What's The First Amendment Cost of A Government Subsidy?

Here at Popehat we often strive to remind you that government assistance carries a price. If the government subsidizes your health care, then the government — and your fellow citizens paying the tab — may feel entitled to a say about whether you eat that bacon cheeseburger for lunch, or how big of a soda you can drink with it. TANSTAAFL: government assistance of any kind carries with it an inevitable reduction in liberty.

We're still working out the limits of what the government can tell you to do with respect to bacon cheeseburgers and large sodas — that's a conflict that's both legal and cultural. But what about speech? Can the government use its purse strings to still your tongue?

The answer has been a little cloudy. Cases like Rust v. Sullivan (which upheld rules prohibiting federally-funded clinics from discussing abortion) have given the government some power to limit speech in connection with its largesse. But what's the line between the government deciding how to spend its money and the government censoring you?

Today the Supreme Court made an effort to clarify that line in AGENCY FOR INTERNATIONAL DEVELOPMENT ET AL. v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC. The case involved money the federal government gives to NGOs to combat AIDS worldwide. The money comes at a cost — recipients may not use funds to promote "the practice of prostitution,” and no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” Under agency regulations, if they want the money to fight AIDS, NGOs must proclaim that they are opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.”

Notwithstanding that the federal government pays David Vitter's salary, it seemed pretty clear that it could require NGOs not to spend its subsidies to promote prostitution. But can the federal government require private parties to take a political stance — like one against the legalization of prostitution — to get money?

No. Or, at least, not like this, said justices Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor in an opinion released today. The Court drew a distinction between the government telling you what you can do with its money, on the one hand, and the government telling you what you have to say to get or keep its money, on the other:

By demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern, the condition by its very nature affects “protected conduct outside the scope of the federally funded program.” Rust, 500 U. S., at 197. A recipient cannot avowthe belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federallyfunded program to defining the recipient. See ibid. (“our ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”).

The majority rejected the theory advanced by Justices Scalia and Thomas in dissent that the anti-prostitution-policy requirement is merely a criteria by which the government selects which organizations to fund based on harmonious goals, noting that the organizations could lose the money by changing their policy. Similarly, the majority rejected the argument that the ideological requirement is permissible because it is relevant to the goals of the program. The majority rejected the government's argument that it should be able to demand a certain stance because otherwise the organizations could accept government money and then turn around and use private money to thwart the goals of the government program:

But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U. S., at 642.

In dissent, Justices Scalia and Thomas argue that the government is not coercing speech, but merely choosing to fund organizations that support the goals that the government wants to advance through the program:

The program is valid only if the Government is entitled to disfavor the opposing view (here, advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of those who are to administer the program. There is no risk that this principle will enable the Government to discriminate arbitrarily against positions it disfavors. It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure prostitution. But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.

Scalia and Thomas further argue that, under the Court's logic, the government might be bound to allow explicitly pro-prostitution organizations to compete for federal anti-AIDS funds:

If the government cannot demand a relevant ideological commitment as a condition of application, neither can it distinguish between applicants on a relevant ideological ground. And that is the real evil of today’s opinion. One can expect, in the future,frequent challenges to the denial of government funding for relevant ideological reasons.

Scalia and Thomas are right about one thing: this will undoubtedly encourage litigation about ideological bias in government grant-making and contracting. This is particularly true in the current political environment in the wake of the IRS scandal, when government ideological bias is a matter of public controversy.

I always like to see the Supreme Court uttering a robust defense of the First Amendment. But the arguments of the dissent are not without their logic and power. The government shouldn't be able to shut out people when it doesn't like their views. But when the government spends your money, and mine, to advance a goal, must it give money to organizations that don't share the goal? TANSTAAFL. Nothing comes for free. Trying to make government money free of strings can only lead to insoluble problems.

Postscript: if you want intelligent commentary about why organizations might not want to push anti-prostitution laws — if you want to consider an articulate exposition of the flaws and detriments of the criminalization of prostitution, and of the occasional excesses of "anti-trafficking" laws — Maggie McNeill is an indispensable source.

Last 5 posts by Ken White


  1. Charles says

    Will this apply to whether soup kitchens and the like can or can't proselytize while serving food provided/paid for by Uncle Sam?

