This case is here on the certification of the District Court of Appeal, First District, that the trial court judgment appealed to
House Bill No. 30-B was the general appropriations bill adopted by the 1981 Legislature and became law as chapter 81-206, Laws of Florida. The appropriations for the Department of Education and the Commissioner of Education were prefaced by the following proviso:
Ch. 81-206, § 1, Laws of Fla.
The Florida Department of Education, the State Board of Education, and Commissioner of Education Ralph D. Turlington filed a complaint seeking a declaratory judgment that the above-quoted proviso is unconstitutional and void. Named as defendants were Comptroller Gerald Lewis and Secretary of State George Firestone. The complainants challenged the constitutionality of the proviso under article III, section 12 of the Florida Constitution as well as under freedom of expression principles embodied in the Florida and United States Constitutions.
Talbot D'Alemberte, a trustee of Miami-Dade Community College, filed a motion to intervene as a party plaintiff. The trial court granted the motion based on D'Alemberte's status as a citizen and taxpayer. The defendants in their answers to the complaint questioned the standing of the Department of Education, the State Board of Education, and Turlington in his official capacity as Commissioner of Education, to bring the suit. After declining to dismiss these plaintiffs, the trial court granted judgment for the defendants and upheld the proviso against all contentions of invalidity.
Before reaching the merits of the case, we must resolve the question of standing to sue.
In the court below, the appellees challenged the appellants' standing to seek a determination that the proviso is unconstitutional. While we find the individual appellants to have such standing as ordinary citizens and taxpayers, they have no standing in their official capacities. State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise. Barr v. Watts, 70 So.2d 347 (Fla. 1953); City of Pensacola v. King, 47 So.2d 317 (Fla. 1950); State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610 (1946); State ex rel. Atlantic Coast Line R.R. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). In such a situation, the public officer or agency does not have a sufficiently substantial interest or special injury to allow the court to hear the challenge.
If, on the other hand, the operation of a statute is brought into issue in litigation brought by another against a state agency or officer, the agency or officer may defensively raise the question of the law's constitutionality. City of Pensacola v. King, 47 So.2d 317 (Fla. 1950); State ex rel. Harrell v. Cone, 130 Fla. 158, 177 So. 854 (1937); State ex rel. Florida Portland Cement Co. v. Hale, 129 Fla. 588, 176 So. 577 (1937). The comptroller is one officer that has been allowed by Florida courts to initiate litigation in his official capacity seeking to establish the unconstitutionality
As ordinary citizens and taxpayers, however, appellants Turlington and D'Alemberte have standing to challenge the constitutionality of the proviso. In making their challenge, the appellants invoke two constitutional prohibitions: article III, section 12, Florida Constitution, governing appropriations acts; and the state and federal constitutional prohibition against state action abridging the freedoms of speech and association. Both challenges relate to the power of the legislature to tax and spend for the general welfare of the state as embodied in the appropriations bill. The proviso is challenged as an abuse of appropriations process and as an invalid directive to the postsecondary school administrators of the state concerning the spending of state funds. Therefore, appellants as taxpayers have standing to challenge the constitutionality of the proviso. Brown v. Firestone, 382 So.2d 654 (Fla. 1980); Department of Administration v. Horne, 269 So.2d 659 (Fla. 1972); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). Cf. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (federal taxpayers had standing to challenge statute alleged to exceed specific constitutional limits on the taxing and spending power).
With both the appropriations act restriction issue and the freedom of expression issue properly presented by proper parties, we now turn to the merits.
Article III, section 12, Florida Constitution, provides:
This provision is a corollary of article III, section 6, which requires that all laws be limited to a single subject and matters properly related to that subject. Brown v. Firestone, 382 So.2d 654 (Fla. 1980). An extensive body of constitutional law teaches that the purpose of article III, section 6 is to ensure that every proposed enactment is considered with deliberation and on its own merits. A lawmaker must not be placed in the position of having to accept a repugnant provision in order to achieve adoption of a desired one. See, e.g., Santos v. State, 380 So.2d 1284 (Fla. 1980); State v. Lee, 356 So.2d 276 (Fla. 1978); King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla. 1965); Lee v. Bigby Electric Co., 136 Fla. 305, 186 So. 505 (1939); State ex rel. Grodin v. Barns, 119 Fla. 405, 161 So. 568 (1935); Ex parte Sarros, 116 Fla. 86, 156 So. 396 (1934); McConville v. Ft. Pierce Bank & Trust Co., 101 Fla. 727, 135 So. 392 (1931); Colonial Investment Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930); State ex rel. Crump v. Sullivan, 99 Fla. 1070, 128 So. 478 (1930).
Through a number of cases decided over many years this Court has attempted to make clear to the Legislature that under our constitutional plan for the lawful exercise of governmental powers an appropriations act is not the proper place for the enactment of general public policies on matters other than appropriations. Brown v. Firestone, 382 So.2d 654 (Fla. 1980); Thomas v. Askew, 270 So.2d 707 (Fla. 1972); Department of Administration v. Horne, 269 So.2d 659 (Fla. 1972); Dickinson v. Stone, 251 So.2d 268 (Fla. 1971); In re Advisory Opinion to the Governor, 239 So.2d 1 (Fla. 1970); Green v. Rawls, 122 So.2d 10 (Fla. 1960); Lee v. Dowda, 155 Fla. 68, 19 So.2d 570 (1944); Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1918). In Brown v. Firestone, the Court said:
382 So.2d at 664.
The opinion in Brown v. Firestone went on to establish two principles by which to test restrictions and provisos in appropriations bills to determine whether they violate article III, section 12. First, if a provision in an appropriations bill changes existing law on any subject other than appropriations, it is invalid. Second, a qualification or restriction must directly and rationally relate to the purpose of the appropriation to which it applies. The opinion elaborated on this second principle as follows:
