Monday, March 17, 2014
Our own Lloyd H. Mayer has weighed in with a proposed solution to the hot button issue for nonprofits. Here is the abstract to "Nonprofits, Speech, and Unconstitutional Conditions", forthcoming in the Connecticut Law Review.
This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding received by nonprofits and demonstrates the application of this framework by applying it to the disputes that have reached the Supreme Court in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government – whether direct or indirect – is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech (or silence) absent a compelling governmental interest in doing so and then only if the purchase is done in a manner that is narrowly tailored to serve that interest.
This Article’s approach contrasts with the current approach of the Court to this area, which in its various attempts to resolve disputes centering on such conditions has left courts, governments, and private parties understandably confused about the applicable constitutional standard. This confusion stems in large part from the Court’s tendency to subtly recharacterize its earlier decisions, which unnecessarily throws into doubt the reasoning and previously settled readings of those cases. Most recently, in Agency for International Development v. Alliance for Open Society International opinion, the Court both muddied the waters further and also moved away from the correct application of the unconstitutional conditions doctrine in this context. In that decision, the Court, without acknowledgement, shifted from its longstanding focus on whether the government funding was for government speech to instead focus on whether the speech affected by the condition was within or outside of the program funded by the government, thereby opening the door to significantly more burdensome limits on speech by recipients of government funding.
This framework also has two broader ramifications. First, it may prove useful for resolving constitutional disputes relating to other speech-related conditions, such as campaign finance limits tied to government funding or other government benefits. Second, it demonstrates that by drawing on the extensive unconstitutional conditions literature to create an approach customized to a particular constitutional context it may be possible to salvage the unconstitutional conditions doctrine even given its widely acknowledged incoherence. Salvaging the doctrine is particularly important in a world where government benefits both permeate almost every type of activity and are often accompanied by constitutionally suspect restrictions.