What Can Government Demand for Its Money?

Late last month, on the last week of this year’s Supreme Court term, the headlines were all about sex. In a Texas sodomy case, the court upheld the right of gay people to conduct their intimate affairs without the government’s intervention. The court also sanctioned legislation designed to prevent library patrons from encountering Internet pornography.

Although the sodomy case grabbed most of the headlines, it is the Internet case that should command the attention of nonprofit leaders. By a vote of 6 to 3, the justices upheld a law that requires federally subsidized libraries to install Internet filtering software on all of their computers so that patrons don’t have access to illicit materials — even though the filters also mistakenly block thousands of useful and legal Web sites. How such cases are handled has a major impact for many charities. It could affect whether the government can choose to restrict the art on display at museums supported by the National Endowment for the Arts, even in art exhibits that are entirely financed with private money. Or it could affect whether colleges that receive federal funds are required to allow the military to recruit on campus.

While the justices approved the government’s right to dictate how libraries must run their computer operations, the ruling also made it quite clear that many of the justices would have struck down the law if they felt it significantly jeopardized access to material that library patrons have every right to see under the First Amendment.

That willingness to look at how far the government can go in burdening the constitutionally protected behavior of the organizations it finances is critical to all nonprofit groups, and it is clear that the justices have wide-ranging opinions on the extent to which the government may use the lure of federal funds to induce nonprofit organizations to forfeit their basic constitutional rights.

The Supreme Court has previously considered the government’s powers to impose conditions on federal funds in a variety of contexts, including the government’s power to require nonprofit groups to create a separate organization if they want to engage in a substantial amount of lobbying; to prohibit family-planning clinics from providing abortion counseling on their premises; and to bar legal-services programs from challenging welfare laws on behalf of their clients. Earlier this month, in response to a lawsuit, the federal government backed off its assertion that local Head Start programs are barred by law from lobbying with money from private sources or local governments.

Because the impact of government funds is so widespread in the nonprofit world, it is important to understand the logic behind the Internet filter case.

The case arose when libraries, library associations, library patrons, and Web-site publishers challenged the Children’s Internet Protection Act, which requires public libraries that receive federal Internet subsidies to install Internet filtering software on their computers. Libraries and their supporters explained that the Internet filters inadvertently blocked a considerable amount of useful material, such as Web sites that provide information on family planning and sex education. Libraries that had to use the filters, they argued, would end up violating the First Amendment rights of their patrons to obtain information in a public forum. Libraries also argued that when the government gives money to encourage the free expression of ideas, it can’t warp the functioning of the place the ideas are exchanged — in this case, the libraries.

The Supreme Court rejected those arguments, so library administrators must now decide whether to forgo federal money or to install the filters. If they install the filters, they will have to figure out how to disable them, and will also have to spend time changing the filtering software. Adult patrons will have to request that filters be lifted; many will either be too embarrassed to make such a request, or will not know that they are entitled to do so. What’s more, the statute effectively prohibits minors from asking for erroneous blocks to be lifted. As a result, many patrons will be deprived of valuable information. And organizations and individuals whose Web sites are blocked by Internet filters will find it more difficult to reach their potential readers.

Although these consequences are significant for libraries and their visitors, three opinions offered by five justices in the case offer good signs for nonprofit organizations.

First, the five justices made clear that if libraries are able to prove that the filter law does impose a substantial burden on free speech, they would probably consider it unconstitutional for the government to require the use of filters. So, if libraries can demonstrate that it is difficult to disable the filtering software upon request — and the libraries say that is certainly the case — the law may yet be struck down.

Second, at least four of the justices, and possibly a crucial fifth, believe that government conditions that restrict the speech of nonprofit groups violate the Constitution — unless the government can demonstrate that the restrictions are essential to further a compelling governmental interest.

Justices Ruth Bader Ginsburg, David H. Souter, and John Paul Stevens made clear that they adhere to this view. Justice Stephen G. Breyer essentially agreed, noting only that the government has more rights to impose restrictions when a constitutional interest is at stake, or where the government has an unusually important interest in imposing the restrictions.

As for that ever-important fifth vote, Justice Anthony M. Kennedy made clear that he would look favorably on a challenge by libraries that could prove that the Internet law burdens their First Amendment rights “in some . . . substantial way.”

In 2001, Justice Kennedy indicated in Legal Services Corporation v. Velazquez that he is at least receptive to cases challenging government’s right to attach conditions to federal aid that impinge on constitutional rights. That suggests that a majority of justices believe in closely scrutinizing restrictions on the free-speech rights of federal-aid recipients.

As long as the justices in favor of scrutinizing government’s power stay in their seats, nonprofit groups have reason to hope the Supreme Court will protect them against governmental overreaching that infringes on basic freedoms of speech and association.

But nonprofit groups will have to be aggressive in speaking up about the damage that government restrictions cause to their missions and to the people they are dedicated to serving. Indeed, the more nonprofit groups stand up to intolerable financing conditions, the more government decision makers will hesitate before imposing such conditions in the first place. In the end, the result may be that Congress imposes fewer unconstitutional conditions on government aid.

Laura K. Abel is an associate counsel at the Brennan Center for Justice at New York University School of Law, which is representing legal-services groups fighting restrictions on government aid in Dobbins v. Legal Services Corporation.