382 So.2d at 664.
We now proceed to an analysis of the proviso according to the above-discussed principles. The portion or portions of chapter 81-206 to which the proviso, by its terms, logically relates includes all state funds to be expended on postsecondary education or granted to postsecondary educational institutions or students. The proviso directs that funds appropriated to such purposes shall be withheld from institutions in violation of the proviso and from students attending institutions that are in violation of the proviso. In order to avoid having state funds withheld, a postsecondary institution is required by the proviso to refrain from chartering, giving official recognition to, knowingly giving assistance to, or providing meeting facilities to, any group or organization that engages in a certain variety of expression or communication as broadly defined in the proviso. The proviso attempts to make substantive policy on the governance of postsecondary educational institutions. Thus it amends a whole host of statutes pertaining to the operation of public colleges and universities and the regulation of private colleges and universities. By effecting such a de facto amendment of existing substantive law, the proviso violates the first principle announced in Brown v. Firestone.
One of the qualifications at issue in Brown v. Firestone was a requirement that the inmate count at a particular prison be phased back to design capacity. The restriction was connected to the appropriation for salaries, expenses, and capital outlay for major institutions of the state prison system. We held that the restriction was not rationally related to the funding of the state's correctional institutions but rather was "designed to further a legislative objective ... unrelated to the funding of all the major institutions." 382 So.2d at 669.
Applying the second of the principles announced in Brown v. Firestone, we reach a similar conclusion in the present case. The proviso is not directly and rationally related to the appropriation of state funds to postsecondary institutions and students. It is, rather, designed to further a legislative objective unrelated to such funding.
Brown v. Firestone, decided over a year and a half ago, announced a new and useful formulation of principles, but the principles
Appellants also contend that the proviso violates constitutional guarantees of freedom of speech and association under the United States and Florida Constitutions. Under the First Amendment to the United States Constitution, the United States government is prohibited from abridging the freedom of speech.
The right of persons to express themselves freely is not limited to statements of views that are acceptable to the majority of people. If it were to be held that freedom of expression applies only to views that the national, state, or local community finds to be within the range of reasonable discourse, the First Amendment would have little meaning or purpose. Democratic governments seldom seek to suppress speech that the community finds acceptable. Where the majority rules, there is usually no need for constitutional protection of the right to express views that are considered proper and reasonable by the majority. The real purpose of the First Amendment is to protect also the expression of sentiments that the majority finds unacceptable or even unthinkable. The First Amendment even protects the right to express the view that our constitutional form of government should be overthrown by illegal means. In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 395 U.S. at 447, 89 S.Ct. at 1829 (footnote omitted). While reasonable regulations pertaining to time, place, and manner may be imposed upon the exercise of the right to public expression of views, such regulations must not be based upon the content of the speech. They must be content-neutral. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).
The appellees' argument overlooks the fact that students and teachers may not be required to "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). A state cannot abridge freedom of speech on campus any more than it may do so off campus. "[T]he First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech... ." Papish v. Board of Curators, 410 U.S. 667, 671, 93 S.Ct. 1197, 1200, 35 L.Ed.2d 618 (1973).
While a state might choose not to establish any state-supported institutions of higher learning,
The fact that students, teachers, and speakers sponsored by campus groups at institutions of higher learning enjoy the full protection of the First Amendment does not prevent those involved in operating such institutions from maintaining a suitable environment for carrying on the process of scholarship. In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), a student political group was denied recognition as a student organization and challenged the denial in court. The president of the college sought to justify the denial on the ground of the group's advocacy of revolutionary change and on the ground of possible disruption of the educational process. The United States Supreme Court said:
Id. 408 U.S. at 187-88, 92 S.Ct. at 2349. The Court made clear, however, that the First Amendment does not require a college or university community to stand idly by
Numerous decisions of the federal appeals courts have applied these principles to the situation of denial of campus-recognition privileges and have held that such denial may not be predicated upon the content of the views held or to be expressed by the students in the organization. E.g., Chess v. Widmar, 635 F.2d 1310 (8th Cir.1980), aff'd sub nom., Widmar v. Vincent, ___ U.S. ___, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Hudson v. Harris, 478 F.2d 244 (10th Cir.1973); University of Southern Mississippi, Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 So.2d 564 (5th Cir.1971).
Those who fought in the American Revolution and adopted the Constitution and the Bill of Rights included persons of widely varying religious, political, and moral views. They were moved by the desire to establish limited government and to enshrine certain fundamental personal rights as immune from governmental infringement. In order to secure to all the liberty they had gained, the framers of the First Amendment wrote it in broad, liberal terms. The history of the interpretation of the First Amendment shows a steady movement toward protecting the free-speech rights of persons of all political and moral views. Ours is a nation rich in diversity, and our strength has been in our practice of allowing free play to the marketplace of ideas. We consist of many divergent associational groups, and "[a]s to each group, there are sectors of the community to whom its values are anathema." Gay Students Organization v. Bonner, 509 F.2d 652, 658 (1st Cir.1974). Nevertheless, "[t]o permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship." Police Department v. Mosely, 408 U.S. 95, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).
We therefore hold that the proviso violates the freedom of speech under the First Amendment and article I, section 4 and is unconstitutional.
The trial court erred in holding that the official bodies and Ralph Turlington in his official capacity had standing to maintain this action. Furthermore, it erred in holding that the proviso does not abridge the freedom of speech and in holding that it does not violate article III, section 12 of the Florida Constitution. The judgment is reversed. The proviso quoted at the beginning of this opinion is unconstitutional and void. The Comptroller is directed to disregard it. The Secretary of State is directed to strike it from chapter 81-206.
It is so ordered.
SUNDBERG, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.