This case is about far more than prostitution and HIV/AIDS. The expansion of the modern regulatory state has increasingly led to financial involvement of the government with private organizations — including churches, religious universities, and religious charities — in ways that potentially give the government power over those organizations. Tax exemptions, which have been treated by this Court as tantamount to the provision of funds, are a prominent example. Student loans and grants, which are likewise treated as equivalent to direct payments to the university, are another. Numerous other examples exist, including the direct grants at issue here.
Under the government’s theory in this case, federal, state, and local governments may use these kinds of government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations’ own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so.
For the reasons discussed below, that cannot be right. Such a “get with the program” power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it. “[N]o 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.” West Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). Likewise, no official should be permitted to acquire such a power by using the government’s vast resources as a tool for control of groups that participate in government programs.
Contrary to the government’s view, a government’s recognized power to limit speech within the programs that it funds cannot justify a power to compel speech as a condition of government funding. Government programs that limit what can be said within the programs typically leave participants ample alternative means of exercising their rights to speak as they see fit. The participants just have to engage in their preferred speech outside those programs.
But when the government compels an organization to say things — even if only through an affiliate — as a condition of participating in a program, then the organization cannot avoid saying those things. It thus has no alternative means of exercising its Free Speech Clause right not to speak while still participating in the program.
Moreover, once an organization is pressured to state a policy with which it does not agree, even through an affiliate, its ability to express contrary views outside the program will be undermined. Saying one thing in the program and the opposite outside will make the organization appear at best equivocal and at worst hypocritical. Thus, by compelling the endorsement of a government policy as a condition of accessing government-controlled funds, the government will have the power to effectively restrict the program participant’s speech even outside the government program — a power this Court’s cases have rightly rejected.
June 21, 2013
"When May the Government Require Groups to Endorse Certain Views in Order to Get Government Benefits?"
Eugene Volokh frames the question of what was at issue in the Supreme Court's opinion in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. and quotes his own brief which was — I would say; he doesn't assert so — influential: