Rust v. Sullivan

In Rust v. Sullivan, 500 U.S. 173 (1991), the U.S. Supreme Court rejected a First Amendment challenge to regulations prohibiting entities that receive Title X grants for the operation of family-planning projects from engaging in abortion counseling. This decision was the only time newly confirmed Justice David Souter voted against abortion, and his vote provided the 5-4 margin of victory. Based on Justice Souter's position in this case the liberal media began criticizing him, and he soon swung to the liberal side of the Court whereupon the criticism stopped.

Future Chief Justice John Roberts successfully argued against the abortion side in this case, defeating liberal Professor Laurence Tribe who argued for the abortion side.

In Rust v. Sullivan, the U.S. Supreme Court held that, within "broad[] limits," when "the Government appropriates public funds to establish a program," it is "entitled to define the limits of that program" and to prohibit certain speech "to ensure that the limits of the federal program are observed." Id. at 193-194.

Distinguishing between the government's sovereign and non-sovereign functions, the Court explained that the case involved, not "a general law singling out a disfavored group on the basis of speech," but rather a "refus[al] to fund activities, including speech, which are specifically excluded from the scope of the project funded." Id. at 194-195. The Court noted that a recipient of funds "is in no way compelled to operate a Title X project" and may "avoid the force of the regulations ... simply [by] declin[ing] the subsidy." Id. at 199 n.5. The Court also indicated that the result would have been different if the program had involved property "traditionally open to the public for expressive activity" or "expressly dedicated to speech activity," id. at 200 (quoting Kokinda, 497 U.S. at 726), thereby suggesting that the program at issue could be viewed as a nonpublic forum.