Full opinion text
OPINION WALLACH, Judge. I Introduction This case arises out of an effort by Plaintiff, PS Chez Sidney, L.L.C., (“Chez Sidney”) a Louisiana seafood producer, to be included in payments to the domestic crawfish industry under the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA”). The court here considers the constitutionality of the CDSOA, which requires the government to pay moneys collected as antidumping duties to any affected U.S. domestic Plaintiff raised two non-constitutional arguments in its initial Motion For Summary Judgment: 1) that the ITC’s reliance on the final questionnaire response was arbitrary and capricious “because the final questionnaire response was not signed, was not certified by an authorized official as complete and correct, did not contain the ‘name of the establishment(s) covered by this questionnaire,’ did not indicate that the ‘x’ in the ‘Take no position’ box was ever authorized or submitted by Chez Sidney Seafood,” and 2) that “the ITC misinterpreted the Byrd Amendment by determining that” the initial 1996 questionnaire response did not satisfy the support requirement. Its first argument fails for waiver because the issue was never raised at the administrative level. The exhaustion doctrine requires a party to present its claims to the relevant administrative agency for consideration before raising them to the court. Timken Co. v. United States, 24 CIT 434, 459, 201 F.Supp.2d 1316 (2002). The court may nonetheless excuse parties from exhausting their administrative remedies in cases where certain exceptions are found. FAG Kugelfischer Georg Schafer AG v. United States, 25 CIT 74, 82, 131 F.Supp.2d 104 (2001) (internal citations omitted). Chez Sidney, however, has not argued that any of them apply. As it stands, its factual claim must fail because it has consistently represented that it, or its predecessor, Chez Sidney Seafood, Inc., did in fact submit the final questionnaire. In the proceedings related to Chez Sidney’s Motion for Preliminary Injunction, Chez Sidney affirmatively indicated that it has submitted the questionnaire and that it had checked the box marked “Take no position.” Specifically, Chez Sidney stated: “[T]he USITC records show that PS Chez Sidney’s predecessor submitted two questionnaire responses, one with the box checked ‘Support’ and one with the box checked ‘Take No Position.’ ” Motion for Preliminary Injunction at 6. Chez Sidney further affirmed that “[t]he questionnaire shows that Chez Sidney checked the box marked ‘Take no position’ instead of the box marked ‘Support.’ ” Motion for Preliminary Injunction at 2, 6. Chez Sidney’s Complaint also affirms that it marked the “Take No Position” box and submitted the final questionnaire. Complaint at ¶ 21 (stating that “[Chez Sidney”] ... had no knowledge or information that checking the “Take no position” box instead of the “Support” box in the May 5, 1997 Questionnaire would result in denial of eligibility for a distribution of antidumping duties.) These admissions authoritatively refute Chez Sidney’s present claim that the final questionnaire response was somehow an unauthorized expression of its position. As to Plaintiffs second argument, the ITC attempted to resolve the factual question of whether Chez Sidney indicated support for the subject petition. In doing so, it looked to the two questionnaires and gave weight to Chez Sidney’s latest expressed position during the investigation. As in Armstrong Bros. Tool Co. v. United States, 84 Cust.Ct. 102, 489 F.Supp. 269 (1980), Chez Sidney here “essentially challenge[s] discretionary findings by the [ITC].” Id. at 113, 489 F.Supp. 269. In Armstrong Bros., the Customs Court stated: “[I]t is not the function of the court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission.” Id. producer, a status defined, in part, as “a petitioner or interested party in support of the petition with respect to which” an anti-dumping or countervailing duty order has been entered. 19 U.S.C. § 1675e(b)(1)(a) (2000) (“support provision”). At issue is nonpayment to a member of the domestic industry which declined to support the petition. The court must decide whether the Plaintiff has standing to raise this constitutional challenge to the Government’s refusal to pay it a pro rata share of antidump-ing duties collected as a result of the final affirmative injury determination for the dumping of freshwater crawfish tail meat from China. Notice of Final Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed.Reg. 41,347 (August 1, 1997) as amended by Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed.Reg. 48,218 (September 15, 1997) (“Final Determination”). The Government initially argued that Plaintiff lacked standing to challenge the support provision’s constitutionality because Chez Sidney declined to support the petition three years before the CDSOA was enacted. Defendant United States Customs Service Supplemental Brief in Support of the Constitutionality of the [CDSOA] (“Customs Supplemental Brief’) at 11. At oral argument, the Government abandoned that position, but continued to maintain Plaintiff lacked standing as to all future injury that might occur as a result of additional distributions or sunset reviews. Given even the limited concession of standing, the court must determine the constitutionality of the support provision. Plaintiff has argued constitutional violations under both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Finally, if the court determines that a constitutional violation exists, it must find whether the offending portion of the statute is severable from its remaining provisions. The court has jurisdiction pursuant to 28 U.S.C. § 1581(i). For the reasons set out below, the court has found a violation of the First Amendment, and severability. In sum, however, the court finds that when, as part of an Act of Congress, the Government distributed benefits that are conditioned on what effectively amounts to political support by an otherwise qualified recipient for governmental action, that support requirement is subject to strict scrutiny under the Constitution. Where, as here, the provision fails that scrutiny, Supreme Court authority renders the requirement facially invalid. II The Uncontested Facts of this Case In 1996, members of the domestic craw-fish tail meat industry, represented by the Crawfish Processors Alliance (“CPA”) filed an antidumping petition before the U.S. International Trade Commission (“ITC”), alleging that imports of freshwater craw-fish tail meat from the People’s Republic of China (“PRC”) were being sold in the United States