Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment?

56 Fla. L. Rev. 471 (2004) | | | |

TEXT :: The Children’s Internet Protection Act (CIPA) sets conditions on public libraries’ receipt of federal financial assistance for Internet access. Under CIPA, libraries must install filters on all of their Internet-connected computers to help block obscene and pornographic images and prevent minors from accessing harmful material. Respondents challenged CIPA on Spending Clause grounds, arguing that CIPA imposes an unconstitutional condition on public libraries. Respondents asserted that libraries should not be required to relinquish their First Amendment right to provide patrons with unfiltered Internet access as a condition on their receipt of federal benefits. The United States District Court for the Eastern District of Pennsylvania held CIPA facially unconstitutional on other grounds. Petitioner appealed the decision and the United States Supreme Court granted certiorari. In reversing the district court’s decision, the Court HELD, that CIPA does not impose an unconstitutional condition on public libraries.

The Spending Clause empowers Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defense and general Welfare of the United States.” The Court has traditionally interpreted Congress’ spending power broadly. The Court has held that Congress’ authority to tax and spend is not restricted by the direct grants of legislative power enumerated in Article I, Section 8 of the Constitution. Rather, Congress’ authority exists as a separate substantive power. Thus, Congress may accomplish goals not specifically mentioned in the Constitution through the conditional grant of federal funds.


There are, however, limits on Congress’ authority to use conditional subsidies. Under the doctrine of unconstitutional conditions, the Government may not deny an individual a benefit on a basis that infringes a constitutionally protected right, even if the person has no entitlement to that benefit. In FCC v. League of Women Voters, the Court applied this doctrine in the context of the First Amendment.

In League of Women Voters, the Court examined a statutory provision that prohibited editorializing by non-commercial broadcasting stations receiving federal grants. The Court held that Congress could not require broadcasting stations to give up their First Amendment rights as a condition on receiving federal funds. The Court indicated that a condition is unconstitutional if it restricts the actions of the grantee, rather than the activities of the federal program. Under the challenged provision, a broadcasting station that received only one percent of its income from federal grants, and the rest from private sources, was barred from all editorializing. It would not have been possible for the broadcasting station to limit the use of federal funds to all non-editorializing activities. The Court observed that the condition would have been valid if the statute had allowed broadcasting stations to establish affiliate organizations that could use the stations’ facilities to editorialize with non-federal funds. In this way, the broadcasting stations would have been free to exercise their First Amendment rights without losing federal grants.

Subsequently, in Rust v. Sullivan, the Court left intact the League of Women Voters test, but articulated a more deferential standard for conditions that survive the test. In Rust, the Court considered whether a federal program that provided family-planning grants to health care agencies violated the First Amendment rights of doctors by prohibiting abortion counseling. Unlike the Court in League of Women Voters, the Rust Court found the condition permissible because it merely restricted the activities of the program, not the actions of the grantee. Whereas the League of Women Voters condition prohibited broadcasting stations from editorializing outside the scope of the federal program, the Rust condition did not force doctors or health care agencies to give up abortion-related speech. The Rust condition allowed the grantees to engage in abortion-related speech in projects that were separate and distinct from the program receiving federal family-planning money. Thus, the grantees were free to use private money to finance abortion-related speech outside the federal program.

The Court emphasized that Congress has broad authority to use conditions that pass the League of Women Voters test. The Court held that the Government may insist that public funds be spent for their designated purpose. Since Congress had allocated money for family-planning services, Congress could reasonably require doctors to refrain from abortion counseling.

In Legal Services Corp. v. Velazquez, the Court restricted the holding of Rust, substantially reducing Congress’ power to use conditional subsidies. In Velazquez, the Court held unconstitutional a statute that prohibited attorneys employed by groups receiving federal legal-services grants from attacking existing welfare laws. The Court noted that the Rust Court did not explicitly rely on the fact that the doctors’ counseling activities under the federal program amounted to governmental speech. Nonetheless, the Court explained that Rust stood for the principle that the Government may impose viewpoint- based conditions when the Government itself is the speaker or when, as in Rust, the Government uses private speakers to convey a specific programmatic message. The Court noted, however, that when the Government expends money to encourage a diversity of views from private speakers, it may not impose viewpoint- based conditions.

Although acknowledging that the legal-services program did not seek to encourage a diversity of views, the Court held the program was still entitled to the same protection from viewpoint-based conditions. The key point, the Court explained, was that the program promoted “private speech,” rather than a “governmental message.” The program facilitated private speech because it enabled attorneys to advise and represent their private clients. The Court concluded that since the Government was financing constitutionally protected expression, it could not use conditional subsidies to exclude certain theories and ideas.

The Court further curbed Congress’ spending power, asserting that Congress may not use a conditional subsidy to distort a medium of expression. When the Government attempts to regulate a medium through a restriction on speech, the Court will look to the medium’s traditional usage to determine whether the restriction is necessary for the program’s purposes. The purpose of the legal-services program was to help welfare claimants receive benefits. The restriction on the attorneys’ speech undermined that purpose by distorting the traditional role of attorneys and the legal system.

The instant Court did not reject the Internet filtering condition under Velazquez’s bar to government distortion of a medium. Instead, the plurality in the instant case upheld the condition under Rust’s deferential standard for conditions that pass the League of Women Voters test. Congress could insist that public money be spent to carry out the purpose of the Internet-assistance programs: to help libraries satisfy their traditional role of providing worthwhile material. The instant Court stated that filters help libraries provide quality material; therefore, Congress may reasonably impose a condition on public libraries.

The instant Court distinguished Velazquez, restricting its holding to situations in which the grantee is “pit[ted] . . . against the Government.” The instant Court stated that public libraries, unlike attorneys representing welfare claimants, have no adversarial role against the Government. Thus, there was no comparable assumption that library subsidies must be free of conditions. The instant Court further found Velazquez inapplicable, stating that Velazquez only bars viewpoint-based conditions when the Government spends money to encourage a diversity of views from private speakers. Public libraries install Internet terminals to provide patrons with worthwhile material, not to provide a forum for private Web publishers.

In his dissent, Justice Stevens criticized the plurality’s dismissal of Velazquez, arguing that that case’s holding was “not limited to instances in which the recipient of Government funds might be ‘pit[ted]‘ against the Government.” Justice Stevens asserted that the filtering condition was unconstitutional because it distorted the normal usage of library Internet terminals as sources of a wide array of information. He reasoned that filters accidentally block protected speech, while failing to block many pornographic images.

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