Ltd. v.  Conrad, 420 U.S. 546, 572-73 (1975) (Rehnquist, J., dissenting) ("May an opera house limit its productions to operas, or must it also show rock musicals?  May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?").  We believe, however, that certain principles emerge from the Supreme Court’s jurisprudence on this question.  In particular, and perhaps somewhat counterintuitively, the more narrow the range of speech that the government chooses to subsidize (whether directly, through government grants or other funding, or indirectly, through the creation of a public forum) the more deference the First Amendment accords the government in drawing content-based distinctions.

At one extreme lies the government’s decision to fund a particular message that the government seeks to disseminate.  In this context, content-based restrictions on the speech that government chooses to subsidize are clearly subject to at most rational basis review, and even viewpoint discrimination is permissible.  For example, “[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U.S.C.  Sec. 4411(b), it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.”  Rust v.  Sullivan, 500 U.S. 173, 194 (1991); see also Velazquez, 531 U.S. at 541 ("[V]iewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government used private speakers to transmit information pertaining to its own program.”) (internal quotation marks and citation omitted).  Although not strictly controlling, the Supreme Court’s unconstitutional conditions cases, such as Rust and Velazquez, are instructive for purposes of analyzing content-based restrictions on the use of public fora.  This is because the limitations that government places on the use of a public forum can be conceptualized as conditions that the government attaches to the receipt of a benefit that it offers, namely, the use of government property.  Public forum cases thus resemble those unconstitutional conditions cases involving First Amendment challenges to the conditions that the state places on the receipt of a government benefit.  See Velazquez, 531 U.S. at 544 ("As this suit involves a subsidy, limited forum cases . . . may not be controlling in the strict sense, yet they do provide some instruction.").