“PRURIENT SEXUAL INTEREST” RESTRICTIONS FOR THE PAYROLL PROTECTION PROGRAM ARE UNCONSTITUTIONAL —A SUMMARY EXPLANATION

The First Amendment protects freedom of speech by very strictly limiting government interference with expression between willing speakers and willing listeners. Only in very narrow circumstances may government restrict such expression on account of its content. For example, government may not punish a person for advocating (or for opposing) abortion as a form of family planning, especially while leaving others free to openly espouse the opposing position. Matters like this are left for free debate in the “marketplace of ideas.” And just as government generally may not punish a speaker on account of the content of such speech, it may not withhold an otherwise available benefit on account of an individual’s speech or silence on any particular subject. This last point—which applies to many more constitutional rights than just the freedom of speech—is called the “unconstitutional conditions doctrine.”But the First Amendment’s protection of freedom of speech leaves government almost entirely free to speak for itself. Government may add its voice to the marketplace of ideas, where individuals remain almost entirely free to oppose it as they wish. Government could hardly function without taking positions on many issues—favoring majority rule, for instance, over authoritarian control, both generally and in particular instances. This is called the “government speech doctrine.” It permits government to speak in many ways—such as by celebrating Independence Day or naming a park after President Lincoln or placing a statue honoring Martin Luther King on the National Mall. Even on very controversial issues, government may take and express its own views. So, for instance, while individuals and organizations remain free to support or oppose abortion as a means of family planning, government can take and urge its own position on this matter.This government-speech doctrine also permits government to speak indirectly by subsidizing individuals and organizations which will promote government goals. So, for example, instead of creating or expanding a public agency to speak directly on the topic, government may fund charitable and educational projects promoting family planning. But since government remains free to adopt and advocate—as its own position—the view that abortion is not an appropriate method of family planning, government can limit advocacy of the contrary position from within such government-funded projects. Individuals working on such projects remain free to advocate abortion on their own time, so the marketplace of ideas remains open as usual. For this reason, the First Amendment does not require any sort of equal time or equal access in connection with government’s funding of its own indirect speech. Within limits, then, the government-speech doctrine displaces the unconstitutional-conditions doctrine. Where a government funding program is designed to promote speech which government could otherwise make directly and where a speech-content restriction within that program is narrowly tailored to prevent the use of public funds to speak against or beyond the program’s goals, speech restrictions which could not regulate the overall marketplace of ideas can apply to limit the program-related speech.Two famous precedents illustrate the interaction between the government-speech doctrine and the unconstitutional-conditions doctrine. In a very controversial 1991 decision called Rust v. Sullivan, the United States Supreme Court upheld restrictions preventing on-duty speech promoting abortion within projects funded as part of government efforts promoting family planning. The government had decided, as its own position, that abortion is inappropriate for family planning; but individuals working for a government funded project remained free to speak for themselves on their own time apart from the project. On the other hand, in a 1958 decision called Speiser v. Randall, which almost no one criticizes today, the Court invalidated a requirement that veterans receiving a property tax exemption sign a statement opposing the forcible overthrow of the federal government. The state was not required to afford a property tax exemption to veterans, but it could not condition that benefit on irrelevant speech by the recipient. The government-speech doctrine prevailed in Rust because the government funding was designed to support future projects which would inextricably involve expression and because the challenged restriction merely prevented the use of government funds to convey a message which the government wished not to promote. But the unconstitutional-conditions doctrine prevailed in Speiser because that tax exemption (a tax exemption is a form of subsidy) was designed to assist veterans—it had nothing to do with promoting any sort of indirect government speech at all.The federal Paycheck Protection Program (PPP), established by the recent CARES Act, is just like the tax exemption subsidy program available to veterans in Speiser. It is designed to help preserve the economic status quo by assisting small businesses and their workers in this time of widespread disruption caused by social distancing, quarantines, and other public health measures necessitated by the COVID-19 pandemic. It has nothing to do with the government’s own direct or indirect speech on any subject at all. Unlike the program in Rust, the PPP would succeed in its task even if all of the applicants engaged in no essential speech whatever (such as roofing contractors, Uber drivers, restaurants, etc.). And yet U.S. Small Business Administration regulations purport to preclude this assistance for small business which present live performances, sell more than a minimal amount of products or services, or present depictions or displays of a “prurient sexual nature.” To the extent that this quite uncommon term is broader than the very narrow legal definition of “obscene,” this restriction is unconstitutional. The government speech doctrine cannot get past square one where the government subsidies at issue are not designed to promote projects necessitating speech. And even if the Small Business Administration could succeed in characterizing the economic rescue of small businesses and their workers as speech-related in some very broad sense, the “prurient sexual nature” restriction is altogether irrelevant to that broad government goal. Neither the government speech doctrine nor nor the federal government’s spending power nor anything else in our constitution or laws permit the government to arbitrarily exclude distasteful expression from any benefit under a general economic program. The First Amendment prohibits that unconstitutional condition. This is precisely what Speiser v. Randall established over sixty years ago.Read the full white paper below.

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