931 F.3d 887

FISHER, Circuit Judge, concurring:
I concur in the result and in all but part II of the opinion. Regarding the Koala 's Free Press Clause claim, I agree with the majority's conclusion that the complaint states a claim, but my analysis differs from the majority's in two ways. First, the majority concludes the second amended complaint states a claim under the Free Press Clause on a theory - improper censorial purpose - that the complaint does not advance, the Koala does not rely on and the parties have not briefed. Op. at 898-99. Although I agree with the majority that a censorial purpose theory would be viable here if raised, I would prefer not resolve the Free Press Clause issue on a theory that it has not been pled, relied on or briefed.
Second, the opinion declines to decide whether the complaint states a Free Press Clause claim on the theory that the Koala does advance - its theory that the Media Act violates the Free Press Clause because, irrespective of censorial purpose, it singles out the press for a disparate financial burden. Op. at 898-99. I recognize that this presents a novel issue. Nevertheless, because the issue is fairly presented, I would resolve the parties' disagreement about whether the discriminatory administration of a subsidy program can be challenged on a "singling out" theory under the Free Press Clause - a theory that does not require proof of censorial purpose. Accordingly, I write separately to explain why, in my view, the Koala has adequately stated a Free Press Clause claim on a singling out theory.
I
The Supreme Court has not had occasion to address when discrimination against the press in connection with a subsidy program violates the Free Press Clause. That clause states that "Congress shall make no law ... abridging the freedom of ... the press." U.S. Const. amend. I.
The Court has, however, addressed discrimination against the press in connection with the imposition of taxes, identifying at least four circumstances in which taxation of the press is constitutionally suspect: (1) when a tax has "an improper censorial motive," Arkansas Writers' Project, Inc. v. Ragland , 481 U.S. 221, 228, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) ; see Leathers v. Medlock , 499 U.S. 439, 444-45, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991) ; Grosjean v. American Press Co. , 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936) ; (2) when a tax "singles out the press as a whole" for special treatment, Arkansas Writers' Project , 481 U.S. at 229, 107 S.Ct. 1722 ; see Leathers , 499 U.S. at 445-46, 111 S.Ct. 1438 ; (3) when a tax "targets a small number of speakers," Leathers , 499 U.S. at 447, 111 S.Ct. 1438, or "individual members of the press," Arkansas Writers' Project , 481 U.S. at 228, 107 S.Ct. 1722 ; and (4) when a tax "discriminates on the basis of the content of taxpayer speech," Leathers , 499 U.S. at 447, 111 S.Ct. 1438. As relevant here, the second and third of these types of discrimination do not require proof of censorial purpose. As the Court explained in Leathers , "direct evidence of improper censorial motive is [not] required in order to invalidate a differential tax on First Amendment grounds: 'Illicit legislative intent is not the sine qua non of a violation of the First Amendment.' " Id. at 445, 111 S.Ct. 1438 (quoting Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue , 460 U.S. 575, 592, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) ).
The Third Circuit, moreover, has held that the second and third of these types of discrimination - singling out the press as a whole or targeting a small number of speakers - apply not only to "disparate taxation" but also to "laws that impose other types of disparate financial burdens." Pitt News v. Pappert , 379 F.3d 96, 111 (3d Cir. 2004). The court reasoned that "[t]he threat to the First Amendment arises from the imposition of financial burdens that may have the effect of influencing or suppressing speech, and whether those burdens take the form of taxes or some other form is unimportant." Id. at 111-12. The court therefore applied these principles to a state law preventing college newspapers from collecting revenue from the advertisement of alcoholic beverages.
Here, both sides rely on Pitt News . Thus, for purposes of my analysis, I assume that the Court's cases regarding singling out the press as a whole or targeting individual members of the press apply not only to disparate taxation but also to "laws that impose other types of disparate financial burdens." Id. at 111.
II
Where the parties disagree, however, is over whether these principles extend from the imposition of taxes and other financial burdens to disparate treatment under a subsidy program. The defendants point out that the government is under no obligation to subsidize the exercise of constitutional rights. See, e.g. , Ysursa v. Pocatello Educ. Ass'n , 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (although "[t]he First Amendment prohibits government from 'abridging the freedom of speech,' " it does not require the government to "promote that speech"); Rust v. Sullivan , 500 U.S. 173, 193, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ; Leathers , 499 U.S. at 450, 111 S.Ct. 1438 ("[A] legislature is not required to subsidize First Amendment rights through a tax exemption or tax deduction."); Regan v. Taxation With Representation of Washington , 461 U.S. 540, 549, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) ("[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right."); Harris v. McRae , 448 U.S. 297, 317 n.19, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) ("A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity."). They argue, moreover, that the rationale behind the singling out theory - the recognition that selective taxation can be used to coerce or destroy the press - does not extend to the denial or withdrawal of a government subsidy:
The rationale running through the Free Press Clause cases repeatedly refers to the coercive power to tax, and the legitimate role played by the Free Press Clause in shielding the press from the discriminatory exercise of the potentially destructive power to tax. ... Similar concerns arise where the government "unjustifiably imposes a financial burden on a particular segment of the media," Pitt News v. Pappert , 379 F.3d 96, 109 (3d Cir. 2004), or where it singles out the press with costly and burdensome regulations, penalties, or fines. ... The potential threats posed by such taxes, penalties, regulations, and fines do not exist with regard to the administration of government subsidies such as the campus activity funds at issue here. ... Nothing in the Free Press Clause jurisprudence suggests that it was intended to promote, guarantee, or protect affirmative government assistance to the press. ... Simply put, the power to subsidize is not the power to destroy.
