The U.S. Supreme Court ruled that the federal government could not force nonprofit aid groups to adopt policy views as a condition for receiving grants. The government wanted all grant recipients to say they were opposed to prostitution and sex trafficking. Aid groups feared that formally adopting the policy views might make it more difficult to reach prostitutes to fight HIV. (The Wall Street Journal, June 21, 2013, by Jess Bravin)
The American Civil Liberties Union had filed an amicus curiae brief arguing that the anti-prostitution pledge was unconstitutional since it imposed government opinion on independent organizations. The Supreme Court recognized that restricting federal funds could define the scope of a program, but in this case federal funds were used in an attempt to force viewpoints on recipients. (ACLU, June 21, 2013, by Lenora Lapidus and Tara Norris)
Through the years, the Supreme Court has come up with a “rule-of-thumb that seems to work most of the time to reconcile funding conditions on speech activities” and the First Amendment, writes Lyle Denniston for the National Constitutional Center. “Congress is allowed to attach a condition on expression of views if the message itself is what the program is all about. For example, the court has allowed Congress to pay for family planning advice by doctors, but it doesn’t have to pay for advice about abortion. On the other hand, Congress cannot use public money to compel recipients to limit what they say outside the program. For example, the court has ruled that a federal subsidy to non-commercial radio stations cannot include a condition barring them from taking public positions on policy matters if they pay for that, outside the restriction, by using private funds. That, the court said, is a kind of “leveraging” with funds to control private speech,” writes Denniston, Constitution Daily, June 21, 2013. -db