Unconstitutional Conditions

The unconstitutional conditions doctrine states that the government may not deny a discretionary benefit to someone because he or she chooses to exercise a protected constitutional right. For example, in Speiser v. Randall (1958), the Supreme Court held that California could not withhold property tax exemptions from those veterans who refused to sign Loyalty Oaths. Rejecting the Right v. Privilege Distinction advanced by the state, Justice Brennan wrote for the Court that ‘‘[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.’’ Although the state was not obligated to grant tax exemptions to veterans at all, it nevertheless could not condition receipt of that benefit on the relinquishment of First Amendment rights.

Notwithstanding the Court’s broad statements in Speiser, other cases have made clear that not all conditional government benefit programs raise unconstitutional conditions problems. In Regan v. Taxation with Representation (1983), for example, the Court upheld a tax code provision that denied certain tax benefits to those nonprofit organizations that engaged in lobbying. In his opinion for the Court, Justice Rehnquist characterized the law not as an unconstitutional penalty, but rather as a permissible nonsubsidy. Congress may allocate its funds as it desires, according to the Court and ‘‘is not required by the First Amendment to subsidize lobbying.’’ Rehnquist noted that the result would have been different if the subsidy had applied in a viewpoint discriminatory manner.

In the abortion context, the Court used the penalty/ nonsubsidy distinction in Rust v. Sullivan to uphold federal regulations forbidding federally funded family planning clinics from providing abortion counseling or referrals, while requiring those clinics to refer pregnant clients for prenatal care. Again writing for the Court, Justice Rehnquist stated that ‘‘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.’’ In a controversial conclusion, the Court found that the federal regulations in question did not amount to viewpoint discrimination.

Many critics have observed that the penalty/nonsubsidy distinction is merely a question of semantics. Courts can reach either result by careful framing of the underlying issue. If the state’s decision to provide conditional funding is described as a plan to encourage certain activities rather than others, it looks like a permissible selective subsidy. By characterizing the same decision as the exclusion of a particular recipient from an established program, it appears to be an unconstitutional penalty.

In unconstitutional conditions cases that involve state takings of private real property, the Rehnquist Court has applied a stricter ‘‘germaneness’’ analysis. For example, in Nollan v. California (1987), the Court invalidated a state requirement that, to procure a building permit to enlarge his house, a property owner grant a public easement across his private beach. The Court held that the condition constituted a taking for which the property owner was entitled to compensation, noting that the easement requirement was unrelated to any legitimate reason the state could have denied permit approval.

NICOLE B. CA ´ SAREZ

References and Further Reading

• Berman, Mitchell N., Coercion without Baselines: Unconstitutional Conditions in Three Dimensions, Georgia Law Journal 90 (2001): 1–112.
• Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, Inc., 1992.
• Sullivan, Kathleen M., Unconstitutional Conditions, Harvard Law Review 102 (1989): 1415–1506.

Cases and Statutes Cited

• Nollan v. California Coastal Commission, 483 U.S. 825 (1987)
• Regan v. Taxation with Representation, 461 U.S. 540 (1983)
• Rust v. Sullivan, 500 U.S. 173 (1991)
• Speiser v. Randall, 357 U.S. 513 (1958)

See also Government Funding of Speech; Right v. Privilege Distinction; Viewpoint Discrimination in Free Speech Cases