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First Amendment — Free Speech Clause: Unconstitutional Conditions on Speech

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Amdt1.7.13 Unconstitutional Conditions on Speech

Amdt1.7.13.1 Overview of Unconstitutional Conditions Doctrine

The “unconstitutional conditions” doctrine reflects the Supreme Court’s repeated pronouncement that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”1 Although the doctrine is not limited to the First Amendment context,2 many of the leading Supreme Court cases on unconstitutional conditions have involved the freedom of speech. While the doctrine does not have a formal test,3 the basic principle is that the government normally may not require a person, as a condition of receiving a public benefit, to relinquish a constitutional right—most notably, by speaking or refraining from speaking on a certain subject.4 How this principle applies in a particular legal challenge depends in part on the “benefit” offered by the government, which can take different forms, including public employment, a tax exemption, or government funding.5

Notes
  1. Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“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, there are some reasons upon which the government may not rely.”). ↩
  2. Cf., e.g., Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987) (conditioning a building permit’s issuance upon an uncompensated, public right-of-access across the permit applicant’s property violated the Fifth Amendment’s Takings Clause); Donald v. Phila. & Reading Coal & Iron Co., 241 U.S. 329, 332 (1916) (holding that Wisconsin exceeded its authority by revoking out-of-state corporations’ business licenses for removing lawsuits brought by Wisconsin citizens to federal court). See Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 5 (1988) (explaining that the doctrine is not “anchored to any single clause of the Constitution,” and has been invoked in cases involving Congress’s spending power, the states’ police power, individual liberties, property rights, substantive due process, and equal protection). ↩
  3. See, e.g., Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1415, 1419 (1989) (positing that the unconstitutional conditions doctrine “serves a limited but crucial role” in that it “identifies a characteristic technique by which government appears not to, but in fact does burden [individual] liberties, triggering a demand for especially strong justification by the state”); Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 GEO. L.J. 1, 5–6, 10 (2001) (advancing a “unified theory” of unconstitutional conditions that “centers on coercion” but also accounts for “particularistic constitutional doctrine”). ↩
  4. Perry, 408 U.S. at 597. Some legal scholars have argued that this principle is rooted in substantive due process considerations. See, e.g., Zygmunt J.B. Plater & Michael O’Loughlin, Semantic Hygiene for the Law of Regulatory Takings, Due Process, and Unconstitutional Conditions: Making Use of a Muddy Supreme Court Exactions Case, 89 U. COLO. L. REV. 741, 745, 796 (2018) (situating the unconstitutional conditions inquiry for permit exactions under Fourteenth Amendment substantive due process rather than the Fifth Amendment’s Takings Clause). ↩
  5. Licenses and permits sometimes are considered a government benefit that is subject to the unconstitutional conditions doctrine. Compare Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (discussing the “special application” of the unconstitutional conditions doctrine in the context of land-use permits), with Matal v. Tam, No. 15-1293, slip op. at 19 (U.S. June 19, 2017) (plurality opinion) (concluding that unconstitutional conditions cases did not apply to a restriction on federal trademark registration). However, the state interests at issue in licensing may justify restrictions on protected speech and expression in some circumstances. See, e.g., California v. La Rue, 409 U.S. 109, 118 (1972) (upholding a state regulation prohibiting nude dancing in establishments licensed by the state to serve alcohol). ↩

Amdt1.7.13.2 Conditions of Public Employment

Some of the earliest unconstitutional conditions cases involving free speech arose in the public employment context. Perry v. Sindermann, a 1972 case, involved a state college’s decision not to renew the contract of a professor who had publicly criticized the college administration’s policies.1 The Supreme Court held that, even though the professor did not have a “contractual or tenure right to re-employment,” he could still contend that the college impermissibly retaliated against him for exercising his First Amendment rights.2 The Court reasoned that “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,” thus allowing the government to “‘produce a result which [it] could not command directly.’”3

