. No. Rehnquist, writing for the majority, held that it was not viewpoint discrimination for the government to prohibit certain types of speech (i.e., about abortion) as a condition for receiving federal funding. Renhquist relied principally on a distinction between a Title X “project” (such as the program) and a Title X “grantee” (the Drs and staff who work in the program). The
government, when appropriating public funds, has the power to establish the limits of the government project. But this does not require the grantee to totally give up abortion-related speech, since the grantee can continue to speak about abortion, perform abortions, etc., “off the job” (separate and independent from the Title X project).
1. Dave says that Rehnquist here is essentially adopting the old
“right-privilege” approach. Rehnquist would say his approach is
different since the “right-privilege” doctrine precludes speech 24
hrs. a day, while his does not. This is a difference, true, but to
me it’s not very persuasive. Are Drs really going to counsel
abortion at 9:00 P.M. on a Thursday night after expending all of
their energy on a long shift at a Title X clinic? I doubt it.
b. The Court then goes on to point out that the government
cannot always limit speech to projects it funds, and the Court lists
some examples. The government, just because it funds a traditional
open forum (i.e., a park), cannot condition funding on certain types
of speech in that park. In a university, where the free expression
is fundamental, the government cannot condition funding on
prohibition of certain speech. Then the Court deals with the
historic openness between the Dr. and patient in their relationship:
“It could be argued by analogy that traditional relationship such as
the Dr./Patient relationship should enjoy protection under the First
Am. from government regulation, even when subsidized by the
government. We need not resolve that question here because the Title
X program regulations do not significantly impinge on the Dr./Patient
relationship” for a few reasons. First, nothing in the regulations
requires a Dr. to represent as his own opinion any opinion that he
does hold. Second, the program does not provide post-conception
medical care, and thus the Dr.’s silence with regard to abortion
cannot reasonably be thought to mislead a client. Finally, a Dr. is
always free to make clear that advice regarding abortion is simply
beyond the scope of the post-conception program.
1. Dave says Rehnquist, according to his own logic, would
probably find that there could not fund a medical school and
condition on funding on prohibiting speech re abortion.
2. Speech in a university must be related to the function of the
situation. Thus, there can be no in-depth discussion of guns in a
3. Does the majority say profs have more free speech than Drs?
No, because the Dr. may be a prof in a federally-funded med school.
4. This portion of the opinion is a challenge to ex-UT Law
Professor Yudof’s view that a state can restrict speech in a public
university if: (1) the state is clear about the purposes of the
school (i.e., it is a capitalist university) AND (2) Speech
restrictions are relevant to the purpose.
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