Government Funding of Speech

In a democratic society, the government typically allocates its resources in support of its political agenda. A legislature whose members are elected on a ‘‘family values’’ platform, for example, may finance a campaign against indecency that includes public service announcements delivered by official representatives or hired agents. When the government pays for its own speech, it can say what it pleases without incurring any obligation to finance alternative points of view.

Rather than engage in speech, the government often attempts to advance its policy objectives by selectively subsidizing private speech. For example, the federal government historically has provided second- class mail subsidies to print publications. May the government encourage media decency by denying second-class mailing privileges to magazines that contain sexual material? In other words, may the government use the power of the purse to promote or disfavor certain private viewpoints?

Although the Supreme Court has often said that the First Amendment prohibits the government from using its subsidy power to suppress ‘‘dangerous ideas,’’ the Court has applied this prohibition in an inconsistent, context-specific manner. In the secondclass mailing example, the Court in Hannegan v. Esquire, Inc., 327 U.S. 146 (1946), held that second-class mail status could not be denied to publications that postal officials found objectionable. The Court saw the subsidy denial as the imposition of an unconstitutional condition: the state had conditioned the receipt of a government benefit on the recipients’ willingness to curtail their right of free speech. Although the state was not obliged to award postage subsidies at all, it could not penalize offensive speakers by revoking the subsidy in a viewpoint-discriminatory manner.

Compare, however, the Court’s analysis in subsidy situations involving nonmedia grantees. In Rust v. Sullivan, 500 U.S. 173 (1991), the Court upheld federal regulations that prohibited doctors at federally funded family-planning clinics from providing pregnant women with abortion counseling or referrals, requiring instead that these doctors dispense information about prenatal care. Although the doctors challenged these regulations as unconstitutional, viewpoint-based discrimination, the Court disagreed.

In a five-to-four opinion written by Chief Justice Rehnquist, the Court reasoned that when the government funds a program, it must be allowed to set program limits. Here, Justice Rehnquist said, ‘‘The government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized.’’ According to Justice Rehnquist, the federal regulations did not favor one viewpoint over another; rather, they imposed necessary boundaries on the scope of a federal enterprise. In dissent, Justice Blackmun argued that the federal regulations constituted obvious, unconstitutional viewpoint discrimination by creating family-planning clinics that could provide information on only one family-planning option—the one favored by Congress.

Similarly, the Court in National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), upheld congressional legislation that required the National Endowment for the Arts (NEA) to consider ‘‘general standards of decency’’ in awarding grant funding for the arts. Artists challenged the law as providing an unconstitutional federal subsidy to inoffensive art, while denying federal funding to art outside mainstream American values. The Court disagreed, finding that the statute did not violate the First Amendment prohibition on viewpoint discrimination, but only by interpreting the decency clause as advisory rather than compulsory. Technically, the Court said, the NEA was only required to give ‘‘consideration’’ to the decency issue; the statute did not absolutely forbid the NEA from funding indecent art. Furthermore, the Court noted that because NEA grants already were based on subjective notions of artistic excellence, adding a decency standard to the process would not offend the First Amendment. Writing for the Court, Justice O’Connor concluded that ‘‘the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.’’

Based on Rust and Finley, the Court’s often repeated statement that in awarding financial subsidies, the government ‘‘may not . . . aim at the suppression of dangerous ideas’’ appeared to be an empty platitude. A decade after Rust, however, the Court in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), returned to the principle that government subsidies must be allocated in a viewpoint-neutral manner when they involve private speech. In that case, by another five-to-four vote the Court invalidated a condition in a federal statute that prohibited federally funded legal aid attorneys from representing clients who challenged existing welfare laws. The Court distinguished Rust by characterizing the clinic doctors in Rust as government agents, engaged in government rather than private speech.

The Court emphatically denied that the legal aid attorneys could also be described as government speakers. Nor could the attorney speech limitation be considered necessary to define the scope of a federal legal aid program. According to the Court, ‘‘Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.’’ Furthermore, by limiting the scope of litigation, the Court found that the funding condition in Velazquez also unconstitutionally distorted the ‘‘usual functioning’’ of the judicial system. Justice Scalia disagreed, stating in his dissent that the legal aid funding scheme should have been upheld because it was ‘‘in all relevant respects indistinguishable’’ from the subsidy program the Court had approved in Rust.

The question of whether the government can condition its subsidies in ways that limit private speech has also arisen in the public library context. In an effort to keep on-line pornography away from children, Congress in 2000 passed a law requiring public libraries that receive federal funds to install blocking software on all computers. The American Library Association protested, stating that the filters blocked too much nonobscene material and interfered with adults’ First Amendment rights to view constitutionally protected Web pages. In United States v. American Library Association, 123 S. Ct. 2297 (2003), the Court upheld the law, stating that Congress was entitled to impose conditions on how libraries spend government monies and that objecting libraries were free to turn down federal funds. Two concurring justices in the six-to-three decision agreed to uphold the law because it allowed libraries to remove filters for adult patrons upon request.

NICOLE B. CA ´ SAREZ

References and Further Reading

  • Ca´sarez, Nicole B., Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint Discrimination, Albany Law Review 64 (2000): 501–581.
  • Post, Robert C., Subsidized Speech, Yale Law Journal 106 (1996): 151–195.
  • Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, Inc., 1992.

Cases and Statutes Cited

  • Hannegan v. Esquire, Inc., 327 U.S. 146 (1946)
  • Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001)
  • National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)
  • Rust v. Sullivan, 500 U.S. 173 (1991)
  • United States v. American Library Association, 123 S. Ct. 2297 (2003)

See also Government Speech; Internet Filtering at Libraries and Free Speech; Unconstitutional Conditions

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