The Court reiterated its skepticism of “indirect” constraints on freedom of speech in its 1976 decision in Elrod v. Burns. In Elrod, the Court ruled unconstitutional a county sheriff ’s practice of firing non-policymaking employees solely because of their political party affiliation after a change in leadership.4 Writing for a plurality of the Court, Justice William Brennan reasoned that the “threat of dismissal” for failure to support “the favored political party” “unquestionably inhibits protected belief and association.”5 Like the Perry Court, the Elrod plurality rejected the “notion that because there is no right to a government benefit, such as public employment, the benefit may be denied for any reason.”6 Instead, it concluded that the government cannot use an indirect means (that is, the benefit of public employment) “to achieve what it may not command directly” (that is, support for a particular political party).7 While acknowledging the long history of patronage politics in America,8 the plurality evaluated the dismissal practice under the “exacting” scrutiny standard used to judge the validity of other “significant impairment[s]” of free speech rights.9 If patronage dismissal was to “survive constitutional challenge,” Justice William Brennan wrote, “it must further some vital government end by a means that is least restrictive of freedom of belief and association.”10 The plurality rejected the argument that patronage dismissals further “government effectiveness and efficiency.”11 While acknowledging that the practice might foster “political loyalty” or preserve aspects of the democratic process, the plurality concluded that the practice was not narrowly tailored to achieve these ends.12

Following Elrod, the Court clarified in Branti v. Finkel that “the ultimate inquiry” in evaluating a patronage dismissal “is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position.”13 Instead, “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”14 In the case of an assistant public defender, the Court found it “manifest” that the attorney’s continued employment could not “properly be conditioned upon his allegiance to the political party in control of the county government.”15 The Court reasoned that the “primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State”—a duty untethered to “partisan political interests.”16

The Court extended the reasoning of Elrod and Branti to other forms of political patronage decisions in Rutan v. Republican Party of Illinois.17 The Rutan Court held that a state governor’s office could not constitutionally base “promotion, transfer, recall [after a layoff], and hiring decisions involving low-level public employees . . . on party affiliation and support.”18 The Court concluded that, like patronage dismissals, these practices significantly infringed public employees’ First Amendment rights.19 The Court then held that the political patronage practices were not “narrowly tailored to further vital governmental interests.”20 Citing less speech-restrictive alternatives, the Court reasoned that a “government’s interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient,” and its “interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views.”21

Notes
  1. Perry v. Sindermann, 408 U.S. 593, 595 (1972). ↩
  2. Id. at 596–98 (reaffirming the holdings of Shelton v. Tucker, 364 U.S. 479 (1960) and Keyishian v. Board of Regents, 385 U.S. 589 (1967)). ↩
  3. Id. at 597 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The Court remanded the case for consideration of whether the college, in fact, declined to renew the professor’s contract on an “impermissible basis” and whether due process entitled the professor to a hearing on the grounds for the college’s decision. Id. at 598, 603. ↩
  4. Elrod v. Burns, 427 U.S. 347, 353 (1976) (plurality opinion); see also id. at 374–75 (Stewart and Blackmun, JJ., concurring in the judgment) (“The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.”). ↩
  5. Id. at 359 (plurality opinion). ↩
  6. Id. at 360. ↩
  7. Id. at 361. ↩
  8. Id. at 362. ↩
  9. Id. (citing Buckley v. Valeo, 424 U.S. 1, 64–65 (1976); NAACP v. Alabama, 357 U.S. 449, 460–61 (1958)). ↩
  10. Id. at 363. ↩
  11. Id. at 364–66. ↩
  12. See id. at 367, 369. ↩
  13. Branti v. Finkel, 445 U.S. 507, 518 (1980). ↩
  14. Id. ↩
  15. Id. at 519. ↩
  16. Id. at 519. ↩
  17. Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); see also O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712, 726 (1996) (extending “the protections of Elrod and Branti” to situations “where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance”). ↩
  18. Rutan, 497 U.S. at 65. ↩
  19. Id. at 73. ↩
  20. Id. at 74. ↩
  21. Id.; see also id. at 78 (finding no “vital” governmental interest in patronage hiring practices for the same reasons). ↩

