Amicus Curiae Brief — New York v. Sullivan (Nos. 89-1392, 89-1391)

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Nos. 89-1391, 89-1392 wm 7

IN THE =

Supreme Court of the United States

OCTOBER TERM, 1990

Dr. IRVING RusT, on behalf of himself, his patients, and

all others similarly situated, Dk. MELVIN PADAWER, on

behalf of himself, his patients, and all others similarly

situated, MEDICAL AND HEALTH RESEARCH ASSOCIATION

OF NEW YorRK City, INC., PLANNED PARENTHOOD OF

NEW YorRK City, INC., PLANNED PARENTHOOD OF

WESTCHESTER/ROCKLAND, and HEALTH SERVICES OF

HupDSON COUNTY, NEW JERSEY,

‘ Petitioners,

Dr. Louis W. SULLIVAN, or his successor, Secretary of the

United States Department of Health and Human Services,

Respondent.

THE STATE OF NEW YoRK, THE CITY OF NEW YORK,

THE NEW YorK CIty HEALTH & HOSPITALS CorpP.,

. Petitioners,

Dr. Louis W. SULLIVAN, or his successor, Secretary of the

United States Department of Health and Human Services,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE AMERICAN LIBRARY

ASSOCIATION, FREEDOM TO READ FOUNDATION,

PEOPLE FOR THE AMERICAN WAY, NATIONAL

EDUCATION ASSOCIATION, THE NEWSPAPER GUILD,

NATIONAL WRITERS’ UNION, AND FRESNO FREE

COLLEGE FOUNDATION SUPPORTING PETITIONERS

[ Counsel Listed on Inside Cover]

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

July 27, 1990

BRUCE J. ENNIS, JR.*

DAVID W. OGDEN

THERESA A. CHMARA

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Counsel for Amici

American Library Association,

Freedom to Read Foundation,

People for the American Way,

National Education Association,

The Newspaper Guild,

National Writers’ Union, and

Fresno Free College Foundation

* Counsel of Record

TABLE OF AUTHORITIES

INTEREST OF AMICI

TABLE OF CONTENTS

I. THE SECRETARY’S PROHIBITION ON DIS-

Il.

ITI.

CONCLUSION ......... paeinpeeean

CUSSION, COUNSELING AND REFERRAL

FOR ABORTION SERVICES CONSTITUTES

VIEWPOINT DISCRIMINATION VIOLATIVE

OF THE FIRST AMENDMENT ......

EVEN VIEWPOINT-NEUTRAL EXCLUSION

OF SPEECH ABOUT A PARTICULAR SUB-

JECT MATTER FROM GOVERNMENT SUB-

SIDY PROGRAMS VIOLATES THE FIRST

AMENDMENT, WHERE, AS HERE, THAT

EXCLUSION IS INCONSISTENT WITH THE

TRADITIONAL FUNCTION OF THE SUB-

SIDIZED PROGRAMS AT ISSUE

BY IMPOSING CUMBERSOME AND IN

MANY CASES UNREALISTIC REQUIRE-

MENTS OF PHYSICAL SEPARATION BE-

TWEEN PRIVATELY FUNDED PROVISION

OF INFORMATION ABOUT ABORTION

SERVICES AND PUBLICLY FUNDED FAM-

ILY PLANNING SERVICES, THE REGULA-

TIONS IMPOSE A PENALTY ON PRO-

TECTED SPEECH VIOLATIVE OF THE

FIRST AMENDMENT =m

19

21

ii

TABLE OF AUTHORITIES

CASES Page

American Council of the Blind v. Boorstin, 644

A. Beh ) | aaa 10, 15

American Booksellers Ass’n v. Hudnut, 771 F.2d

i, hs S| a ee ea 9

Antonelli v. Hammond, 308 F. Supp. 1329 (D.

Wi, TID ceciciciorensccseinthniisctincietuninnietiniiiieineniailiiaes 15

Arkansas Writers’ Project, Inc. v. Ragland, 481

i? & F.) , eee 8, 15, 19, 23

Bazaar v. Fortune, 476 F.2d 570 (5th Cir. 1973) -... 13

Bell v. U-32 Bd. of Educ., 630 F. Supp. 939 (D. Vt.

EI ciscietenicthteoteansicitet amncininstmcrenapammbdianiniaihddamen 11

Big Mama Rag, Ine. v. United States, 631 F.2d

DOS Ce Gs, SE dtetenrttireepchiceninnititeiitepepen 15

Board of Educ. v. Pico, 457 U.S. 853 (1982) ...5, 10, 11, 18

Bolger v. Youngs Drug Prods. Co., 463 U.S. 60

9 RORSSMNES BES PRET PI OC EN AE ais as aa 13

Brooks v. Auburn Univ., 296 F. Supp. 188 (M.D.

SS RR eS ss eee 15

Brown v. Board of Regents, 640 F. Supp. 674 (D.

BURR, BND sie i Did iadeeince 11, 15

Cammarano v. United States, 358 U.S. 498 (1959)... 15, 21

Carey v. Brown, 447 U.S. 455 (1980) 9

City of Madison, Joint School Dist. v. Wisconsin

Employment Relations Comm’n., 429 U.S. 167

(1976) 9

City of Renton v. Playtime Theatres, Inc., 475 U. S.

41 (1986) 9

Commonwealth of Massachusetts v. Secretary of

Health & Human Services, 899 F.2d 53 (1st Cir.

I iidiaiacicahataliit bias hich hina tance edienhaienninmentiens passim

Consolidated Edison Co. v. Public Service Comm’n,

447 U.S. 530 (1980) ... 9,19

Cornelius v. NAACP Legal Defense & Education

Fund Inc., 473 U.S. 788 (1985) .. passim

Esquire, Inc. v. Walker, 151 F.2d 49 (D.C. Cir.

1946) ...... 15

FCC v. League of Women Voters, 468 U.S. 364

(1984) passim

Greenberg v. Nashua Bd. of Educ., 469 F. Supp.

1269 (D.N.H. 1979) 15

iii

TABLE OF AUTHORITIES—Continued

Page

Grove City College v. Bell, 465 U.S. 555 (1984) .... 21

Hannegan v. Esquire, Inc., 327 U.S. 146 (1946)... 18, 15

Harris v. McRae, 448 U.S. 297 (1980) -.....0. 16, 21

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260

CIGD ssdehnctshnncediccilattcatiietitineddb ub bcescdehissinntediainiclse 10, 11

Healey v. James, 408 U.S. 169 (1972) 0.0.0. 12

Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) .... 15

Keyishian v. Board of Regents of New York, 385

U.S. 589 (1967) ......................... 18

Kingsley Int’l Pictures Corp. v. Regents, 360 U. S.

Ge ED ebibnccsitcnsmnincersninctinintititltanrinen ncaa epéidibbihen 9

Lamont v. Postmaster General, 381 U.S. 301

CID -ctsnccencsetbindsnbinbddahtnbetindbid dda adie hcliesihadlac sd itd 11

Lee v. Board of Regents, 441 F.2d 1257 (7th Cir.

yt | RIE Be ie FD ORNE SY, RRRO NTE? Fes ERIE SOE RR Nr Che 13

Lyng v. International Union, 485 U.S. 360 (1988) .. 16

Maher v. Roe, 482 U.S. 464 (1977) 000. 16, 21

Martin v. Struthers, 319 U.S. 141 (1948) 0.000. 11

Members of the Council of the City of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789 (1984)... 9

Minarcini v. Strongville City School Dist., 541 F.2d

577 (6th Cir. 1976) 11

NAACP Legal Defense and Educ. Fund, Inc. v.

Devine, 727 F.2d 1247 (D.C. Cir. 1984) 0... 13

Niemotko v. Maryland, 340 U.S. 268 (191.2) .......... 9

Pacific Gas & Elec. Co. v. Public Utilities Comm’n.,

475 U.S. 1 (1986) a 14

Perry v. Sinderman, 408 U.S. 598 (1972) ............... 21

Perry Education Ass’n v. Perry Local Educators

Ass’n, 460 U.S. 37 (1983) 11, 12

Planned Parenthood Fed’n of Am. v. Bowen, ap-

peal pending, No. 88-7251 (10th Cir.) 00000... 6

Police Dep’t of Chicago v. Mosley, 408 U.S. 92

(1972) 8

Pratt v. Independent School Dist., 670 F.2d 771

(8th Cir. 1982) 11

Regan v. Taxation With Representation, 461 U.S.

540 (1983) ...passim

Right to Read Defense Comm. v. School Comm. Ly

454 F. Supp. 703 (D.Mass. 1978) 11

iv

TABLE OF AUTHORITIES—Continued

Page

Salvail v. Nashua Bd. of Educ., 469 F. Supp. 1269

ER, EE a es eae Re Ol 11

Sheck v. Baileyville School Comm., 530 F. Supp.

ee ea 11

Shelton v. Tucker, 364 U.S. 479 (1960) ....00000. 18

Smith v. Tennessee, 300 F. Supp. 777 (E.D. Tenn.

_, RRPERE EAN Tastee ety My ann Oa 16

Speiser v. Randall, 357 U.S. 518 (1958) -................ 21

Spencer v. Herdesty, 571 F. Supp. 444 (S.D. Ohio

EET RATE rn ewe BS AE ATS UR ee 15

State of New York v. Sullivan, 889 F.2d 401 (2d

I 4, 18,19

Tinker v. Des Moines Ind. Community School Dist.,

I a 9

Toward A Gayer Bicentennial Comm. v. Rhode

Island Bicentennial Foundation, 417 F. Supp.

LS ae SNe Se 15

United States ex rel. Milwaukee S.D. Pub. Co. v.

Burleson, 255 U.S. 407 (1921) .........-.--..-.-2--22-- 14

Virginia Pharmacy Board v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976) .............. 11, 23

Young v. American Mini Theatres, Inc., 427 U.S.

RESEND ae BFE ey SO 8,9

Weiman v. Updegraff, 344 U.S. 183 (1952) -.......... 18

West Virginia State Bd. of Education v. Barnette,

alin ial ct tnentabeatibtinnts 17

REGULATIONS

ESS IEEE Na Caen ce UE Pl ig Ra 22

a a i RS A eR EE, PSA 23

Ce GD a gncncnnncov anne nee ccercsevnncecccsencosecqeses 16

i 16

See 16, 17, 23

Se ee 16

SD nnn, 16

a RD aC 22

TD COD noon rccceccccnaccepesensnncoese 17

ES a ed nate a 23

MISCELLANEOUS

Library and Book Trade Almanac (35th ed. 1990-

RS re eee eyo onus 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 89-1391, 89-1392

Dr. IRVING Rust, en behalf of himself, his patients, and

all others similarly situated, DR. MELVIN PADAWER, on

behalf of himself, his patients, and all others similarly

situated, MEDICAL AND HEALTH RESEARCH ASSOCIATION

OF NEW YorRK City, INC., PLANNED PARENTHOOD OF

NEw YorRK City, INC., PLANNED PARENTHOOD OF

WESTCHESTER/ROCKLAND, and HEALTH SERVICES OF

HupDSON COUNTY, NEW JERSEY,

a Petitioners,

Dr. Louis W. SULLIVAN, or his sucressor, Secretary of the

United States Department of Health and Human Services,

Respondent.

THE STATE OF NEW YORK, THE CITY OF NEW YORK,

THE NEW YORK CITY HEALTH & HOSPITALS CorpP.,

Petitioners,

V.

Dr. Louis W. SULLIVAN, or his successor, Secretary of the

United States Department of Health and Human Services,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICI CURIAE AMERICAN LIBRARY

ASSOCIATION, FREEDOM TO READ FOUNDATION,

PEOPLE FOR THE AMERICAN WAY, NATIONAL

EDUCATION ASSOCIATION, THE NEWSPAPER GUILD,

NATIONAL WRITERS’ UNION, AND FRESNO FREE

COLLEGE FOUNDATION SUPPORTING PETITIONERS

2

INTEREST OF AMICI

The American” Library Association (“ALA”) was

founded in 1876 as a nonprofit, educational organization

committed to preservation of the library as a resource

indispensable to the intellectual, cultural, and educational

welfare of the Nation. ALA is the oldest and largest

library association in the world and the chief voice of

the modern library movement in North America. ALA’s

membership includes more than 3,000 libraries and more

than 47,000 individuals, primarily librarians. Many of

ALA’s member libraries are, and many of its member

librarians serve, state or federally subsidized institu-

tions.

The Freedom to Read Foundation (“Foundation”) is a

non-profit organization established in 1969 by ALA to

promote and defend First Amendment rights; to foster

libraries as institutions fulfilling the promise of the First

Amendment for every citizen; to support the right of

libraries to include in their collections and make avail-

able to the public any work they may legally acquire;

and to set legal precedent for the freedom to read of all

citizens.

The second article of the Library Bill of Rights,

adopted by the ALA Council and subscribed to by both

of these amici, is pertinent to the regulations at issue:

“Libraries should provide materials and information

presenting all points of view on current and his-

torical issues. Materials should not be proscribed or

removed because of partisan or doctrinal disap-

proval.”

The Secretary’s regulations governing Title X programs

transgress this non-discrimination principle by prohibiting

health care professionals and other Title X personnel—

some in libraries and educational resource centers—from

discussing abortion, providing patients with information

about abortion, or providing referrals to clinics offering

abortion counseling and services.

People for the American Way is a nonpartisan, edu-

cation-oriented citizen’s organization established to pro-

mote and protect civil liberties and constitutional rights.

Founded in 1980 by a group of religious, civic, and edu-

cational leaders devoted to the Nation’s heritage of toler-

ance and pluralism, People for the American Way now

has 290,000 members nationwide. The organization’s pri-

mary mission is to educate the public on the vital im-

portance of the democratic tradition and to defend it

against attacks from those who would seek to limit our

fundamental freedoms, particularly our First Amendment

rights.

The National Education Association (NEA) is a na-

tionwide employee organization with a current member-

ship of over two million members, the vast majority of

whom are employed by public educational institutions.

NEA operates through a network of affiliated organiza-

tions; it has state affiliated organizations in each of the

50 States and approximately 12,000 local affiliates in in-

dividual school districts, colleges and universities through-

out the United States. One of the principal purposes of

NEA and its affiliates is to protect the constitutional

rights of educational employees, including their First

Amendment right of free speech.

The Newspaper Guild (AFL-CIO, CLC) is a labor

union representing some 40,000 employees of newspapers,

magazines, wire services and related enterprises in the

United States, Canada, and Puerto Rico. It has been ac-

tively involved in protecting the First Amendment rights

of its members and all Americans.

The National Writers’ Union (NWU) is a seven-year

old organization dedicated to improving wages and work-

ing conditions for writers as well as fighting for free

speech issues that have an impact on NWU’s members.

Representing 3,000 writers nationwide, some of whom

work for publicly-funded agencies, the NWU views with

deep concern any attempt, by governmental regulation or

4

other means, to restrict free speech or to control the flow

of information.

The Fresno Free College Foundation is a community

organization with offices in Fresno, California. It was

founded in 1968 in connection with an academic freedom

case. Since then, it has, in various ways, supported

academic freedom and the civil liberties of students, pro-

fessors, and citizens, and the preservation of a free and

open society through free inquiry and the free expres-

sion of ideas.

These amici—active supporters and defenders of First

Amendment rights—share a strong interest in ensuring

that the public has access to an unbiased and uncensored

flow of information. In addition, amici—some of whose

members are recipients of public funding—have a vital

interest in protecting recipients of public funds from

censorship through the power of the purse.

The parties have consented to the filing of this amici

curiae brief. Their letters of consent are on file with

the Clerk of this Court.

INTRODUCTION

The Department of Health and Human Services has

promulgated regulations that prohibit xecipients of Title

X funds from providing information to their patients

about abortion and from providing abortion counseling

of any kind. 42 C.F.R. §§ 59.1 et seg. Amici strongly

agree with the First Circuit that these regulations vio-

late the First Amendment. Commonwealth of Massachu-

setts v. Secretary of Health & Human Services, 899

F.2d 53 (1st Cir. 1990). The Second Circuit, however,

has upheld these regulations. State ef New York v. Sul-

livan, 889 F.2d 401 (2d Cir. 1989).

The importance of the constitutional principles at is-

sue is dramatized if they are considered in the context of

«ati iii

€

5

America’s publicly-funded libraries.: Libraries are essen-

tial to the intellectual, cultural, and educational welfare

of the Nation precisely because they make available to

the public the full spectrum of information and opinion

without censorship based upon authors’ views. Libraries

per se do not express opinions, but they do, without fav-

oritism, make available books, magazines, and other ma-

terials that express opinions, often in very strong terms.

Thus, a library would not advocate abortion. But if

asked by a pregnant woman wanting information about

abortion, about the options available to her, or about

places where she might obtain an abortion, a library

would provide her the materials she seeks. Such materials

inight well “counsel” or even advocate abortion in par-

ticular circumstances (or counsel against or discourage

abortion). In this respect, the role of the library is com-

parable to that of a physician or other health care pro-

vider, among whose responsibilities is providing infor-

mation about medical choices sought by patients.

Fulfillment of this function by libraries is crucial to

the flourishing “marketplace of ideas” celebrated in this

Court’s fundamental First Amendment jurisprudence.

But despite the tradition of “freewheeling inquiry” in

America’s libraries, Board of Educ. v. Pico, 457 U.S. 853,

915 (1982) (Rehnquist, J., dissenting), libraries occupy

a perilous niche in our society: most of our libraries are

publicly-funded institytions subject to state control not

only through the police power but also through the power

of the purse.? If not insulated by the First Amendment

1 An identical point could be made if subsidized colleges or uni-

versities, or public school systems, were considered.

2 Funding for public libraries through the Library Services and

Construction Act alone exceeds one hundred million dollars. See

generally Library And Book Trade Almanac, at 280-310 (35th

ed. 1990-91). Similarly, federal and state gov.rnments expend

billions of dollars to fund universities, colleges, public schoc's, art

programs, publicly owned theatres, and public broadcasting. The

potential to skew public opinion—if government is permitted to

6

from viewpoint-based manipulation of public funds, as

well as from viewpoint-censorship administered in the

more traditional form of regulations and criminal laws,

the precious tradition of free inquiry and discovery safe-

guarded and promoted by America’s libraries, as well as

its schools and other institutions, will become a thing of

the past.

If the Secretary may constitutionally prohibit doctors

and other health professionals in subsidized family plan-

ring clinics from providing abortion counseling, abortion

referrals, and ail information about abortion—despite

the tradition in these professions of unfettered expres-

sion of professional judgment in the patient’s best inter-

est—then government may also prohibit libraries and

other institutions dependent on public funding from mak-

ing that same information available in material main-

tained on library shelves.* And if these regulations sur-

vive constitutional review, federal and state governments

will be free to impose unabashed viewpoint-based dis-

crimination on other institutions, essential to the Na-

tion’s system of free expression, that receive public funds

—such as colleges, universities and public school systems.

Censorship of information that can be dispensed by

health care professionals, libraries or other public insti-

condition receipt of funds on propounding one point of view—is

almost unlimited and extremely dangerous.

5 Indeed, Title X recipients with libraries or educational resource

centers to which their patients have access are directly subject to

the regulations. For instance, Planned Parenthood Association of

Utah (a plaintiff in a similar case pending before the Tenth Cir-

cuit) has an Educational Center, funded by Title X, that houses

a library containing books, films and publications covering a broad

spectrum of topics related to family planning that also mention or

discuss abortion. Planned Parenthood Fed’n of Am. v. Bowen,

appeal pending, No. 88-7251 (10th Cir.), Brief of Plaintiffs-

Appellees, at 5 (Dec. 22, 1988). Presumably, Title X prohibits this

library from lending books, pamphlets, or other information regard-

ing abortion to patients or individuals who request them.

7

tutions also compromises the First Amendment rights of

the patients and other individuals seeking access to such

information. Individuals dependent on public institutions

for information on matters of public concern should not

be denied access to competing points of view because of

governmental disapproval of those views.

There can be no doubt that viewpoint censorship would

compromise the traditional function of libraries and other

institutions that receive public funds—just as the regu-

lations at issue compromise the traditional function of

health care professionals in the regulated clinics. Unless

this Court strongly reaffirms the principles, directly at

stake here, that government may not discriminate based

upon viewpoint in dispensing subsidies for expressive ac-

tivities, and that government may not penalize a speaker

for the privately-funded exercise of his or her constitu-

tional right to speak, there will be a serious diminution

in the quality of information available, not only to im-

poverished pregnant women, but to all Americans.

SUMMARY OF ARGUMENT

Above all else, the First Amendment forbids govern-

ment from discriminating among speakers and speech on

the basis of viewpoint. Thus, officials may neither ma-

nipulate access by the public to government-owned ex-

pressive forums in order to advance or disadvantage par-

ticular points of view, nor manipulate subsidies for ex-

pressive activity for that improper end. The Secretary’s

Title X regulations discriminate for purely political rea-

sons against pro-abortion viewpoints and in favor of anti-

abortion viewpoints, without regard for regulated health-

care professionals’ judgment about which information and

counseling would be in their particular patients’ best in-

terests. This viewpoint-based discrimination is just as

unconstitutional as would be viewpoint-based restrictions

on a public library’s collection or on the history curricu-

lum at a private university that accepts federal subsidies.

Point I.

8

Even if the regulations were deemed to be viewpoint-

neutral, they nevertheless violate the First Amendment

by banning discussion by health care professionals and

their patients of a topic—abortion—directly and inex-

tricably bound to the treatment and related discourse

authorized by Title X. Point II.

Moreover, it is well-established that government may

not deny a subsidy as a consequence of disfavored pri-

vately-funded speech. By prohibiting Title X recipients

from providing information about abortion, except at

separate facilities with separate personnel, and by for-

bidding Title X recipients from referring family-planning

patients to the separate facility if the “principal” busi-

ness at that facility’ is providing abortion, the regula-

tions unreasonably interfere with and deter protected

expression. This penalty on privately-funded speech about

abortion violates the First Amendment. Point III.

ARGUMENT

I. THE SECRETARY’S PROHIBITION ON DISCUS-

SION, COUNSELING AND REFERRAL FOR ABOR-

TION SERVICES CONSTITUTES VIEWPOINT DIS-

CRIMINATION VIOLATIVE OF THE FIRST

AMENDMENT.

The First Amendment and the Equal Protection Clause

of the Fourteenth Amendment generally forbid govern-

ment from considering or acting on the basis of the con-

tent of constitutionally protected expression. Arkansas

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229-31

(1987) ; Police Dep’t of Chicago v. Mosely, 408 U.S. 92,

95-96 (1972). Even in the few narrow circumstances in

which this general principle does not apply fully,‘ this

* See, e.g., Cornelius v. NAACP Legal Defense & Educction

Fund, Inc., 473 U.S. 788, 805 (1985) (“nonpublic forum” for com-

municative activities); Young v. American Mini Theatres, Inc.,

427 U.S. 50 (1976) (zoning for adult theaters).

9

Court has preserved the “essence” of the content-

neutrality rule by demanding “absolute neutrality by the

government” with respect to “the point of view being ex-

pressed.” Young v. American Mini Theatres, Inc., 427

U.S. 50, 67 (1976) (emphasis added). Above all else,

the First Amendment requires that government not dis-

criminate on the basis of viewpoint.*

Viewpoint-based discrimination—which strikes “at the

very heart of constitutionally protected liberty” *—has

been forbidden in a broad array of contexts.’ In public

5 See, e.g., Cornelius, 473 U.S. at 806 (“the government violates

the First Amendment when it denies access to a speaker solely to

suppress the point of view he espouses”); American Booksellers

Ass'n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985) (Easterbrook,

J.) (“The state may not ordain preferred viewpoints. ... The

Constitution forbids the state to declare one perspective right and

silence opponents.”), aff’d, 475 U.S. 1001 (1986).

® Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688

(1959).

7 See, e.g., Niemotko v. Maryland, 340 U.S. 268, 272 (1951);

id. at 284 (Frankfurter, J., concurring) (access to public parks) ;

Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503,

511 (1969) (expression by students in public school); see Young

v. American Mini Theatres, Inc., 427 U.S. at 64, 67, 70 (zoning

restrictions on adult motion picture theaters); City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (same); Mem-

bers of the Council of the City of Los Angzles v. Taxpayers for

Vincent, 466 U.S. 789 (1984) (upholding an ordinance prohibiting

the posting of signs on public property because the ordinance was

viewpoint-neutral); Consolidated Edison Co. v. Public Service

Comm’n, 447 U.S. 539, 546 (1980) (Stevens, J., concurring) (a

law “motivated by nothing more than a desire to curtail expres-

sion of a particular point of view on controversial issues of

general interest is the purest example of a ‘law abridging the

freedom of speech’”), quoted with approval, FCC v. League of

Women Voters, 468 U.S. 364, 383-84 (1984); Carey v. Brown,

447 U.S. 455 (1980) (residential picketing); City of Madison,

Joint School Dist. v. Wisconsin Employment Relations Comm’n.,

429 U.S. 167, 175-76 (1976) (“To permit one side of a debatable

public question to have a monopoly in expressing its views .. . is

10

schools, perhaps uniquely among governmental institu-

tions in the United States, the inculcation of values is an

express and legitimate purpose. Hazelwood School Dist.

v. Kuhlmeier, 484 U.S. 260, 271-72 (1988). But in Board

of Educ. v. Pico, 457 U.S. 853 (1982), which involved a

public school library, although the Justices disagreed

about the application of the viewpoint-neutrality prin-

ciple to the particular facts of that case, at least eight

Justices recognized that the First Amendment is in-

fringed if officials remove books from a public school

library based upon the officials’ disagreement with the

ideas expressed in those books.* Thus, so antithetical is

governmental viewpoint discrimination to the core values

of a free society that this Court has rejected it even in

the context of public school libraries.

Lower courts, both before and after Pico, have also

held that viewpoint discrimination is forbidden in public

the antithesis of constitutional guarantees.”): American Council

of the Blind v. Boorstin, 644 F. Supp. 811 (D.D.C. 1986) (pro-

hibiting viewpoint discrimination in funding of the books for the

blind program of Library of Congress) .

® See Pico, 457 U.S. at 871 (Brennan, J., joined by Marshall, J.,

Blackmun, J., and Stevens, J.) (“If petitioners intended by their

removal decision to deny respondents access to ideas with which

petitioners disagreed, and if this intent was the decisive factor in

petitioners’ decision, then petitioners have exercised their discre-

tion in violation of the Constitution”) (emphasis in original); id.

at 877 (Blackmun, J.) (“the State may not suppress exposure to

ideas—for the sole purpose of suppressing exposure to those ideas—

absent sufficiently compelling reasons’’) (emphasis in original) ;

id. at 883 (White, J., concurring in the judgment) (“the reason or

reasons underlying the school board’s removal of the books” is “a

material issue of fact that precluded summary judgment” in schooi

board’s favor); id. at 919 (Rehnquist, J., joined by Burger, C.J.,

and Powell, J., dissenting) (agreeing that Constitution does not

permit the official suppression of ideas; in the public school context,

““the prohibition of expression of one particular opinion, at least

without evidence that it is necessary to avoid material and sub-

stantial interference with schoolwerk or discipline, is not constitu-

tionally permissible’ ”’).

