Harvard Law schoolhouse was i of a group of law schools that challenged the Solomon Amendment, which said that if an institution denied military recruiters equal access to campus, the entire establishment could lose certain grant funds. The law schools said the Solomon Amendment created an unconstitutional condition because it restricted their First Amendment-protected symbolic speech of refusing to allow recruiters on campus -- workout the receipt of grants on refraining from its symbolic spoken communication. The Supreme Courtroom disagreed, emphasizing the Solomon Amendment regulated what universities must do, not what they must or must not say. In this photo, Harvard Law School students Vaidya Gullapalli, left, and Kristin Pocket-sized nourish a protestation confronting the U.South. military's "Don't Ask, Don't Tell" policy and the presence of military recruiters on campus in 2005 in Cambridge, Massachusetts. (AP Photo/Michael Dwyer, used with permission from the Associated Press)

The unconstitutional conditions doctrine arises from the Constitution'south prohibition confronting penalizing an individual for the do of a constitutional right. The doctrine holds that the government may non condition the availability of a government benefit on an individual's understanding to forego the exercise of such a correct.

Government contracts cannot restrict First Amendment freedom

The unconstitutional conditions doctrine is encountered most frequently in cases involving government employment contracts or government grant contracts where an limited or implied term in the contract restricts the contractor's freedom to speak. In such cases, the contractor can seek to invalidate the contractual restriction on speech on the grounds that information technology is an unconstitutional status on the availability of the valuable government contract.

Even so, if a court establishes that a brake is reasonably necessary for the effective performance of the contract, the unconstitutional weather condition doctrine volition not utilize, and the court will uphold the contractual restriction on speech.

Court: Unconstitutional conditions doctrine does not use to oral communication restrictions on CIA employees

A position with the Central Intelligence Agency (a valuable authorities benefit) is an example of a task that is routinely conditioned on an individual'southward acceptance of significant restrictions on the private'due south liberty to speak virtually classified information to which the individual volition take access. Because such speech restrictions are essential to the effective functioning of the CIA amanuensis's employment contract, the Supreme Courtroom decided in Snepp v. Us (1980) that the unconstitutional conditions doctrine does not apply to the speech-restrictive condition in the CIA employment contract.

Similarly, the Courtroom decided in Rust v. Sullivan (1991) that when an individual is employed by the government to engage in family counseling using regime-specified speech, the private contractually agrees to forego the advocacy of his or her own viewpoints during the counseling time for which the government is paying. The unconstitutional conditions doctrine imposes no bulwark to such necessary conditions in government contracts.

Government can't discourage unfavorable speech unrelated to contract performance

In contrast, where a regime employment or grant contract imposes a spoken language restriction that is not related to the constructive functioning of the contract, the contract condition will be found to exist unconstitutional. In effect, the government cannot use a financial incentive to discourage unfavorable spoken language if said speech is in no style related to the performance of the contract. For example, the Court decided in Elrod 5. Burns (1976) that a city authorities cannot offering employment as a police force officeholder on the condition that the employee refrain from making speeches in his or her spare fourth dimension that are critical of the mayor'southward political views.

Information technology is of import to note a direct corollary of the unconstitutional weather doctrine: If the government can regulate a particular course of conduct without violating the Constitution, then the government may "condition" a grant of benefits on the recipient's agreement to refrain from said conduct.

Court rejected unconstitutional conditions challenge in law school case

Pursuant to this corollary, the Court in Rumsfeld v. Forum for Academic and Institutional Rights (2006) rejected an unconstitutional conditions challenge to the Solomon Amendment, which withheld federal research grants from any university and its affiliated police school if they refused to host U.S. military recruiters on the same terms as nonmilitary employment recruiters.

In Rumsfeld, a group of university constabulary schools asserted that by banning military recruiters they were expressing their opposition to the military'due south policy on homosexuals, and they asserted that this exercise of symbolic speech communication was protected by the Commencement Amendment. The police force schools further argued that in withholding the benefit of university research grants equally a penalty for their practice of free voice communication, the government was violating the unconstitutional atmospheric condition doctrine.

The Court disagreed. In its view, Congress would not have violated the First Amendment if it had directly fined the constabulary schools for their refusal to host military recruiters because the law schools had many other ways to communicate their political views. Thus, the Court held that the unconstitutional conditions doctrine did non prevent Congress from indirectly penalizing the schools for their actions by withholding the do good of substantial federal research grants.

This article was originally published in 2009. Thomas McCoy is currently Professor of Law Emeritus at Vanderbilt Academy School of Police force. His long career at Vanderbilt has been dedicated to the study and teaching of U.S. Constitutional Law generally, with a special focus on the First Subpoena. He served for many years as a consultant to the Freedom Forum'due south First Amendment Center in its efforts to promote public agreement of the Start Subpoena.

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