Amdt1.7.13.3 Conditions on Tax Exemptions

The Supreme Court has treated tax exemptions as a kind of government subsidy subject to the unconstitutional conditions doctrine. In an early unconstitutional conditions case, Speiser v. Randall, the Supreme Court considered a California law requiring applicants for a veterans’ property tax exemption to sign an oath that they “do not advocate the overthrow” of the federal or state government “by force or violence or other unlawful means.”1 The Court stated that to “deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.”2 In the Court’s view, such a requirement would “coerc[e] the claimants to refrain from the proscribed speech.”3

In another decision concerning tax exemptions, Regan v. Taxation with Representation of Washington (TWR), the Supreme Court held that the government need not subsidize private entities’ speech to comply with the First Amendment.4 Specifically, the TWR Court upheld the Internal Revenue Code’s ban on “substantial lobbying” activities by tax-exempt Section 501(c)(3) organizations.5 In the statutory scheme before the Court, both Section 501(c)(3) “charitable” and Section 501(c)(4) “social welfare” organizations were exempt from federal taxation.6 However, only donations to Section 501(c)(3)s were tax deductible.7 The Supreme Court held that the “substantial lobbying” restriction on Section 501(c)(3) organizations was not an unconstitutional condition.8 Unlike in Speiser where the taxpayer had to refrain from speaking in order to qualify for a tax exemption, the Court reasoned, TWR could engage in substantial lobbying activities, while still qualifying as a tax-exempt organization (albeit not one that could receive tax-deductible contributions).9 The Court concluded that the lobbying restriction merely reflected Congress’s decision “not to subsidize” substantial lobbying.10

Notes
  1. Speiser v. Randall, 357 U.S. 513, 515 (1958) (quoting Cal. Rev. & Tax Code § 32 (1953)). ↩
  2. Id. at 518. ↩
  3. Id. at 519. The Speiser Court did not hold that speech advocating the overthrow of the government is protected by the First Amendment. Rather, it held that the process of claiming the California exemption was unconstitutionally coercive because it would potentially chill protected speech. In the Court’s view, the public would be wary of “the line separating the lawful and the unlawful,” and would therefore “steer far wider of the unlawful zone.” Id. at 522–29, ↩
  4. Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983). ↩
  5. Id. at 551. ↩
  6. Id. at 554; see also 26 U.S.C. § 501(c)(3)–(4). ↩
  7. Taxation with Representation of Wash., 461 U.S. at 554. ↩
  8. Id. at 551 ↩
  9. Id. at 544. ↩
  10. Id. at 549–51; see also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (holding that the exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses did not violate the First Amendment). ↩

Amdt1.7.13.4 Conditions on Federal Funding

From 1980 to 2020, much of the Court’s jurisprudence on free-speech-related unconstitutional conditions developed in the context of conditions on federal funding, specifically federal grant programs.1 These cases proceeded from the principle, identified in Regan v. Taxation with Representation of Washington,2 that the government is not required to subsidize speech with which it does not agree.

Notes
  1. The Supreme Court has found unconstitutional funding conditions outside of the free-speech context as well. E.g., Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). See Intro.7.3 Federalism and the Constitution; ArtI.S8.C1.2.1 Overview of Spending Clause. ↩
  2. 461 U.S. 540 (1983). ↩

Amdt1.7.13.5 Restrictions on Editorializing

In FCC v. League of Women Voters of California, the Court considered a condition prohibiting any “noncommercial educational broadcasting station” that received certain federal grants from “editorializing.”1 The Court rejected the Government’s argument that this condition was a permissible exercise of Congress’s spending power in the form of a decision not to “subsidize” editorializing by public broadcast stations.2 Unlike the organization in TWR, the Court reasoned, a regulated station had no way “to segregate its activities according to the source of its funding,” creating a complete bar to editorializing.3

