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.
In a 2006 decision, the Supreme Court held that a funding condition that affects speech is not an unconstitutional condition “if it could be constitutionally imposed directly.” 1 In Rumsfeld v. Forum for Academic & Institutional Rights, the Court considered a law that required a federal department to withhold certain funds from any higher education institution that had “a policy or practice” of giving military recruiters less favorable access to its campus and students than non-military recruiters.2 The requirement comported with the First Amendment, the Court held, because it primarily regulated conduct and the government’s interest in supporting military recruiting was sufficient to justify any incidental burdens on expression.3 Because Congress could directly require higher education institutions to provide equal access to military recruiters, it could also take the indirect measure of conditioning funding on compliance with the equal-access requirement.4
- Rumsfeld v. Forum for Acad. & Inst’l Rights, 547 U.S. 47, 59–60 (2006).
- Id. at 52–55 (quoting 10 U.S.C. § 983(b) (2000 ed., Supp. IV)).
- Id. at 60–70 (reasoning that while “recruiting assistance provided by the schools often includes elements of speech,” the burden on such speech was incidental to its regulation of conduct in the form of recruiting practices, and concluding in the alternative that the law met the intermediate scrutiny standard applicable to regulations of expressive conduct).
- Id. at 59–60.