With a two-paragraph memorandum late last week, President Trump once again had nonprofits bracing for a withdrawal of federal support.
In the order, which was quickly criticized by First Amendment advocates, Trump wrote that taxpayers had supported “nongovernmental organizations, many of which are engaged in actions that actively undermine the security, prosperity, and safety of the American people.”
It is the policy of the new administration, he wrote, to stop funding such efforts. Trump directed federal department heads to review their budgets and “align future funding decisions with the interests of the United States and with the goals and priorities of my Administration.”
The memo did not identify specific actions undertaken by federal grantees, nor did it provide a rationale for how such activity was counter to the national interest.
Similar directives have come from leaders in China, Hungary, Russia, and the Soviet Union, said Nadine Strossen, a law professor at New York University.
“This is a typical tactic of authoritarian regimes,” said Strossen, who led the American Civil Liberties Union for more than a decade.
The missive follows a slew of other orders and directives, many under review in the courts, that would end federal support for nonprofits involved in overseas aid, environmental projects, or efforts to promote diversity, equity, and inclusion.
It is not entirely clear how many nonprofits’ support is jeopardized by the memo, which uses the broad term “nongovernmental organization.” It is not clear if Trump meant nonprofits in a broad sense, as the term “nongovernmental organization” is often used outside of the United States, or tax-exempt charities that provide support internationally, as many Americans understand it.
According to a newly revised Urban Institute study, nearly two-thirds of a nationally representative sample of nonprofits received at least one government grant or contract in 2023. About 20 percent of nonprofits receive more than half of their revenue from the government, according to the study, which did not differentiate between federal and state government support.
Opposition to the Memo
A review of a nonprofit’s actions could include anything it or its employees do in their work, including writing a legal brief, marching in a protest, testifying before Congress, or writing a pamphlet, Strossen said. The term “actions” used in the memo is vague, she said, and the criteria to determine whether they are against the national interest is subjective.
While it is not a constitutional right to receive federal funding, Strossen said that the U.S. Supreme Court recognized in a 2013 case that it violates the First Amendment if the primary basis of removing support is a disapproval of a grantee’s message. That case, Agency for International Development v. Alliance for Open Society International Inc., found that a requirement that Open Society, which provided HIV/AIDS care, have a specific policy condemning prostitution violated the group’s free speech rights. The high court revisited the case seven years later and found that Open Society’s foreign workers could not claim First Amendment protections.
In another case, Rust v. Sullivan, which tested whether the government could withhold funding for abortion counseling, the court held that government has the ability to choose what types of programs to support.
“The Supreme Court has paid special attention to concerns about language that is overly broad,” Strossen said. “If it’s unduly vague, it’s going to have a chilling effect. People are going to over-censor themselves for fear of running afoul of the regulatory language.”
A coalition of progressive organizations called Americans Against Government Censorship called upon Trump to rescind the order, saying it conflated a partisan agenda with the national interest.
“Charitable organizations that receive federal funds, be they houses of worship that serve the poor, schools that educate our children, or hospitals that care for veterans, should never have to pass a politician’s loyalty test to do the important work of serving our communities,” said Cole Leiter, the group’s executive director. Leiter is a veteran of the Democratic Congressional Campaign Committee, which is the fundraising arm of the House Democrats.
Members of the coalition include Oxfam America, the AFL-CIO and unions representing service workers and teachers, and the CAP Action Fund, the lobbying arm of the Center for American Progress. Patrick Gaspard, CAP Action’s executive director, is a past president of Open Society Foundations.
Whether the memo might pave the way for a constitutional clash depends on how it is implemented, said David Keating, president of the Institute for Free Speech, a First Amendment advocacy group.
Keating, the former executive director of the Club for Growth, a conservative advocacy group that pushes for low taxes, presented the hypothetical example of a nonprofit applying for disaster relief being told that it will get the money if it promises not to advocate for federal action on climate change.
Attaching those strings to a federal grant would clearly be unconstitutional, Keating said.
The memo, he said, is vague, but until spending decisions are made, it does not present an immediate First Amendment problem.
"At this point, we have to assume that they’ll do it properly and constitutionally,” he said. “I can certainly understand why people might be skeptical of that actually happening.”
