Constitution Check: Can the government use money to control what private groups say?

800px-United_states_supreme_court_buildingLyle Denniston looks at the Supreme Court’s role in deciding if Congress can control how people or organizations spend money from federal programs.


“This case is not about the government’s ability to enlist the assistance of those with whom it already agrees.  It is about compelling a grant recipient to adopt a particular belief as a condition of funding….At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”

 – Chief Justice John G. Roberts, Jr., in an opinion for the Supreme Court Thursday striking down a condition the government imposed on private groups that help carry out a global program to eradicate AIDS.


The Constitution’s Spending Clause gives Congress very broad power to authorize the spending of federal money, and that power carries with it the authority to put strings on those who get the money.   But, as with all federal authority, conditions imposed on the use of federal funds might run afoul of other parts of the Constitution.   Congress, for example, could not pay defense contractors to build racially segregated housing on military bases.

But the Supreme Court has discovered, over a good many years, that it is not really easy to decide when it is unconstitutional for Congress to hand out money to people or organizations and dictate what they can say while spending that money in a federal program.   The decisions have ranged rather widely, and the court confessed again in a ruling on Thursday that the distinction between valid and invalid conditions on recipients’ speech “is not always self-evident.”

The court, through a kind of hit-or-miss process, has come up with a rule-of-thumb that seems to work most of the time to reconcile funding conditions on speech activities and the First Amendment right to free speech

Congress is allowed to attach a condition on expression of views if the message itself is what the program is all about.   For example, the court has allowed Congress to pay for family planning advice by doctors, but it doesn’t have to pay for advice about abortion.  On the other hand, Congress cannot use public money to compel recipients to limit what they say outside the program.  For example, the court has ruled that a federal subsidy to non-commercial radio stations cannot include a condition barring them from taking public positions on policy matters if they pay for that, outside the restriction, by using private funds.  That, the court said, is a kind of “leveraging” with funds to control private speech.

The Supreme Court returned to this ongoing process of defining “unconstitutional conditions” on private speech in its new ruling on a multi-billion-dollar program, begun ten years ago, attempting to stop the spread of the HIV/AIDS disease around the global.   It pays private organizations to run specific eradication and education projects.

Because Congress was persuaded that prostitution and other forms of sexual trafficking contribute to the spread of the deadly disease, Congress said organizations that receive any money under the program must have as their own organization’s policy, publicly declared, that they are opposed to such trafficking.   It is not just that they cannot use federal funds to take contrary public positions; they have to echo the government’s open hostility to the “sex industry” as their own policy stance.

That was challenged under the First Amendment by several private groups.  None of those groups is in favor of prostitution, or of any form of sexual exploitation.  But much of their work is done with prostitutes and others who may be engaging in risky sexual behavior, and they want to be accepted by those groups as neutrals on the policy of criminalizing their sexual activities.  They cannot get cooperation, they say, if they are seen within those groups as their sworn enemies.

The Supreme Court upheld their challenge.  While Congress definitely had the authority to direct those groups not to use the federal money they receive to pay for public expressions that contradict the government’s anti-prostitution views, the court ruled, it did not have the authority to use strings on federal money to compel them on their “own dime and time” to be public spokespersons for the government’s policy.

“The policy requirement,” Chief Justice John G. Roberts wrote, “goes beyond preventing recipients from using private funds in a way that would undermine the federal program.  It requires them to pledge allegiance to the government’s policy of eradicating prostitution.”

The court’s main opinion rejected the argument of two dissenting members of the court – Justices Antonin Scalia and Clarence Thomas – that the government was using its money only to support the activities of groups that it could trust to carry out the program faithfully.

Justice Scalia wrote for the dissenters that “the government may enlist the assistance of those who believe in its ideas to carry them to fruition, and it need not enlist for that purpose those who oppose or do not support the ideas.”

For the dissenters, the funding condition was a “common sense” way for the government to hire trusted allies for the program.  For the court’s majority, however, the funding condition was an attempt at coerce private groups, on their own, into echoing the government’s view of orthodox beliefs, even if their own private beliefs were otherwise.

This, of course, is not likely to be the last word on what kinds of conditions Congress can attach to its funding outlays.  Because Congress is jealous of its control over the money in the Treasury, it is sure to go on trying to have its way on who spends it, and how, and at least some of those efforts are likely to be met with First Amendment challenges.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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