The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat conditional offers to purchase speech like other proposed economic transactions, invalidating them when they are coercive. This principle helps explain many recent cases, including the healthcare decision. And yet the Court's willingness to find coercion in cases involving conditional offers from the government is hard to square with its approach to campaign finance law and its apparent faith in markets more generally. The third and final approach would treat limits on conditional offers not as individual rights, but as structural limitations on the scope of government. This approach, too, points in the direction of possible solutions--and also further problems--for analyzing the constitutionality of subsidized speech.
TABLE OF CONTENTS INTRODUCTION I. AOSI'S DECEPTIVELY COMPLICATED HOLDING II. WHAT IS A "PROGRAM" AND WHY DOES IT MATTER? A. Why Do Programs Matter? The Public Forum Analogy B. How Can Programs Be Defined? III. WHEN DID THE COURT LOSE FAITH IN MARKETS? A. Entitlements and the Persistent Problem of "Coercion" B. Is Coerced Speech Worse than Coerced Silence? IV. LIMITING THE GOVERNMENT'S POWER, WHILE PRESERVING ITS REACH CONCLUSION INTRODUCTION
One of the most intractable problems in constitutional law is defining what kinds of conditional offers the government can make to individuals, organizations, and states. (1) This is a transsubstantive issue, (2) arising in cases involving affirmative government powers under the Spending Clause, (3) individual rights guaranteed by the Free Exercise Clause, (4) and state actions like granting corporate charters, (5) but it has always been a particular challenge for free speech. (6) As the realm of government-subsidized activity expands, resolution of the conditional offer problem (also known by other aliases, including the "doctrine" of unconstitutional conditions (7)) increasingly appears to be one of the most important issues in constitutional law, as well as one of the most difficult. (8) And despite diligent efforts, a satisfactory answer to the problem has proven elusive. (9) Some wise and battle-weary voices describe it as simply "too hard." (10)
This short Article offers no solution. Rather, it uses one seemingly narrow (11) and somewhat underappreciated (12) First Amendment case to suggest three new(ish) ways to think about the conditional offer problem. In Agency for International Development v. Alliance for Open Society International, Inc. (AOSI), the Supreme Court struck down a federal law that required private organizations receiving government money for the fight against HIV and AIDS to explicitly adopt a position against prostitution. (13) On one level, this is a surprising result. As Chief Justice Roberts noted in the majority opinion: "As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient's exercise of its First Amendment rights." (14) And yet the Court concluded that this general principle was inapplicable, that the condition impermissibly compelled the organizations to speak, and therefore the condition was unconstitutional. (15)
The opinions in AOSI suggest at least three approaches to the conditional offer problem. The first focuses on the distinction at the unstable core of the opinion: the line between "conditions that define the limits of the government spending program--those that specify the activities Congress wants to subsidize--and conditions that seek to leverage funding to regulate speech outside the contours of the program itself." (16) The former are permissible; the latter are suspect. (17) This is an appealing distinction, for it seems to permit the government to "take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee," (18) without "result[ing] in an unconstitutional burden on First Amendment rights." (19) Some have lauded AOSI on somewhat similar grounds. (20)
But defining the scope of the program is not a straightforward matter of statutory interpretation, in part because there is no vantage point from which to evaluate whether a particular speech condition is "inside" or "outside" of a government program. (21) Indeed, it is not clear how the line can be drawn, nor even why it should matter. Perhaps this is why the majority explicitly ducked the line drawing task in AOSI, (22) just as it has in other conceptually similar cases. (23) Like the "relatedness" test in Spending Clause cases, (24) the program-definition principle essentially requires courts to establish the boundaries of appropriate constitutional governance. In that respect, it bears a striking resemblance to public forum doctrine, (25) and requires courts and scholars to distinguish between what Robert Post calls domains of "management" and "governance." (26)
A second possibility is that AOSI is best understood as a case about the permissibility of a market transaction: the government's conditional offer to purchase speech. (27) After all, the case does not involve a traditional speech regulation, but an economic relationship. (28) As such, the decision may hold important clues not simply about particular doctrinal categories, but also about the Court's level of faith in markets and bargained-for exchanges. Considering the Roberts Court's apparent libertarian bona fides, (29) one might expect the Justices to let the sophisticated and well-informed parties negotiate amongst themselves. But in AOSI and a few other related cases--most notably, National Federation of Independent Business (NFIB) v. Sebelius--the Court has used the Constitution itself to regulate such exchanges. (30)
Why has the Court constitutionally prohibited offers and exchanges in these cases, while constitutionally protecting other forms of exchange against government regulation? The answer apparently lies in the Justices' views on coercion, choice, and the realities of economic relationships. These are issues that cut across traditional doctrinal categories, forcing reconsideration of many existing constitutional rules. To take just one example: if the government's offer to AOSI was "coercive," then the same can surely be said of the (implicitly conditional) offers that major donors make to political candidates. And that, in turn, suggests a much broader scope for the corruption principle given short shrift in the Court's recent campaign finance decisions. (31)
One particularly interesting wrinkle in this regard is the Court's suggestion that coerced speech is worse than coerced silence. This might sound backwards, since the First Amendment is often thought primarily to target "negative" obstacles such as prior restraints. (32) But AOSI was decided on compelled speech grounds, distinguishing it from cases like Rust v. Sullivan in which a funding condition simply required the would-be private speaker to remain silent. (33) This suggests that the Court might be particularly interested in the unique constitutional harms imposed by compulsion, as opposed to constraint. (34) Much of the opposition to the Affordable Care Act's "affirmative" mandate seemed to reflect this view. (35)
The third and final puzzle this Article explores is what AOSI says about the scope and power of government. On the one hand, the decision strikes down part of a federal law, and in that respect appears to be government limiting. (36) And yet, in the course of reaching its compelled speech holding, the Court implicitly endorses the proposition that recipients have some constitutionally salient entitlement to government funds. (37) This, after all, is the fulcrum that the government used for its inappropriate "leverage." (38) The Court, therefore, essentially entrenches the size of public spending programs, while taking away one effective method of controlling them.
AOSI'S DECEPTIVELY COMPLICATED HOLDING
On first reading, AOSI appears to be a relatively straightforward decision. It does not purport to create any new First Amendment rules. It invokes well-known precedents like Rumsfeld v. Forum for Academic and Institutional Rights, Inc., (39) Rust v. Sullivan, (40) and Legal Services Corp. v. Velazquez, (41) and does not overrule or even seem to limit any of their holdings. And yet a closer look reveals that the decision is not only complicated on its own terms, but is also usefully representative of deep, pressing, and difficult problems throughout constitutional law.
Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act) as the centerpiece of its strategy to fight the global spread of HIV and AIDS. (42) Recognizing that a comprehensive strategy could make good use of nongovernmental allies, Congress authorized the appropriation of billions of dollars for that purpose. (43) Such funding, however, had two related conditions: no funds "may be used to promote or advocate the legalization or practice of prostitution or sex trafficking," (44) and funds cannot be given to an organization "that does not have a policy explicitly opposing prostitution and sex trafficking." (45) The latter condition, known as the Policy Requirement, was the target of the constitutional challenge in AOSI. (46)