at less than fair value and were materially injuring, or threatening material injury to the domestic crawfish industry. Freshwater Crawfish Tail Meat From the People’s Republic of China: Initiation of Antidumping Investigation, 61 Fed.Reg. 54,154, 54,155 (October 17, 1996). The ITC initiated an antidumping investigation and issued questionnaires to domestic crawfish producers at both the preliminary and final phases of its investigation The questionnaires required domestic producers to check a box indicating whether they “Support,” “Oppose,” or “Take No Position” regarding the anti-dumping petition. Administrative Record (“AR”), Document 65. Chez Sidney checked the box showing its “Support” for the CPA’s petition in its October 7, 1996 response to the initial questionnaire. Customs Supplemental Brief at 9-10. On March 26, 1997, the Department of Commerce (“Commerce” or “the Department”) published its preliminary determination finding affirmative material injury in its investigation in Notice of Preliminary Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed.Reg. 14,392 (March 26, 1997) (“Preliminary Determination ”). During the final phase of its injury investigation, the ITC issued a second ITC questionnaire. In its May 5, 1997 response, Chez Sidney answered “Take No Position” to the ITC’s support question. Commerce issued its amended Final Determination on September 15, 1997, affirming its findings in the Preliminary Determination. Final Determination. In the interim, the CDSOA was enacted on October 28, 2000. See Discussion of CDSOA under Section V infra. The parties agree that the primary purpose of providing distributions to affected domestic producers is to remedy effects of injurious dumping and restore free trade. The ITC took the position that pursuant to the CDSOA, only those producers who check “[sjupport” are considered “affected domestic producers” and are subsequently eligible to file for certification to receive offset distributions under the CDSOA. 19 U.S.C. § 1675c(a)(6) repealed by Pub.L. 109-171, Title VII, § 7601(a), 120 Stat. 154 (February 8, 2006). It provided Customs with a list of affected domestic producers who could then seek certification for offset distributions for fiscal year 2002. Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 67 Fed.Reg. 44,722 (July 3, 2002). The only entity listed in the “Petitioners/Supporters” column for the crawfish anti-dumping duty order was the CPA. Id. at 44,735. Similarly during the previous year on August 3, 2001, Customs published a list of domestic producers which indicated support for the investigation on the ITC questionnaires. Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed.Reg. 40,782 (August 3, 2001). Chez Sidney was not included in this list either. Id. at 40,796. On August 19, 2002, Chez Sidney sent a letter to the ITC requesting an offset distribution and status as an affected domestic producer, but was denied because “[t]he final questionnaire response filed by [Chez Sidney] in the original investigation does not indicate support for the petition.” Defendant’s Opposition to Plaintiffs Motion for Summary Judgment (“Defendant’s Opposition”) at 7 (citing Custom’ Appendix at 3,4). On September 6, 2002, Chez Sidney requested reconsideration for certification as an “affected domestic producer,” arguing that its “[s]upport” response in the initial questionnaire satisfied the CDSOA’s requirement that a crawfish producer “be an interested party in support of the petition.” Defendant’s Opposition at 7 (citing Custom’s Appendix at 5). The request was denied on September 12, 2002, by the ITC based on Plaintiffs “conflicting statements” regarding support for the petition and because “[t]ake no position” was its “last expressed position during the investigation.” Id. (citing Id. at 6). The ITC “determined that Chez Sidney did not show the requisite support for the petition and declined to add Chez Sidney’s name to the list of potential ‘affected domestic producers’ ” and Customs then denied Chez Sidney’s certification for offset distributions. Supplemental Brief at 10 (citing Defendant’s Appendix at 6, 7). III The Procedural Posture of Case On October 2, 2002, Chez Sidney commenced this action before this court and subsequently filed a Motion For a Preliminary Injunction to enjoin Customs from distributing what Chez Sidney claimed was its share of the distribution. On October 31, 2002, Chez Sidney submitted a letter to the clerk of the court requesting that various non-record documents be added to the record. On November 6, 2002, the ITC filed a Motion to Strike the non-record documents, explaining that the statute requires that support for the petition be determined based on indications of support “by letter or through questionnaire response” that are in the record of the ITC. The ITC also noted that the non-record documents proposed by Chez Sidney were created after the filing of the present action, and thus were not before the ITC during the administrative proceeding. On November 7, 2002, this court heard argument on Chez Sidney’s Motion for Preliminary Injunction and the ITC’s Motion to Strike. The court orally granted a motion to intervene filed by the CPA and the Louisiana Department of Agriculture and Forestry and Bob Odom, Commissioner. The court denied the Motion to Strike, but ruled from the bench that the case would be based on the administrative record, and that it would disregard the non-record documents. The court denied Chez Sidney’s Motion finding it failed to demonstrate irreparable harm. PS Chez Sidney v. USITC & Customs, Court No. 02-00635 (November 8, 2002) The court also ordered Chez Sidney to supplement its Motion For Summary Judgment and ordered Defendant to respond within 45 days thereafter. On November 13, 2002, Chez Sidney moved for an injunction pending resolution of an interlocutory appeal to the Federal Circuit of this court’s denial of a preliminary injunction. The Federal Circuit denied the motion. PS Chez Sidney v. USITC & Customs, Court No. 03-1071 (Fed.Cir. Dec. 5, 2002) (Order denying Motion to Reconsider Denial of Motion for Injunction). Chez Sidney subsequently filed for re-consideration at the Federal Circuit. On February 27, 2003, the Federal Circuit issued an order granting Chez Sidney’s motion to voluntarily dismiss its appeal before the Federal Circuit as moot. PS Chez Sidney v. USITC & Customs, Court No. 03-1071, 57 Fed.Appx. 438 (Fed.Cir. Feb. 27, 2003) (Order granting Motion of PS Chez Sidney, L.L.C. to voluntarily dismiss its appeal as moot). On January 24, 2003, and January 27, 2003, respectively, the ITC and Customs filed Motions for Judgment Upon the Agency Record. Because the court determined that Chez Sidney’s Motion For Summary Judgment and the ITC’s and Customs’ Motions were integrally intertwined, with the same administrative decisions at the heart of all the briefs before the court, oral argument was set for both motions at the same time. IV The Relevance of Questionnaires To Antidumping Law 19 U.S.C. § 1671a(b)(1) and 19 U.S.C. § 1673a(b)(1) mandate that countervailing duty and antidumping proceedings be initiated whenever an interested party “files a petition with the administering authority, on behalf of an industry....” Id. To demonstrate that the petition is “on behalf” of the domestic industry, both require establishment of minimum levels of support. 