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Kenya Law / Blog / Case Summary: NGO’s Based in the U.S.A Must Have Policies Explicitly Opposing Prostitution in Order to Receive Federal Funding for Programs to Combat HIV/Aids

NGO’s Based in the U.S.A Must Have Policies Explicitly Opposing Prostitution in Order to Receive Federal Funding for Programs to Combat HIV/Aids

Agency for International Development et. al. v. Alliance for Open Society International Inc et. al.
Roberts G., (C.J), Scalia A. (A.J) Kennedy A. (A.J), Thomas C (A.J), Ginsburg R. B (A.J), Breyer S. (A.J) Alito S. (A.J) Sotomayor S (A.J) Kagan E. (A.J)
June 20, 2013
Reported by Monica Achode
Issue: Whether the requirement by Congress that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violated the First Amendment

Constitutional Law – breach of fundamental bill of rights – infringement of the petitioners First Amendment right to freedom of speech and to petition the government for a redress of grievances – where Congress had authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS worldwide – where recipients of the funds had to adhere to two conditions imposed by Congress – whether the requirement by Congress that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violated the First Amendment

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), Congress authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS worldwide. The Act imposed two related conditions:

No funds “may be used to promote or advocate the legalization or practice of prostitution,” and
No funds may be used by an organization “that does not have a policy explicitly opposing prostitution,”

The Policy Requirement mandates that recipients of Leadership Act funds explicitly agree with the Government’s policy to oppose prostitution and sex trafficking. It is, however, a basic First Amendment principle that “freedom of speech prohibits the government from telling people what they must say. To enforce the second condition, known as the Policy Requirement, the Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) required funding recipients to agree in their award documents that they opposed prostitution.

The respondents, recipients of Leadership Act funds who wished to remain neutral on prostitution, sought a declaratory judgment that the Policy Requirement violated their First Amendment rights. The District Court issued a preliminary injunction, barring the Government from cutting off respondents’ Leadership Act funding during the litigation or from otherwise taking action based on their privately funded speech. The Second Circuit affirmed, concluding that the Policy Requirement, as implemented by the agencies, violated respondents’ freedom of speech.

US Constitution First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Held:
(Majority Decision: Roberts, joined by, Kennedy, Ginsburg, Breyer, Alito and Sotomayor, JJ)
The Policy Requirement violated the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature could not be confined within the scope of the Government program. The Policy Requirement mandated that recipients of federal funds explicitly agree with the Government’s policy to oppose prostitution. The First Amendment, however, prohibited the government from telling people what they must say. As a direct regulation, the Policy Requirement would plainly violate the First Amendment. The question is whether the Government may nonetheless impose that requirement as a condition of federal funding.

The Spending Clause granted Congress broad discretion to fund private programs or activities for the general welfare, including authority to impose limits on the use of such funds to ensure they are used in the manner Congress intended. As a general matter, if a party objected to those limits, its recourse was to decline the funds. In some cases, however, a funding condition could result in an unconstitutional burden on First Amendment rights. The distinction that emerged was between conditions that defined the limits of the Government spending program – those that specify the activities Congress wanted to subsidize – and conditions that sought to leverage funding to regulate speech outside the contours of the federal program itself.

The distinction between condition that defined a federal program and those that reached outside it was not always self-evident, but the Court was confident that the Policy Requirement fell on the unconstitutional side of the line. To begin, the Leadership Act’s other funding condition, which prohibited Leadership Act funds from being used “to promote or advocate the legalization or practice of prostitution or sex trafficking” ensured that federal funds would not be used for prohibited purposes. The Policy Requirement thus had to be doing something more—and it was. By demanding that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, the Policy Requirement by its very nature affected “protected conduct outside the scope of the federally funded program.” A recipient could not avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.

The Government suggested that if funding recipients could promote or condone prostitution using private funds, “it would undermine the government’s program and confuse its message opposing prostitution.” But the Policy Requirement went beyond preventing recipients from using private funds in a way that would undermine the federal program. It required them to pledge allegiance to the Government’s policy of eradicating prostitution. That condition on funding violated the First Amendment.

(Dissenting opinion: Scalia, joined Thomas) The Leadership Act provided that any group or organization that did not have a policy explicitly opposing prostitution and sex trafficking could not receive funds appropriated under the Act. This Policy Requirement was nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS. That was perfectly permissible under the Constitution. The First Amendment did not mandate a viewpoint neutral government. Government must choose between rival ideas and adopt some as its own. Moreover, the government could enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or did not support the ideas. That seemed a matter of the most common sense.

The argument was that this commonsense principle would enable the government to discriminate against, and injure, points of view to which it was opposed. Of course the Constitution did not prohibit government spending that discriminated against, and injured, points of view to which the government was opposed; every government program, which took a position on a controversial issue, did that. The constitutional prohibition at issue here was not a prohibition against discriminating against or injuring opposing points of view, but the First Amendment’s prohibition against the coercing of speech. It was dubious that a condition for eligibility to participate in a minor federal program such as this one ran afoul of that prohibition even when the condition was irrelevant to the goals of the program. Not every disadvantage was coercion.

The majority could not credibly say that this speech condition was coercive, so it did not. It tread softly around the lack of coercion by invalidating the Leadership Act for requiring recipients to profess a specific belief and demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern. The Government’s “requiring” and “demanding” had no coercive effect. In the end, and in the circumstances of this case, compelling as a condition of federal funding the affirmation of a belief was no compulsion at all. It was the reasonable price of admission to a limited government-spending program that each organization remained free to accept or reject. Section 7631(f) “defined the recipient” only to the extent he decided that it was in his interest to be so defined.

Congress could, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem. The challenged regulations were simply designed to ensure that the limits of the federal program were observed, and that public funds were spent for the purposes for which they were authorized. The regulations did not prohibit the recipient from engaging in the protected conduct outside the scope of the federally funded program, they did not run afoul of the First Amendment.

The Government was not forcing anyone to say anything. What Congress had done – requiring an ideological commitment relevant to the Government task at hand – was approved by the Constitution itself. Americans did not need to support the Constitution; they could be communists or anarchists. But the Senators and Representatives, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, were 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.

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