Rosenberger v. University of Virginia

By a narrow majority of 5-4, the Court reversed the two lower court decisions. Justice Anthony M. Kennedy, writing for the majority, wrote that the University had violated the Constitution through "viewpoint discrimination" and that funding the paper would not violate the Establishment Clause.

Kennedy relied heavily on the Court's earlier decision in Lamb's Chapel v. Center Moriches Union Free School District (1993) in deciding the case. In Lamb's Chapel, a public school denied a religious organization permission to show a religious film in a public school building even when the property was not in use for school purposes. The school district had an existing policy of allowing certain uses during "off hours," but specifically excluded building use for religious activities. The Court found that by favoring non-religious over religious viewpoints the school policy violated the Free Speech Clause. The Court went on to find that the showing of a religious film on school property did not violate the Establishment Clause because the film was not shown during school hours, did not receive school sponsorship, and was open to the public. The school board policy for making the facilities available to groups after normal school hours had in essence created an "open forum" for expression of all viewpoints.

Kennedy asserted that under the First and Fourteenth amendments the government could not restrict speech based on the content of its message. Kennedy wrote,

In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.

Kennedy pointed out that such viewpoint discrimination was a form of content discrimination. He concluded that the government must refrain from restricting speech when the specific ideology or opinion of the speaker was the basis for the policy.

Kennedy, noting that fundamental First Amendment speech principles were at stake, identified two dangers present in this case. The first was granting a state entity the power to examine publications to determine if they were based on some "ultimate" idea. The second danger was the chilling of individual thought and expression. Kennedy wrote, "That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition."