Can a nonprofit that receives Maryland state grant money publish a report rating legislators' votes on an unrelated policy issue?

Plain-English summary

Two members of Maryland's House of Delegates asked the Attorney General whether it was legally improper for Planned Parenthood of Maryland, a private nonprofit that received about $570,000 in state grant funds in 1986 for contraceptive services and community education, to publish a "Reproductive Health Report" rating each member of the General Assembly on their voting record regarding Medicaid funding for abortions, plus identifying members who had signed a letter urging more teen-pregnancy prevention funding.

The Attorney General concluded that the report raised no legal problem. A Department of Health and Mental Hygiene audit, requested by a House Appropriations subcommittee, confirmed that the report was produced with funds from sources other than the state grant, so there was no improper use of state money. The opinion also concluded, independent of the funding question, that an organization's acceptance of a state grant restricted only how the granted funds themselves could be used; it did not strip the organization of its First Amendment right to use its other resources to publish a report characterizing legislators' voting records, which the opinion characterized as core protected speech on a matter of public concern.

Common questions

Did Maryland's Department of Health and Mental Hygiene find that state grant money paid for Planned Parenthood's 1986 legislative rating report?
No. The department audited the organization's records at a House Appropriations subcommittee's request and confirmed that state funds "were used exclusively for the intended grant programs," meaning money from other sources paid for the Reproductive Health Report.

Does accepting a Maryland state grant limit what a nonprofit can say publicly using its own separate funds?
According to this opinion, no. The Attorney General concluded that a grant restricting how the granted funds themselves may be used does not, without more, restrict what the organization does with its other money, and that using non-grant funds to publish advocacy material addressing a matter of public concern is protected by the First Amendment.

Would the answer have been different if Planned Parenthood had used the state grant money itself to pay for the report?
The opinion suggests it would have been a problem. It noted that using the grant funds for that advocacy purpose would have been inconsistent with the terms of the grant, a point the organization's own officials acknowledged, but the opinion did not need to resolve that scenario because the audit showed it did not happen.

Background and statutory framework

Planned Parenthood of Maryland received roughly $570,000 in 1986 from state and federal grants for a comprehensive program of contraceptive services and community education, awarded on the condition that the funds be used primarily for family planning services in Baltimore City, with some permissible use in the counties. In May 1986 the organization's Public Affairs Division published a Reproductive Health Report scoring legislators' 1983-1985 votes on Medicaid abortion funding as a percentage of "Pro-Choice Votes" and naming those who had signed a letter urging expanded teen-pregnancy-prevention funding.

The opinion first resolved the funding question by relying on the Department of Health and Mental Hygiene's audit, conducted at the request of the House Appropriations Subcommittee on Health and Environment, which found the grant money was used exclusively for its intended purposes and that other funds paid for the report. Having resolved that factual question, the opinion turned to First Amendment principles, explaining that the Supreme Court has recognized both the right to speak and the right not to be compelled to fund another's speech, so the state could not force taxpayers to fund political advocacy they oppose, but that no such compulsion was at issue here because the state grant was used only for its designated public purposes. The opinion further explained that a grant of public funds to a private organization does not, by itself, restrict how the organization may use its own other resources, and that the First Amendment protects an organization's right to address matters of public concern, including publishing information about how public officials vote, regardless of whether the speaker is an individual, a corporation, or another type of association. The opinion noted, without needing to resolve it here, that a harder question would arise if a state grant expressly conditioned funding on an organization's agreeing to give up a constitutional right altogether, since the Planned Parenthood grant did not attempt to restrict the organization's use of its other funds.

Citations

Cases:

• Wooley v. Maynard, 430 U.S. 705, 714 (1977)
• Abood v. Detroit Board of Education, 431 U.S. 209, 234-35 (1977)
• Pacific Gas & Electric Company v. Public Utilities Commission of California, 475 U.S. 1, 8 (1986)
• First National Bank of Boston v. Bellotti, 435 U.S. 765, 783-85 (1978)
• Buckley v. Valeo, 424 U.S. 1, 57 n. 65 (1976)
• Perry v. Sindermann, 408 U.S. 593, 597 (1972)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE GRANTS

Constitutional Law—First Amendment—Planned Parenthood's Publication of Legislative Rating Report, Involving No Use Of State Grant Funds, Was Lawful Exercise Of First Amendment Rights.

March 31, 1987

The Honorable Martha S. Klima
The Honorable Robert R. Staab
Maryland House Of Delegates

You have requested our opinion on whether any legal questions arise when a private organization that receives State funds publishes a report on the voting records of members of the General Assembly. Specifically, you ask whether the publication by Planned Parenthood of Maryland of a report that rates members of the General Assembly on their support for Medicaid funding of abortions and other family-planning measures was legally improper.

For the reasons given below, we conclude in general that, although an organization's use of State funds must be consistent with the terms on which those funds were granted, the organization's acceptance of State funds does not itself affect the organization's right, under the First Amendment, to address issues of public concern.1 Publishing a report that characterizes the voting record of legislators is unquestionably a form of protected speech.