19 U.S.C. § 1671a(c)(4)(A) and U.S.C. § 1673a(c)(4)(A) (domestic producers or workers who support the petition must account for at least 25 percent of total production of the total like product and more than 50 percent of the production of the portion of the industry that expressed support or opposition to the petition). Commerce may issue an antidumping order imposing duties on the imported merchandise. Antidumping orders may be issued when (1) an investigation by Commerce reveals that “a class or kind of merchandise is being, or likely to be” dumped in the United States; and (2) an additional investigation by the ITC determines that “an industry in the United States” is “materially injured” or “threatened with material injury,” or “the establishment of an industry in the United States is materially retarded” by imports of that merchandise or sales of that merchandise for import. 19 U.S.C. § 1673. Determination of injury or its threat in a fair and objective manner is a substantial portion of the ITC’s mission. The ITC conducts a preliminary investigation to determine whether “an industry in the United States is materially injured, or is threatened with material injury, or the establishment of an industry in the United States is materially retarded.... ” 19 U.S.C. § 1673b(a)(1)(A). Following an affirmative finding of harm, Commerce makes a preliminary determination of whether there is a reasonable basis to believe that injury has occurred. Cf. Jeannette Sheet Glass Corp. v. United States, 11 CIT 10, 654 F.Supp. 179 (1987). To make an injury determination, the ITC first defines one or more domestic like products that correspond to the dumped or subsidized imports identified by Commerce and, in turn, identifies the industry or industries producing these like products. See 19 U.S.C. § 1671d(b) (countervailing duties); 19 U.S.C. § 1673d(b) (dumped merchandise); see also Timken Co. v. United States, 20 CIT 76, 79, 913 F.Supp. 580 (1996) (“[I]n determining whether an industry in the United States is materially injured or threatened with material injury by reason of the subject imports, the Commission must first define the ‘like product’ in order to determine the relevant ‘industry.’ ”). A “domestic like product” is defined as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation.” 19 U.S.C. § 1677(10). The relevant “industry,” in turn, is defined as the “producers as a whole of a domestic like product, or those producers whose collective output of a domestic like product constitutes a major proportion of the total domestic production of the product.” 19 U.S.C. § 1677(4)(A); see generally, Caribbean Ispat Ltd. v. United States, 450 F.3d 1336 (Fed.Cir.2006). Having identified those classes of products, the ITC then determines whether imports of products falling within the classes identified have caused material injury to the domestic industry which produces those products. 19 U.S.C. § 1673(2); 19 U.S.C. § 1673b(a)(1); 19 U.S.C. § 1677(7). As one step in determining whether domestic industry is injured, the Government conducts what is in essence a survey among members of the domestic industry. The parties are at odds because the Government views the results of that survey as a fact and not a statement of opinion. Plaintiff, however, argues that the support, or non-support, or take no position questions on the survey invite a statement of opinion. The problem faced by the Government is that whenever members of the public are asked for their opinion they have a constitutional right to hold that view for a myriad of reasons, only one of which is congruent with the Government’s position. The Government and Amici’s forceful arguments amount to a belief that economic reality indicates industry respondents will act only as rational economic beings. The Government concedes, however, that a respondent might reasonably support or oppose on other bases. That reasonable possibility is enough to render the support provision unconstitutional. If the Government had only to demonstrate a rational basis for the support provision it could do so. It is rational to believe that there may be some correlation, indeed, quite possibly a high one, between expression of support for a dumping petition and injury to the responder. A higher level of review applies, however, to the expression of a particular point of view, because the distribution of funds is based upon the answer to what is inherently a public policy question. Thus, the support question in the ITC Questionnaire is itself absolutely necessary to serve a compelling government interest as defined by the WTO Agreement. Its use, however, for determining who receives distribution of government funds is not. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). There are a number of other ways in which the Government might, without more effort than that to which it is already required to go, determine which members of the domestic industry claim they are harmed by foreign dumping or subsidies. V The Continued Dumping and Subsidy Offset Act of 2000 The CDSOA was adopted by a House-Senate Conference Committee as an Amendment to a Department of Agriculture appropriations bill. The parties and amici all seem to agree that the CDSOA’s legislative history expresses Congressional intent to assist domestic U.S. industries injured by foreign dumping and subsidization. Where they differ is in how the remedy is applied, and is, in part, expressed in CSUSTL’s argument: The CDSOA’s legislative history demonstrates that the class of persons Congress intended as the law’s beneficiaries were those domestic producers that perceived themselves as harmed and were concerned enough to want a remedy against dumped and subsidized imports, but had seen that remedy frustrated by continued dumped and subsidized imports. Brief of Amicus Curiae, The Committee to Support U.S. Trade Laws (“CSUSTL Ami-cus Brief’) at 9 (emphasis added). INA argues that, in fact, the Government has taken the position in appear-anees before the World Trade Organization that the CDSOA does not require producers to show they were injured to receive distributions. Amicus Brief of INA USA Corp. as to First Amendment Issues (“INA Amicus Brief’) at 4. VI The Issues Currently Before The Court As will be discussed in depth below, Defendant, at oral argument, at least partially conceded Plaintiffs standing to raise the arguments here discussed. Plaintiff conceded its argument under the Equal Protection Clause. What remain for discussion here, accordingly, are the following questions: First, has Plaintiff asserted a viable claim that the CDSOA violates the First Amendment? As part of the answer to that question the court must consider any possible alternative which does not implicate constitutional invalidity of a Congressional act. Second, is any violative section severable from the entire scheme, or must it fail in toto? Third, in light of the questions above what remedy is available to Plaintiff for any violation found? The second and third questions need only be reached on ultimate determination of the constitutionality of the CDSOA. The Parties’ arguments on issues related to constitutionality are set forth below. VII The Parties’ Arguments Regarding Constitutionality The question of validity of the CDSOA under a First Amendment challenge was extensively briefed both by the parties, and, at the invitation of the court by amici curiae. Amici INA and Giorgio (collectively referred to as “the Challenging Amici”), challenged First Amendment validity but took differing views on severability. Their views were representative of domestic producers which might benefit from a finding that the support requirement was invalid. Amicus the CSUSTL represents domestic entities with an interest in maintaining the constitutional validity of the CDSOA. A Arguments Challenging Constitutionality of the CDSOA Plaintiff and the Challenging Amici raised several points attacking the constitutional validity of the CDSOA. They include arguments that the support requirement amounts to compelled speech burdened by unconstitutional conditions, that it involves imposition of a viewpoint-based eligibility requirement for a government subsidy, and that it is an over-broad burden on speech in a limited public forum. 1 Compelled Speech Burdened by Unconstitutional Conditions Plaintiff and Amicus INA argues from a line of Supreme Court cases that the CDSOA constitutes governmentally compelled speech burdened by unconstitutional conditions. INA begins with the Justice Sutherland’s proposition in West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Id. INA cites a number of cases applying that principle to prohibition of government enforced messages. INA identifies as the guiding principle in compelled speech cases the proposition of Wooley v. Maynard, 430 U.S. 705, 714-15, 97 S.Ct. 1428, 51 L.Ed.2d 752. (1977), that the government may not hammer an individual into “an instrument for fostering public adherence to an ideological point of view he finds unacceptable,” and that includes “the right to refrain from speaking at all.” Id. INA then argues that compelled speech principles apply when the government offers a gratuitous benefit conditioned on the surrender of free speech. Again, INA begins its analysis with Justice Sutherland. In Frost & Frost Trucking Co. v. Railroad Comm’n of Calif., 271 U.S. 583, 593, 46 S.Ct. 605, 70 L.Ed. 1101 (1926), INA says, he stated the parameters of the unconstitutional conditions doctrine: “as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights.” Id. at 593, 46 S.Ct. 605. INA says the Court’s view on conditioning benefits on particular speech crystalized in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (“even though the government may deny [a person a valuable government benefit] for any number of reasons ... [it] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests-especially, his interest in freedom of speech.”) Id. INA draws three “overriding principles” from the unconstitutional conditions cases. INA Amicus Brief at 13-14. It says 1) government cannot accomplish indirectly with benefits what it cannot command directly, 2) regulations permitting government discrimination based on content or viewpoint are unconstitutional, and 3) that government could deny the benefit altogether is irrelevant when benefits are conditioned upon relinquishment of First Amendment rights. Id. Thus, concludes INA, because the CDSOA “clearly burdens political speech,” and “is not viewpoint neutral” it must be analyzed under a strict scrutiny analysis (restriction must be narrowly tailored to serve a compelling governmental interest in the least restrictive manner possible). INA Amicus Brief at 15-16 (citing Republican Party of Minnesota v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)). 2 Imposition of a Viewpoint-Based Eligibility Requirement For A Government Subsidy Plaintiff and Amicus Giorgio argue that CDSOA distributions constitute a government subsidy, and conditioning eligibility for that subsidy on adherence to a particular viewpoint violates the First Amendment. Giorgio cites Perry v. Sindermann, supra and Rosenberger, supra, for the proposition that “unconstitutional targeting of particular viewpoints is known as ‘viewpoint discrimination’ and is presumptively unconstitutional.” Amicus Curiae Brief of Giorgio Foods Inc. (“Giorgio Amicus Brief’) at 10. Giorgio argues that “viewpoint discrimination is so insidious that it is presumptively invalid,” even without application of strict scrutiny. Giorgio Amicus Brief at 11 (citing Rosenberger, 515 U.S. at 828-29, 115 S.Ct. 2510; Velazquez, 531 U.S. at 533, 121 S.Ct. 1043; Baird v. State Bar of Ariz., 401 U.S. 1, 7, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971)) (“... a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.”). Because an exception allows the government to impose its viewpoint when it is the speaker or private parties are promoting the government’s message, Velazquez, 531 U.S. at 541, 121 S.Ct. 1043, Giorgio also argues the exception is inapplicable because the CDSOA targets private speech only and does not provide for any sort of governmental message. Giorgio Amicus Brief at 15-16 (citing Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). 3 Overbroad Burden on Speech in a Limited Public Forum Amicus Giorgio also argues that the ITC investigative process necessarily creates a limited public forum for political speech. Giorgio Amicus Brief at 17. This is necessarily so, Giorgio says, because “[t]he ability of individual domestic producers to speak freely, without fear of a governmental penalty ... is crucial to the ability of [ITC and Commerce] to carry out their statutory functions.” Id. Although the government needs not create or maintain such a forum, once it does so, Giorgio argues, the government may not impose its own viewpoint or any content based restriction on speech unless it is narrowly drawn to effectuate a compelling state interest. Id. (citing Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510). Giorgio claims that by creating a direct financial incentive for petition support, the CDSOA distorts viewpoints received by the ITC on an important issue of public policy, and uses the forum created “in an unconventional way to suppress speech inherent in the nature of the medium .... ” Giorgio Amicus Brief at 20 (citing Velazquez, 531 U.S. at 543, 121 S.Ct. 1043). The support requirement, Giorgio says, is not narrowly tailored to further a compelling government interest, because its expressed objective is to compensate domestic industry and workers for economic injury, an objective which could be attained without reference to support or opposition to a political question. Giorgio Amicus Brief at 21-22. B Arguments Supporting Constitutionality of the CDSOA Defendant United States and Amicus CSUSTL attempt to both refute the arguments of Plaintiff and its supporting Ami-ci, and raise additional arguments in support of their proposition that the CDSOA meets constitutional muster. Those arguments are discussed in summary below. 1 The Spending Clause Endows Congress With Broad Authority In Federal Assistance Programs The Government and Amicus CSUSTL argue that under the Constitution’s Spending Clause, Congress is given broad authority to condition receipt of federal funds in order to further policy objectives. Supplemental Brief at 19 (citing United States v. American Library Assoc., Inc., et al., 539 U.S. 194, 203, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003)); CSUSTL Amicus Brief at 26. They say that broad authority was clarified in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936), and incident to it Congress may attach conditions on the receipt of federal funds. Supplemental Brief at 20 (citing South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)); CSUSTL Amicus Brief at 26. Accordingly, they claim, the CDSOA’s support requirement meets constitutional muster. The CDSOA proponents then argue that the support requirement has “... an important non-speech purpose of ... designating a class of beneficiaries ... affected by foreign dumping and subsidization and who actively supported the imposition of antidumping duties.” Supplemental Brief at 23. They argue that nothing in the CDSOA prohibits someone from indicating support on the questionnaire while advocating publicly against it. Id. at 23-24 Finally, says the Government, the CDSOA is not subject to strict scrutiny, Regan v. Taxation With Representation of Washington, 461 U.S. 540, 547, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), because it does not “burden a fundamental right.” Supplemental Brief at 28. It bases that proposition on its arguments above, and those following that it is neither “viewpoint discrimination” nor an “unconstitutional condition.” Id. Thus, it says, the support requirement need only be “rationally related to a legitimate government interest”; a standard “easily satisfied,” because it is a “reasonable and rationale[sic] way to select the members of the domestic industry most affected by foreign dumping and subsidization” Id. at 28. 2 The Support Requirement Is Not Viewpoint Discrimination The Government argues Congress may selectively fund domestic producers affected by unfair trade and may define the program’s limits. Supplemental Brief at 30 (citing Rust v. Sullivan, 500 U.S. at 194, 111 S.Ct. 1759). It rests that argument on the proposition that “Congress rationally assumed that domestic producers who did not support the imposition of antidumping duties had no need to share in the total duties collected as a result of the antidumping duty order.” Supplemental Brief at 31. 3 The Support Requirement Does Not Burden Speech in A Public Forum Defendant and CSUSTL both cite American Library, 539 U.S. at 204, 123 S.Ct. 2297, for the proposition that public forum principles are out of place here because, it says, there is no forum at issue in this case because the ITC questionnaire is exclusively a mechanism for presentation of views to the government. Supplemental Brief at 33; CSUSTL Amicus Brief at 18-19. A designated public forum, says the Government, is created only when it, by fiat, makes an affirmative choice to open up its property for use as a public forum. Supplemental Brief at 34 (citing Perry Educ. Assn., 460 U.S. at 46, 103 S.Ct. 948). Because questionnaire responses are afforded proprietary treatment by the ITC, says Defendant, there is simply no forum at issue. Id. at 35. CSUSTL, in discussing the same point, argues that “[t]he underlying purpose of the ITC’s investigation is not to facilitate the expression of diverse views but, rather, to make a discrete inquiry based on record evidence and pursuant to statutory criteria”. CSUSTL Amicus Brief at 19 (emphasis in original). The lack of a forum distinguishes this case from Rosenberger, says Defendant, because the CDSOA was not designed to facilitate any kind of speech. Supplemental Brief at 35. Since the spending here is not “aimed at the suppression of dangerous ideas,” says the Government, its power to encourage actions in the public interest is far broader. Id. at 36 (citing Regan 461 U.S. at 550, 103 S.Ct. 1997). The essence, at least, of CSUSTL’s Amicus Brief on this issue may be found in a footnote. There, CSUSTL argues: ... INA is factually incorrect in arguing that the “support” requirement “penalizes” CDSOA recipients by requiring them to “surrender” or “relinquish” their constitutional rights. The CDSOA does not require recipients to do anything — it is simply a spending program wherein Congress has chosen to provide funds to those producers that indicate concern with perceived unfairly traded imports. CSUSTL Amicus Brief at 23 n. 65 (italicized emphasis in original, underlined emphasis added) (internal citations omitted). 