Selective Funding Arrangements

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Because the Constitution does not require the government to subsidize speech,1 the Court has held that the government may “selectively fund a program to encourage certain activities,” including activities that involve speech, “without at the same time funding” other activities.2 The Court announced this rule in 1991 in Rust v. Sullivan, a case involving funding for family-planning services under Title X of the Public Health Service Act.3 That act provides that no funds appropriated under Title X “shall be used in programs where abortion is a method of family planning.” 4 For the Supreme Court, there was “no question” that this restriction was constitutional.5 The Court held that the government made a permissible choice to “fund one activity to the exclusion of the other.” 6

The challenged regulations implementing this statutory restriction posed a closer question, but the Court ultimately upheld the regulatory conditions as well. One provision barred a Title X project from providing “counseling concerning the use of abortion as a method of family planning” or “referral[s] for abortion as a method of family planning.” 7 The Court rejected the argument that the prohibition on abortion counseling and referrals discriminated on the basis of viewpoint.8 The Court reasoned that the government was not “suppressing a dangerous idea” ; it was prohibiting “a project grantee or its employees from engaging in activities outside of the project’s scope” ; the program was “designed” to “encourage family planning,” not fund “prenatal care.” 9 The Court concluded that “when the Government appropriates public funds to establish a program[,] it is entitled to define the limits of that program.” 10

In addition, the Court upheld provisions in the regulations prohibiting Title X projects from “engaging in activities that ‘encourage, promote or advocate abortion as a method of family planning’” and requiring Title X projects to be “'physically and financially separate’ from prohibited abortion activities.” 11 In the Court’s view, the regulations did not “force the Title X grantee to give up abortion-related speech; they merely require[d] that the grantee keep such activities separate and distinct from Title X activities,” thereby ensuring that public funds are “spent for the purposes for which they were authorized.” 12 In other words, the regulations governed “the scope of the Title X project's activities,” leaving “the grantee unfettered in its other activities.” 13

Building on Rust, the Court in National Endowment for the Arts v. Finley suggested that including some subjective criteria in competitive grantmaking does not necessarily amount to impermissible viewpoint discrimination.14 There, the Court upheld a federal statute requiring the NEA, in awarding grants, to “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” 15 The Court concluded that this “advisory language” imposed “no categorical requirement” to reject applicants whose works did not meet the “decency and respect” provision.16 Thus, the Court held, the provision did not “introduce considerations that, in practice, would effectively preclude or punish the expression of particular views.” 17 Instead, the Court concluded, the provision “merely adds some imprecise considerations to an already subjective selection process.” 18 As such, it did not violate the First Amendment on its face.19

1: Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983); see, e.g., Lyng v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am., 485 U.S. 360 (1988) (holding that a condition barring households of striking workers from food stamp eligibility did “not infringe either the associational or expressive rights” of union members, reasoning that while “[e]xercising the right to strike inevitably risks economic hardship,” the First Amendment does not compel the “Government to minimize that result by qualifying the striker for food stamps” ).
2: Rust v. Sullivan, 500 U.S. 173, 193–95 (1991).
3: Id. at 178.
4: Id. (quoting 42 U.S.C. § 300a-6).
5: Id. at 192.
6: Id. at 193.
7: Id. at 179 (quoting 42 C.F.R. § 59.8(a)(1) (1989)).
8: Rust v. Sullivan, 500 U.S. 173, 194 (1991).
9: Id. at 193–94 (internal quotation marks and citation omitted).
10: Id. at 194.
11: Id. at 180, 196 (quoting 42 C.F.R. §§ 59.9, 59.10(a)).
12: Id. at 196
13: Id.
14: Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998).
15: Id. at 572 (quoting 20 U.S.C. § 954(d)(1)).
16: Id. at 581.
17: Id. at 583.
18: Id. at 589; see also id. at 585 ( “Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The NEA has limited resources and it must deny the majority of the grant applications that it receives . . . . The agency may decide to fund particular projects for a wide variety of reasons. . . .” ).
19: Id. at 590. The Court did not foreclose an “as-applied” challenge if, for instance, “the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints.” Id. at 587.