29 Pages Posted: 13 May 2014
Date Written: May 9, 2014
In a victory for free speech and individual liberty, Agency for International Development v. Alliance for Open Society International, Inc. (AID v. AOSI) — the only First Amendment decision of the Supreme Court’s 2012-13 term — struck down a government funding condition requiring recipients to pledge ideological support for government policies. In this essay, written for the Cato Supreme Court Review, I outline the Court’s prior holdings on the constitutionality of conditions on government funding and other subsidies before examining AID v. AOSI in detail. While I applaud its holding, the dispositive distinction the Court pronounced between funding conditions operating within and without a government program can’t govern every funding condition; otherwise, the government could manipulate the scope and funding for its programs as a subterfuge to regulate its citizens’ beliefs and communications. As with other situations in which the government attempts to alter typical First Amendment expressive protections, the overarching appraisal should necessitate continued judicial acquiescence in traditional regulatory practices. While inside-program limitations are one such tradition in the government funding context, additional complementary traditions exist that must be taken into account to protect public forums and other expressive spheres from government overreach.
Keywords: First Amendment, free speech, unconstitutional conditions, subsidized speech, compelled speech, Agency for International Development
JEL Classification: K19, K39, K49
Suggested Citation: Suggested Citation
Rhodes, Charles W. (Rocky), Speech, Subsidies, and Traditions: AID v. AOSI and the First Amendment (May 9, 2014). 2013 Cato Supreme Court Review 363. Available at SSRN: https://ssrn.com/abstract=2435308