4 The Support Requirement Does Not Implicate Political Speech The Government finds misplaced Plaintiffs and Amici’s argument that the support requirement extracts political speech from the domestic industry. Political speech, Defendant says, is limited to “speech in connection with the electoral process.” Supplemental Brief at 37 (citing Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). Defendant says political speech includes “discussion of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political process.” Id. (quoting Id.). It cites no authority for the proposition that political speech does not include antidumping policy. 5 The Support Requirement Does Not Impose An Unconstitutional Condition On Receipt of Federal Funds Finally, Defendant and CSUSTL argue no unconstitutional condition arises from the support requirement because “unconstitutional conditions jurisprudence” is implicated only when the Government is expending funds to encourage or facilitate views from private speakers. Supplemental Brief at 38 (citing American Library, 539 U.S. at 213 n. 7, 123 S.Ct. 2297); CSUSTL Amicus Brief at 26 et seq. Defendant agrees that under the doctrine government may not deny a benefit on a basis that infringes a person’s constitutionally protected speech even if he has no entitlement to the benefit. Supplemental Brief at 38 (citing Board of County Comm’rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996)), but argues its inapplicability based on distinguishing Speiser, 357 U.S. at 521, 78 S.Ct. 1332; Perry v. Sindermann, 408 U.S. at 597, 92 S.Ct. 2694; and Velazquez, 531 U.S. at 547-48, 121 S.Ct. 1043. The Government finds them inapplicable because, it says, the doctrine is not implicated where the program expends funds to encourage a diversity of views from private speakers. Supplemental Brief at 40 (citing American Library, 539 U.S. at 213, n. 7, 123 S.Ct. 2297) And, it says, because the CDSOA is not designed to encourage such a diversity of views or advance any message. In addition, Defendant says, since unconstitutional conditions cases involve situations where imposed conditions effectively prohibit the recipient from engaging in protected conduct outside the federally funded program, the doctrine does not apply because the CDSOA does not prohibit recipients from freely rejecting in public the statement they made in the questionnaire response. Supplemental Brief at 42 (citing Rust, 500 U.S. at 197, 111 S.Ct. 1759). CSUSTL makes essentially this same argument stating [t]he CDSOA’s “support” requirement merely affirms the limits of the program’s scope by allocating funds to affected domestic producers who express a need for relief, no more and no less. CSUSTL Amicus Brief at 30 (emphasis in original). VIII The Standard By Which Plaintiffs Motion for Summary Judgment Must be Judged The Court of International Trade will grant a party summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” USCIT R. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In its evaluation and analysis of the motions, “[t]he Court may not resolve or try factual issues.” Phone-Mate, Inc. v. United States, 12 CIT 575, 577, 690 F.Supp. 1048 (1988), aff'd, 867 F.2d 1404 (Fed.Cir.1989). In order to determine whether there exists a genuine issue of material fact, the court reviews the proffered evidence “in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.” Dow Agro Scis. LLC v. Crompton Corp., Appeal No.2005-1524, 2006 U.S.App. LEXIS 11320 at *10-11 (Fed.Cir. May 5, 2006) (quoting Chiuminatta Concrete Concepts v. Cardinal Indus., 145 F.3d 1303, 1307 (Fed.Cir.1998)) (quotations omitted). Absent a finding of any “disputes over facts that might affect the outcome of the suit under the governing law,” summary judgment will be entered for the moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. IX Discussion As discussed above, Chez Sidney’s only remaining claim for relief must survive or fail on its argument that the CDSOA unconstitutionally violates its First Amendment rights to free speech. The discussion which follows deals only with that issue and the standing of Plaintiff to raise it. It is with the standing issue that the court must first begin, although it is one easily determined, given the concessions of Defendant at oral argument. A Chez Sidney Has Standing to Makes Its Claim Under the First Amendment In its Supplemental Brief, the Government argued strenuously that Chez Sidney lacked standing to raise a First Amendment argument. Its initial standing argument centered on the position that: The timing of events is the fundamental flaw with Chez Sidney’s First Amendment challenge. The alleged injury— that is, the freedom to express a position on the May 5, 1997 questionnaire — occurred more than three years prior to the enactment of the CDSOA. Pub.L. No. 106-387 at § 1002. Given the timing of these events, Chez Sidney cannot plausibly claim that its freedom of speech was restrained or suppressed when the source of this alleged injury was not even enacted when the expression was made. At the time it answered the questionnaire, Chez Sidney had the choice to express any position it desired, without fear of Government penalty, coercion, or the denial of benefits. Thus, because no injury to the right of free speech occurred at the time the expression was made, Chez Sidney has no standing to assert a claim under the First Amendment. Supplemental Brief at 13. At oral argument, the Government abandoned its standing argument to the extent Chez Sidney was seeking already existent damages. The Government continued to argue, however, that Plaintiff lacked standing as to claims of a “chilling effect” on First Amendment rights of expression since the CDSOA was passed after Plaintiff asserted its positions in response to the ITC questionnaires. The Government’s argument, however, may ignore the point that, under American law, after the fact punishment for the exercise of free speech is every bit as pernicious as any form of prior restraint. Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 969, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). It is, in any case, apparently mooted by the 2006 repeal of the CDSOA. 