This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding accepted by nonprofits and demonstrates its application by reviewing the Court’s landmark decisions in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government—whether direct or indirect—is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech absent a compelling governmental interest in doing so and then only if the purchase is done in a manner that is narrowly tailored to serve that interest. This Article’s approach contrasts with the current approach of the Supreme Court in this area, which in its various attempts to resolve disputes centering on such conditions has left courts, governments, and private parties understandably confused about the applicable constitutional standards. This tendency is illustrated in particular by the Court’s recent Agency for International Development v. Alliance for Open Society International opinion. This framework also has two broader ramifications. First, it may prove useful for resolving constitutional disputes relating to other speech-related conditions, such as campaign finance limits tied to government funding or other government benefits. Second, it demonstrates that by drawing on the extensive unconstitutional conditions literature to create an approach customized to a particular constitutional context it may be possible to salvage the unconstitutional conditions doctrine even given its widely acknowledged incoherence. Salvaging the doctrine is particularly important in a world where government benefits both permeate almost every type of activity and are often accompanied by constitutionally suspect restrictions.
Mayer, Lloyd Hitoshi, "Nonprofits, Speech, and Unconstitutional Conditions" (2014). Connecticut Law Review. 236.