  2. anne mouse says

    No time to read the opinion right now, anybody wanna do my homework for me and explain why Scalia/Thomas believe this:

    It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure prostitution.


  3. says

    I feel compelled to point out that the alleged "IRS Scandal" is turning out to be nothing more than hype by the media and Issa's continued witchhunt. As the facts come out, it appears that the groups seeking non-profit status were engaging in political activity – which is not allowed – and that many of these groups were either directly or indirectly affiliated with the Tea Party: http://www.bloomberg.com/news/2013-06-18/first-tea-party-case-labeled-high-profile-irs-manager.html

  4. Conrad says

    Hmm so it's okay for the government to say you must be silent on this issue to receive $$ buy they can't say what you must say.

    Seems easy enough to fashion one into the other.

  5. The Wanderer says

    @anne mouse:

    Just based on Ken's post, without having dug in deeper, I'd say it's because in the case of the defense contracts the question of prostitution would be irrelevant to the purpose for which the money is being provided to the organization.

    The argument would seem to be that because prostitution helps to spread AIDS (a proposition which I presume is supported elsewhere), providing money to fight AIDS to an organization which does not oppose prostitution is counterproductive, and the government should be permitted to refuse to be counterproductive in that way. Contrariwise, under a defense contract, the purpose of providing money is not to fight AIDS (presumably) but is for some other purpose; in that context, the likelihood of prostitution to spread AIDS would be irrelevant to the purpose for which the funds are being provided, and so the government would not be permitted to discriminate on the basis of the contractor's position on prostitution.


    If I'm understanding your question correctly, no. TANSTAAFL is a famous Heinleinism; the first A stands for "Ain't".

  6. Dougbert says

    TINSTAAFL = There Is No Such Thing As A Free Lunch. A somewhat grammar-corrected version of Robert A Heinlein's famous TANSTAAFL (substitute Ain't for Isn't).

    In other words, everything has a price, and someone has to pay the price for any benefit you get.

  7. anne mouse says

    Wanderer, that's my guess too, but it would give future administrations no credit for having resourceful lawyers. Prostitution hurts military morale (by causing emotional distress to spouses back home), decreases military readiness (sick days from STDs), complicates Defense's primary mission of securing our borders (human trafficking), leads to corruption, and on and on. A defense contractor who supported prostitution would contradict the goals of defense.

    Easy as pie.

  8. David Schwartz says

    The Wanderer: I don't get how it's counterproductive though. If I want to give my restaurant a competitive edge by improving the appearance, should I avoid contractors who do business with my competitors on the grounds that helping those who help my competitors is counterproductive? What would actually be counterproductive (and possibly even illegal) is if I conditioned employing the contractor on the contractor refusing to do business with my competitors. Why? Because the more conditions I put on people accepting my money, the less I'll get for my money.

  9. CWuestefeld says

    Modern experience with the interstate commerce clause support anne mouse's claim. The government can be remarkably creative in claiming that two widely divergent things are somehow related.

  10. Kevin says

    It's good to have you back Ken. I appreciate that you were able to describe the arguments of both sides and admit that they both had merit.

    It really irritated me to read the patent blogs after the Myriad case and to see both sides basically ignoring the merits of the other side and the complexity of the issue.

  11. mcinsand says

    "…government assistance of any kind carries with it an inevitable reduction in liberty…"

    I hope I never forget how to express this truth so well, and I hope I don't forget to attribute it to Ken.

  12. RichardW says

    The distinction the majority makes is an interesting one. They say they can require recipients of the money to NOT say something, but they cannot require recipients of the money TO say something. They argue that by saying "This money cannot be used to promote something we find abhorrent" they are not restricting the end-user's ability to proclaim that thing in another context without using the money. But if you have to actively say something to get the money, you can't then go off somewhere without the money and say the opposite.

    In that light, I actually like the distinction. Don't use this money to say stuff I don't like (but you can continue to say it if you want on your own dime, in another context, while still receiving my money that is not going to promote the thing)… but I can't make you say something specific.

  13. Manatee says

    The problem here is that prostitution is a political question. It's well established that illegal prostitution and human trafficking spread STDs like crazy. There is less consensus that this is true of all prostitution–I'm no epidemiologist, but I do recall advocates claiming that the open, legal, and regulated industries in Amsterdam was no less safe than any university with a wet campus, in terms of AIDS and other STDS. Giving anti-AIDS money to a pimp who traffics little girls out of Vietnam seems clearly counter productive and the First Amendment certainly does not compel the government to do so. However, I am much less comfortale with the government withholding money from an NGO that scrupulously complies with the terms of its use, but whose members spend their off hours advocating their sincerely held position that legalizing and regulating prostitution will do more to stop the spread of AIDS than to continue to drive it underground.

  14. Lissie says

    The goal of stemming the spread of HIV is distinct from the goal of eradicating prostitution. The opinion does not, as summarized in the post, prohibit the government to give money to organizations that don't share their goal. It restrains the government from forcing a grant recipient to adopt a point of view that has nothing to do with the grant's goals.

  15. TerryTowels says

    "TANSTAAFL: government assistance of any kind carries with it an inevitable reduction in liberty."

    This. I can never understand why artists complain about restrictions on the art paid for with public funds. (IAAA). There are restrictions for art paid for by private funds. Heck, all the great artists in history had to live by their patron's codes.

    Now, govmint interference in private art in a private setting is a whole 'nother thing.

  16. mcinsand says

    A memory bubbled up through the mental tarpits of my economics professor discussing the way our government was funding antismoking efforts while also subsidizing tobacco farmers. If only three decades hadn't passed, maybe I could remember more of the conclusions. No doubt, knowing him, he took several potshots at the economists making the decisions. He was very cynical about economists, even as he was one. He taught that the theory is very good at helping to understand what is happening, but extrapolating even a little bit too far in application was very risky.

  17. Dan Weber says

    This has been a fascinating SCOTUS session. Seeing how the Justices land on one side or the other is awesome. People who think that it's "the liberals versus the conservatives" are missing out.

  18. says

    "Notwithstanding that the federal government pays David Vitter's salary…"

    best snark delivery EVER!!!

  19. Myk says

    Following the David Vitter thread through to its logical conclusion, one might be tempted to argue that all Senate, Congress and Legislature (and indeed, even the Executive) salaries ought to be withheld until the employee – who is receiving Government funding and is therefore, I suggest, bound to support government ideology – can provide proof positive that no interaction with prostitutes has occurred during their employment. I'll leave it to other to unpack whether the daily conversations on Capitol Hill would fall into this category of interaction.

  20. granny weatherwax says

    "government assistance of any kind carries with it an inevitable reduction in liberty"

    Some assistance from the state can result in an increase in liberty, at least in terms of ability to spend time on a wider variety of things in life.

    For example, state defence of property rights means that you do not have to personally guard everything you claim ownership to and so you can go down the pub with a reasonable assumption that if someone tries to claim your house while you are out for the evening, you will usually be able to get it back.

    Also, having some form of legal state gives an alternative to blood feuds, which are so tediously time consuming and messy in comparison.

    Liberty isn't just the ability to do what you damn well please, it is also the ability to have more choices available to you in the short time you have. From that perspective, states, when they work, are a good way of spreading the load so that individuals do not have to concern themselves with the totality of everything involved in day to day survival and therefore have more time for pursuits like writing law blogs, or creating new varieties of cheese.

  21. AlphaCentauri says

    Why stop at prostitution? If all members of congress had to actively support all the laws currently on the books, they might want to repeal a whole lot of them. Immediately. It might be amusing to see the parliamentary gymnastics necessary to introduce those bills without publicly supporting unlawfulness, too. ;)

  22. jdgalt says

    The question the Supreme Court should be considering is whether the Federal government has any authority to be giving out those grants at all. I say no. (Federalist #41 proves that neither the "necessary and proper" clause nor "promoting the general welfare" are really among Congress's enumerated powers.)

  23. En Passant says

    AlphaCentauri wrote Jun 20, 2013 @4:54 pm:

    Why stop at prostitution?

    Excellent point.

    You bid on a government contract to provide education to prevent drownings.

    Should you be prohibited from such a contract unless you agree to advocate that nobody should be allowed to swim?

    You bid on a government contract to prevent injury and death in automobile accidents.

    Should you be prohibited from such a contract unless you agree to advocate that automobiles should be illegal?

    The list is endless.

  24. WDO says

    Adam – rubbish.