109 Pub.L. No. 171, 1120 Stat. 4 (February 8, 2006). Plaintiff simply does not, in the future, need to worry about harm accruing to it from any response to an ITC questionnaire; there will be no payments given or withheld as a result of any answer it makes. Accordingly, given the Government’s concession and the discussion above, an analysis of the merits of Plaintiffs claims is required. B First Amendment Analysis 1 The General First Amendment Background To Cases Involving Statements Of Opinion The essence of this case is crystalized in the Government’s statement that “the ITC determined that Chez Sidney did not show the requisite support for the petition ....” Supplemental Brief at 10 (emphasis added). At the core of this nation’s version of democracy is the ability to speak about proposed government actions on pressing public issues without fear of government retribution and without the requirement that a particular position be supported. Quite arguably the true American Revolution began not in the 1770’s, but in 1735 at the trial of John Peter Zenger, when we began to diverge from the British law of seditious libel. The jury summation by Andrew Hamilton still speaks to the Government’s position in this case: [I]t is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow. John Peter Zenger Trial, A Brief Narrative of the Case and Trial of John Peter Zenger, TRIAL RECORD, http://www.law.umkc.edu/faculty/pro-jects/ftrials/zenger/ zengerrecord.html (last visited on July 9, 2006). This nation is committed to a robust debate on public issues. New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Accordingly, “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” FCC v. League of Women Voters, 468 U.S. 364, 414, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (Stevens J. dissenting). The court must determine whether those First Amendment limitations apply when government regulates speech directed at the core of one of the most contentious issues now debated among nations, and whether the government may avoid those limits through payment to persons who express a favored viewpoint. While New York Times v. Sullivan dealt with a libel claim by a public official, its discussion of the general freedom of expression accorded under the Constitution speaks squarely to the key issues here at stake: The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498. “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117. “It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,” Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192, and this opportunity is to be afforded for “vigorous advocacy” no less than “abstract discussion.” N.A.A.C.P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405. The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943). Mr. Justice Brandéis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-76, 47 S.Ct. 641, 648, 71 L.Ed. 1095, gave the principle its classic formulation: * * * :¡* * * Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law— the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open ... New York Times v. Sullivan, 376 U.S. at 269-71, 84 S.Ct. 710 (emphasis added). As stated by Justice Sutherland in West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In Hurley, 515 U.S. at 573, 115 S.Ct. 2338, the Court notes that “the fundamental rule of protection under the First Amendment [is] that a speaker has the autonomy to chose the content of his oum message.” Id. (emphasis added). The Court goes on to note that outside the context of commercial advertising the State “may not compel affirmance of a belief with which the speaker disagrees” ... [n]or is the rule’s benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful. Id. (citations omitted). 5¡< * * * * * The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. Id. at 579, 115 S.Ct. 2338. The Government’s argument that domestic industry’s First Amendment Rights are not implicated seems to be answered by the Court’s statement in Pacific Gas & Elec. Co. v. Pub. Util. Comm’n. of Cal. 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) that: That kind of forced response is antithetical to the free discussion that the First Amendment seeks to foster. For corporations as for individuals, the choice to speak includes within it the choice of what not to say. And we have held that speech does not lose its protection because of the corporate identity of the speaker. Were the government freely able to compel corporate speakers to propound political messages with which they disagree, this protection would be empty, for the government could require speakers to affirm in one breath that which they deny in the next. Id. (emphasis added) (citations omitted). Despite those strictures, however, there do exist circumstances in which governmental authorities may impose limits on the free expression of political ideas and positions. Given the articulated value of such expression to our political system, however, they are bound by stringent limitations, and in some cases, strict judicial review. In essence, if “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting), then the worst way to determine whether a petition for government action has public approval is to pay supporters of only one side. Id. 2 In Some Circumstances The Government May Legitimately Reward or Penalize Otherwise Protected Speech The Supreme Court has carved out a clear area in which the nature of speech is such that government may limit expression through indirect means. Government may also, in other more circumscribed ways, limit speech in a direct fashion when its interest reaches a sufficiently high plateau. a Under The American Library Doctrine, A Government Funding Program May Refuse To Fund Protected Activity If It Does Not Impose A Penalty On That Act One core of the Government’s argument is that, based on American Library, under the Constitution’s Spending Clause, Congress is given broad authority to condition receipt of federal funds in order to further policy objectives. Supplemental Brief at 2. The Court has provided guidance and distinguishing circumstances in which Congress may use funding programs for legitimate governmental aims from those in which it actually penalizes protected activity. See American Library, 539 U.S. at 203, 123 S.Ct. 2297; see also Rumsfeld v. Forum for Academic & Institutional Rights, — U.S.-, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). In American Library, the Court held that requiring public libraries receiving federal funds to install Internet filters did not force them to violate patrons’ First Amendment rights, and was a valid exercise of Congressional spending power because in a funding program intended to help public libraries fulfill traditional roles of obtaining appropriate quality material for educational and informational purposes, Congress could insist that the public funds be spent for the purposes for which they were authorized. Id. at 204-09, 123 S.Ct. 2297. The Court noted, citing South Dakota v. Dole, 483 U.S. at 206, 107 S.Ct. 2793, that “Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.” American Library, 539 U.S. at 203, 123 S.Ct. 2297. Chief Justice Rehnquist, writing for the majority, distinguished Rosenberger v. Rector, sivpra, noting: In Rosenberger, we considered the “Student Activity Fund” established by the University of Virginia that subsidized all manner of student publications except those based on religion. We held that the fund had created a limited public forum by giving public money to student groups who wished to publish and therefore could not discriminate on the basis of viewpoint. The situation here is very different. A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of the books to speak. It provides Internet access, not to “encourage a diversity of views from private speakers,” but for the same reasons it offers other library resources: to facilitate research, learning and recreational pursuits by furnishing materials of requisite and appropriate quality. Id. at 206, 123 S.Ct. 2297. (emphasis added) (internal citations omitted). What distinguishes American Library from Rosenberger, is what, with even more force, distinguishes the case here from American Library. As is demonstrated below, in order to receive CDSOA funds, members of an affected domestic industry must not only publicly support a particular viewpoint, they are required by law to give their honest opinion even if it adversely affects their ability to receive CDSOA funds. Thus, not only does the Government have to determine, in a neutral fashion, whether members of domestic industry support a petition, it must also provide the forum in which to do so, and require participants to honestly state their views. In Rumsfeld, the Court held that Congress could properly deny federal funding to an institution of higher education which denied the military access for recruiting purposes. 126 S.Ct. at 1297. The Court noted that in American Library it held that “the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit,” but that because Congress could directly impose such requirements it could do so indirectly through a funding mechanism. Id. at 1307. The Court noted, however, that: The [military access] Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may say. Rumsfeld, 126 S.Ct. at 1307 (emphasis in original) (internal citations omitted). The Court’s rationale in Rumsfeld is strongly distinguishable from the position of a questionnaire responding member of domestic industry. As discussed below, if they answer a questionnaire at all, not only must that responder honestly state their opinion, it appears they would be subject to criminal prosecution for doing otherwise. Thus, the Spending Clause cases upon which the Government relies are inappo-site to the CDSOA. Without that exception, it is to the standard by which the CDSOA’s speech restriction must be judged that this analysis must now turn, b Where A Funding Exception Is Inapplicable, Governmental Restrictions On Political Speech Are Subject To Stringent Judicial Review If American Library is inapplicable, the CDSOA must satisfy a very high standard of review. It fails that test, and as a result its application is fatal to the Government’s arguments. As Justice Scalia noted in his dissent in Arkansas Writers’ Project, Inc. v. Rag-land, The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily “infringe” a fundamental right is that — unlike direct restriction or prohibition — such a denial does not, as a general rule, have any significant coercive effect. It may, of course, be manipulated so as to do so, in which case the courts will be available to provide relief. But that is not remotely the case here. It is implausible that the 4% sales tax, generally applicable to all sales in the State with the few enumerated exceptions, was meant to inhibit, or had the effect of inhibiting, this appellant’s publication. Perhaps a more stringent, prophylactic rule is appropriate, and can consistently be applied, when the subsidy pertains to the expression of a particular viewpoint on a matter of political concern — a tax exemption, for example, that is expressly available only to publications that take a particular point of view on a controversial issue of foreign policy. Political speech has been accorded special protection elsewhere. 481 U.S. at 221, 107 S.Ct. 1722 (emphasis added). Justice Scalia has precisely described the situation which must be analyzed here ... the need for a more stringent, prophylactic rule where a government payment rewards a particular view on a controversial issue of public policy. “Where a government restricts the speech of a private person, the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest.” Consol. Edison Co. v. Pub. Serv. Comm’n of New York, 447 U.S. 530, 540, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980). It is clear from the discussion above, under American Library and Rumsfeld, that compelled speech principles apply when government offers a gratuitous benefit conditioned on surrender of free speech. In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, the Supreme Court found that the failure to renew a non-tenured professor’s contract at a state university based on his public criticism of the university violated his right of free speech. The Court stated: For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, ... [the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Such interference with constitutional rights is impermissible. Id. at 597, 92 S.Ct. 2694 (internal citations omitted); see also Arkansas Writers’ Project, 481 U.S. at 221, 107 S.Ct. 1722 (sales tax exemption for certain magazines unconstitutionally conditioned tax status on content discriminating among messages); Rutan, 497 U.S. at 62, 110 S.Ct. 2729 (conditions of public employment on political affiliations violated First Amendment); and Velazquez, 531 U.S. at 533, 121 S.Ct. 1043 (government could not condition subsidization of legal aid attorneys on limitation of making of particular arguments). When speech is burdened by government regulation because of its content, including by the denial of a benefit of a constitutionally protected interest that regulation is subject to strict scrutiny unless it falls within the exemptions previously discussed. See Perry v. Sindermann, 408 U.S. at 597, 92 S.Ct. 2694; see also Rumsfeld, 126 S.Ct. at 1307. Under the strict scrutiny standard, the government must show that the burden it imposes is “necessary to serve a compelling state interest,” and that it is “narrowly drawn to achieve that end.” R.A.V. v. City of St. Paul, 505 U.S. at 403, 112 S.Ct. 2538 (quoting Simon & Schuster v. Members of New York State Crime Victims Bd., 502 U.S. 105, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)). [T]he “danger of censorship” presented by a facially content-based statute, requires that that weapon be employed only where it is “