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Supreme Court Rules that Anti-Prostitution Policy Requirement for HIV/AIDS Funding Violates First Amendment

Commentary First Amendment
Agency for International Development v. Alliance for Open Society International, Inc. By Andrew Spore – Edited by Samantha Rothberg  [caption id="attachment_3461" align="alignleft" width="150"] Photo By: Dominic Alves - CC BY 2.0[/caption] Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10 (570 U. S. ___ June 20, 2013) Slip Opinion In a 6-2 opinion written by Chief Justice John Roberts, the Supreme Court ruled that requiring as a condition of funding that recipients of federal HIV/AIDS prevention funds have “a policy explicitly opposing prostitution” constituted an impermissible restriction on speech in violation of the First Amendment. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10, slip op. at 15 (U. S. June 20, 2013). In doing so, the Court affirmed a 2011 decision by the U.S. Court of Appeals for the Second Circuit. Id. SCOTUSblog and the New York Times provide overviews of the case. Reuters discusses the schismatic response in the legal and non-profit worlds. Harvard Law School Professor Noah Feldman, writing for Bloomberg, sees conservative political maneuvering behind the decision. In contrast, the Health Law Prof Blog speculates that the decision could lead to liberal outcomes in the battle over Planned Parenthood funding. Under the United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 (“Leadership Act”), billions of dollars in funding have been authorized for use by nongovernmental organizations (“NGOs”) fighting the global HIV/AIDS crisis. Id. at 2–3. The funding comes with two conditions:  (1) no funds can be used to promote the legalization of prostitution, and (2) no funds may be granted to an organization that does not have a policy explicitly opposing prostitution. Id. at 3. The plaintiffs, four domestic NGOs, received funding under the Leadership Act but wished to remain neutral on prostitution out of a concern that an explicit anti-prostitution policy would alienate foreign governments and hinder efforts to prevent the spread of the disease among sex workers. The NGOs sought a declaratory judgment that the requirement violated their First Amendment rights and a preliminary injunction barring the Government from terminating their funding during the litigation. Id. at 4–5. In finding for the NGOs, the Court relied on its unconstitutional conditions doctrine and its compelled speech doctrine. Id. at 12–14. Chief Justice Roberts nimbly drew from a tortuous line of cases, relying heavily on Rust v. Sullivan, 500 U.S. 173 (1991), opinion hosted by Legal Information Institute. In Rust, the Court upheld a condition that prohibited the use of federal funds by family planning programs that included abortion as a method of family planning. Id. at 10. While Chief Justice Roberts acknowledged that Congress has the authority to limit the use of federal funds, even where such limits “may affect the recipient’s exercise of its First Amendment rights,” the Court found that the policy restriction in question went further in that “it [sought] to leverage funding to regulate speech outside the contours of the program itself.” Id. at 7–8. Congress may impose a condition on a particular program, but it may not impose a condition that will affect the recipient’s constitutional rights outside of the program. Id. at 12. The majority recognized that this “line is hardly clear,” but found the policy requirement here to be “on the unconstitutional side of the line” because it did not allow a recipient to espouse “contrary belief[s] . . . on its own time and dime.” Id. at 8, 11–12. A requirement that a grantee “pledge allegiance” to a certain policy “by its nature cannot be confined within the scope of the Government program” and is therefore impermissible. Id. at 14–15. Justice Kagan took no part in the decision. Id. at 15. Justices Scalia and Thomas dissented, finding that the policy requirement was “nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS . . . a central part of [which] is the suppression of prostitution.” Id. at 1, 3 (Scalia, J., dissenting). According to the dissent, the majority’s distinction between speech inside and outside of a program “has [nothing] to do with the First Amendment” and does not implicate the compelled speech doctrine because if an organization does not wish to comply with the requirement, it may simply decline the funds. Id. at 3, 6. The dissent argued that the Leadership Act’s policy requirement is simply “the reasonable price of admission to a limited government-spending program.” Id. at 6. The decision is a boon for free speech advocates. The ruling clarifies the doctrine of unconstitutional conditions and works to reconcile a line of seemingly contradictory decisions, in part by limiting the holding in Rust. Notably absent from both the majority and dissent, however, was any mention of the government speech doctrine, which dictates permissible government viewpoint discrimination. The ruling may also have implications for the Leadership Act itself. Given the Court’s holding, the second condition that “no funds made available by the Act ‘may be used to promote or advocate the legalization or practice of prostitution,’” though unchallenged here, would likely survive a First Amendment challenge as a permissible restriction lying “within the scope of the Government program.” Id. at 1, 15