Good question, right? Good topic for a law review article, says my sister Martha. Martha Minow spearheaded an amicus brief arguing (on statutory grounds) that universities should not have to allow military recruiters access to students as a condition of receiving funding from the Pentagon. The UNIVERSITIES WON on First Amendment grounds in the Third Circuit on Nov. 29, 2004.
Sound similar to the libraries arguing that they should not have to install filters as a condition of receiving erate discounts and lsta funds? The LIBRARIES LOST in the Supreme Court in 2003.
Martha speculates that it may come down to a specific message versus a general message. That is, the holding in the University case is that the speech that law schools want to engage in--pro equal treatment--was suppressed. The universities were thus forced to carry the government's message. She asks if the libraries could make the same argument -- is there a message that is suppressed with filters and one that's forced? Perhaps the message is a general one, that speech is curbed? Is this different from a specific message?
The University case decision distinguishes itself from the Library case in a footnote. The court emphasizes the difference between conditions on a specific source of funds and conditions on the use of general federal funds.
(Mary) Minow take: To me, it looks like the court says the University case is different because it was a GENERAL spending program. In the Library case, the funds and discounts that were denied were those earmarked for Internet access - thus the federal government could condition the Internet use. This distinction could be hugely important in assessing the state mini-CIPA laws, that require filters as a condition of any state money as opposed to state funding for Internet access. If you live in a state with a mini-CIPA, you should read this case.
FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS v. DONALD H. RUMSFELD et al, No. 03-4433, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2004 U.S. App. LEXIS 24598, June 30, 2004, Argued, November 29, 2004, Filed
From the case:
n9 As the District Court noted, the Supreme Court's exception to the unconstitutional conditions doctrine for selective spending programs does not apply here. FAIR, 291 F. Supp. 2d at 299-300. When the Government appropriates for a particular spending program, it may endorse one viewpoint over another by conditioning its spending on certain criteria. United States v. Am. Library Ass'n, 539 U.S. 194, 211, 156 L. Ed. 2d 221, 123 S. Ct. 2297 (2003) (providing library assistance funds to only those libraries who agree to block obscene Internet sites); Rust, 500 U.S. at 192-93 (funding family planning services that eschew abortion counseling). In those cases, "the Government [was] not denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized." Rust, 500 U.S. at 196; see also Am. Library Ass'n, 539 U.S. at 211. That exception does not apply in our case because the Solomon Amendment does not create a spending program; it merely imposes a penalty--the loss of general funds.