Finding TWR inapposite, the Court analyzed the condition as a restriction on a broadcaster’s speech according to First Amendment standards.4 After affirming that Congress has more leeway to regulate broadcasting than other types of media such as newspapers,5 the Court stated that the condition against editorializing was constitutional only if it was “narrowly tailored to further a substantial governmental interest.”6 After considering three different potential government interests, the Court ultimately concluded that the condition failed to meet this standard.7 First, the Court reasoned, the condition did not substantially advance an interest in protecting grantee-stations from “governmental coercion and interference” that might be associated with federal funding, nor was it narrowly tailored to further that asserted interest.8 Second, the Court recognized the government’s interest in preventing viewer or listener confusion about the source of the editorializing, but concluded that a less-restrictive disclaimer requirement would have served this interest as effectively.9 Third, the Court reasoned that the condition was not narrowly tailored to Congress’s substantial interest in “ensuring adequate and balanced coverage of public issues”—an interest “already secured by a variety of other regulatory means that intrude far less drastically upon the ‘journalistic freedom’ of noncommercial broadcasters.”10

Notes
  1. FCC v. League of Women Voters of Cal., 468 U.S. 364, 366 (1984) (internal quotation marks omitted) (quoting 47 U.S.C. § 399). The condition applied to recipients of grants from the Corporation for Public Broadcasting, a private, nonprofit corporation established by the Public Broadcasting Act of 1967 to, among other duties, “make grants to local broadcasting stations that would ‘aid in financing local educational . . . programming costs of such stations.’” Id. at 369 (quoting 47 U.S.C. § 396(g)(2)(C) (1976 ed.))). ↩
  2. Id. at 399. ↩
  3. Id. at 400. ↩
  4. Id. at 374–80. ↩
  5. See id. at 375–80 (reasoning that due to “spectrum scarcity” (that is, the limited number of broadcast frequencies) and other factors, “the broadcasting industry plainly operates under restraints not imposed upon other media,” and stating that if “a similar ban on editorializing [were] applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment”). ↩
  6. Id. at 380. See Amdt1.7.10.1 Overview of Media Regulation. ↩
  7. League of Women Voters of Cal., 468 U.S. at 398–99. ↩
  8. Id. at 390 (reasoning that several other aspects of the act “substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern”). In the Court’s view, the condition also did “virtually nothing . . . to reduce the risk that public stations will serve solely as outlets for expression of narrow partisan views” from private factions. Id. at 397. ↩
  9. Id. at 395 (suggesting a disclaimer that “the editorial represents only the view of the station’s management and does not in any way represent the views of the Federal Government or any of the station’s other sources of funding”). ↩
  10. Id. at 380, 397–98 (quoting Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 110 (1973)). ↩

Amdt1.7.13.6 Selective Funding Arrangements

Because the Constitution does not require the government to subsidize speech,1 the Court has held that the government may “selectively fund a program to encourage certain activities,” including activities that involve speech, “without at the same time funding” other activities.2 The Court announced this rule in 1991 in Rust v. Sullivan, a case involving funding for family-planning services under Title X of the Public Health Service Act.3 That act provides that no funds appropriated under Title X “shall be used in programs where abortion is a method of family planning.”4 For the Supreme Court, there was “no question” that this restriction was constitutional.5 The Court held that the government made a permissible choice to “fund one activity to the exclusion of the other.”6

The challenged regulations implementing this statutory restriction posed a closer question, but the Court ultimately upheld the regulatory conditions as well. One provision barred a Title X project from providing “counseling concerning the use of abortion as a method of family planning” or “referral[s] for abortion as a method of family planning.”7 The Court rejected the argument that the prohibition on abortion counseling and referrals discriminated on the basis of viewpoint.8 The Court reasoned that the government was not “suppressing a dangerous idea”; it was prohibiting “a project grantee or its employees from engaging in activities outside of the project’s scope”; the program was “designed” to “encourage family planning,” not fund “prenatal care.”9 The Court concluded that “when the Government appropriates public funds to establish a program[,] it is entitled to define the limits of that program.”10

