First Amendment, OT 2012

The Agency for International Development Case: A New Supreme Court Decision on Free Speech and Government Funding (Guest Blogger Sheldon Nahmod)

Case:

Agency for International Development v. Alliance for Open Society International

The following post, which originally appeared in Nahmod Law, has been cross-posted with permission of the author, Professor Sheldon Nahmod.

The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).

In order to understand it, I’d like to provide the First Amendment background.

First Amendment Background

It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.

It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).

Government Funding and Unconstitutional Conditions

What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.

Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.

1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.

According to the Supreme Court in Rust v. Sullivan, 500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.

2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.

Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.

According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.

The Agency for International Development Case

Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.

However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.

Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.

In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.

As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”

In context, then, this was not a difficult First Amendment case, but it was an important one.

OT 2012

The Supreme Court’s Final Week: A Brief Assessment – Christopher Schmidt, Guest Blogger

This post, which originally appeared in the IIT Chicago-Kent Faculty Blog, is reposted with permission from the author.

Looking back at the dramatic final week at the Supreme Court, here is my take on what was expected and what was surprising.

The expected:

1. The holdings. The outcomes in the big three issues—affirmative action, the Voting Rights Act, and gay marriage—played out more or less as expected. Affirmative action survived, albeit with sharper limitations (Fisher). The preclearance provision of the Voting Rights Act was gutted (Shelby County). DOMA’s limits on federal marriage benefits were struck down (Windsor); and there will be gay marriage in California but there will not be a national constitutional right to gay marriage (Perry). These outcomes were pretty well telegraphed through recent Court decisions and in oral arguments earlier in the term. On the big questions, I would say there was not much in the way of surprises.

2. Congress had a bad week at the Court. Putting together the majorities in Shelby County and Windsor, every justice last week went on record harshly criticizing federal legislation passed by strong majorities. The final week of last year’s term ended on a similar note: in the health care opinion, the conservatives described at length the shortcomings of our nation’s elected representatives.

3. Scalia’s dissent. The only thing Justice Scalia dislikes more than the idea of the Court striking down limitations on gay rights is Justice Kennedy writing the opinion striking down limitations on gay rights. He makes no effort to hide his contempt for Kennedy’s efforts to use constitutional law to protect gay rights. Scalia takes obvious pleasure in skewering, often quite viciously, Kennedy, whose tendency to write opinions that rely on declaratory rhetoric more than rigorous doctrinal explication make him a rather easy target for Scalia. We’ve seen this show before, in Romer v. Evans (1996) and in Lawrence v. Texas (2003). Readers of Scalia’s dissents in these previous gay rights decisions might have assumed he had gone about as far a Supreme Court justice could go in lambasting an opinion of the Court. His Windsor dissent proved such assumptions wrong.

4. Thomas on affirmative action. We know that Clarence Thomas is a passionate opponent of affirmative action. Among our nation’s leaders, Justice Thomas surely must be one of the most forceful, uncompromising critics of all forms of racial preference in education. His concurrence in the affirmative action ruling, like Scalia’s dissent in the DOMA case, largely reiterates themes we have heard before. (A remarkable number of citations in Thomas’ concurrence are to his own concurrences and dissents in earlier cases.) And like Scalia’s Windsor dissent, in returning to familiar themes Thomas has also ratcheted up his rhetoric. Particularly striking was his extended effort to equate the defenders of racial diversity in higher education with those who defended segregation in the litigation in Brown v. Board of Education. Thomas has made this hyperbolic assertion in earlier decisions, but now he seems intent on actually trying to prove the point.

