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STEVENS, J., Dissenting Opinion

473 U.S. 788
Cornelius v. NAACP Legal Defense and Educational Fund, Inc.

No. 84-312 Argued: February 19, 1985 --- Decided: July 2, 1985

JUSTICE STEVENS, dissenting.
The scholarly debate between JUSTICE O'CONNOR and JUSTICE BLACKMUN concerning the categories of public and quasi-public fora is an appropriate sequel to many of the First Amendment cases decided during the past decade. As is true of the Court's multitiered analysis of equal protection cases, however, I am somewhat skeptical about the value of this analytical approach in the actual decisional process. See Cleburne v. Cleburne Living Center, ante at 451-454 (STEVENS, J., concurring). At least in this case, I do not find the precise characterization of the forum particularly helpful in reaching a decision.
Everyone on the Court agrees that the exclusion of "advocacy" groups from the Combined Federal Campaign (CFC) is prohibited by the First Amendment if it is motivated by a bias against the views of the excluded groups. Moreover, everyone also recognizes that the evidence in the record gives rise to at least an inference that
the purported concern to avoid controversy excited by particular groups may conceal a bias against the viewpoint advanced by the excluded speakers.
Ante at 812; see also ante at 832 (BLACKMUN, J., dissenting). The problem presented by the case is whether that inference is strong enough to support the entry of a summary judgment in favor of respondents.
Today the Court decides to remand the case for a trial to determine whether the exclusion of respondents was the product of viewpoint discrimination. Ante at 797, 812-813. That decision is supported by the rule that forecloses the entry of a summary judgment when a genuine issue of fact is present, and by the special limitations on this Court's ability to undertake its own review of trial records. Cf. United States v. Hasting, 461 U.S. 499, 516-519 (1983) (STEVENS, J., concurring in judgment). Nevertheless, my study of the case has persuaded me that the Court of Appeals correctly affirmed the entry of summary judgment in favor of respondents.
As the District Court found,
the CFC provides employees with two ways in which to make contributions. . . . An employee may designate that his donations be distributed to particular organizations participating in the CFC. Alternatively, if the employee does not designate any agency to benefit from the donation, the amount contributed is placed into a pool which is divided among the approved agencies in accordance with a formula set forth in the regulations.
NAACP Legal Defense & Educational Fund, Inc. v. Devine, 567 F.Supp. 401, 406 (DC 1983).
This case does not involve the general pool that is supported by undesignated contributions. Brief for Petitioner 11; Brief for Respondents 6. Respondents do not participate in that pool, and do not receive, or seek to receive, any share of the federal employees' undesignated contributions. Instead, respondents receive only those CFC contributions that are specifically designated to go to them. To phrase it in another manner, respondents only benefit from contributions that are the result of the free and voluntary choices of federal employees who make specific designations. Those federal employees who merely support the undesignated CFC fund, as well as those who designate other charities, provide no support for respondents.
I emphasize this fact because the arguments advanced in support of the exclusion might well be sufficient to justify an exclusion from the general fund, but have manifestly less force as applied to designated contributions. Indeed, largely for the reasons that JUSTICE BLACKMUN has set forth in Parts II-B and III of his opinion, the arguments advanced in support of the exclusion are so plainly without merit that they actually lend support to an inference of bias.
I am persuaded that each of the three reasons advanced in support of denying advocacy groups a right to participate in a request for designated contributions is wholly without merit. The Government's desire to have its workers contribute to charities that directly provide food and shelter, rather than to those that do not, surely cannot justify an exclusion of some, but not other, charities that do not do so. Moreover, any suggestion that the Government might be perceived as favoring every participant in the solicitation is belied by the diversity of the participants and by the fact that there has been no need to disclaim what must be perfectly obvious to the presumptively intelligent federal worker. Last, the supposed fear of controversy in the workplace is pure nonsense -- one might as well prohibit discussions of politics, recent judicial decisions, or sporting events. In sum, the reasoning set forth in Parts II-B and III of JUSTICE BLACKMUN's dissenting opinion persuades me that the judgment should be affirmed.
As two commentators noted:
Public forum analysis appears to be increasing in importance. The doctrine traces back to a famous dictum of Justice Roberts, and received further attention from Professor Kalven almost twenty years ago, but it was almost never used in Supreme Court opinions until recently. The phrase "public forum" has appeared in only thirty-two Supreme Court decisions. Only two of these decisions were rendered prior to 1970, and thirteen of the thirty-two have been in the 1980's.
Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va.L.Rev. 1219, 1221-1222 (1984) (footnotes omitted).
2. It is worth noting that the Government has advanced a series of different arguments for the result that it has sought during the course of this controversy. See NAACP Legal Defense & Educational Fund v. Devine, 234 U.S.App.D.C. 148, 152, 727 F.2d 1247, 1251 (1984) (that the legal defense funds did not provide "direct services"); id. at 153, 727 F.2d at 1252 (that the legal defense funds sought to influence public policy by litigating on behalf of persons other than themselves); id. at 154, 727 F.2d at 1253 (employee objections and boycotts); ibid. (placing the fundraising objective in jeopardy); ibid. (the improper use of taxpayer resources to raise funds for advocacy organizations and political education groups); ibid. (undue burden because of the large number of organizations in the CFC); id. at 155, 727 F.2d at 1254 ("[T]he CFC does not involve solicitation by the participating charities, and is more accurately described as a ‘subsidy' by the Federal Government"); id. at 160, 727 F.2d at 1259 (that the CFC is limited to those organizations that assist the needy); id. at 161, 727 F.2d at 1260 (that the Government should not appear to favor "political advocacy groups"); id. at 162, 727 F.2d at 1261 (that inclusion would be "controversial"); id. at 166, 727 F.2d at 1265 (that alternative fora are available).
In expressing this opinion, I do not intend to suggest that the author of the regulation was motivated by a conscious prejudice against advocacy groups. A subconscious bias, based on nothing more than a habitual attitude of disfavor, or perhaps a willingness to assume that frequent expressions of disagreement with the achievements of advocacy groups adequately demonstrate that they are somehow inferior to "traditional health and welfare charities," may provide the actual explanation for a regulation that is honestly, but incorrectly, believed to be "viewpoint-neutral." "For a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification." Mathews v. Lucas, 427 U.S. 495, 520 (1976) (STEVENS, J., dissenting).
Expressions of affection for the Dallas Cowboys would surely be forbidden in all federal offices located in the District of Columbia if the avoidance-of-controversy rationale were valid.