11

school libraries.? Prohibitions on viewpoint discrimina-

tion in the context of a school library are entirely ap-

propriate; the school library is an indispensable comple-

ment to the student’s education by supplementing with a

variety of viewpoints the more directed curriculum of

educators. And because viewpoint discrimination is pro-

hibited in public school libraries, the ban on viewpoint-

based discrimination applies a fortiori to public libraries

and private libraries and educational resource centers re-

ceiving public funding.’®

Indeed, there are numerous decisions prohibiting view-

point discrimination when government aids private speech

outside the school context. Specifically, the Court has

consistently recognized that permitting viewpoint-based

discrimination when government aids or facilitates ex-

pression by private citizens or organizations would pose

* See, e.g., Minarcini v. Strongville City School Dist., 541 F.2d

577 (6th Cir. 1976); Sheck v. Baileyville School Comm., 530 F.

Supp. 679 (D.Me. 1982); Salvail v. Nashua Bd. of Educ., 469

F. Supp. 1269 (D.N.H. 1979); Right to Read Defense Comm. v.

School Comm., 454 F. Supp. 703 (D. Mass. 1978); Cf. Pratt v.

Independent School Dist., 670 F.2d 771 (8th Cir. 1982) (motion

picture); Brown v. Board of Regents, 640 F. Supp. 674 (D. Neb.

1986) (same); Bell v. U-32 Bd. of Educ., 630 F. Supp. 939

(D. Vt. 1986) (school play). Hazelwood School Dist. v. Kuhlmeier,

484 U.S. 260 (1988), is not to the contrary; in that case this

Court relied heavily on the value-inculcative role of public schools

in controlling curriculum. See, e.g., id. at 271-72.

20 Such libraries are unequivocally places for “freewheeling in-

quiry,” Pico, 457 U.S. at 915 (Rehnquist, J., dissenting), and

quintessentially government forums for the free communication of

all ideas. Viewpoint censorship in the publicly-funded library vio-

lates the rights of both speaker and listener. Library users have

a fundamental right of access to information free from govern-

mental viewpoint censorship. Cf. Pico, 457 U.S. at 866-67

(Brennan, J.); Virginia Pharmacy Board v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976); Lamont v. Postmaster

General, 381 U.S. 301 (1965); Martin v. Struthers, 319 U.S. 141,

143 (1943). Patients in public health programs have similar

interests.

>

12

intolerable dangers to free expression. Thus, when be-

stowing “seals of approval,” see, e.g., Healey v. James,

408 U.S. 169, 187 (1972), government must be view-

point neutral. And directly pertinent to the present case,

viewpoint-based discrimination is also prohibited in

government-created “non-public” forums for expression,

and in government programs subsidizing private speech.

Prohibiting governmental viewpoint discrimination in

Title X family planning clinics is required by these prec-

edents and essential to the preservation of a free market-

place of ideas and the perpetuation of a system of ex-

pression that is free from official orthodoxy.

Where government facilities are lent to private speak-

ers, the Constitution invariably prohibits discrimination

that is in reality an effort “to suppress expression merely

because public officials oppose the speaker’s view.” Perry

Education Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37, 46 (1983) ; see Cornelius, 473 U.S. at 800, 806-

13. For the same reasons, the First Amendment also

prohibits viewpoint discrimination in subsidy programs.

Subsidizing speech activity, like providing a place or an

audience for a speaker, involves granting government

property (money or land) to support speech by private

parties. For all relevant purposes, a government program

subsidizing a speech activity is a program that creates a

(non-public) government forum. Identical interests are

present in both subsidy and government property cases:

the individual’s interest in reaching an audience with the

assistance of government, and government’s interest in

ensuring that its property is preserved for its intended

use. Identical dangers to First Amendment interests are

posed if government uses its property—whether real es-

tate or money—to benefit or disadvantage particular

viewpoints, or individuals with particular points of view."

11 Tt is clear that the viewpoint-neutrality rules apply to govern-

ment forums whether or not they have a physical situs. See

Cornelius, “73 U.S. at 800-801; see also Perry Educ. Ass'n, supra

13

This Court has repeatedly made clear that although

government has no obligation to subsidize speech in the

first place, if it chooses to subsidize speech it may not

discriminate on the basis of the viewpoint expressed. In

fact, the tax subsidy decisions of this Court suggest that

even viewpoint-neutral content discrimination is imper-

missible when government subsidizes speech. See Point

II, infra.* The outer contours of the prohibition on any

content-based restrictions may be unclear, see infra, but

it is indisputable that the government may not discrimi-

nate on the basis of the viewpoint of the speaker. In

Hannegan v. Esquire, Inc., 327 U.S. 146 ( 1946), for

example, this Court ruled that the Postmaster General

could not deny second-class mailing privileges to publica-

tions he considered “morally improper.” Such a denial,

the Court held, would be “abhorrent to our traditions,”

and raise “grave constitutional questions.” Jd. at 151,

(holding that school’s internal mail system was a forum notwith-

standing that an internal mail system lacks physical situs) ;

Bolger v. Youngs Drug Prods. Co., 463 U.S. 60 (1983) (applying

public forum analysis to the United States mails).

It is also clear that the viewpoint-neutrality requirement applies

equally to government forums in which government subsidizes pri-

vate speech. For example, the Combined Federal Campaign

(“CFC”) at issue in Cornelius involved a subsidy, and the Court

of Appeals for the District of Columbia Circuit nevertheless ap-

plied forum analysis. NAACP Legal Defense and Educ. Fund,

Inc. v. Devine, 727 F.2d 1247, 1254, 1255-56 (D.C. Cir. 1984),

rev'd on other grounds, Cornelius, supra. In Cornelius, this Court

did not even mention the fact that the CFC involved a subsidy,

while holding that it was a nonpublic forum. Many lower courts

have applied forum analysis in the context of a government sub-

sidy. See, e.g., Bazaar v. Fortune, 476 F.2d 570 (5th Cir.), mod.

on other grounds, 489 F.2d 225 (1973) (en banc), cert. denied,

ps — 995 (1974) ; Lee v. Board of Regents, 441 F.2d 1257 (7th

r. 1971).

2 There is no material distinction between a tax subsidy and a

cash subsidy for purposes of determining access to a governmeni

forum and for applying the rule of viewpoint neutrality. Regan v.

Taxation With Representation, 461 U.S. 540, 544 (1983).

