Unconstitutional Conditions (Update)

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Unconstitutional conditions problems arise when government conditions allocation of a benefit such as public property, jobs, or funds upon surrender of a constitutional right. Government's coercive deprivation of a right through the imposition of criminal or civil liability normally triggers a demand for strong justification. Government's mere exercise of budgetary discretion, however, normally triggers only deferential judicial review. The doctrine of unconstitutional conditions holds that some selective allocations of benefits are equivalent to coercive deprivations of rights. The difficulty is in determining when this is so.

The Supreme Court has tended to steer between two polar positions. On the one hand, it has declined to hold that government has absolute allocative discretion when it acts in its capacity as property owner, employer, or patron. This view is epitomized by the famous epigram of Justice oliver wendell holmes, jr. , inMcAuliffe v. Mayor of New England (1892) that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." On the other hand, the Court has also declined to hold that constitutional limits extend to government in these proprietary capacities as completely as they do to government in its sovereign capacity. Instead, the Court has tended to draw a series of public/private distinctions among conditions on benefits, categorizing some as akin to the exercise of sovereign power subject to strong constitutional constraints and others as the mere exercise of managerial prerogative.

freedom of speech claims provide the most abundant recent examples of such categorization, which may be considered separately with respect to conditions upon speech on public property, speech by public employees, and speech by recipients of public funds. Under a long line of decisions recognizing certain public property as public forums, government may not condition speakers' access to public streets or parks on submission to government content control or excessive time, place, or manner regulation. But a more recent line of decisions exempts a wide range of government property other than streets and parks from such constitutional limitations. For example, government may pick and choose which speakers may place circulars in public school teachers' mailboxes, solicit funds in charitable fund drives in public workplaces, demonstrate or petition on sidewalks abutting post offices, solicit donations in airport terminals, or participate in a candidate debate broadcast on public television—even though such discrimination would not be allowed among speakers in streets and parks. Each of these locations within the vast realm of government property has been deemed a "nonpublic forum," in which government may condition access as selectively as it likes so long as it acts reasonably and avoids discrimination on the basis of viewpoint.

The Court has divided claims against speech-restrictive conditions on public employment along similar lines. On the one hand, public employees do not shed their First Amendment rights at the workplace gate, and government may not without strong justification condition retention of their jobs on silence in their public capacities as citizens. A public school teacher may criticize a school board for spending too much on athletics, a clerical worker in a sheriff's office may express bantering disappointment that an attempted assassination of the President was unsuccessful, and civil servants may receive honoraria for their off-duty speeches or articles—all without job sanction unless the government can make a particularized showing that such speech will disrupt the workplace or impair government efficiency. On the other hand, public employees may be freely discharged or demoted for expressing mere labor grievances internal to their workplace, such as soliciting coworker expression of hostility toward the boss. Similarly, a government job or contract may not be conditioned upon patronage or the recipient's association with the incumbent political party, except in a narrow set of confidential or policymaking positions.

In challenges to the selective allocation of public funds to some speakers and not others, the Court has distinguished between the mere refusal to subsidize speech of particular content, which is constitutional unless aimed at the suppression of a particular viewpoint, and the impermissible use of the leverage of the government funding to alter what the speaker would otherwise say with private resources. For example, government may not condition a public broadcasting subsidy on a station's foregoing all editorializing even if funded with private contributions. But government may withhold a subsidy in the form of tax benefits from the lobbying efforts of a nonprofit organization when this nonsubsidy does not affect the nonlobbying speech or advocacy of the organization, and may limit family planning funds to those health care entities that agree not to advocate or counsel women about abortion. As the majority opinion in rust v. sullivan (1991) stated, "when the government appropriates public funds to establish a program it is entitled to define the limits of that program."

The doctrine of unconstitutional conditions in the First Amendment area was largely the handiwork of the late Justice william j. brennan, jr. , who wrote in speiser v. randall (1958) and in sherbert v. verner (1963) that in an expanded welfare state, the deprivation of a government benefit might penalize or deter the exercise of constitutional rights to the same extent as a criminal fine. His assumption seemed to be that if government had enough market power, it could distort the interplay of ideas in society by wielding carrots as well as sticks. At the extreme, this is certainly true; if government were the sole provider of an opportunity, then a condition on government allocation of that opportunity would have the same effects as a coercive regulation, for there would be no escape from government monopoly. Brennan may also have assumed that, even if the public sector were more limited, rights-pressuring conditions on government benefits would create a caste system in which those who are dependent on government aid enjoy more constricted opportunity to exercise constitutional rights than those with private means.

The rehnquist court might well have been expected to be less receptive to the doctrine of unconstitutional conditions. Chief Justice william h. rehnquist himself has been an ardent critic of the doctrine. For example, he criticized the majority's decision to give First Amendment scrutiny to public school library book removals in Pico v. Board of Education (1982), arguing that "the role of government as sovereign is subject to more stringent limitations than is the role of government as employer, property owner, or educator." He likewise criticized the majority in Federal Communications Commission v. League of Women Voters (1984), which invalidated anti-editorializing conditions on public broadcasting subsidies, for treating the government as "the 'Big Bad Wolf' " to the public broadcaster's " 'Little Red Riding Hood' " when in fact "some of the food in the basket was given to Little Red Riding Hood by the Big Bad Wolf himself."

This view, as opposed to Brennan's, appears to assume that for most purposes government is not a monopolist but rather just one speaker among many, and therefore is not able to repress dissent as effectively through conditions on benefits as it can through regulation. One who loses public funds may seek private patrons, and there are private substitutes for public space or jobs. On this view, a condition on the allocation of public space, salary, or subsidy is not a coercive exercise of power so much as a contractual offer and acceptance. For example, Justice antonin scalia, concurring in the Court's decision in National Endowment for the Arts v. Finley (1998), which upheld a condition that public arts grants meet general standards of "decency" and "respect" for public values, wrote that there is a fundamental difference "between 'abridging' speech and funding it," and that the First Amendment is simply inapplicable to the selective allocation of funds.

Nonetheless, the Holmesean views expressed in these examples by Rehnquist and Scalia have failed to garner a majority on the Court, leaving the doctrine of unconstitutional conditions intact if somewhat curtailed. The Court has continued to hold, moreover, that even when acting in its proprietary capacities, government, unlike a purely private landlord, employer, or patron, may not engage in viewpoint discrimination unless it is enlisting the sponsored person to express a message on the polity's behalf. For example, in rosenberger v. rector & visitors of the university of virginia (1995), a majority of the Court (joined among others by Rehnquist and Scalia) held that a public university that funds a range of student publications from a mandatory student activities fee may not decline to subsidize an avowedly Christian student magazine for reason of its religious perspective.

Nor are recent applications of the unconstitutional conditions principle limited to the First Amendment. In South Dakota v. Dole (1987), which upheld a requirement that states receiving federal highway funds raise their minimum drinking age, the Court suggested that there is some outer limit to how far the federal government may go in using regulatory conditions on federal funding to induce state adherence to federal policy. And in Nollan v. California Coastal Commission (1987) and dolan v. tigard (1994), the Court held that government may not use its power to withhold a zoning variance as leverage to take access to property for reasons not closely related to the zoning law's purpose. In both the federalism and the taking of property areas, as in the free speech area, unconstitutional conditions doctrine helps limit the use of government economic leverage to influence the exercise of constitutional rights.

Kathleen M. Sullivan

(see also: Government as Proprietor.)


Cole, David 1992 Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech. New York University Law Review 67:675–749.

Epstein, Richard 1994 Bargaining with the State. Cambridge, Mass.: Harvard University Press.

Post, Robert C. 1996 Subsidized Speech. Yale Law Journal 106:151–195.

Sullivan, Kathleen M. 1989 Unconstitutional Conditions. Harvard Law Review 102:1413–1506.