Supreme Court: Anti-prostitution pledge in AIDS law violates free speech

A 2003 US law providing funding to fight AIDS required recipients to explicitly oppose prostitution. The Supreme Court, by a 6-2 margin, rejected the pledge of 'allegiance to the government's policy.'

The US Supreme Court on Thursday struck down as a violation of free speech a portion of a 2003 federal law that required recipients of government money in an international anti-AIDS program to embrace and advocate a US policy explicitly opposing prostitution.

In a 6-to-2 decision the high court ruled that the government-imposed requirement violated the First Amendment by forcing US aid recipients to adopt a position that extended beyond the administration of the anti-AIDS program.

“The policy requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the government’s policy of eradicating prostitution,” Chief Justice John Roberts wrote in the majority opinion.

He quoted former Justice Robert Jackson’s famous opinion in a landmark First Amendment case: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

In a dissent, Justices Antonin Scalia and Clarence Thomas said the government was free to seek out those who agree with its ideas and enlist their assistance in effectively spending government money to achieve its goals.

“In the end, and in the circumstances of this case, compelling as a condition of federal funding the affirmation of a belief is no compulsion at all,” Scalia said.

“It is the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject,” he said.

The central issue in the case was whether the government could force participants in a federal program to espouse a certain policy position as a condition of receiving US funding.

“This decision is a victory for human rights,” Serra Sippel, president of the Center for Health and Gender Equity, said in a statement. “The anti-prostitution loyalty oath was based on discrimination against one of the groups most at risk of HIV infection, and had nothing to do with evidence or best practices.”

“This will allow organizations fighting HIV to address the epidemic in the most effective way possible,” Ms. Sippel said.

In passing the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Congress found that HIV/AIDS had reached pandemic proportions. More than 65 million individuals had been infected by HIV, and 25 million had died. HIV/AIDS was the fourth largest cause of death worldwide, Congress found.

In sub-Saharan Africa, alone, more than 19 million had died of AIDS, with projections that a quarter of the population would die of AIDS in the next decade.

The Leadership Act was designed to put in place a comprehensive, multi-billion-dollar US response to the unfolding tragedy – including an attempt to address the underlying causes of the spread of HIV/AIDS.

Key in that goal was a strong policy opposing prostitution and sex trafficking. As a result, the law included two conditions:

First it prohibited recipients from using Leadership Act funds to “promote or advocate the legalization or practice of prostitution or sex trafficking.”

Second, the law barred any organization from receiving Leadership Act funds “that does not have a policy explicitly opposing prostitution and sex trafficking.”

Although no one challenged the required opposition to sex trafficking, some organizations objected to being forced to embrace the US-government position on prostitution. Many preferred to remain neutral, without having to stake out a position one way or the other.

They said that a rigid policy stance might alienate certain host governments and undermine their efforts to reach out and work directly with prostitutes.

Four US-based nongovernmental organizations, The Alliance for Open Society International, Pathfinder International, Global Health Council, and InterAction, filed a lawsuit.

They argued that the funding condition violated the First Amendment by restricting the groups’ speech and forcing them to promote the government’s viewpoint on prostitution.

A federal judge agreed and blocked the provision. The Second US Circuit Court of Appeals in New York affirmed.

In upholding that decision on Thursday, the Supreme Court said the key distinction to be made is whether the condition being imposed by the government relates to the funded project itself or instead seeks to dictate the broader actions of the organization.

“The dissent views the requirement as simply a selection criterion by which the government identifies organizations who believe in its ideas to carry them to fruition,” Roberts said.

But the chief justice added that the effects of the prostitution policy requirement extend beyond any selection of aid recipients.

“The policy requirement is an ongoing condition on recipients’ speech and activities, a ground for terminating a grant after selection is complete,” he wrote. The government’s policy seeks eradication of prostitution and it wants the recipient organizations to adopt the same position.

“This case is not about the government’s ability to enlist the assistance of those with whom it already agrees,” he said. “It is about compelling a grant recipient to adopt a particular belief as a condition of funding.”

“By demanding that funding recipients adopt – as their own – the government’s view on an issue of public concern, the condition by its very nature affects protected conduct outside the scope of the federally funded program,” Roberts said.

He added: “A recipient cannot avow the belief dictated by the policy requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime.”

The chief justice said that by requiring the organizations to profess a specific belief, “the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient.”

Justice Scalia warned that the decision would set the stage for more litigation.

“If the government cannot demand a relevant ideological commitment as a condition of application, neither can it distinguish between applicants on a relevant ideological ground,” he said.

“And that is the real evil of today’s opinion,” Scalia said. “One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons.”

Scalia said the “elephant in the room” is that the government was not forcing anyone to say anything. What Congress had done by requiring an ideological commitment is approved by the Constitution itself, he said.

The justice noted that Article VI the Constitution requires that members of Congress, of the state legislatures, and all judicial and executive branch officials “shall be bound by oath or affirmation, to support [the] Constitution.”

“The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work,” Scalia said. “And so should we.”  

Justice Elena Kagan took no part in the case.

The case was Agency for International Development v. Alliance for Open Society International (12-10).