Breaking News

Argument preview: He who pays the piper…

At 11 a.m. on Monday, the Supreme Court will hold one hour of oral argument on the scope of Congress’s power to attach limits on the message put out by those who get paid by the government for taking part in a program.  The hearing time will be split evenly.  Arguing for the government in the case of U.S. Agency for International Development v. Alliance for Open Society, International (docket 12-10) will be Deputy U.S. Solicitor General Sri Srinivasan, and for a group of fund recipients will be David K. Bowker of the Washington, D.C., office of Wilmer Cutler Pickering Hale & Dorr.  The case will be heard by an eight-member Court; Justice Elena Kagan is not taking part.


It is a constitutional fact that the federal government sometimes can, and sometimes cannot, dictate the message that it wants put out by those who receive federal funds.  That uncertainty is unfolding anew before the Supreme Court over a 2003 federal law telling fund recipients that they must publicly oppose the legalization of prostitution.  That message, Congress believed, is necessary to help achieve success in a global program to fight the HIV/AIDS disease, on the premise that it is spread by prostitution and by sex trafficking — a form of sex slavery.

In a decision now under review by the Justices, the Second Circuit Court blocked the message mandate, ruling that the First Amendment allows the government to dictate what fund recipients say when the entire program is itself the message, but not when they are ordered to say something that is not directly related to the program’s core purpose.   In this case, the Circuit Court found, the program is designed to fight HIV/AIDS, not to stage a global anti-prostitution campaign.

As an example, the Circuit Court said the government could have a program urging children to “Just Say No” to drugs and could constitutionally compel those who are paid to take part to convey that very message.  But, under the 2003 HIV/AIDS program, what Congress has commanded is that the fund recipients must give voice to the government’s anti-prostitution message “and to do so as if it were their own.”  That, it said, is barred by the First Amendment.

The law at the center of this dispute is the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which Congress passed a decade ago to deal with the global spread of HIV/AIDS, infecting more than 65 million people around the globe and killing 23 million — “a pandemic,” Congress called the situation.

Under the “Leadership Act,” the government has spent billions of dollars for programs overseas to combat HIV/AIDS, working through non-government organizations.  Most of that money has been spent in developing countries, where Congress found the spread of the disease was the most serious.  In those countries, Congress noted, many prostitutes are infected with the virus.  So, an organization seeking funds must, as a condition for a funding contract, establish a policy that explicitly says that the organization opposes prostitution and sex trafficking.

Some of the organizations that have been taking part in the program, while they plainly do not promote prostitution or sex trafficking, do not want to be put in the position of formally declaring their opposition because they fear that will impair their ability to work with at-risk individuals, such as prostitutes and those caught up in sex slavery.  Rather than taking a public stand in opposition to sex exploitation, some of the organizations prefer to remain neutral on that as a public policy issue in the countries where they do their work.

They are required to make that policy declaration even if they get some of their funding from private sources or from foreign governments, outside the U.S. government program.

Several organizations, which together represent most of the U.S.-based organizations taking part in the HIV/AIDS program, challenged the message mandate in 2005 in federal district court in New York City, and so far have succeeded in having it blocked.   The district judge ruled that the message rule was not narrowly tailored to the goal of combating prostitution, imposed a specific obligation to voice a government point of view, and compelled them to speak against their will.

While the government’s appeal was unfolding, the federal agencies running the program issued guidelines allowing the organizations to continue taking part in the program if they made the required policy declaration, but permitting them to set up an independent affiliate that did not have to follow the policy.   The case returned to the district judge, who said these guidelines did not cure the First Amendment coercion problem.  The Second Circuit upheld the judge’s order against enforcement of the condition, finding that the message mandate fell “well beyond” the kind of conditions that the First Amendment permits the government to lay down.

Petition for certiorari

Last July, the federal Agency for International Development, the Health and Human Services Department, and the Centers for Disease Control and Prevention asked the Court to review the case and uphold the message mandate.  Aside from invalidating a part of a federal law — a reason usually sufficient to draw review by the Justices, the Circuit Court, the petition said, “has undermined the government’s ability to implement the comprehensive approach chosen by Congress.”

