Governor Chris Christie of New Jersey does not like Jersey Shore; neither its cast nor its message are appealing to the governor. Christie’s objection to both the show and the New Jersey Film Tax Credit Transfer Program led to his veto of a $420,000 tax credit to 495 Productions, the production company in charge of Jersey Shore. In a letter sent to the New Jersey Economic Development Authority, Christie said, “I have no interest in policing the content of such projects, however, as chief executive I am duty-bound to ensure that taxpayers are not footing a $420,000 bill for a project which does nothing more than perpetuate misconceptions about the state and its citizens.” Thus, the question becomes whether Christie can veto this tax credit, and then whether he should be able to.
It is likely that Christie can veto the credit, although nobody has questioned such use of veto power from a legal realist perspective. Even if they did, courts are probably reticent to dig too deeply into the decision since it is based on an explicit executive power granted to him in the New Jersey Constitution over both spending and administrative agencies.
But so what? What if courts did look into his decision? It is possible that such use of veto power would be allowable, depending on which legal theory holds for government tax credit programs, since government funding can be cut from certain organizations for particular kinds of speech.
No state has been challenged on denying funding credits to entertainment companies, so it is unclear what analysis would apply. But, three cases from the Supreme Court offer the current law on government restrictions of funding based on speech: Rust v. Sullivan, Rosenberger v. Univ. of Virginia, and National Endowment for Arts v. Finley. Viewpoint restrictions are treated differently in each of the cases; a brief analysis of the facts of each compared to the facts at hand should help analogize which is most appropriate to apply here.
In Rust, doctors were forbidden to discuss abortion as a family planning option lest they lose federal funding. The Supreme Court held that such a restriction was constitutional. In Rosenberger, a restriction preventing a religious newsletter from receiving funding from the state university was found to be constitutional, as long as the restriction was not aimed at any particular religion. Finally, Finley allowed the National Endowment for the Arts to reject funding to candidates for grants, as long as the determining factor in disbursing funding was not to suppress disfavored viewpoints.
The core question is: is a tax credit for a show more like a situation for a college newspaper, a doctor speaking to patients in a professional capacity, or the National Endowment of the Arts making funding decisions on artists? This seems to analogize most closely to Finley. Both Finley and this case involve works that, by their very nature, involve a lot of artists or artistic productions competing against each other for limited funds to create that content. It becomes hard to separate the quality of the show from qualities other than content of the show when weighing the rationale for Christie’s veto of the tax credit. If litigated, I believe a court would rule that Governor Christie violated the First Amendment, because viewpoint (namely, fear that the reputation of the state of New Jersey and its citizenry) was his clear, decisive factor in vetoing the tax credit to 495 Productions. I may dislike the show as much as everyone else–including the millions who watch it and claim to hate it–but I do not think the government should insert its opinion about the quality or “worth” of shows or productions that they fund. In this case, MTV is hardly affected since the show is so profitable, but restricting individuals or production companies from receiving tax credits purely on the basis of their point of view or message should be worrisome.