SCOTUS: Government Can't Tie Subsidies to Positions Held by Recipients

Feds can't require group support laws against prostitution in order to qualify for HIV-prevention funding


This isn't actually what's happening, but I'm sick of those SCOTUS group shots
Credit: © Kornilovdream | Dreamstime.com

Today the Supreme Court did not rule on the cases (gay marriage, affirmative action) everybody's been waiting for, but they did rule for more free speech for corporations! That should really tick off the progressives!

Probably not, though. The court ruled 6-2 (Justice Elena Kagan did not participate) that the federal government cannot force organizations to publicly hold certain positions in order to qualify to participate in government-funded programs.

I wrote about Agency for International Development v. Alliance for Open Society back in April. The case revolved around whether the federal government can require a nongovernmental health organization to take a position that prostitution should be illegal in order to qualify for federal AIDS and HIV-prevention funding. The majority here ruled no, arguing that doing so infringed upon the First Amendment rights of the groups involved. The majority decision (written by Chief Justice John Roberts) noted the line between monitoring the policies of a government-funded organization versus monitoring their positions:

The Leadership Act's other funding condition, which prohibits Leadership Act funds from being used "to promote or advocate the legalization or practice of prostitution or sex trafficking," §7631(e), ensures that federal funds will not be used for prohibited purposes. The Policy Requirement thus must be doing something more—and it is. By demanding that funding recipients adopt and espouse, as their own, the Government's view on an issue of public concern, the Policy Requirement by its very nature affects "protected conduct outside the scope of the federally funded program." Rust, supra,at 197. A recipient cannot avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.

The Government suggests that if funding recipients could promote or condone prostitution using private funds, "it would undermine the government's program and confuse its message opposing prostitution." Brief for Petitioners 37.  But the Policy Requirement 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. That condition on funding violates the First Amendment

So it's okay to demand that an organization not use federal money to advocate the legalization of prostitution. That's tying funding to actual policies. But telling an organization it must pledge support for government laws against prostitution or prohibiting it from using private funds how it pleases is a First Amendment violation.

Roberts was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Samuel Alito for the majority opinion. Note that Ginsburg, Breyer, and Sotomayor all dissented in the Citizens United decision.

Justices Antonin Scalia and Clarence Thomas dissented. In his response, Scalia made the larger point that government spending is largely based on opinions anyway:

The First Amendment does not mandate a viewpoint-neutral government. Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, 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. That seems to me a matter of the most common common sense. For example: One of the purposes of America's foreign-aid programs is the fostering of good will towards this country. If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) "without federal assistance," United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it.

If anything, Scalia's dissent is a reminder of the problem of an overlarge government. As long as we use the federal government to fund all these programs, there will always be this tension between the goals of private entities and the agendas of the political class.

Read the whole decision here (pdf).