The government’s requirement that its partners in the program go along with the anti-prostitution message, the petition said, is crucial to the program because Congress not only wanted to combat HIV/AIDS but attempt to shut down “the sex trade or sex trafficking” because it “carries serious risks for women, men, and children across the globe.”

The Circuit Court’s order against enforcement, the petition said, would not be undone even if the case were allowed to return to the district court for further exploration.

On the merits, the petition contended that the Second Circuit ruling conflicts directly with a ruling by the D.C. Circuit on the same funding program, and runs counter to a series of Supreme Court precedents on the nature of the government’s power to enlist others in the propagation of the government’s chosen policy messages.

The participating organizations opposed review by the Justices, noting that the District Court had only issued a preliminary injunction that was upheld by the Circuit Court, so it would be premature for the Supreme Court to take on the case at this stage.

On the claim of a split between the Second and D.C. Circuits, the organizations argued that there are significant factual differences between the cases decided by those two courts.   The D.C. Circuit, it said, had ruled on a First Amendment challenge based upon “vague” promises by government lawyers that the government was working on guidelines that would allow the organizations in the program to set up separate affiliates that were not controlled by the message mandate.

When those guidelines emerged, the brief in opposition said, they did not set up an easy alternative, and, besides, some of the organizations operate under foreign government laws that made it very difficult to set up a separate organization to carry on a part of the activities.   When the guidelines came out, the organizations’ filing said, they were made to apply to an entire organization’s programs, and would allow non-message activity only if an entirely separate entity were spun off.

Moreover, the brief said, the district judge’s order against enforcement has now been in place for some six years, and there is no indication that it has undermined the government program in any way.

On the merits, the organizations contended that Supreme Court precedents make it abundantly clear that Congress may not make it a condition for receiving federal funds that a private entity must “relinquish” First Amendment rights. “Yet, that is exactly what the policy requirement does,” it argued.

There were no amici filings at the petition stage.

The Court granted review on November 11, noting that Justice Elena Kagan did not take part in the order.

Briefs on the merits

The government agencies’ brief on the merits put its strongest emphasis on the point that a private entity has a choice to take part in a program and abide by the conditions if it wants the money, or go its own way on its own resources.  “Offering private entities that type of choice does not violate the First Amendment,” it contended.

The mandated message against prostitution and sex trafficking, the brief argued, is directly related to Congress’s power under the Constitution’s Spending Clause, and is a central part of the program.   In attacking the HIV/AIDS program worldwide, the U.S. government has also committed itself to attack the root causes of the spread of the disease, and that includes sex exploitation, the brief said.

“Congress decided,” the government argued, “that it would make little sense for the government to direct billions of dollars toward” attacking HIV/AIDS and its underlying causes “and yet to engage as partners in that effort organizations that are neutral toward or that even affirmatively disagree with the government’s decision to oppose those practices.”

Moreover, the brief said, it was for Congress, not for the Second Circuit Court, “to decide when a condition on the receipt of federal funds is integral to a funding program, and it has done so here.”

While the brief conceded that Congress’s power under the Spending Clause “is not without First Amendment limits,” it went on to assert that those limits arise only when the government attempted to suppress “dangerous ideas or disfavored viewpoints.”  There is no attempt here, it said, “to coerce private entities into refraining from expression on a disfavored topic.”

The basic error in the private organizations’ challenge, according to the government brief, is that it treats the message mandate as “a direct regulation of speech rather than a condition on the receipt of federal funds.”  The government, the brief commented, could not compel someone to speak a message just because the government prefers that message, but that is an attempt at direct regulation; a condition to utter a message is not that kind of control.

No organization that takes part in the program, the brief said, has been compelled to do anything: they must have a policy against prostitution only when they choose to accept funding to be in the program.

