Posted by Eugene Volokh:
The Humana Controversy and Government Funding:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253725442
Various people defended the Department of Health & Human Services
"instruct[ing]" Humana to stop distributing allegedly "misleading and
confusing" political advocacy, on the grounds that Humana gets huge
benefits from participating in various DHS programs. But while the
government has substantial control over how government program dollars
are spent by people and institutions hired to administer the programs,
the government may not impose blanket limits on everything the
recipients say, as a condition of participating in the program.
Rather, the recipients must retain the right to speak using their own
money (at least unless their speech is otherwise punishable).
Here's the relevant passage from [1]Rust v. Sullivan:
The Secretary's regulations [restricting the use of government
funds for abortion-related speech] do not force the Title X grantee
to give up abortion-related speech; they merely require that the
grantee keep such activities separate and distinct from Title X
activities. Title X expressly distinguishes between a Title X
grantee and a Title X project. The grantee, which normally is a
health care organization, may receive funds from a variety of
sources for a variety of purposes. The grantee receives Title X
funds, however, for the specific and limited purpose of
establishing and operating a Title X project. The regulations
govern the scope of the Title X project's activities, and leave the
grantee unfettered in its other activities. The Title X grantee can
continue to perform abortions, provide abortion-related services,
and engage in abortion advocacy; it simply is required to conduct
those activities through programs that are separate and independent
from the project that receives Title X funds.
In contrast, our "unconstitutional conditions" cases involve
situations in which the government has placed a condition on the
recipient of the subsidy rather that 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. In [2]FCC v. League of Women Voters of Cal., we
invalidated a federal law providing that noncommercial television
and radio stations that receive federal grants may not "engage in
editorializing." Under that law, a recipient of federal funds was
"barred absolutely from all editorializing" because it "is not able
to segregate its activities according to the source of its funding"
and thus "has no way of limiting the use of its federal funds to
all noneditorializing activities." The effect of the law was that
"a noncommercial educational station that receives only 1%" of its
overall income from [federal] grants is barred absolutely from all
editorializing" and "barred from using even wholly private funds to
finance its editorial activity." ...
So if the government simply directed Humana not to use
federally-provided funds for its political advocacy to recipients,
that would be permissible. It's possible that if Humana used a
federally-provided mailing list for its mailing (I don't know whether
that's true), the government could attach similar restrictions on the
use of the mailing list. But the government went further: It
instructed Humana even to take the advocacy off its Web site, without
regard to whether Humana used government-provided money for such
advocacy. That, it seems to me, is unconstitutional under FCC v.
League of Women Voters.
To be sure, because money is fungible, this League of Women Voters
principle in effect does stop the government from making sure that its
subsidies aren't indirectly used for certain speech. If the government
gives someone $1 million (whether as a subsidy or as fair market
compensation for the value of its services), and the speaker continues
speaking using what is ostensibly its own money, that speech will
still be much facilitated by the government grant -- the $1 million
will free up money that the recipient would otherwise have had to
spend, and will let the recipient use that freed-up money for its own
speech.
But the Court considered that argument in League of Women Voters and
rejected it. And when the government (federal, state, and local)
controls 25-30% of the GNP, and provides valuable range of contracts
and subsidies to a vast range of institutions, including private
universities, think tanks, newspapers, and so on, giving the
government a free hand to restrict recipients' speech as a condition
of its contracts would give the government vast power over public
debate.
References
1. http://www.law.cornell.edu/supct/html/89-1391.ZO.html
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=468&invol=364
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