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39 Case W. Res. L. Rev. 97 (1988-1989)
The Doctrine of Unconstitutional Conditions and the First Amendment

handle is hein.journals/cwrlrv39 and id is 107 raw text is: THE DOCTRINE OF UNCONSTITUTIONAL CONDITIONS AND THE FIRST AMENDMENT Edward J. Fuhr* The doctrine of unconstitutional conditions posits that if the government is prohibited from directly limiting the exercise of constitutional rights in a given situation, the government may not achieve the same result indirectly by offering benefits subject to the condition that the recipients waive their constitu- tional rights. The doctrine has not been strictly applied, how- ever, because in certain situations a condition is justified even though a direct limit on the exercise of the right would not be. The author argues that past approaches to determining when a condition is legitimate have not adequately protected constitutional rights, and he proposes a new four-part frame- work for making such a determination. He sets forth this ap- proach in the specific context of conditions which restrict the exercise of first amendment rights, and then applies it to the conditions which accompany the receipt of Federal Election Campaign Act funds and to conditions attached to public employment. IN RECENT YEARS the government has increased the number of conditions attached to fiscal appropriations and government employment in an attempt to alter public behavior. With this in- crease the courts have been more frequently called upon to assess * Attorney Advisor in the Office of Legal Counsel, Department of Justice; B.A., Uni- versity of Virginia (1984); J.D., cum laude, University of Chicago (1987). I wish to thank Brenda Swierenga for her helpful reviews and insights. I would also like to express my gratitude to Geoffrey Stone, Dean of the University of Chicago Law School, who taught me much of what I know about the first amendment and whose initial comments and sug- gestions encouraged me to write this article. Finally, I thank Cass Sunstein, Professor of Law, University of Chicago, who interested me in the doctrine of unconstitutional condi- tions and the questions it poses. The views expressed in this article are solely those of the author and are not necessa- rily those of the Department of Justice.