Rust v. Sullivan (p. 1541)

            Congress prohibited family planning funds from being used “in programs where abortion is a method of family planning.”  HHS promulgated regulations forbidding Title X grantees from providing abortion counseling or referrals or in any way advocating abortion as a method of  family planning. Title X was a government health program designed to help women control conception: Contraception as opposed to abortion.

            Title X grantees and doctors working for Title X grantees brought suit claiming this regulatory scheme violated the First Amendment – unlawful viewpoint discrimination.

           

            Was Title X designed to create a forum for private speech about abortion?

            What do you think?  Is this like a rule requiring AFDC recipients to refrain from criticizing the government?  How is Rust different from Rosenberger? See Blog post "Rust v. Rosenberger"

            The Court holds that Government is “simply insisting that public funds be spent for the purposes for which they were authorized.” (p. 1543)  In other words, this is not a government restriction on private speech; it is government deciding on its own point of view as part of a public program. See P. 1543: National Endowment for Democracy.

            Government is contracting with Title X grantees to disseminate the government’s viewpoint about family planning. 

            Rust Hypos

 Suppose Congress decided to fund a Racial Tolerance Program and further decided to award grants to private grantees for after-school programs designed to teach children about racial tolerance and equality. Now suppose government learns that one of its funded projects is promoting racial segregation and White Supremacy. May the government forbid these teachings by one of its grantees in a funded Racial Tolerance Program? Or is this viewpoint discrimination that violates the 1A?

Now suppose that a public school board contracts with a publisher to put together a textbook on evolution for use in the public schools. The publisher puts together a text that adopts a creationist perspective on human origins. The school district refuses to accept and pay for these textbooks. Is this unconstitutional viewpoint discrimination?

Or suppose the State of Nebraska contracts with an artist to paint a patriotic mural on an interior wall of the capitol. If the artist paints a mural depicting Amerika as an evil racist, sexist, and tyrannical Nation, must the state accept and pay for the mural?

Now suppose a state law school pays a private consulting firm to do admissions recruiting. May the school instruct the consulting firm to emphasize diversity and place special emphasis on encouraging racial minorities to apply? Is this viewpoint discrimination? Or merely the law school insisting that its subcontractor do the job it was hired to do?

Finally, suppose the Government decides to fund a health program designed to promote healthy lifestyles. It relies on private health care providers as grantees to provide "healthy lifestyle" counseling. May the Government stipulate that none of these funds may be used "to promote smoking or vaping as a healthy lifestyle?"

 The bottom line is when the government creates a program and hires private organizations to express the government's message about abortion, or diversity, or healthy lifestyles, "it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee." --Rosenberger opinion.