In addition, the Court upheld provisions in the regulations prohibiting Title X projects from “engaging in activities that ‘encourage, promote or advocate abortion as a method of family planning’” and requiring Title X projects to be “‘physically and financially separate’ from prohibited abortion activities.”11 In the Court’s view, the regulations did not “force the Title X grantee to give up abortion-related speech; they merely require[d] that the grantee keep such activities separate and distinct from Title X activities,” thereby ensuring that public funds are “spent for the purposes for which they were authorized.”12 In other words, the regulations governed “the scope of the Title X project’s activities,” leaving “the grantee unfettered in its other activities.”13

Building on Rust, the Court in National Endowment for the Arts v. Finley suggested that including some subjective criteria in competitive grantmaking does not necessarily amount to impermissible viewpoint discrimination.14 There, the Court upheld a federal statute requiring the NEA, in awarding grants, to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”15 The Court concluded that this “advisory language” imposed “no categorical requirement” to reject applicants whose works did not meet the “decency and respect” provision.16 Thus, the Court held, the provision did not “introduce considerations that, in practice, would effectively preclude or punish the expression of particular views.”17 Instead, the Court concluded, the provision “merely adds some imprecise considerations to an already subjective selection process.”18 As such, it did not violate the First Amendment on its face.19

Notes
  1. Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983); see, e.g., Lyng v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of America, 485 U.S. 360 (1988) (holding that a condition barring households of striking workers from food stamp eligibility did “not infringe either the associational or expressive rights” of union members, reasoning that while “[e]xercising the right to strike inevitably risks economic hardship,” the First Amendment does not compel the “Government to minimize that result by qualifying the striker for food stamps”). ↩
  2. Rust v. Sullivan, 500 U.S. 173, 193–95 (1991). ↩
  3. Id. at 178. ↩
  4. Id. (quoting 42 U.S.C. § 300a-6). ↩
  5. Id. at 192. ↩
  6. Id. at 193. ↩
  7. Id. at 179 (quoting 42 C.F.R. § 59.8(a)(1) (1989)). ↩
  8. Rust v. Sullivan, 500 U.S. 173, 194 (1991). ↩
  9. Id. at 193–94 (internal quotation marks and citation omitted). ↩
  10. Id. at 194. ↩
  11. Id. at 180, 196 (quoting 42 C.F.R. §§ 59.9, 59.10(a)). ↩
  12. Id. at 196 ↩
  13. Id. ↩
  14. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998). ↩
  15. Id. at 572 (quoting 20 U.S.C. § 954(d)(1)). ↩
  16. Id. at 581. ↩
  17. Id. at 583. ↩
  18. Id. at 589; see also id. at 585 (“Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The NEA has limited resources and it must deny the majority of the grant applications that it receives . . . . The agency may decide to fund particular projects for a wide variety of reasons. . . .”). ↩
  19. Id. at 590. The Court did not foreclose an “as-applied” challenge if, for instance, “the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints.” Id. at 587. ↩

Amdt1.7.13.7 Government’s Message Versus Private Speakers

The Court has cautioned that “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.”1 In Legal Services Corp. v. Velazquez, the Court struck down a condition on federal grants to local organizations providing free legal services to indigent clients.2 The condition prohibited grantees from representing clients in cases which “involve an effort to amend or otherwise challenge existing law” regarding “a Federal or State welfare system.”3 As interpreted by the government, the condition required lawyers working for a grantee both to decline a representation that would involve such arguments and to withdraw from a representation when such arguments “became apparent after representation was well underway.”4

