Unconstitutional Conditions and Compelled Speech

• Author: Ruthann Robson
• Pages: 353-452

Robson The First Amendment

353

Chapter&Six:&UNCONSTITUTIONAL&

CONDITIONS&AND&COMPELLED&SPEECH&&

This chapter considers two separate doctrines - - - unconstitutional

conditions and compelled (or coerced) speech - - - concluding with a case

decided by the United States Supreme Court in 2013 that explicitly

combines the two doctrines.

Outline of Chapter

I. Unconstitutional Conditions and Speech

'/0?!Q#!5/(()Q.,!!

O&*.(!5&4Q)7&0!-+46+4.?)+,!Q#!a&(.dg/&d!!

[+?&0!!

II. Compelled Speech

A. Foundational Cases of Compelled Speech

K&0?!a)4*),).!2+.4L!+J!>L/7.?)+,!Q#!2.4,&??&!!

K++(&=!Q#!B.=,.4L!!

[+?&0!!

B. Fees and Dues

e&((&4!Q#!5?.?&!2.4!+J!-.()J+4,).!!

2+.4L!+J!'&*&,?0!+J!?%&!P,)Q&40)?=!+JK)07+,0),!5=0?&;!Q#!5+/?%U+4?%!!

]+%.,,0!Q#!O)Q&0?+7\!B.4\&?),*!"00V,!!

^.44)0!Q#!f/),,!!

[+?&0!!

C. Compelled Speech and Association

^/4(&=!Q#!M4)0%G";&4)7.,!_.=Y!O&0h!2)0&c/.(_4+/6!+J!2+0?+,!!

2+=!57+/?0!+J!";&4)7.!Q#!:.(&!!

[+?&0!!

III. Combining Unconstitutional Conditions and Compelled Speech

'/;0J&(L!Q#!3+4/;!J+4!"7.L&;)7!.,L!M,0?)?/?)+,.(!')*%?0Y!M,7#!!

"*&,7=!J+4!M,?&4,.?)+,.(!:&Q&(+6;&,?!Q#!"(().,7&!J+4!W6&,!5+7)&?=!M,?&4,.?)+,.(Y!M,7#!!

[+?&0!!

Robson The First Amendment

354

I.&Unconstitutional&Conditions&and&Speech&&

The doctrine of unconstitutional conditions is not limited to the First

Amendment. It can arise whenever the government attaches conditions

to funding if those conditions effect the exercise of a constitutional right.

For example, if the government requires a person to be sterilized before

she could collect unemployment benefits, this would be an example of

unconstitutional conditions. When the federal government is involved,

doctrine under the Spending Clause, Article I §8 cl. 1, is implicated.

When state or local governments are involved, there may be state

constitutional issues.

There are two opposing views of the doctrine of unconstitutional

conditions:

The most expansive view is that the government cannot impose a

condition on funding unless it could impose that condition directly. In

other words, the government could mandate sterilization as a condition

for unemployment benefits unless it could mandate sterilization generally.

The most restrictive view is that the government can impose any

condition on funding. In other words, the “doctrine” of “unconstitutional

conditions” does not exist. The government can subsidize whatever it

chooses and people are “free” to take the money or to refuse it.

When freedom of speech is the constitutional right at stake in an

unconstitutional conditions case, the issue is further complicated by

questions of whether the government itself is attempting to speak and

whether there are other constitutional considerations.

The major cases on unconstitutional conditions in the First Amendment

speech context are Rust v. Sullivan (1991) and Legal Services Corp. v.

Velazquez (2001).

Rust$v.$Sullivan$$

500 U.S. 173 (1991)

REHNQUIST, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, KENNEDY, SCALIA,

AND SOUTER, JJ., JOINED. BLACKMUN, J., FILED A DISSENTING OPINION, IN WH ICH MARSHALL, J.,

JOINED; IN PART I OF WHICH O'CONNOR, J., JOINED; AND IN PARTS II AND III OF WHICH STEVENS,

J., JOINED. STEVENS, J., AND O'CONNOR, J., FILED DISSENTING OPINIONS.

CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.

These cases concern a facial challenge to Department of Health and Human

Services (HHS) regulations which limit the ability of Title X fund recipients to

engage in abortion-related activities. ***

Robson The First Amendment

355

I.

A.

In 1970, Congress enacted Title X of the Public Health Service Act (Act), which

provides federal funding for family-planning services. The Act authorizes the

Secretary to “make grants to and enter into contracts with public or nonprofit

private entities to assist in the establishment and operation of voluntary family

planning projects which shall offer a broad range of acceptable and effective

family planning methods and services.” Grants and contracts under Title X

must “be made in accordance with such regulations as the Secretary may

promulgate.” Section 1008 of the Act, however, provides that “[n]one of the

funds appropriated under this subchapter shall be used in programs where

abortion is a method of family planning.” That restriction was intended to

ensure that Title X funds would “be used only to support preventive family

planning services, population research, infertility services, and other related

medical, informational, and educational activities.”

In 1988, the Secretary promulgated new regulations designed to provide “‘clear

and operational guidance’ to grantees about how to preserve the distinction

between Title X programs and abortion as a method of family planning.” The

regulations clarify, through the definition of the term “family planning,” that

Congress intended Title X funds “to be used only to support preventive family

planning services.” (emphasis added). Accordingly, Title X services are limited to

“preconceptional counseling, education, and general reproductive health care,”

and expressly exclude “pregnancy care (including obstetric or prenatal care).”

The regulations “focus the emphasis of the Title X program on its traditional

mission: The provision of preventive family planning services specifically

designed to enable individuals to determine the number and spacing of their

children, while clarifying that pregnant women must be referred to appropriate

prenatal care services.”

The regulations attach three principal conditions on the grant of federal funds

for Title X projects. First, the regulations specify that a “Title X project may not

provide counseling concerning the use of abortion as a method of family

planning or provide referral for abortion as a method of family planning.”

Because Title X is limited to preconceptional services, the program does not

furnish services related to childbirth. Only in the context of a referral out of the

Title X program is a pregnant woman given transitional information. Title X

projects must refer every pregnant client “for appropriate prenatal and/or social

services by furnishing a list of available providers that promote the welfare of

mother and unborn child.” The list may not be used indirectly to encourage or

promote abortion, “such as by weighing the list of referrals in favor of health

care providers which perform abortions, by including on the list of referral

providers health care providers whose principal business is the provision of

abortions, by excluding available providers who do not provide abortions, or by

‘steering’ clients to providers who offer abortion as a method of family

planning.” The Title X project is expressly prohibited from referring a pregnant

woman to an abortion provider, even upon specific request. One permissible

response to such an inquiry is that “the project does not consider abortion an

appropriate method of family planning and therefore does not counsel or refer

for abortion.”