forum cases thus resemble those unconstitutional conditions cases involving First Amendment challenges to the conditions that the state places on the receipt of a government benefit. See Velazquez, 531 U.S. at 544 (
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As this suit involves a subsidy, limited forum cases . . . may not be controlling in the strict sense, yet they do provide some instruction.
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The very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applications, and absolute neutrality is simply inconceivable. Id. at 585 (internal quotation marks and citation omitted). Similarly, as Justice Stevens explained in his concurring opinion in Widmar v. Vincent, 454 U.S. 263 (1981), the First Amendment does not necessarily subject to strict scrutiny a state university's use of content-based means of allocating scarce resources, including limited public fora such as its meeting facilities: Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time – one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet – the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a
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), with Finley, 524 U.S. at 586 (
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In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately encourage a diversity of views from private speakers. ) (internal quotation marks and citation omitted). Similarly, although the government may create a designated public forum limited to speech on a particular topic, if the government opens the forum to members of the general public to speak on that topic while selectively singling out for exclusion particular speakers on the basis of the content of their speech, that restriction is subject to strict scrutiny. For instance, in City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the Court held that where a school board opens its meetings for public participation, it may not, consistent with the First Amendment, prohibit teachers other than union representatives from speaking on the subject of pending collective-bargaining negotiations. See id. at 175 (noting that the state
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); see also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 680 (1998) (distinguishing, for purposes of determining the appropriate level of First Amendment scrutiny, a televised debate in which a public broadcasting station exercises editorial discretion in selecting participating candidates from a debate that has
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Hair access to a general-purpose municipal theater open for the public at large to use for performances. See also Denver, 518 U.S. at 802 (Kennedy, J., concurring in the judgment) (suggesting that strict scrutiny would not apply to a local government's decision to
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but would apply to