The Court held that the condition was unconstitutional.5 The Court distinguished Rust, explaining that in the circumstances presented there, the government “used private speakers to transmit information pertaining to its own program”6 In other words, the government was the speaker in Rust through its program.7 In contrast, the Court reasoned, the federal program in Velazquez “was designed to facilitate private speech, not to promote a governmental message.”8 Congress funded the program so that grantees could “provide attorneys to represent the interests of indigent clients.”9 In addition, a lawyer working for a grantee speaks on her client’s behalf; she is “not the government’s speaker.”10 The condition, the Court reasoned, could prohibit lawyers from presenting “all the reasonable and well-grounded arguments necessary for proper resolution” of welfare cases, thereby “distort[ing]” the “usual functioning” of the legal system to the detriment of individual clients and the courts deciding those cases.11 The Court observed that while Congress “was not required to fund the whole range of legal representations or relationships,” it could not use funding of private speech to “suppress[ ]. . . ideas thought inimical to the Government’s own interest.”12

Notes
  1. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001). ↩
  2. Id. at 536. ↩
  3. Id. at 538 (quoting Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504, 110 Stat. 1321–53). ↩
  4. Id. at 539. ↩
  5. Id. at 549. ↩
  6. Id. at 541 (“As we said in Rosenberger, ‘when the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.’” (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995))). ↩
  7. The Velazquez Court acknowledged that the Rust Court did not explicitly rely on the government speech rationale, but noted that later Supreme Court cases “explained Rust on this understanding.” Id. See Amdt1.7.8.2 Government Speech and Government as Speaker. ↩
  8. Legal Servs. Corp., 531 U.S. at 542. ↩
  9. Id. ↩
  10. Id. ↩
  11. Id. at 543–54. ↩
  12. Id. at 548–49. ↩

Amdt1.7.13.8 Public Entities and Private Access

In 2003, the Court upheld a speech-related condition on funding for a governmental entity. The case, United States v. American Library Association (ALA), concerned two federal programs that provided rebates and grants to help public libraries provide internet access for patrons.1 A condition on both programs required recipient libraries to install filtering software to block access to pornographic sites and other material deemed harmful to minors.2 The ALA argued that this condition violated libraries’ First Amendment right to provide constitutionally protected speech to the public.3

The Court rejected ALA’s unconstitutional conditions argument without resolving whether public libraries, as governmental entities, have First Amendment rights.4 A plurality of the Court reasoned that, as in Rust, Congress was defining the limits of the programs it was funding—programs designed to help libraries “fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes.”5 More specifically, the plurality explained, the required filtering software blocks online materials that libraries traditionally would have excluded from their off-line collections.6 Echoing TWR and Rust, the plurality also concluded that the condition did not “penalize” a recipient’s decision to “provide [its] patrons with unfiltered Internet access”; it “simply reflect[ed] Congress’s decision not to subsidize” such access.7

Notes
  1. United States v. Am. Library Ass’n, 539 U.S. 194, 199 (2003) (plurality opinion). ↩
  2. Id. at 201 (citing 20 U.S.C. §§ 9134(f)(1)(A)(i), (B)(i) (2001) and 47 U.S.C. §§ 254(h)(6)(B)(i), (C)(i) (2001)). ↩
  3. Id. at 210. ↩
  4. Id. at 210–11. Although only four Justices joined the main opinion, two additional Justices concurred in the Court’s judgment. Id. at 214–215 (Kennedy, J.); id. at 215–20 (Breyer, J.). The Court also rejected the ALA’s argument that the condition exceeded Congress’s spending power by requiring public libraries to violate their patrons’ First Amendment rights. Id. at 202–08, 214 (plurality opinion). ↩
  5. Id. at 211 (plurality opinion). The plurality rejected an analogy to Velazquez, reasoning that unlike lawyers for indigent clients, public libraries “have no comparable role that pits them against the Government” such that restrictions on their speech threaten to “distort” libraries’ usual functions. Id. at 213. ↩
  6. Id. at 212. ↩
  7. Id. at 199. ↩

Amdt1.7.13.9 Conditions Exceeding the Scope of the Program

Ten years after United States v. American Library Association, in Agency for International Development v. Alliance for Open Society International, the Court considered a condition requiring recipients of federal funding for global HIV/AIDs programs to “have a policy explicitly opposing prostitution and sex trafficking.”1 A group of funding recipients—domestic organizations with programs outside the United States—challenged this policy requirement on free speech grounds, arguing that it would require them to limit even their privately funded activities.2 During the course of the litigation, the federal government issued guidelines allowing funding recipients to work with affiliate organizations that did not have the specified policy so long as the recipients “retain ‘objective integrity and independence from any affiliated organization.’”3

