Nahmod Law

Rust v. Sullivan

Oral argument in Rust v. Sullivan, 500 U.S. 173 (1991), was held on October 30, 1990, which made Rust one of the first cases that Justice Souter heard. In a 5-4 vote that almost certainly would have gone the other way had Justice Brennan still been on the Court, the Court, in an opinion by Chief Justice Rehnquist, upheld federal regulations that prohibited doctors from engaging in abortion counseling as part of a federally funded Title X project.

The ruling rested on the distinction between a subsidy and a restriction. The Court began with the premise that government may choose to fund one activity to the exclusion of another, even if the latter involves the exercise of a fundamental right. It then determined that Rust was not an “unconstitutional conditions” case, because Title X focused on the project rather than the grantee: Title X did not restrict the recipients of funding absolutely from engaging in pro-abortion activities; it merely mandated that Title X projects not include such activities. Therefore, if a doctor wished to go beyond the scope of a Title X program, he or she remained free to do so. Title X merely required that the funds for Title X projects be segregated from funds used to support activities beyond the scope allowed by Title X.

The Dissenters

Justice Blackmun dissented, joined by Justice Marshall and by Justice Stevens in part and by Justice O’Connor in part. “Until today, the Court has never upheld viewpoint- based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.” For three of the dissenters (not including Justice O’Connor), what distinguished Rust from Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), which dealt with funding coupled with conditions, was that Title X was in part aimed at the suppression of “dangerous ideas.” Because the counseling and referral provisions in Title X were both content and viewpoint based, they violated the First Amendment. The three dissenters further argued that the majority’s mantra that government is free to fund one activity to the exclusion of another was both overly simplistic and incorrect.

A further problem with the Title X restrictions, according to these three dissenters, was that the women counseled would view the speech as originating with their doctors rather than as speech from the government. Most women assumed that when they spoke with their doctors concerning private medical issues, the views and advice offered were the doctors’ own and not those of the government or another third party.

Justice Souter’s Starting Point

Justice Souter’s agreement with the Rust majority, rather than with the dissenters, can serve as an important starting point that shows just how much his views of government speech changed over the next eighteen years. Thus, an issue raised by the three Rust dissenters–that a reasonable patient in a Title X program would not view the speech as government speech—subsequently became one of Justice Souter’s primary concerns about the doctrine. As the doctrine developed, and as Justice Souter focused more on the political accountability necessary to control government speech, the reasonable observer test became increasingly central in his approach to the doctrine.

Specifically, in Johanns v. Livestock Marketing Assn., 544 U.S. 550 (2005), Justice Souter’s focus on the reasonable observer led him to conclude that the speech at issue there did not constitute government speech. And in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), Justice Souter concurred in the judgment that the permanent Ten Commandments statue in the park of Pleasant Grove City constituted government speech because a reasonable observer would know that the monument’s moral and religious message was the government’s own.

More to the present point, however, Justice Souter began to express his concerns with the government speech doctrine some four years after Rust, in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995).

Rosenberger will be the subject of a subsequent post.