    The groups in question were applying for 501c4 status. According to the IRS:

    Seeking legislation germane to the organization's programs is a permissible means of attaining social welfare purposes. Thus, a section 501(c)(4) social welfare organization may further its exempt purposes through lobbying as its primary activity without jeopardizing its exempt status.

    Examples of 501c4 groups include Greenpeace, the NAACP and the AARP.

  25. Rob says

    Examples of 501c4 groups include Greenpeace, the NAACP and the AARP.

    Don't forget Organizing For America, formerly Obama For America, which applied for its 501c4 status at about the same time as the Tea Party groups and sailed through the process.

  26. Ae Viescas says

    "But when the government spends your money, and mine, to advance a goal, must it give money to organizations that don't share the goal?"

    I don't really think the court said "yes." Instead, they ruled that the government can't withhold money based on an ideology "outside the scope" of the government's stated goal.

    After all, if a group that is explicitly has an opposition to the goal of the funding project, there's no reason why they should ever get the money. Prostitution-supporting or prostitution-neutral NGOs still have to prove that their effectiveness (or at least prove their plan isn't stupid) in the battle against AIDs in order to get government money, and so if their strategy involves unmarked bills in alleyways instead of condom-distribution and education on the streets, they will probably should not get any funding.

    Challenges may increase, but it's unclear how much this will actually cost. (and may actually result in better outcomes)

    That's the only part of Scalia's argument I actually respect. Other than that, it's pretty clear that the real difference is that he thinks totalitarian opposition to prostitution is "relevant" to the fight against AIDs, while the rest think that it's "outside the scope."

    In other words, less a First Amendment issue so much as a salvo in the culture war. Small wonder who broke down on what!

    Disclaimer: I happen to agree with the majority that the anti-prostitution requirement is "outside the scope" of the program's stated goal. The popularity of prostitution may be connected to the spread of AIDs, but there's no evidence that requiring NGOs be anti-prostitution will help the cause, and in fact it may well turn out to be the opposite. Which one is true will be determined by the NGOs themselves and whoever reviews their applications for federal funding, not by an uneducated rider on a funding bill.

  27. ZarroTsu says

    I'm imagining Wheel of Fortune somehow, only when you buy a vowel you have to go through a three hour process where the show's host and co-host sit you down and try to convince you not to use the vowel illegitimately, and making you sign a contract to use it only once.

    Then police arrive at the scene and arrest you for using the vowel, and turning up two or more letters on the board.

  28. perlhaqr says

    I dunno. I have a hard time getting past "Maybe this isn't something the government should be spending tax money on".

    That aside, I'm pretty sympathetic to the argument Scalia et al make about this: I feel it's pretty reasonable in the case where it's me, spending my money, (presuming I'm a philanthropic billionaire) to decide to only give my money to groups that espouse stances I agree with.

    I guess the difference is really the "my money" vs: "tax money" there. If there isn't really anything morally incorrect about prostitution, but it just happens to be illegal, spending coercively gathered funds to promote the continuance of that legal regime makes it an even steeper uphill battle for those who might wish to change the law.

  29. Derrick says

    This is why I plan to start shooting heroin when the Health Insurance Reform Act (healthcare had nothing to do with this) fully kicks in. I want to make certain I get my and everyone elses' money's worth. A couple of overdoses will get me to the emergency room. Rehab will cover the specialized medical care. Methadone treatments will be the long-term aspect, and visits to a shrink will take care of the mental health aspect.

    Sure, they might be able tell me what to eat or not each, but I'm going to stick to pumping chemicals into my system before they do. I will have an addiction, and that is a medically treatable condition… unlike Big Macs.

    I win (sort of)!

  30. Jack says

    Forget about the prostitution example for a second and assume that the government required people to say "They have to be against homosexual activity, because it promotes the distribution of HIV/AIDS" to get anti HIV/AIDS money…. Or that an anti-violence campaign had to agree to the statement that "Guns are an evil in society, and that the presence of firearms in the community directly leads to violence"…

    This is exactly what the government is doing… The government comes up with an opinion that is a matter of public debate – not a fact – and forces anyone who wants to get funding to espouse those same beliefs.