Answering Brief at 21-23. The defendants emphasize that "no court has construed the Free Press Clause to create a 'protected classification' for the press, guaranteeing 'the press' access to every subsidy program the government makes available to any person or entity who might also engage in expressive activity." Id. at 23.
Nor, the defendants argue, can the Koala "contend that the Free Press Clause compels the government to maintain subsidies, once they are granted, and to continue to maintain them, apparently indefinitely." Id. at 25.
The defendants' arguments are not persuasive. First, it does not follow from the fact that the government has no duty to subsidize the press that the government may discriminate against the press in administering subsidies. The Court has held, for instance, that a state may not "discriminate invidiously in its subsidies in such a way as to 'aim[ ] at the suppression of dangerous ideas.' " Regan , 461 U.S. at 548, 103 S.Ct. 1997 (alteration in original) (quoting Cammarano v. United States , 358 U.S. 498, 513, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959) ); cf. Perry v. Sindermann , 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The right not to subsidize does not include the unfettered right to discriminate.
Second, the defendants overstate matters when they argue that the rationale underlying the Court's tax cases does not extend to the denial or withdrawal of a subsidy. To be sure, in some instances the denial or withdrawal of a subsidy may be less coercive than the imposition of a tax. In Regan , the Court noted that, "although government may not place obstacles in the path of a person's exercise of freedom of speech, it need not remove those not of its own creation." 461 U.S. at 549-50, 103 S.Ct. 1997 (alterations omitted) (quoting Harris , 448 U.S. at 316, 100 S.Ct. 2671 ). The Court observed that "[c]onstitutional concerns are greatest when the State attempts to impose its will by force of law." Id. at 550, 103 S.Ct. 1997 (alteration in original) (quoting Maher v. Roe , 432 U.S. 464, 476, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) ). The government's "power to encourage ... is necessarily far broader." Id. (quoting Maher , 432 U.S. at 476, 97 S.Ct. 2376 ).
In my view, however, this is a difference in degree, not a difference in kind. The tax-subsidy distinction goes only so far. See, e.g. , Leathers , 499 U.S. at 450 n.3, 111 S.Ct. 1438 (describing tax exemptions and deductions as "a form of subsidy" administered through the tax system (quoting Regan , 461 U.S. at 544, 103 S.Ct. 1997 )). At least in some circumstances, "[t]he selective administration of government subsidies presents as much potential for abuse as selective imposition of taxes, regulations, penalties, or fines." Reply Brief at 8. This may be "especially true for the student press." Id. Thus, the defendants' contention that the government enjoys carte blanche to single out the press for differential treatment under a subsidy program, so long as it neither manifests a censorial purpose nor facially discriminates based on content, is unpersuasive.
III
Here, the complaint adequately alleges a Free Press Clause claim on a singling out theory. First, the complaint plausibly alleges that the Media Act singled out the press from a generally available funding program. It alleges that "[t]he Student Government ... disqualified student organizations that publish print newspapers from eligibility to seek funding designed to support the speech of student organizations while continuing to treat other student organizations as eligible to seek such funding." SAC ¶ 2. Significantly, the complaint does not allege that the defendants excluded the student press from a narrow, targeted subsidy program, but rather that they excluded the student press, and solely the student press, from a widespread funding program upon which student organizations broadly rely. According to the complaint, the Student Government collected $3,704,964 in campus activity fees during the 2015-16 school year and allocated $432,236 to fund student organizations, including $25,000 earmarked for print media organizations. SAC ¶ 34. The defendants then excluded the press alone from this broad-based funding program.
Second, the complaint plausibly alleges that this funding program plays an outsized role in the financial lives of student organizations. It alleges, for example, that the Media Act "materially hindered The Koala 's ability to publish, preventing it from publishing a planned issue during the winter quarter of the 2015-16 academic year and limiting it to three issues instead of the planned six during the [subsequent] academic year." SAC ¶ 101. It alleges that the university also precluded the Koala from participating in "a crowdfunding platform for student and campus projects." SAC ¶ 103.
Under these circumstances, the withdrawal of a subsidy raises many of the same concerns as the imposition of a tax. As the Third Circuit explained in Pitt News , schemes singling out the press, or individual members of the press, "are suspect because they can easily be used as a way of controlling or suppressing speech." 379 F.3d at 112. "Government can attempt to cow the media in general by singling it out for special financial burdens," or it can "seek to control, weaken, or destroy a disfavored segment of the media by targeting that segment." Id. at 110. As the Court recognized in Leathers , even the threat of disparate financial treatment can operate "as effectively as a censor" in suppressing disfavored expression. 499 U.S. at 446, 111 S.Ct. 1438 (quoting Minneapolis Star , 460 U.S. at 585, 103 S.Ct. 1365 ). These concerns apply here as well. The defendants' actions materially weakened the Koala , and it requires little imagination to suppose that the funding decision challenged here had a profound chilling effect on the expressive activities of other organizations that depend on student activity fee funding.
Third, the principle that taxes singling out the press are constitutionally suspect responds to the practical concern that a censorial purpose may be difficult to prove. Under a singling out theory, a tax is suspect when, although evidence of censorial motive is lacking, it "is structured so as to raise suspicion that it was intended" as "a purposeful attempt to interfere with [an entity's] First Amendment activities." Leathers , 499 U.S. at 448, 111 S.Ct. 1438. Here, the complaint plainly raises these concerns. It alleges that, although the Media Act "was in form directed at eligibility to seek funding for any student print media," it was "in fact substantially motivated by discrimination or retaliation against The Koala because of the viewpoint of its speech." SAC ¶ 88. The timing of the Media Act, as well as contemporary statements by student and university leaders, strongly suggest a hidden censorial motive.
For these reasons, I would hold that the complaint, irrespective of censorial motive, adequately alleges a claim under the Free Press Clause on the theory that the defendants singled out the press for disparate treatment. This conclusion does not, as the defendants contend, broadly interfere with a government's discretion to administer subsidy programs. I would not "prevent the government from ever eliminating, or even reducing, subsidies to a media recipient, unless it can demonstrate a compelling government interest." Answering Brief at 21. I would not read the Free Press Clause as creating "a 'protected classification' for the press, guaranteeing 'the press' access to every subsidy program the government makes available to any person or entity who might also engage in expressive activity," or as requiring "affirmative government assistance to the press." Id. at 23-24. Nor would I read the Free Press Clause as compelling "the government to maintain subsidies, once they are granted, and to continue to maintain them, apparently indefinitely." Id. at 25. We have in this case the selective withdrawal of the student press, and solely the student press, from a broad-based funding program, under circumstances raising a strong suspicion as to the state's censorial motives. Under these circumstances, I would hold that the complaint adequately states a claim under the Free Press Clause.
As the majority opinion points out, the complaint does allege that the defendants acted with a censorial purpose. Op. at 896-97. The complaint, however, relies on these allegations in connection with the Koala 's Free Speech Clause claim, not with respect to its Free Press Clause claim. The Koala 's Free Press Clause claim relies on a singling out theory, not censorial purpose.
I do not, as the majority opinion suggests, fault the majority for "analyz[ing] the implications of the tax-subsidy difference." Op. at 897-98. In my view, the majority quite properly focuses on that issue. My concern is simply that the majority opinion resolves the adequacy of the Free Press Clause allegations on a legal theory that the complaint does not allege and upon which the Koala does not rely - censorial purpose - while simultaneously failing to address the theory upon which the complaint and the Koala do rely - the theory that the defendants, irrespective of censorial purpose, impermissibly singled out of the press for disparate treatment.
Although the Court has said that "the institutional press" enjoys no "constitutional privilege beyond that of other speakers," Citizens United v. FEC , 558 U.S. 310, 352, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (quoting Austin v. Michigan Chamber of Commerce , 494 U.S. 652, 691, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (Scalia, J., dissenting)), it has long treated discrimination against the press as constitutionally suspect.
"In order to justify such differential taxation, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Arkansas Writers' Project , 481 U.S. at 231, 107 S.Ct. 1722.
The majority opinion appears to misstate the theory upon which the Koala relies. As I read it, the complaint alleges that the defendants violated the Free Press Clause by singling out the student press as a whole , not by singling out "The Koala [alone] for disfavored treatment." Op. at 891. See SAC ¶ 109 ("Defendants violated and are continuing to violate the Free Press Clause of the First Amendment by adopting and enforcing the Media Disqualification and thus excluding The Koala and other student print publications from eligibility to seek campus activity fee funding for the publication of student print newspapers, while continuing to treat other student organizations as eligible to seek campus activity fee funding ...."); Opening Brief at 28 ("As pleaded in the SAC, the Media Disqualification violates the Free Press Clause on its face because it imposes a financial burden on the student press by selectively disqualifying it from an otherwise available source of revenue.").

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