14

155-56. See United States ex rel. Milwaukee S.D. Pub.

Co. v. Burleson, 255 U.S. 407, 481 (1921) (Brandeis,

J., dissenting) (viewpoint-based denial of a subsidy un-

constitutional; claim that such a denial did not infringe

constitutional rights termed “technical and insubstan-

tial’).

More recently, in Regan v. Taxation With Representa-

tion, 461 U.S. 540 (1983), this Court considered whether

a complicated tax scheme that permitted veterans’ groups

to use tax-deductible contributions for lobbying activities

but denied other tax-exempt organizations this privilege,

violated the First and Fifth Amendments. The Court

concluded that the distinction did not violate the Constitu-

tion because the disparate treatment of organizations was

not based upon the other organizations’ views or the con-

tent of their speech. The Court warned, however, that

“(t]he case would be different if Congress were to dis-

criminate invidiously in its subsidies in such a way as to

‘aim at the suppression of dangerous ideas.’” Jd. at 548.

Thus, the Court upheld the tax scheme only because there

was “no indication that the statute was intended to sup-

press any ideas or any demonstration that it has had

that effect.” Jd. Regan strongly suggests that viewpoint-

based discrimination in subsidy programs is forbidden by

the First Amendment. Cf. Cornelius, 473 U.S. at 800,

806-13 (same standard in government forum cases).

Post-Regan opinions reaffirm the prohibition of viewpoint

discrimination in subsidy cases.

In Pacific Gas & Electric Co. v. Public Utilities

Comm’n, 475 U.S. 1 (1986), for example, the Court

struck down a statute that subsidized only one side of a

debate, because “[t]his kind of favoritism goes well be-

yond the fundamentally content-neutral subsid[y] that

we sustained in . . . Regan,” id. at 14-15. The Court

distinguished Regan and other cases upholding viewpoint-

neutral denials of certain subsidies.

15

Dissenting in FCC v. League of Women Voters, 468

U.S. 364 (1984), Chief Justice (then Justice) Rehnquist,

the author of Regan, reemphasized the principle that

viewpoint restrictions may not be imposed by the govern-

ment when it subsidizes speech. The Chief Justice cau-

tioned that any restrictions on the government’s subsidies

must not be “‘aimed at the suppression of dangerous

ideas,’ ” id. at 407 (quoting Cammarano v. United States,

358 U.S. 498, 513 (1959)). He argued that the FCC

subsidy should have been upheld because it was “strictly

neutral” and “[{i]n no sense [could] it be said that Con-

gress ha[d] prohibited only editorial views of one particu-

lar ideological bent.” Jd. at 407. Similarly, dissenting in

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221,

237 (1987), Justice Scalia argued that the tax subsidy

at issue should have been upheld notwithstanding its

content-based discrimination, but he indicated that view-

point discrimination in subsidy programs would violate

the First Amendment: “Perhaps a more stringent, pro-

phylactic rule is appropriate, and can consistently be

applied, when the subsidy pertains to the expression of a

particular viewpoint on a matter of public concern... .”

18 Information relating to abortion is clearly a matter of public

concern, particule~ly in light of the bitter and controversial nature

of the public debate surrounding abortion issues.

The lower courts have ruled viewpoint-based discrimination to

be unconstitutional in subsidy cases outside the abortion-related

context. See, e.g., Big Mama Rag, Inc. v. United States, 681 F.2d

1034 n.7 (D.C. Cir. 1980); Esquire, Inc. v. Walker, 151 F.2d 49,

50 (D.C. Cir.), aff'd on other grounds sub nom. Hannegan v.

Esquire, Inc., 327 U.S. 146 (1946); Joyner v. Whiting, 477 F.2d

456 (4th Cir. 1973); Brown v. Board of Regents, 640 F. Supp.

674 (D. Neb. 1986); American Council of the Blind v. Boorstin,

644 F. Supp. 811 (D.D.C. 1986) ; Spencer v. Herdesty, 571 F. Supp.

444 (S.D. Ohio 1983); Greenberg v. Nashua Bd. of Educ., 469

F. Supp. 1269 (D.N.H. 1979); Toward A Gayer Bicentennial

Comm. v. Rhode Island Bicentennial Foundation, 417 F. Supp. 632

(D.R.I. 1976) ; Antonelli v. Hammond, 308 F. Supp. 1829 (D. Mass.

1970); Brooks v, Auburn Univ., 296 F, Supp. 188 (M.D, Ala.),

16

The Secretary’s regulations clearly impose viewpoint-

based restrictions on the speech of Title X recipients. If

a health care professional in a clinic is asked a direct

question about abortion by a pregnant patient, the regula-

tions prohibit the professional from providing any infor-

mation whatsoever, from referring her to a source of

information about abortion, and from encouraging abor-

tion in any other way. 42 C.F.R. §59.8(b)(4). The

regulations further instruct that the professional may

only respond: “[t]he project does not consider abortion

an appropriate method of family planning and therefore

does not counsel or refer for abortion.” Jd. at § 59.8

(b) (5). This is viewpoint-based discrimination.

In addition, the regulations mandate the provision of

“information necessary to protect the health of mother

and unborn child until such time as the referral appoint-

ment is kept.” Jd. at § 59.8(a)(2) (emphasis added) .™

They mandate inclusion on any referral list of “providers

who do not provide abortions.” Jd. at § 59.8(a)(8) (em-

phasis added). But the regulations prohibit: provision

of “counseling concerning the use of abortion as a method

of family planning or . . . referral for abortion,” § 59.8

(a) (1); provision of a referral list including programs

aff'd, 412 F.2d 1171 (5th Cir. 1969); Smith v. Tennessee, 300

F. Supp. 777 (E.D. Tenn. 1969).

This Court’s opinions in Lyng v. International Union, 485 U.S.

360 (1988), Maher v. Roe, 482 U.S. 464 (1977), and Harris v.

McRae, 448 U.S. 297 (1980), are not in conflict with this principle.

None of those cases dealt with a viewpoint-based restriction on

First Amendment rights. The First Amendment claims rejected in

Lyng were not that the denial of the subsidy was based upon

viewpoint, but rather that denial indirectly affected associational

rights, forcing alteration of family relationships to continue to

receive food stamp benefits. Likewise, Maher and Harris were

concerned with the denial of public funds for abortion, not with

restrictions on expressive activity about abortion.

14 Thus, the regulations mandate provision of prenatal counsel-

ing, encouraging the woman to carry the fetus to term.

1m er ste tee eee.

17

“whose principal business is provision of abortion,”

§ 59.8(a) (3); and development or dissemination “in any

way” of “materials (including printed matter and audio-

visual materials) advocating abortion as a method of

family planning.” § 59.10(b) (5).