The particular report about which you inquire was produced with funds from sources other than the State and therefore did not involve an improper use of State funds. Rather, the publication was a lawful exercise of First Amendment rights.

I
Background

Planned Parenthood of Maryland is a private, nonprofit organization. Approximately 16% of the organization's budget is funded by grants from the State and federal governments. In 1986, the State granted approximately $570,000 to Planned Parenthood for a comprehensive program of contraceptive services and community education.2

In May of 1986, Planned Parenthood of Maryland published a document entitled Reproductive Health Report. That report indicated, for each member of the General Assembly, the member's voting record on legislation before the General Assembly in 1983, 1984, and 1985 regarding Medicaid funding for abortions. Each member's record was stated as a percentage of "Pro-Choice Votes." In addition, the report identified those members who, in 1986, had signed a letter to then-Governor Hughes urging increased funding for programs designed to reduce the rate of pregnancies among teenagers in Maryland.

II
Funding of Reproductive Health Report

The Reproductive Health Report was published by Planned Parenthood's Public Affairs Division, evidently as part of the organization's advocacy of Medicaid funding for abortions. As officials of Planned Parenthood readily acknowledge, the purposes for which it may use the State's grant do not include such advocacy of legislative action. Therefore, the use of State grant money to publish and distribute the report would, in the organization's view, be inconsistent with the terms of the State's grant.

However, this question need not be discussed further, for State funds in fact were not used for that purpose. At the request of the House Appropriations Subcommittee on Health and Environment, the Department of Health and Mental Hygiene, the agency through which the State's grant was made to Planned Parenthood, conducted an audit of the organization's records to determine whether State funds had been used to publish the report. The audit indicated that the funds used for the report were not received from the State. State funds "were used exclusively for the intended grant programs." Letter from Richard J. Bandelin, Director, Office of Financial Planning and Management Analysis, Department of Health and Mental Hygiene, to Delegate Howard P. Rawlings, Chairman, House Appropriations Subcommittee on Health and Environment (March 19, 1987).

Hence, publication of the report raises no issue of possible improper use of the State funds granted to Planned Parenthood. Nor was this form of advocacy otherwise legally improper. Indeed, as discussed in Part III below, we think that publication of the report was protected by the First Amendment's guarantee of freedom of speech.

III
First Amendment Principles

The United States Supreme Court has pointed out that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). Consequently, the State may not compel citizens to contribute to a private organization's political activities that they oppose. Abood v. Detroit Board of Education, 431 U.S. 209, 234-35 (1977). But no such compulsion exists here, for the State funds appropriated to Planned Parenthood are granted and used for public purposes other than the advocacy of particular legislative action.3

Conversely, the grant of State funds to a private organization does not, without more, restrict the uses that the organization may make of its other funds. The First Amendment "secures the right to proselytize religious, political, and ideological causes . . . " Wooley, 430 U.S. at 714. That principle applies whether the speaker is an individual or a corporation or other association. Pacific Gas & Electric Company v. Public Utilities Commission of California, 475 U.S. 1, 8 (1986).

Thus, Planned Parenthood's advocacy of Medicaid funding for abortions and its distribution to the public of information regarding the voting records of the members of the General Assembly on this issue are clearly protected by the First Amendment. Indeed, such communications are precisely the kind of contributions to the discussion of matters of public concern that the First Amendment seeks to foster. First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). While the State need not grant public funds to a private organization that engages in such activities, it may not, merely by granting funds to be used for other purposes, restrict the organization's exercise of its First Amendment right. See 435 U.S. at 784-85.4

IV
Conclusion

In summary, it is our opinion that the publication by Planned Parenthood of Maryland of its Reproductive Health Report raises no issue as to improper use of State funds and, moreover, was protected by the First Amendment.

J. Joseph Curran, Jr., Attorney General
C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Cf. note 4 below.

2 The grant award letter provides that the funds are to be used "primarily in support of family planning services in Baltimore City, although some use of these funds for some support of family planning services in the Maryland counties is permissible. . ." Undated letter from A.S. Zachary, M.D., P.P.H., Assistant Director for Maternal Health, Family Planning & Hereditary Disorders, to Diana Gurieva, Executive Director, Planned Parenthood of Maryland.

3 On a related question, Assistant Attorney General Linda H. Lamone previously advised that the use of State funds by the Maryland Commission for Women to advocate Medicaid funding for abortions was consistent with the purposes for which that agency had been created. Accordingly, such advocacy did not violate either the Maryland constitutional requirement that public funds be spent for public purposes or the First Amendment rights of taxpayers who disagree with the Commission's position. Letter from Linda H. Lamone, Assistant Attorney General, to Delegate Martha S. Klima (January 28, 1985).

4 The grant to Planned Parenthood, though restricting the purposes for which State funds were to be used, did not purport to restrict the activities carried out by Planned Parenthood with other funds. Accordingly, we have no occasion to consider whether the State may expressly condition a grant on an organization's agreeing to refrain altogether from exercising specified constitutional rights. See Buckley v. Valeo, 424 U.S. 1, 57 n. 65 (1976). Cf. Perry v. Sindermann, 408 U.S. 593, 597 (1972).