Tag: crackdown

With his second term underway, President Trump has moved aggressively to reshape federal spending. Organizations that promote “diversity, equity, and inclusion” (DEI) or “gender ideology,” for example, are at risk of losing government grants and contracts. Although the government has discretion in spending taxpayer dollars, some of the administration’s attempts to yank funding from groups based on their speech run headlong into the First Amendment.

New funding restrictions target everything from DEI to ‘Gulf of Mexico’

On Jan. 21, Trump issued an executive order that purports to require funding recipients to abandon “illegal DEI” programs but does not define “DEI” or explain which programs the administration deems unlawful. The Department of Government Efficiency (DOGE) reportedly cited the order in moving to cancel contracts with eight U.S. Department of Housing and Urban Development (HUD) contractors over DEI language on the contractors’ own websites and LinkedIn profiles, even though it was unrelated to their contractual obligations. Late last month, a federal court blocked key parts of the executive order on First Amendment grounds.

One thing is clear: The government cannot constitutionally use funding as a cudgel to control speech outside the funded activity. 

DEI isn’t the administration’s only target. Another executive order bans the use of federal funds to “promote gender ideology.” Meanwhile, the National Oceanic and Atmospheric Administration (NOAA) reportedly told The Nature Conservancy it would lose funding unless it adopted the term “Gulf of America” (echoing the White House’s ultimatum to the Associated Press to use the term or lose access to certain press events). And last week, Trump threatened to pull federal funding from any college that “allows illegal protests.”

Although these examples are different in important ways, they all raise First Amendment questions.

What does the Supreme Court have to say?

Several of Trump’s moves clash with decades of Supreme Court precedent. One thing is clear: The government cannot constitutionally use funding as a cudgel to control speech outside the funded activity. The funding is supposed to support a specific program or purchase, not give the state control over everything an institution does. The government can, however, decide whether to pay a group or person to speak on its behalf.

For instance, the Supreme Court held the government violated the First Amendment by forcing groups to denounce prostitution or lose funding for fighting HIV/AIDS. It also invalidated a ban on federal funding for public broadcasters who engaged in any editorializing, even with their own money.

Conversely, in Rust v. Sullivan, the Court upheld federal restrictions on abortion counseling in government-funded family planning programs — because Congress was subsidizing and controlling its own message about family planning.

One caveat: The government’s power to regulate speech within a funded activity is not absolute. The Court struck down a restriction on legal aid attorneys using federal grants to challenge welfare laws. Why? Unlike in Rust, the government wasn’t transmitting its own message — it was subsidizing legal aid attorneys’ advocacy on behalf of their indigent clients. Similarly, the University of Virginia — a public institution — violated the First Amendment when it denied a student magazine access to funding because of its religious viewpoint. The fund was for helping students express their own messages, not the university’s. 

These same principles apply in other contexts where the government offers a financial benefit. Most Americans would rightly balk at the idea of a public school refusing to hire any Republicans, or a state government offering a tax exemption for Democrats only. Those policies would be plainly unconstitutional.

Trump’s funding restrictions: legal or overreach?

So how do Trump’s actual and proposed funding restrictions fit into this legal framework?

In partially blocking enforcement of Trump’s DEI executive order, a federal court emphasized that it unlawfully limited speech “outside the scope of the federal funding.” That means DOGE’s alleged targeting of HUD contractors for their DEI activities likely violates the First Amendment if those activities have nothing to do with their government work. 

As for the “Gulf of America” mandate, the administration may be able to require The Nature Conservancy to use the term in official reports produced for NOAA. But if the mandate goes beyond that, it could also run into First Amendment problems.

And what about the executive order prohibiting use of federal funds to “promote gender ideology”? The only way this passes muster is if it controls the government’s own messaging or concerns non-speech activities, and not, for instance, if the government pulls a university’s funding because it believes a professor is somehow promoting such views. Congress funds universities to support the creation and spread of knowledge, not for faculty to act as government mouthpieces. 

Pulling federal funding from colleges based solely on the views of student protests would also violate the First Amendment — and the administration cannot do so unilaterally. It’s one thing for the government to regulate its own speech, but quite another to punish colleges for how students express themselves on their own time. Trump’s statement referred to “illegal” protests, but his past remarks suggest his idea of “illegal” encompasses not just protest activity involving unlawful conduct but protected speech as well, such as whatever he deems “antisemitic propaganda.” This dovetails with how, during his first term, Trump directed civil rights agencies to use a definition of anti-Semitism that includes protected expression. 

Efforts to deny federal funding to groups and institutions whose views the current administration dislikes seriously threaten Americans’ First Amendment rights. The government must tread carefully to avoid crossing the line into unconstitutional speech policing, otherwise the courts — and history — are unlikely to be on their side.