Unconstitutional Conditions

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.

In exercise of the spending power, Congress may refuse to subsidize the exercise of First Amendment rights, but may not deny benefits solely on the basis of the exercise of such rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non-federal funds—provided that the speech limitations do not extend to the use of non-federal funds outside of the federally funded project. In Regan v. Taxation With Representation ,1 Footnote
461 U.S. 540 (1983) . the Court held that Congress could constitutionally limit tax-exempt status under § 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. “Congress has merely refused to pay for the lobbying out of public moneys,” the Court concluded.2 Footnote
461 U.S. at 545 . See also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment). The effect of the ruling on the organization’s lobbying activities was minimal, however, since it could continue to receive tax-deductible contributions by creating a separate affiliate to conduct the lobbying.

In FCC v. League of Women Voters ,3 Footnote
468 U.S. 364 (1984) . by contrast, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation , by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist’s argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm’n 4 Footnote
330 U.S. 127 (1947) . should be controlling.5 Footnote
468 U.S. at 399–401, & n.27 . In Rust v. Sullivan , however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government’s decision “to fund one activity to the exclusion of the other.” 6 Footnote
500 U.S. 173, 193 (1991) . Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 208–09 . In addition, the Court noted, the “regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. . . . The regulations govern the scope of the Title X project’s activities, and leave the grantee unfettered in its other activities.” 7 Footnote
500 U.S. at 196 . Dissenting Justice Blackmun wrote: “Under the majority’s reasoning, the First Amendment could be read to tolerate any governmental restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past.” Id. at 213 . It remains to be seen what application this decision will have outside the contentious area of abortion regulation.8 Footnote
The Court attempted to minimize the potential sweep of its ruling in Rust . “This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression.” 500 U.S. at 199 . The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor-patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor-patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. See, e.g., Stanford Univ. v Sullivan , 773 F. Supp. 472, 476–78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia , of application of vagueness principles in a university setting); Gay Men’s Health Crisis v. Sullivan , 792 F. Supp. 278 (S.D.N.Y. 1992) ( “offensiveness” guidelines restricting Center for Disease Control grants for preparation of AIDS-related educational materials are unconstitutionally vague).

In National Endowment for the Arts v. Finley , the Supreme Court upheld the constitutionality of 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.” 9 Footnote
524 U.S. 569, 572 (1998) . The Court acknowledged that, if the statute were “applied in a manner that raises concern about the suppression of disfavored viewpoints,” 10 Footnote
524 U.S. at 587 . then such application might be unconstitutional. The statute on its face, however, is constitutional because it “imposes no categorical requirement,” being merely “advisory.” 11 Footnote
524 U.S. at 581 . Justice Scalia, in a concurring opinion joined by Justice Thomas, claimed that this interpretation of the statute “gutt[ed] it.” Id. at 590 . He believed that the statute “establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.” Id. “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 ‘very assumption’ of the NEA is that grants will be awarded according to the ‘artistic worth of competing applications,’ and absolute neutrality is simply ‘inconceivable.’” 12 Footnote
524 U.S. at 585 . The Court also found that the terms of the statute, “if they appeared in a criminal statute or regulatory scheme, . . . could raise substantial vagueness concerns. . . . But when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” 13 Footnote
524 U.S. at 588–89 .

In contrast, in Agency for International Development v. Alliance for Open Society International, Inc. ,14 Footnote
570 U.S. 205 (2013) . the Court found that the federal government could not explicitly require a federal grantee to adopt a public policy position as a condition of receiving federal funds. In Alliance for Open Society International , organizations that received federal dollars to combat HIV/AIDS internationally were required: (1) to ensure that such funds were not being used “to promote or advocate the legalization or practice of prostitution or sex trafficking” and (2) to have a policy “explicitly opposing prostitution.” 15 Footnote
Id. at 208 (quoting 22 U.S.C. § 7631 (e), (f) (2012) . While the first condition ensured that the government was not funding speech that conflicted with the grant's purposes, the second requirement, in the Court's view, improperly affected the recipient's protected conduct outside of the federal program.16 Footnote
See id. at 217–19 . Further, the Court concluded that the organization could not, as in previous cases, avoid the requirement by establishing an affiliate to engage in opposing advocacy because of the “evident hypocrisy” that would entail.17 Footnote
Id. at 219 . In a follow-on case seven years later, however, the Supreme Court ruled that the First Amendment did not preclude the government from applying this second condition to foreign organizations outside U.S. territory—even with respect to foreign affiliates of U.S. companies.18 Footnote
Agency for Int'l Dev. v. All. for Open Soc'y , 140 S. Ct. 2082, 2087 (2020) . Because these affiliates were “foreign organizations operating abroad” and were legally distinct entities from their U.S. counterparts, the Court concluded they did not possess First Amendment rights.19 Footnote
Id.

In Legal Services Corp. v. Valazquez ,20 Footnote
531 U.S. 533 (2001) . the Court struck down a provision of the Legal Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a client who seeks “to amend or otherwise challenge existing [welfare] law.” This meant that, even with non-federal funds, a recipient of federal funds could not argue that a state welfare statute violated a federal statute or that a state or federal welfare law violated the Constitution. If a case was underway when such a challenge became apparent, the attorney had to withdraw. The Court distinguished this situation from that in Rust v. Sullivan on the ground “that the counseling activities of the doctors under Title X amounted to governmental speech,” whereas “an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits.” 21 Footnote
531 U.S. at 541, 542 . Furthermore, the restriction in this case “distorts the legal system” by prohibiting “speech and expression upon which courts must depend for the proper exercise of the judicial power,” and thereby is “inconsistent with accepted separation-of-powers principles.” 22 Footnote
531 U.S. at 544, 546 .

In United States v. American Library Association, Inc. , a four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.” 23 Footnote
539 U.S. 194, 199 (2003) . The plurality considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance by requiring public libraries (public schools were not involved in the case) to limit their freedom of speech if they accept federal funds. The plurality, citing Rust v. Sullivan , found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute “simply insist[s] that public funds be spent for the purposes for which they were authorized.” 24 Footnote
539 U.S. at 211 . The plurality distinguished Legal Services Corporation v. Velazquez on the ground that public libraries have no role comparable to that of legal aid attorneys “that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.” 25 Footnote
539 U.S. at 213 . Other grounds for the plurality decision are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and “The Public Forum.”

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , the Supreme Court upheld the Solomon Amendment, which provides, in the Court’s summary, “that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.” 26 Footnote
547 U.S. 47, 51 (2006) . FAIR, the group that challenged the Solomon Amendment, is an association of law schools that barred military recruiting on their campuses because of the military’s discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court concluded: “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” 27 Footnote
547 U.S. at 60 . The Court stated that Congress’s authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and maintain a navy. Id. at 58 . The Court found that “[t]he Solomon Amendment neither limits what law schools may say nor requires them to say anything. . . . It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” 28 Footnote
547 U.S. at 60 . The law schools’ conduct in barring military recruiters, the Court found, “is not inherently expressive,” and, therefore, unlike flag burning, for example, is not “symbolic speech.” 29 Footnote
547 U.S. at 64, 65 . Applying the O’Brien test for restrictions on conduct that have an incidental effect on speech, the Court found that the Solomon Amendment clearly “promotes a substantial government interest that would be achieved less effectively absent the regulation.” 30 Footnote
547 U.S. at 67 .

The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government’s message. As for compelling speech, law schools must “send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. . . . This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley . . . . [It] is plainly incidental to the Solomon Amendment’s regulation of conduct.” 31 Footnote
547 U.S. at 61, 62 . As for forcing one speaker to host or accommodate another, “[t]he compelled-speech violation in each of our prior cases . . . resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.” 32 Footnote
547 U.S. at 63 . By contrast, the Court wrote, “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.” 33 Footnote
547 U.S. at 65 . Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to accept a homosexual scoutmaster, and that the Supreme Court struck down as violating the Boy Scouts’ “right of expressive association.” 34 Footnote
547 U.S. at 68 , quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) . Recruiters, unlike the scoutmaster, are “outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.” 35 Footnote
547 U.S. at 69 .

Footnotes 1 461 U.S. 540 (1983) . 2 461 U.S. at 545 . See also Cammarano v. United States, 358 U.S. 498, 512–13 (1959) (exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses is not a regulation aimed at the suppression of dangerous ideas, and does not violate the First Amendment). 3 468 U.S. 364 (1984) . 4 330 U.S. 127 (1947) . 5 468 U.S. at 399–401, & n.27 . 6 500 U.S. 173, 193 (1991) . Dissenting Justice Blackmun contended that Taxation With Representation was easily distinguishable because its restriction was on all lobbying activity regardless of content or viewpoint. Id. at 208–09 . 7 500 U.S. at 196 . Dissenting Justice Blackmun wrote: “Under the majority’s reasoning, the First Amendment could be read to tolerate any governmental restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past.” Id. at 213 . 8 The Court attempted to minimize the potential sweep of its ruling in Rust . “This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipient to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression.” 500 U.S. at 199 . The Court noted several possible exceptions to the general principle: government ownership of a public forum does not justify restrictions on speech; the university setting requires heightened protections through application of vagueness and overbreadth principles; and the doctor-patient relationship may also be subject to special First Amendment protection. (The Court denied, however, that the doctor-patient relationship was significantly impaired by the regulatory restrictions at issue.) Lower courts were quick to pick up on these suggestions. See, e.g., Stanford Univ. v Sullivan , 773 F. Supp. 472, 476–78 (D.D.C. 1991) (confidentiality clause in federal grant research contract is invalid because, inter alia , of application of vagueness principles in a university setting); Gay Men’s Health Crisis v. Sullivan , 792 F. Supp. 278 (S.D.N.Y. 1992) ( “offensiveness” guidelines restricting Center for Disease Control grants for preparation of AIDS-related educational materials are unconstitutionally vague). 9 524 U.S. 569, 572 (1998) . 10 524 U.S. at 587 . 11 524 U.S. at 581 . Justice Scalia, in a concurring opinion joined by Justice Thomas, claimed that this interpretation of the statute “gutt[ed] it.” Id. at 590 . He believed that the statute “establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional.” Id. 12 524 U.S. at 585 . 13 524 U.S. at 588–89 . 14 570 U.S. 205 (2013) . 15 Id. at 208 (quoting 22 U.S.C. § 7631(e), (f) (2012) . 16 See id. at 217–19 . 17 Id. at 219 . 18 Agency for Int'l Dev. v. All. for Open Soc'y , 140 S. Ct. 2082, 2087 (2020) . 19 Id. 20 531 U.S. 533 (2001) . 21 531 U.S. at 541, 542 . 22 531 U.S. at 544, 546 . 23 539 U.S. 194, 199 (2003) . 24 539 U.S. at 211 . 25 539 U.S. at 213 . Other grounds for the plurality decision are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and “The Public Forum.” 26 547 U.S. 47, 51 (2006) . 27 547 U.S. at 60 . The Court stated that Congress’s authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and maintain a navy. Id. at 58 . 28 547 U.S. at 60 . 29 547 U.S. at 64, 65 . 30 547 U.S. at 67 . 31 547 U.S. at 61, 62 . 32 547 U.S. at 63 . 33 547 U.S. at 65 . 34 547 U.S. at 68 , quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) . 35 547 U.S. at 69 .