A Victory for Free Speech
from the Supreme Court
By Lenora M. Lapidus , Women's Rights Project & Tara Norris , Women's Rights Project, ACLU
06/21/2013 - Yesterday, in an important First Amendment decision, the Supreme Court ruled that the government may not require federal
grant recipients to endorse the government's policy positions. The decision in Agency for International Development v. Alliance for
Open Society International, which was written by Chief Justice Roberts, also has important implications for public health.
Under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, nongovernmental organizations
are eligible to receive federal funding to fight HIV/AIDS around the world. But Congress attached two conditions to the use of those
funds. First, the funds cannot be used "to promote or advocate the legalization or practice of prostitution or sex trafficking."
The legal basis for this condition is well-established: Congress can place restrictions on the ways that recipients of federal
funds use those funds without violating First Amendment rights because there is no Constitutional right to federal funding.
Congress is free to choose to fund certain types of programs, like HIV/AIDS prevention, and decline to fund others, like
advocacy for legalizing prostitution.
The second restriction on Leadership Act money, however, was the subject of the Court's recent decision. Under the Leadership
Act, any NGO that received money to fight HIV/AIDS was required to have a policy "explicitly opposing prostitution and sex trafficking."
Arguing that this "anti-Prostitution Pledge" requirement violated the grant recipients' First Amendment rights by forcing them to
affirmatively and explicitly pledge agreement with a government position, some of the organizations that had received Leadership
Act grants, including the Alliance for an Open Society International, sued for the right to receive Leadership Act funds while
remaining neutral on the topic of prostitution. Among other things, they argued that adopting the policy that the government
demanded would in fact impede their ability to work with prostitutes to stem the spread of HIV/AIDS.
The ACLU filed an amicus curiae brief in support of AOSI arguing that the "anti-Prostitution Pledge" was more than governmental
regulation of the use of federal funds. Instead, we argued, it unconstitutionally imposed the government's opinion on private organizations.
The government argued that it could place conditions on funding without violating First Amendment rights because non-governmental
organizations were free to reject federal funding and adopt any stance on prostitution that they wished, or work through an affiliate.
Yesterday, the Supreme Court rejected the government's arguments, recognizing a critical distinction between restricting the
use of federal funds to define the scope of a program, which is constitutional, and using federal funds to coerce grant recipients into
adopting a particular ideological viewpoint that is separate from its use of those funds, which is not. Requiring that a grant
recipient affirmatively adopt a government-sanctioned policy position infringes on the recipient's First Amendment right to
avoid compelled speech.
As Steven R. Shapiro, the ACLU's National Legal Director, said on Thursday, this "decision places real limits on the ability
of government to impose its views on others by attaching strings to government dollars. The price of obtaining a government grant should
not be the loss of First Amendment rights." Thus, "the government, like any other funder, can take steps to ensure that the money it
gives to private organizations is spent for its intended purpose. Under the First Amendment, however, the government cannot tell
grant recipients what they must believe or what they can say with private funds."
Today, we celebrate the Court's reaffirmation of the First Amendment and its rejection of Congress's attempt to dictate
the content of free speech.
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