    Sure this case isn't the most obscene stance on the planet (I strongly disagree, but a lot of people wouldn't) – but what if they took a more controversial stance? Then how would you respond?

  31. Dan Weber says

    I can see how the majority opinion is a good one: imagine that the government increases everyone's taxes by $50,000 — and then gives everyone a $50,000 tax credit.

    What can they make dependent on that tax credit?

  32. Josh C says

    "Free Lunches" are a fascinating bit of Americana, and are worth looking into for more than just the economics:

    It's this amazing business-case–driven institution, which accomplished an immense amount of social good almost incidentally.

  33. anne mouse says

    I've now skimmed the decision and read the dissent. I think Scalia sincerely believes, at an intuitive level, that it's impossible to fight HIV without opposing prostitution. So he doesn't spend any time explaining exactly how the two things are related, and he certainly doesn't worry about hypothetical line-drawing between what's essential to a program and what's not. What Ken quoted is all there is:

    The program is valid
    only if the Government is entitled to disfavor the opposing
    view (here, advocacy of or toleration of prostitution). And
    if the program can disfavor it, so can the selection of those
    who are to administer the program. There is no risk that
    this principle will enable the Government to discriminate
    arbitrarily against positions it disfavors. It would not, for
    example, permit the Government to exclude from bidding
    on defense contracts anyone who refuses to abjure prostitution.
    But here a central part of the Government’s
    HIV/AIDS strategy is the suppression of prostitution, by
    which HIV is transmitted. It is entirely reasonable to
    admit to participation in the program only those who
    believe in that goal.

    I've bolded the sentence I find unsupportable. I note in particular the sentence that precedes the block quote above:

    Here the views that the Government demands an applicant forswear—or that the Government insists an applicant favor—are
    relevant to the program in question.

    Emphasis mine.

    Scalia goes on to do an excellent job examining the inconsitencies in the majority position, but he (unlike the majority) seems utterly blind to the problems in his own view. In my view, the majority's rule is messy and frustrating, but tenable; Scalia's desired replacement would be utterly useless.

  34. Sami says

    I have to disagree with your opening example regarding health care. I live in a country with government-subsidised health care. The government has no say in what any of us eat. True, our cuisine does not go to the extremes of unhealthy that American food tends to, but that's because a) we have a sugar industry but much less of a corn industry, so we don't have high-fructose corn syrup and b) we don't deep-fry everything because that's not our thing and never has been.

    We can still eat all the junk food we want. We have McDonald's and the government takes no position on how often we're allowed to eat there.

    TANSTAAFL is fine, but the reason it's not a free lunch is that we, as a population, pay for it with money. The price you pay for government assistance and programs for social welfare is not automatically liberty, it's automatically money.

  35. AlphaCentauri says

    Most people don't question paying for the cost of defending our country against foreign invasion. Somehow we've managed to pay large amounts for military actions in places no where near our borders.

    Similarly, despite the fact that we don't have universal health care (and aren't going to have it in 2014, either), the government has been giving money to organizations that provide health care services in other countries that many of our own citizens here can't afford.

    These things aren't happening accidentally. There has to be a huge amount of money at stake and a lot of pressure from lobbyists from wealthy interests. For instance, when there is civil war or plague in countries we rely on for minerals we need for our computer industry or petroleum we need for our vehicles, American investors take a big financial hit. The cost of distributing condoms and IUDs is a lot less than the cost of sending troops to maintain access to critical resources, and both are apparently more politically palatable than making people pay more for their gas and consumer goods.

  36. Nick says

    This is kind of tangential to the main thrust of the post, but I can only see "TANSTAAFL: government assistance of any kind carries with it an inevitable reduction in liberty." only really working if you also assume that a) simply living in a civilized society is implicitly a form of government assistance, and b) it's possible for the reduction of liberty from actual government assistance is no greater than the reduction implied by just living in the society in the first place.

    Otherwise it's just libertarian kleptocratic hells all the way down.

  37. says

    AFAICT, the goal of the government program is to curb AIDS. That's great.

    However, saying "no prostitution" is not in fact a necessary component of that. An alternative stance, for instance, could be "prostitution should be legal and regulated, so that the illegal market is quelled and the legal market is reasonably safe".

    That's not disagreeing on goals; it's disagreeing on strategy. Which I damn well hope that private parties would do.