More on Publicly Funded Expression

Jack Balkin has responded to my post below. I won’t try to reply to all of his arguments, in part because Sasha Volokh and Juan Non-Volokh have already replied to some of them. But I do want to make a couple of points.

First, Jack overstates my position, thereby creating a strawman. He says, among other things:

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. [emphasis added]

I never said that public funding of viewpoints is just as deplorable as the penalties and fines for the expression of particular views. It is not. I agree with all of the comparisons Jack makes (e.g., that it’s better to fund a public library than to jail a communist). But saying program A is preferable to the clearly awful program B does not imply the desirability of program A.

Second, in focusing on my final comment about the danger of having government try to distinguish good from bad ideas, Jack misses the primary argument of my post: that ideas create both positive and negative externalities. For that reason, his economic justification for public funding of the “ideas infrastructure” doesn’t stand up, because it rests on the implicit assumption that the positive externalities outweigh the negative ones at the margin. Jack focuses on the benefits of the public subsidy, without much consideration of the costs. I’ll point out just two examples of how state subsidy for particular forms of expression creates problems: (a) The Office of National Drug Control Policy spends lots of money funding anti-drug commercials that muddy the policy waters with bogus claims (e.g., by suggesting that drug users are funding terrorists) and gin up greater support for the immoral and destructive war on drugs. (b) Science funding that excludes politically unpopular areas of research, such as cloning and fetal stem cells, diverts resources and research programs away from those areas and into other areas likely to produce smaller benefits (such as adult stem cells).

Third, this is not just a First Amendment issue. I don’t claim that the First Amendment invalidates all forms of government-supported expression (hence, there is no constitutional requirement to “blow up” the Washington Monument). Some forms of government action are constitutional but still unjustified or undesirable, and that is my position on most, though perhaps not all, forms of public subsidy for expression.