CONSTITUTION OF THE USA

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Government and Power of the Purse

Government and Power of the Purse. — 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,827 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.828 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,829 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'n830 should be controlling.831 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.”832 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.”833 It remains to be seen what application this decision will have outside the contentious area of abortion regulation.834chanrobles-red

827 461 U.S. 540 (1983).

828 461 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).

829 468 U.S. 364 (1984).

830 330 U.S. 127 (1947).

831 468 U.S. at 399-401, & n.27.

832 500 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.

833 500 U.S. at 196 (emphasis in original). Dissenting Justice Blackmun wrote: “Under the majority’s reasoning, the First Amendment could be read to tolerate anygovernmental 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 (emphasis in original).

834 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, 477-78 (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.”835 The Court acknowledged that, if the statute were “applied in a manner that raises concern about the suppression of disfavored viewpoints,”836 then such application might be unconstitutional. The statute on its face, however, is constitutional because it “imposes no categorical requirement,” being merely “advisory.”837 “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.”'838 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.”839

In Legal Services Corporation v. Velazquez,840 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.”841 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.”842

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.” 25 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.” 26 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.” 27chanrobles-red

835 524 U.S. 569, 572 (1998).

836 524 U.S. at 587.

837 524 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.

838 524 U.S. at 585.

839 524 U.S. at 588-89.

840 531 U.S. 533 (2001).

841 531 U.S. at 541, 542.

842 531 U.S. at 544, 546.

25 539 U.S. 194, 199 (2003).

26 539 U.S. at 211.

27 539 U.S. at 213 (emphasis in original). Other grounds for the plurality decision are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and “Internet as Public Forum.”






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