JB

Juan Non-Volokh points out correctly that if market forces by themselves would be insufficient to produce public goods, governments can either provide the goods themselves or subsidize private entities to produce them. Therefore governments might help support an infrastructure for free expression through subsidizing private universities instead of creating public universities.

That sounds fine to me. After all, as I said in my previous post, I've taught both in public universities and private universities that are heavily subsidized by the government. Both are important to production of a culture of free expression and a vibrant public sphere. If Juan prefers private universities subsidized by government funds, more power to him. But the important point-- and the point of my original posting-- is that government has to take affirmative steps to create the conditions for the exercise of free expression. It's not just a matter of preventing government from censoring individuals.

But Juan also wonders whether even public subsidies are a good idea:

The relevant comparison must always be between the admittedly imperfect private marketplace and the equally -- if not more -- imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.

Well, yes, in some cases its possible that remedying market failures either through public subsidizes or through direct government provisions of a public good can be worse than leaving things to the unassisted private market. But I have to say that providing education, and particularly higher education, is not one of those cases. And note that by education here I am speaking of more than mere vocational training, which markets can more easily provide; I mean education in features necessary for individuals to participate in governance and in culture generally. This sort of education is one of the clearest examples of a public good other than perhaps public defense (which is dealt with by a combination of government provision of goods and outsourcing to private entities according to government specifications). Sometimes the cure is worse than the disease, but this abstract formula becomes less plausible when you are talking about public education, and particularly higher education. If Juan has reasons to believe that Americans are actually made worse off by having a rich public culture produced by a combination of government subsidies and government provision of higher education, he has not yet revealed them.

Glen Whitman thinks he has the killer argument:

If the government could distinguish between the good and bad ideas, then it could subsidize only the good ones. But I have little or no confidence in government's ability to make such distinctions wisely, and the blanket subsidization of public universities assures funding of both the good and the bad. The strongest case for freedom of expression, I would argue, rests not on economic efficiency but on the inherent danger in giving a coercive government the power to decide what's good and bad in the realm of ideas. From that perspective, David Bernstein's position makes a great deal of sense: having public universities ipso facto puts the government in the position of having to make distinctions that it has no business making.

Glen's assertion that goverments should never be in the business of deciding which ideas are good and which are bad is much too broad. To a very large extent governments are in the business of deciding which ideas are better than others, because that is the basis on which they enact (or should be enacting) public policy. Moreover, governments are always in the business of promoting some ideas over other ideas. Does Glen seriously want to blow up the Washington Monument or the Lincoln Memorial? To keep children from visiting said memorials on the grounds that they will be unduly influenced to think that Washington and Lincoln were great presidents? Does he think that there is something nefarious in government officials asserting that democracy is good and tyranny is bad? (Would he object to the creation of a government program designed to promote belief in democratic forms of government over non-democratic forms? Does he believe that President Bush was wrong to give a speech advocating democracy and freedom for the rest of the world? Does he think government should not encourage the populace to engage in healthier habits through reporting the results of government funded health studies?)

The question is not whether government may not prefer some ideas or viewpoints over others, but what methods the government may properly use to prefer certain viewpoints and ideas or-- and this is a somewhat different objective-- to promote public expression, debate, and the exchange of viewpoints. In general, government may not punish people through criminal fines or civil penalties because of the viewpoints they express. This is the central meaning of the free speech guarantee in our Constitution. On this Glenn and I presumably would agree. But a healthy system of freedom of expression involves much more than securing this basic guarantee. It requires an educated populace and the opportunity for people to express themselves and participate in the culture in which they live. It requires a rich and vibrant public sphere. That public sphere will not be produced without government subsidy or government provision of important public goods. If government got out of that business entirely, we might still have a formal liberty of expression, because no one would be thrown in jail or fined for stating unpopular viewpoints. But our system of free expression would be much much poorer.

Government works through many different devices other than criminal penalities and civil fines. It also operates through providing public goods and subsidizing others to provide them. Very often government does this to promote particular ideas, for example when it provides free public education, or when it subsidizes charitable organizations. Glen is worried that governments will violate the free speech principle when this happens. He is right to worry: Governments *can* sometimes violate the free speech principle though selective subsidies or through providing public goods-- on this he and I agree. But Glen overstates his case when he assumes that use of subsidies and provision of public goods is always suspicious and tyrannical in the same way that the use of criminal fines and penalities is suspicious and tyrannical. I think there is a big difference between throwing a person in jail for being a communist and deciding to create a public library so that children and adults can have books to read. There is a big difference between preventing all demonstrations on the town green and requiring that all schools that receive public funding teach reading and mathematics. There is a big difference between the local sheriff giving parade permits only to Democrats but not to Republicans and the local university deciding that it will offer courses on microbiology but not astrology. Glen has run together a wide variety of different activities under the simple rubric of government tyranny. It's a much more complicated world than he describes.

As a first amendment scholar, I am the first to admit that when the government gets in the business of subsidizing and providing public goods to promote the infrastructure of free expression it takes on responsibilities to be fair. It does not escape the first amendment simply because it is creating or subsidizing public goods rather than punishing people. But the concerns of the first amendment are very different in the former case than in the latter. This is what Glen's argument overlooks. And, because producing the infrastructure of free expression is so important to a healthy and vibrant culture of free expression, it has real positive value that criminal penalities and civil fines usually do not have.