The Court acknowledged that the government could not adopt the policy requirement “as a direct regulation of speech.”4 Because the policy requirement was a funding condition,5 however, the Court considered whether it “define[d] the limits of the government spending program” or sought “to leverage funding to regulate speech outside the contours of the program itself.”6 For a majority of the Court, the policy requirement clearly fell “on the unconstitutional side of [that] line.”7 The Court reasoned that “the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program’” because it requires recipients to “adopt—as their own—the Government’s view on an issue of public concern.”8 The government’s guidelines about affiliation with noncompliant entities did not “save” the condition because they required the recipient to either distance itself from its affiliate and their shared message, or clearly identify with its affiliate while espousing the government’s message “only at the price of evident hypocrisy.”9

The “distinction drawn in these cases—between conditions that define the federal program and those that reach outside it—is not always self-evident.”10 Nevertheless, it appears to be the line that the Supreme Court has drawn in analyzing funding conditions that affect a recipient’s speech—that is, at least for restrictions that the government could not impose directly.11

Notes
  1. 570 U.S. 205, 208 (2013) (quoting 22 U.S.C. § 7631(f) (2012)). ↩
  2. Id. ↩
  3. Id. at 211 (quoting 45 C.F.R. § 89.3). ↩
  4. Id. at 213. ↩
  5. See id. at 214 (explaining that if a party objects to a funding condition, its usual “recourse is to decline the funds,” even if the condition affects the party’s First Amendment rights, but that in some situations, “a funding condition can result in an unconstitutional burden on First Amendment rights”). ↩
  6. Id. at 214–15. ↩
  7. Agency for Int’l Dev.v. All. for Open Soc’y Int’l, 570 U.S. 205, 217 (2013). ↩
  8. Id. at 218. ↩
  9. Id. at 219. In 2020, the Supreme Court upheld the same policy condition as applied to the plaintiffs’ foreign affiliates, holding that the First Amendment did not protect separately incorporated, foreign organizations operating abroad. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, No. 19-177, slip op. at 1–7 (U.S. June 29, 2020). The Court explained that the plaintiffs, while domestic organizations, could not “export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.” Id. at 6–7. ↩
  10. Alliance for Open Soc’y Int’l, 570 U.S. at 217. ↩
  11. Rumsfeld v. Forum for Acad. & Inst’l Rights, 547 U.S. 47, 59–60 (2006). ↩

Amdt1.7.13.10 Requirements That Can Be Imposed Directly

In a 2006 decision, the Supreme Court held that a funding condition that affects speech is not an unconstitutional condition “if it could be constitutionally imposed directly.”1 In Rumsfeld v. Forum for Academic & Institutional Rights, the Court considered a law that required a federal department to withhold certain funds from any higher education institution that had “a policy or practice” of giving military recruiters less favorable access to its campus and students than non-military recruiters.2 The requirement comported with the First Amendment, the Court held, because it primarily regulated conduct and the government’s interest in supporting military recruiting was sufficient to justify any incidental burdens on expression.3 Because Congress could directly require higher education institutions to provide equal access to military recruiters, it could also take the indirect measure of conditioning funding on compliance with the equal-access requirement.4

Notes
  1. Rumsfeld v. Forum for Acad. & Inst’l Rights, 547 U.S. 47, 59–60 (2006). ↩
  2. Id. at 52–55 (quoting 10 U.S.C. § 983(b) (2000 ed., Supp. IV)). ↩
  3. Id. at 60–70 (reasoning that while “recruiting assistance provided by the schools often includes elements of speech,” the burden on such speech was incidental to its regulation of conduct in the form of recruiting practices, and concluding in the alternative that the law met the intermediate scrutiny standard applicable to regulations of expressive conduct). ↩
  4. Id. at 59–60. ↩