Can Government Cut, Condition Funding Based on Speech, Protest Issues?

The use of government funding to control speech or protest represents a controversial and complicated intersection of core First Amendment freedoms and necessary government authority.

Freedom of speech sets out a general rule: The government cannot tell us what to say or not say. That’s called “compelled speech” and is unconstitutional.

But another general rule is that the government should be able to control public spending. Courts affirm that the government has that authority — within limits.

Those two long-standing rules have collided in multiple disputes for decades, most recently, in the form of warnings to pull funding from schools and universities over alleged civil rights violations, diversity, equity and inclusion initiatives, climate change research, and more.

In a September 2025 ruling, a federal District Court offered some clarity around when conditions placed on government funding may cross the line. Judge Allison Burroughs said the U.S. government overstepped its authority and violated “a zone of First Amendment protection for the educational process itself” when it froze more than $2 billion in government funding for multiple Harvard programs.

What is conditional funding?

The Supreme Court has said the government can use “conditional funding” to control what is said when people or programs are speaking on behalf of the government. Conditional funding occurs when the government provides financial support, grants or tax breaks to individuals, organizations, or projects and conditions that funding on specific requirements, goals, milestones, timelines or accomplishments. For example:

• The government gives a research grant to a university, which must reach certain results or submit progress reports in order to continue receiving the funding.
• A government program provides financial support for a business, on the condition that the business creates a certain number of jobs in a specific period.
• Government funding for specific activities or programs has rules restricting what services the funded programs may — and may not — provide.

In those examples, if the conditions aren’t met or rules aren’t followed, government funding may be reduced, halted or required to be paid back.

The courts have affirmed the government’s right to condition funding in certain cases, while acknowledging the potential dangers of withdrawing funding based on vaguely written laws or definitions and of overt censorship. One Supreme Court decision on this matter supports the “government speech doctrine,” which allows the government to control funding for its own speech and messages — and even to exclude other views. For example, in funding a law passed by Congress, such as the Clean Air Act, a government agency like the Environmental Protection Agency would not be required to also provide funding for groups opposed to antipollution measures.

When does the government’s authority to pull funding get murky?

When it comes to speech and government funding, the intersection of government authority and the First Amendment is complicated. As Chief Justice John Roberts said in 2013, the line between conditional funding that violates the First Amendment and that which does not is “hardly clear,” in part because the rules of the programs being funded can be manipulated to make the conditions seem integral to that program.

While ultimate limits have yet to be set, courts have ruled that conditioning or withdrawing funding on speech or expression grounds tends to cross a line when the government tries to use funding to control speech outside the boundaries of the program being funded or when the conditions are vague.

Laws that allow for conditional government funding

There are laws in place that outline limits and requirements around conditional government funding, but the details on what could trigger funding being pulled have shifted over the years. Courts will likely need to weigh in to set clearer limits.

For example, Title VI, part of the Civil Rights Act of 1964, prohibits discrimination based on race, color and national origin in programs and activities receiving federal financial assistance. It empowers federal agencies to stop funding for activities found to be in violation of the act, an example of conditional funding.

Another federal law that deals with discrimination and conditional government funding is known as Title IX. In 2011, the Obama administration issued guidelines under Title IX to combat harassment, discrimination and assault on college campuses. Those guidelines required universities to adopt and enforce speech codes and other policies or face penalties, including the loss of a broad range of federal funding such as money for student loans.

Multiple court decisions have upheld Title IX, including the provision for funding losses, but also have insisted any intrusion on free speech be as limited as possible.

And the details of what can bring a loss of funding under Title IX have changed. In February 2025, the U.S. Department of Education told colleges that Title IX protections would no longer apply to explicit protections of transgender students’ rights, reverting to a 2020 policy. The move reversed a 2024 policy adopted under the Biden administration.

Presidential administrations have used Title VI and Title IX to condition government funding. The most recent examples involve funding for colleges and universities, a particular focus of the Trump administration, including the University of Pennsylvania, Columbia University, Princeton University, the University of California, Los Angeles and Harvard University — with various outcomes.

In September 2025, U.S. District Court Judge Allison Burroughs ruled against the Trump administration’s freeze of more than $2 billion in federal funding for Harvard University and its affiliates, ordering the administration to unfreeze the cuts. Burroughs said the government’s requirement that the school meet a variety of conditions on DEI programs, faculty hiring and student admissions violated the First Amendment’s protection for freedom of speech. The court held the First Amendment protects “the independent and uninhibited exchange of ideas among teachers and students,” as well as Harvard’s “autonomous decisionmaking,” from retaliation for refusing to comply with these government requests. Burroughs said the First Amendment protects universities’ right to “manage an academic community and evaluate teaching and scholarship free from [government] interference.”

Threats to withhold federal funds under Title VI aren’t new, although they have rarely been wielded against universities. But earlier instances involving both universities and other institutions do exist.

The bottom line on government funding and the First Amendment

Beyond specific court rulings, concerns over threats involving the loss of government funding include the potential for a “chilling effect.” When individuals, universities or other groups rely on government funding that may be withdrawn, self-censorship may result. These funding threats may also suppress grant recipients’ willingness to recognize or include minority or dissenting views.

Lawsuits challenging federal funding cuts for universities have called such actions unconstitutional overreaches, noting that courts consistently say that restrictions on campus speech and protests must be narrowly tailored and designed to meet compelling government interests, like responding to violence or protecting students from harassment or injury.

Beyond such instances, both future and recent court decisions — such as the September 2025 Harvard ruling — will continue to determine the extent to which the government can use its funding power to compel institutions receiving federal funds to adopt specific government-set policies and practices.

This becomes a First Amendment issue when the government uses this power to impose its own viewpoint on the universities.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at [email protected].