The brief also asserted that the government guidelines permitting participating organizations to have affiliates that do not have to abide by the message mandate should overcome any burden that the organizations themselves might face under the condition.

The organizations’ brief on the merits, noting that the First Amendment does not allow the government to compel private parties to adopt the government’s views as their own, argued that the message mandate at issue in this case is “almost as broad” a claim to power.  The restriction not only applies to the use of the federal funds by the organization, but to that organization’s activity that is funded privately.   Federal spending powers are considerable, it said, but the government “may not use them to produce a result which it could not command directly.”

The opposing brief stressed that the organizations have no constitutional quarrel with the part of the 2003 law that forbids them for using the actual funds that are channeled to them to finance any declarations that would be contradict the anti-prostitution message.   What is at stake here, it added, is “much broader,” compelling the adoption of a policy declaration as the organization’s own, applied to every part of the organization’s operations.

“The Court has never upheld such a funding requirement before,” the brief asserted.   It is not enough, under prior precedents, the brief said, to act as if the organizations have a completely free choice about whether to take the money in the first place.

The organizations’ only desire, they told the Court, is “to preserve their First Amendment rights to hold their own views and either to remain silent or to engage — with private funds, outside the scope of any government program– in the important, ongoing debate about how best to deal with prostitution in the fight against HIV/AIDS.

To the government’s argument that the speech mandate is only a means to get private partners to utter a message that is central to the government’s policy, the organizations argued that they are not being required just to be stand-in speakers for the government, but rather are required to utter the specified message as if it were their own.  The mandate “entails no government speech at all,” the brief said.

As another thrust, the organizations’ brief noted that the mandate has not been enforced against the groups for years, partly because Justice Department advisory lawyers at one time concluded that it would be unconstitutional, and partly because the judge’s order against enforcement has been in force.

Again, as in their opposition to review, the organizations contended that the option of setting up an affiliate that would not be bound by the speech mandate simply will not work.

The government’s position in the case is supported by amicus briefs from private organizations that advocate for women’s rights and for the victims of prostitution and sex slavery, and by a conservative legal advocacy organization — the American Center for Law and Justice.

The challenging organizations have drawn support in ten amici filings, from professors of public health policy, civil liberties organizations, libertarian groups, present and former members of Congress, an organization representing a wide array of non-profit social improvement groups, and by a United Nations organization that works to combat HIV/AIDS.


The two sides in this case have talked past each other, because they start from entirely different understandings of what the government is doing in the congressional mandate of an anti-prostitution message as a condition of getting federal HIV/AIDS funds.  To the government, it is not a speech restriction at all.  To the participating organizations, it is nothing but a speech restriction.

Each side, then, is able to marshal Supreme Court precedents for the constitutional implications of the program as each views it.  The government relies upon cases that allow the government to strike bargains with those it underwrites.   The organizations, in turn, rely upon cases that forbid compelled speech.

That sharp division, of course, is why there remains considerable disarray in the courts over the scope of Congress’s power to impose conditions on fund recipients.  One of the judges in the Second Circuit remarked in this case: “The unconstitutional conditions doctrine is messy and unsettled — so much so that the government itself has changed its position on the question of whether the funding condition at issue is constitutional.”

It is possible, of course, that the Justices, recognizing this unsettled nature, chose to take on this case with the specific aim of clarifying the doctrine.  Before they do so, however, the members of the Court have to draw some conclusions about just what Congress has done: offered a simple take-it-or-leave-it bargain, or conscripted private groups into being official mouthpieces.

With Justice Kagan out of the case, there is, of course, always a risk that the remaining eight Justices might wind up evenly split.  That would have the effect of leaving the Second Circuit’s decision intact, and sending the case back to the district court to explore further what is going on and whether to make the existing injunction permanent.  But it would do nothing to clear up the conflict in doctrine.


Recommended Citation: Lyle Denniston, Argument preview: He who pays the piper…, SCOTUSblog (Apr. 20, 2013, 12:03 AM),