Without question, the Secretary has prohibited views

“of one particular ideological bent,” League of Women

Voters, 468 U.S. at 407 (Rehnquist, J., dissenting), and

has mandated communication of his own ideological per-

spective on the medical issues facing doctors and their

pregnant patients. Indeed, in suppressing certain views

and information while compelling anti-abortion speech

and referrals, the regulations create an official orthodoxy

with regard to discussion of abortion, wholly inimical to

the “fixed star in our constitutional constellation .. .

that no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion or other mat-

ters of opinion.” West Virginia State Bd. of Education

v. Barnette, 319 U.S. 624, 642 (19438).

The viewpoint-based discrimination ai issue here is

particularly repugnant to the First Amendment for three

reasons. First, the restriction is wholly unrelated to the

traditional functions performed by health care personnel

in programs such as those funded under Title X. The

basic purpose of such programs is to provide citizens of

limited means with the benefits of the expertise and

judgment of professionals that is not otherwise within

their reach. Health care professionals have a noble tra-

dition and ethical rules of longstanding requiring mem-

bers to provide information and counsel in the patient’s

best interest. Restricting professionals’ freedom to pro-

vide information or advice they believe, in their profes-

sional judgment, is in their patients’ best interests—and

prohibiting them from providing information specifically

requested by their patients—seriously undermines that

tradition.

18

Second, prohibitions based not on the medical or health-

related views of the government, but on “politics,” is

particularly indefensible. See State of New York v.

Sullivan, 889 F.2d 401, 418 (2d Cir. 1989) (Kearse, J.,

dissenting) (‘quoting government counsel from transcript

of oral argument} ."*

Third, viewpoint discrimination in a program of central

importance to poor women threatens “suppression of . . .

ideas,” Regan, 461 U.S. at 548, to an extent far greater

than that entailed in the typical speech-subsidy program.

for many poor women, there may be no realistic alterna-

tive to Title X-funded family planning programs.’ Pro-

hibiting a pregnant woman from receiving at the Title X

clinic information the Secretary deems politically unde-

sirable, and prohibiting the clinic from referring her to

another program that would provide that information,

would either deny her access to that information, or

delay access until it is too late for her to act on it. State

'* The First Amendment “command[s] the conclusion that the

[government] may not act to deny access to an idea simply be-

cause .. . Officials disapprove of that idea for partisan or political

reasons.” Pico, 457 U.S. at 879 (Blackmun, J., concurring in part

and concurring in the judgment). Any viewpoint restriction on

public libraries would be inconsistent with their function as

facilitators of “freewheeling inquiry,” Fico, 457 US. at 915

(Rehnquist, J., disseniing). And any viewpoint restrictions on

professors at universities receiving federal grants would similarly

be inconsistent with the historic role of universities as places of

unfettered discourse and inquiry and the tradition of academic

freedom. See Keyishian v. Board of Regents of New York, 385

U.S. 589, 603 (1967) ; Shelton v. Tucker, 364 U.S. 479, 487 (1960) ;

Weiman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J.,

concurring). Neither such restrictions, nor the regulation at issue

here, could possibly survive the strict judicial scrutiny appropriate

to laws restricting speech.

‘© Ninety percent of the patients utilizing Title X programs

have incomes substantially below the poverty line. Commonwealth

of Massachusetts v. Secretary of Health & Human Services, 899

F.2d 53, 56 (1st Cir. 1990),

19

of New York v. Sullivan, 889 F.2d 401, 417 (2d Cir.

1989) (Kearse, J., dissenting).

Il. EVEN VIEWPOINT-NEUTRAL EXCLUSION OF

SPEECH ABOUT A PARTICULAR SUBJECT MAT-

TER FROM GOVERNMENT SUBSIDY PROGRAMS

VIOLATES THE FIRST AMENDMENT, WHERE, AS

_ HERE, THAT EXCLUSION IS INCONSISTENT

WITH THE TRADITIONAL FUNCTION OF THE

SUBSIDIZED PROGRAMS AT ISSUE.

Government censorship of subsidized programs may be

constitutionally objectionable even if not viewpoint-based.

The Court has held that content discrimination is unlaw-

ful in the context of a tax subsidy program. Arkansas

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229-231

(1987). Ragland holds that a State may not—consistent

with the principles of the First Amendment—provide a

tax exemption based on the content of a magazine. Such

selective taxation is “particularly repugnant to First

Amendment principles [because] a magazine’s tax status

depends entirely on its content.” Id. at 229 (emphasis

in original). In the subsidy context, therefore, “{t]he

First Amendment’s hostility to content-based regulation

extends not only to restrictions on particular viewpoints,

but also to prohibition of public discussion of an entire

topic.” Id. at 230 (emphasis added), quoting Consoli-

dated Edison Co, v. Public Service Comm’n of New York,

Applied diyectly to this case) Ragland would be disposi-

tive even if/this Court determined that the Secretary has

banned discourse on a topic—aborti Ni tts

criminating against pro-abortion views—Subs

grams that discuss prenatal care, but excludin $6

discuss abortion as well, violates the content-néttr ality

command of Ragland.

Amici recognize that this content-neutrality principle

could conceivably give way to non-viewpoint restrictions

20

en speech by recipients of public funds where that speech

is directly contrary to the compelling purpose of the pro-

gram at issue. Arguably, public health programs could

be restricted to discussing topics pertinent to their

charge.'’ But patients rely on their physicians and other

health care professionals to provide them with compre-

hensive infcrmation and counsel regarding their medical

options and the medical resources available to them. It

is indisputable that the topic of abortion is inextricably

bound with prenatal care and family planning. Women

seek medical care, assistance and advice from Title X

clinics with regard to contraception and a variety of

medically related health care needs. Frequently, a pa-

tient’s initial visit to a Title X clinic is for the purpose

of getting a pregnancy test. Commonwealth of Massa-

chusetts v. Secretary of Health & Human Services, 899

F.2d 53, 56 (1st Cir. 1990). The topic of abortion is

obviously intimately related to the topics of pregnancy

and prenatal services about which the patients seek pub-

lie health assistance. By prohibiting Title X health care

professionals and other recipients of public funding from

providing their pregnant clients and patients with any

information about abortion—even in response to direct

and specific questions—the Secretary has for reasons ex-

traneous to health care prohibited the discussion of a

health care topic that is inextricably related to the speech

the program authorizes.

In sum, the Secretary cannot impose content-based re-

strictions that prohibit health care providers from dis-

pensing medical advice and information to pregnant pa-

tients about abortion. Such restrictions on the content of

the advice or information that a health care professional

may provide are inconsistent with the basic function of

the Title X program—to provide medical services, coun-

'’ Programs such as libraries that by tradition or dedication

have been free from subject matter censorship, however, may not

be subjected to legislative limitations on the subjects they address.

21

seling and referral with regard to family planning and

related medical conditions such as pregnancy—and, there-

fore, contravene the First Amendment.

