Supreme Court Holds Anti-Prostitution Pledge Required by Federal Funding Law to be Unconstitutional

Today the U.S. Supreme Court ruled that a federal statute conditioning funding for overseas HIV-prevention work by non-governmental organizations on those organizations having a policy explicitly opposing prostitution violates the 1st Amendment.  Writing for the 6-2 majority, Chief Justice John R. Roberts, Jr., quoted from the Court’s famous Flag Salute case from 1943, which stated: “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.”

Alliance for Open Society International and Pathfinder International are non-governmental organizations that undertake HIV prevention work in Africa and Asia.  Both organizations received U.S. government funds in support of their work.  In 2003, the government enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, appropriating billions of dollars to assist in such efforts.  The statute provides that no funds made available by the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking,” and that funds may not be provided to any organization “that does not have a policy explicitly opposing prostitution and sex trafficking.”  Alliance and Pathfinder do not promote or advocate legalization of prostitution, but both organizations believe that adopting a policy “explicitly opposing prostitution and sex trafficking” would create difficulties in their working with some governments as well as NGOs in other countries.  Indeed, Congress itself acknowledged this sort of difficulty, in part, by expressly excluding from this Policy Requirement the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative, and any United Nations agency.

At least a portion of the world community fighting HIV, including both governmental and non-governmental organizations, actively advocates for decriminalization of prostitution as a means of enlisting prostitutes in the effort to promote safer sex, and in some parts of the world it is clear that active engagement with prostitutes in prevention efforts is an important strategy for reducing HIV-transmission.  Neither Alliance nor Pathfinder seek to advocate for decriminalization, either with their federal funds or with their funds from other sources, but they did not want to adopt formal policy statements opposing decriminalization, and argued that it was improper for Congress to place this condition on their continued receipt of funding.

They brought suit in the U.S. District Court in New York and won a temporary injunction against suspension of their existing grants while the free speech issue was litigated.  Ultimately, the district court and the 2nd Circuit Court of Appeals agreed with the plaintiffs that the Policy Requirement was unconstitutional.  The government appealed, noting that the D.C. Circuit Court of Appeals had upheld the requirement in another case.

Justice Roberts pointed out that “as a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds,” even where the objection is that the “condition may affect the recipient’s exercise of its First Amendment rights.”  But the Court saw this case as different.  Writing in dissent, Justice Antonin Scalia (joined by Justice Clarence Thomas) argued that because Congress’s purpose in the Leadership Act was, among other things, to discourage prostitution as part of its strategy against HIV, limiting federal funding to those organizations who were in accord with the government’s policy preference was a reasonable method of selecting funding recipients.  Roberts responded that “the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program — those that specify the activities Congress wants to subsidize — and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” 

Another way of putting it is that Congress can decide not to fund speech with which it disagrees, but it is quite another thing for Congress to use its funding to require recipients to adopt as their own and express the government’s views on those policies.  So long as a recipient refrains from advocating for the policies condemned by Congress, the Court would protect the recipient’s continued receipt of the funds.

Roberts acknowledged that the line between permissible and impermissible speech-based conditions “is hardly clear,” but asserted that the challenged condition in this case clearly crosses the permissible line.  “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,'” wrote Roberts, quoting from the Court’s prior decision upholding certain speech restrictions on recipients of federal family planning money.  In that earlier case, Rust v. Sullivan, the Court upheld Congress’s requirement that recipients of such funding not use the funds in any program where abortion is a mechanism for family planning, and regulations under that law prohibited such funding recipients from providing abortion counseling or making referrals to abortion providers in programs that received federal money.  The Court’s rationale was that Congress has a right to decide which speech it will fund, consistent with its determination of public policy.  But this case is distinguishable, since it requires funding recipients to affirmatively adopt as their own the policy dictated by Congress. “By requiring recipients to profess a specific belief,” wrote Roberts, “the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”

The Court rejected the argument that the government had saved the program from constitutional attack by adopting guidelines allowing recipients to establish separate affiliated organizations, non-recipients of federal funds, that could advocate for legalizing prostitution.  “When we have noted the importance of affiliates in this context,” Roberts wrote, “it has been because they allow an organization bounded by a funding condition to exercise its First Amendment rights outside the scope of the federal program.  Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own.  If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs.  If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evidence hypocrisy.”  Roberts also rejected the government’s argument that without the Policy Requirement a funding recipient could use non-government funds to defeat the government’s policy goals by advocating for decriminalization, at least in the absence of any evidence that this would be the case here, where the plaintiffs are not seeking to articulate any position on the issue of whether prostitution should be legal.

Roberts observed that “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.”  This “violates the First Amendment and cannot be sustained.”

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