And two surprises:

1. The votes in the affirmative action case. Fisher was 7-1, with only Justice Ginsburg in dissent (and Justice Kagan recused). Two noteworthy points here. First, Chief Justice Roberts and Justices Kennedy and Alito joined an opinion in which they accepted the standard for evaluating affirmative action plans established Grutter, the 2003 decision upholding Michigan Law School’s admissions policy. Why is this significant? Because (a) Justice Kennedy dissented in Grutter, and (b) Chief Justice Roberts wrote, and Justice Alito joined, an opinion in Parents Involved—the 2007 decision striking down local race-conscious school assignment plans—that included strong language condemning racial classifications of all kinds. Fisher signals that while a majority of the justices are critical of racial preferences in university admissions, their attack is to be an indirect one. The Court is progressively narrowing the scope of constitutionally permissible race-conscious admissions policies, steering schools toward race-neutral alternatives.

Another point about the 7-1 vote in Fisher: Justice Ginsburg was all alone in articulating the liberal case for race-conscious policies. Why did Justices Breyer and Sotomayor not join her here? Perhaps they felt that by joining the majority, they could assure a stronger defense of Grutter. There clearly was something interesting going on behind the scenes here. Regardless, it is noteworthy that on this most contentious of constitutional controversies, there does seem to be a moderate, if grudging and perhaps ephemeral, middle ground that has developed on the Court. Some of the liberals are willing to accept that race-neutral alternatives can achieve considerable racial diversity; some of the conservatives are willing to accept a limited place for race-conscious decision-making in university admissions. It is worth noting that beneath the heated rhetoric on this issue, this kind of moderate compromise is about where a majority of the nation is on the question.

2. Kennedy’s Windsor opinion. Another one I didn’t see coming was the really sweeping pro–gay marriage language of Justice Kennedy’s opinion for the Court in the DOMA case. Kennedy clearly was laying the groundwork for a future Court decision striking down prohibitions on gay marriage throughout the nation (either by him or by some other justice relying on his opinion in Windsor, as well as his opinions in Lawrence and Romer). Scalia, in dissent, was surely right to portray the decision as offering little in the way of justification for why its reasoning would not apply to state-level gay marriage prohibitions. Kennedy’s opinion does not, strictly speaking, resolve anything more than DOMA; he went out of his way to disclaim an application of his reasoning beyond DOMA. But the broad language of this opinion, particularly its resonant emphasis on the dignity value of state recognition of marriage, will make it easier for another Court, on another day, to issue a decision declaring prohibitions on same-sex marriage unconstitutional. When? Scalia suggested next term. It’s hard to see it happening this soon. But someday in the near future—and considering the stunning achievements of the cause of marriage equality over recent years, probably sooner than expected.

OT 2012, Same Sex Marriage, Voting Rights Act

Professor Shapiro On A Double Standard In The Court

This blockbuster week of Supreme Court decisions brought us two particular rulings of note. In her blog post, ISCOTUS Director and Chicago-Kent College of Law Professor Carolyn Shapiro examines the opinions in cases with a similar result of less federal oversight, but opposite ideological majorities of Justices.

The cases: Shelby County v. Holder (Voting Rights Act) and US v. Windsor (DOMA).

Click here to read Professor Shapiro’s post: “Democratic legitimacy, Shelby County, and DOMA.”

OT 2012, Title VII

Carolyn Shapiro On This Week’s Title VII Rulings

ISCOTUS Director and Chicago-Kent Professor Carolyn Shapiro writes on this week’s rulings in her blog post “More Pro-Business Decisions at the Supreme Court.”

The decisions she refers to are Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, which both found in favor of employers in workplace discrimination cases.

Professor Shapiro wrote last week on the decision in American Express v. Italian Colors Restaurant and the Roberts Court’s pro-business attitude.

OT 2012

ISCOTUS Director Carolyn Shapiro on American Express

Yesterday’s decision in American Express Co. v. Italian Colors Restaurant was not widely publicized, nor was it one of the most anticipated decisions of the Term. But it has profound effects on the legal and business world.

ISCOTUS Director Carolyn Shapiro argues against the Court’s finding in the Chicago-Kent Faculty Blog. Click here to read her explanation and denunciation of the decision in “Arbitration uber alles in the Supreme Court.”