Ill. BY IMPOSING CUMBERSOME AND IN MANY

CASES UNREALISTIC REQUIREMENTS OF

PHYSICAL SEPARATION BETWEEN PRIVATELY

FUNDED PROVISION OF INFORMATION ABOUT

ABORTION SERVICES AND PUBLICLY FUNDED

FAMILY PLANNING SERVICES, THE REGULA-

TIONS IMPOSE A PENALTY ON PROTECTED

SPEECH VIOLATIVE OF THE FIRST AMEND-

MENT.

It is well-established that government may not deny a

subsidy based upon a group’s or individual’s privately

funded expressive activities.'* Thus, for example, govern-

ment may not deny public broadcasting funds to local

stations that use their own funds to present broadcast

editorials, even though government might be permitted

to deny public funding for the editorials themselves.

FCC v. Leaque of Women Voters of California, 468 U.S.

364 (1984); see Regan v. Taxation With Representation,

461 U.S. 540, 553 (1983) (Blackmun, J., concurring).

This Court has recognized that, consistent with this

principle, government may require recipients of federal

funds to segregate their publicly-funded from their

18 See FCC v. League of Women Voters, 468 U.S. 364, 400-01

(1984); Speiser v. Randall, 357 U.S. 513, 518-19 (1958); Perry

v. Sinderman, 408 U.S. 593, 597 (1972). Cf. Harris v. McRae,

448 U.S. 297, 317 n.19 (1980) (denial of welfare benefits for

abortion is constitutional, but an attempt to withhold all welfare

benefits from one who exercises right to an abortion probably

». would be impermissible); Maher v. Roe, 432 U.S. 464, 474-75 n.8

(1977) (same). Government may, of course, simply decline to

subsidize expressive activity, so long as it does not do so in a

manner that penalizes such activity. See Cammarano v. United

States, 358 U.S. 498, 513 (1959); Grove City College v. Bell, 465

U.S. 555, 575 (1984); Regan v. Taxation With Representation, 461

U.S. 540, 553 (1983) (Blackmun., J., concurring),

22

privately-funded expression, and to require bookkeeping

practices to ensure that no federal funds are used for a

prohibited purpose. Regan, 461 U.S. at 544 n. 6; see id.

at 553 (Blackmun, J., concurring); League of Women

Voters, 468 U.S. at 395. But it is crucially important

that this refinement, crafted for the convenience of gov-

ernment, not undermine the constitutional rule: measures

requiring more expensive and burdensome steps than

bookkeeping, like denying the subsidy itself, would im-

pose an undue penalty on that protected, privately-funded

expression. See League of Women Voters, 468 U.S. at

395; Regan v. Taxation With Representation, 461 U.S.

at 553 (Blackmun, J., concurring). .

In at least two respects, the regulations transgress

this rule against penalizing protected expression. Al-

though the regulations permit Title X recipients to en-

gage in the forbidden speech about abortion with private

funds, they are unequivocal that “{mJere bookkeeping

separation of Title X funds from other monies is not

sufficient.” 42 C.F.R. § 59.9. By requiring, in addition,

physical separation of privately- and publicly-funded fa-

cilities and separate personnel, § 59.9(a-d), the regula-

tions impose expensive burdens on recipients of Title X

monies that unconstitutionally force them, if they wish to

engage in speech about abortion with private funds, to

choose between forfeiting the federal subsidy on the one

hand or incurring significant expense on the other."”

1 See Commonwealth of Massachusetts v. Secretary of Health

and Human Services, 899 F.2d 53, 74 (1st Cir. 1990) (“The practical

effect of the regulations is to restrict significantly the ability of

the recipient organization to engage in the forbidden counseling,

even on its own time with its own money.”). Moreover, because

federal funds may never amount to 100% of the funds utilized by

the Title X program, and often account for only half of the pro-

gram’s operating .budget, the regulations prohibit speech about

abortion with the privately-contributed private funds. See 42

C.F.R. $59.2 (“Title X project funds include all funds allocated

to the Title X program, including but not limited to grant funds,

\ 23

~

Indeed, the regulations’ unconstitutional effect goes

even further than merely penalizing Title X recipients

for engaging in the disfavored speech; they may “make

it literally impossible for a recipient to provide abortion

counseling or information concerning abortion with pri-

vate funds to their own patients. If a patient at the

Title X facility asks for abortion counseling, information

concerning abortion, or referral to a program that pro-

vides such counseling or information, the regulations pro-

hibit the recipient from referring that patient even to

its own physically separate facility if that facility “prin-

cipally provides abortions” or would “encourage” . or

“steer[|” a patient to programs that provide abortion.

-42 C.F.R. § 59.8.° Thus, although the recipient may say

whatever it wishes at its separate facility to anyone who

learns of its existence, the recipient may not inform its

Title X patient that the information she seeks is avail-

able at the separate facility: As this Court observed in

Ragland, “*\i\t hardly answers one person’s objection to

a restriction on his speech that another person, outside

his control, may speak for him.’” Ragland, 484 U.S. at

231, quoting Regan, 461 U.S. at 553 (Blackmun, J., con-

curring); Virginta Board of Pharmacy v. Virginia Con-

sumer Council, 425 U.S. 748, 757 n. 15 (1976). Sim-

ilarly, it hardly answers the Title X recipient’s objection

to being prevented from communicating with its patient

about abortion—or the patient’s objection that informa-

tion she seeks on that subject has been suppressed—that

grant-related income or matching funds.”) (emphasis added); id.

at 59.11(c) (“No grant may be made for an amount equal to 100

percent of the Title X project’s estimated costs.”); see also Com-

monwealth of Massachusetts v. Secretary of Health and Human

Services, 899 F.2d 53, 73 n.11 (1st Cir. 1990) (“the government, at

oral argument, said that the federal government provides only about

50% of the money supporting federally funded family planning

projects’).

20 Such a referral would almost certainly be deemed an “indirect

means” of promoting abortion. 42 C.F.R. §59.8(a) (3).

24

the Title X recipient would be free to provide that infor-

mation to other patients at its separate facility.

Because the regulations deny Title X subsidies to pro-

grams that use private funds to provide abortion infor-

mation to patients seeking that information, they violate

the fundamental principle that “government may not

deny a benefit to a person because {that person] exer-

cises a constitutional right.” Regan, 461 U.S. at 545

(emphasis added).

CONCLUSION

Amici respectfully urge this Court to reverse the judg-

ment of the Court of Appeals for the Second Circuit, and

hold that the regulations of the Secretary of Health and

Human Services, 42 C.F.R. $$ 59.7-59.10, violate the

First Amendment.

Respectfully submitted,

BRUCE J. ENNIS, JR.*

DAVID W. OGDEN

THERESA A. CHMARA

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Counsel for Amici

American Library Association,

Freedom to Read Foundation,

People for the American Way,

National Education Association,

The Newspaper Guild,

National Writers’ Union, and

Fresno Free College Foundation

July 27, 1990 * Counsel of Record