Here at Popehat we often strive to remind you that government assistance carries a price. If the government subsidizes your health care, then the government — and your fellow citizens paying the tab — may feel entitled to a say about whether you eat that bacon cheeseburger for lunch, or how big of a soda you can drink with it. TANSTAAFL: government assistance of any kind carries with it an inevitable reduction in liberty.
We're still working out the limits of what the government can tell you to do with respect to bacon cheeseburgers and large sodas — that's a conflict that's both legal and cultural. But what about speech? Can the government use its purse strings to still your tongue?
The answer has been a little cloudy. Cases like Rust v. Sullivan (which upheld rules prohibiting federally-funded clinics from discussing abortion) have given the government some power to limit speech in connection with its largesse. But what's the line between the government deciding how to spend its money and the government censoring you?
Today the Supreme Court made an effort to clarify that line in AGENCY FOR INTERNATIONAL DEVELOPMENT ET AL. v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC. The case involved money the federal government gives to NGOs to combat AIDS worldwide. The money comes at a cost — recipients may not use funds to promote "the practice of prostitution,” and no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” Under agency regulations, if they want the money to fight AIDS, NGOs must proclaim that they are opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.”
Notwithstanding that the federal government pays David Vitter's salary, it seemed pretty clear that it could require NGOs not to spend its subsidies to promote prostitution. But can the federal government require private parties to take a political stance — like one against the legalization of prostitution — to get money?
No. Or, at least, not like this, said justices Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor in an opinion released today. The Court drew a distinction between the government telling you what you can do with its money, on the one hand, and the government telling you what you have to say to get or keep its money, on the other:
By demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern, the condition by its very nature affects “protected conduct outside the scope of the federally funded program.” Rust, 500 U. S., at 197. A recipient cannot avowthe belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federallyfunded program to defining the recipient. See ibid. (“our ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”).
The majority rejected the theory advanced by Justices Scalia and Thomas in dissent that the anti-prostitution-policy requirement is merely a criteria by which the government selects which organizations to fund based on harmonious goals, noting that the organizations could lose the money by changing their policy. Similarly, the majority rejected the argument that the ideological requirement is permissible because it is relevant to the goals of the program. The majority rejected the government's argument that it should be able to demand a certain stance because otherwise the organizations could accept government money and then turn around and use private money to thwart the goals of the government program:
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. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If 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.” Barnette, 319 U. S., at 642.
In dissent, Justices Scalia and Thomas argue that the government is not coercing speech, but merely choosing to fund organizations that support the goals that the government wants to advance through the program:
The program is valid only if the Government is entitled to disfavor the opposing view (here, advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of those who are to administer the program. There is no risk that this principle will enable the Government to discriminate arbitrarily against positions it disfavors. It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure prostitution. But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.
Scalia and Thomas further argue that, under the Court's logic, the government might be bound to allow explicitly pro-prostitution organizations to compete for federal anti-AIDS funds:
If the government cannot demand a relevant ideological commitment as a condition of application, neither can it distinguish between applicants on a relevant ideological ground. And that is the real evil of today’s opinion. One can expect, in the future,frequent challenges to the denial of government funding for relevant ideological reasons.
Scalia and Thomas are right about one thing: this will undoubtedly encourage litigation about ideological bias in government grant-making and contracting. This is particularly true in the current political environment in the wake of the IRS scandal, when government ideological bias is a matter of public controversy.
I always like to see the Supreme Court uttering a robust defense of the First Amendment. But the arguments of the dissent are not without their logic and power. The government shouldn't be able to shut out people when it doesn't like their views. But when the government spends your money, and mine, to advance a goal, must it give money to organizations that don't share the goal? TANSTAAFL. Nothing comes for free. Trying to make government money free of strings can only lead to insoluble problems.
Postscript: if you want intelligent commentary about why organizations might not want to push anti-prostitution laws — if you want to consider an articulate exposition of the flaws and detriments of the criminalization of prostitution, and of the occasional excesses of "anti-trafficking" laws — Maggie McNeill is an indispensable source.
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