Cite as: 531 U. S. 533 (2001)
Scalia, J., dissenting
tion marks omitted). Absent such a threat, "the Government may allocate . . . funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." 524 U. S., at 587-588.
In Rust v. Sullivan, supra, the Court applied these principles to a statutory scheme that is in all relevant respects indistinguishable from § 504(a)(16). The statute in Rust authorized grants for the provision of family planning services, but provided that "[n]one of the funds . . . shall be used in programs where abortion is a method of family planning." Id., at 178. Valid regulations implementing the statute required funding recipients to refer pregnant clients "for appropriate prenatal . . . services by furnishing a list of available providers that promote the welfare of mother and unborn child," but forbade them to refer a pregnant woman specifically to an abortion provider, even upon request. Id., at 180. We rejected a First Amendment free-speech challenge to the funding scheme, explaining that "[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem another way." Id., at 193. This was not, we said, the type of "discriminat[ion] on the basis of viewpoint" that triggers strict scrutiny, ibid., because the " 'decision not to subsidize the exercise of a fundamental right does not infringe the right,' " ibid. (quoting Regan v. Taxation With Representation of Wash., supra, at 549).
The same is true here. The LSC Act, like the scheme in Rust, see 500 U. S., at 200, does not create a public forum. Far from encouraging a diversity of views, it has always, as the Court accurately states, "placed restrictions on its use of funds," ante, at 537. Nor does § 504(a)(16) discriminate on the basis of viewpoint, since it funds neither challenges to nor defenses of existing welfare law. The provision simply declines to subsidize a certain class of litigation, and under
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