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U.S. Supreme Court

AIDS-fighting groups can’t be forced to oppose prostitution as funding condition, SCOTUS says

Posted Jun 20, 2013 10:02 AM CDT
By Debra Cassens Weiss

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AIDS-fighting groups can’t be forced to adopt policies opposing prostitution and sex trafficking as a condition of receiving federal money, the U.S. Supreme Court has ruled in a 6-2 decision.

Chief Justice John G. Roberts Jr. wrote the majority opinion (PDF) finding the restriction violated the First Amendment.

The 2003 law at issue had authorized funneling billions of dollars to groups fighting the worldwide spread of HIV and AIDS. Groups that objected to the policy requirement feared that taking a stand against prostitution and trafficking could alienate host governments and make their work with prostitutes more difficult. The groups also were concerned that the requirement would force them to censor discussions about preventing the spread of the disease among prostitutes.

As a general matter, Roberts wrote, parties who object to conditions on federal funding have a recourse—they can decline the funds. But in some cases, he said, a funding condition can result in an unconstitutional burden on First Amendment rights. The line, though not a clear one, is crossed when funding conditions “seek to leverage funding to regulate speech outside the contours of the program itself,” Roberts said.

Funding conditions are permissible, he said, when they restrict speech to ensure that funds will not be used for prohibited purposes. On that ground, the Supreme Court has upheld restrictions that bar tax-exempt organizations from significant lobbying and bar health-care organizations from spending federal money on programs that advocate abortion.

In the present case, Roberts said, the government is demanding that funding recipients adopt the government’s view on an issue of public concern. “By requiring recipients to profess a specific belief,” he wrote, “the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient.”

Justice Elena Kagan did not participate in the case. Justice Antonin Scalia wrote a dissent joined by Justice Clarence Thomas.

Scalia wrote that the restriction “is nothing more than a means of selecting suitable agents to implement the government’s chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the Constitution.”

The case is United States Agency for International Development v. Alliance for Open Society International.

Prior coverage:

ABAJournal.com: "Free-speech rights of AIDS-fighting groups at issue in new Supreme Court case"

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