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SCOTUS for law students (sponsored by Bloomberg Law): Prostitution and free speech

Prostitution seems like an unlikely topic for a battle over freedom of speech, but that is precisely the focus of an important case to be argued in late April that tests the limits of the federal government’s ability to attach conditions to federal spending.

The case is Agency for International Development v. Alliance for Open Society International, Inc., to be argued on April 22.

The dispute involves a challenge by nongovernmental organizations (NGOs) to regulations implementing a federal law that provides funds to help combat the spread of HIV and AIDS throughout the world. The law, passed by Congress in 2003, is the Leadership Against HIV/AIDS, Tuberculosis and Malaria Act, more succinctly known as the Leadership Act. Congress authorized the spending of billions of dollars to put the United States in the forefront of efforts to stop the global pandemics. Congress said that one way to battle against HIV and AIDS was to actively work throughout the world to eliminate sexual trafficking and prostitution, which contribute to the spread of the virus and disease. Congress also recognized that private organizations (NGOs) would play an important role in the effort to stem the spread of disease.

Congress was so adamant about the best way to fight the spread of HIV and AIDS that it required organizations receiving federal funds under the program to have an explicit policy of opposing prostitution and trafficking. That requirement and regulations to implement it written by federal agencies are the battleground in this significant First Amendment struggle.

The case is important to law students studying constitutional law generally and First Amendment more specifically because it raises significant questions about both the spending power of Congress and the free speech limitations on federal regulations. Because of its practical importance, the case should also be of interest to law students in a wide range of international human rights courses on trafficking, global health policies, and international aid.

The heart of the dispute is a critical question: are the requirements attached to the federal program simply an example of conditions that the government may impose on federal spending, or do the regulations go too far because they compel organizations receiving funds to espouse the government’s point of view about prostitution?

The requirement that groups have an anti-prostitution policy was challenged by a number of NGOs and coalitions of international aid groups that work on HIV and AIDS prevention, education, and support in many countries throughout the world. These organizations receive federal funds from the Leadership Act to support their global efforts against HIV and AIDS. But they argue that it is critical that they not take a position against prostitution because doing so undermines their ability to work effectively in some countries. In order to reach prostitutes to be able to work with them on HIV and AIDS education and prevention, the groups say, it is important not to have policies condemning them. Organizations that are actively anti-prostitution, they say, are less effective in being able to work with their crucial target audiences in many countries.

A U.S. District Court in New York issued a preliminary injunction blocking the federal government from enforcing the anti-prostitution policy requirement. The U.S. Court of Appeals for the Second Circuit affirmed the preliminary injunction, finding that the federal regulation of fund recipients went “well beyond” permissible conditions attached to government spending. The Second Circuit said the condition “compels recipients to espouse the government’s viewpoint” in violation of the free speech guarantee of the First Amendment.

The U.S. Solicitor General petitioned the Supreme Court to hear the case and argues that the regulations are well within Congress’s authority to attach conditions to federal spending. Moreover, the government notes that it modified the condition so that NGOs receiving funds from the Leadership Act may work with separate, affiliated organizations that are not bound by the requirement that they have a policy opposing prostitution. The government says an NGO recipient could adopt the anti-prostitution policy statement but work through a separate, independent entity that does not have to maintain its opposition to prostitution. The change in the government regulation, made while the case was proceeding through the lower courts, did not alter the view of either the federal district court or the Second Circuit.

The legal issue is a critical one because the government attaches many conditions to the receipt of federal funds.  The leading case is one decided by the Supreme Court in 1991, Rust v. Sullivan. The case involved federal funds appropriated for family planning services. To implement the part of the law that prohibited use of federal funds for abortion as a means of family planning, in 1988 the Department of Health and Human Services issued regulations prohibiting organizations that received funds from counseling about or advocating for abortion or from referring patients to abortion providers. Just as in the case of the anti-prostitution rule, family planning organizations were allowed under the regulations to maintain entirely separate, independent abortion counseling programs that had separate staffs, facilities, budgets, and recordkeeping.

The Supreme Court ruled, by a vote of five to four, that the government may establish a federal program, identify the goals of that program, and then fund only those organizations that agree to advance those goals. The Court said that did not violate one of the basic tenets of First Amendment law – that government may not engage in discrimination that favors one viewpoint on a subject over another.

The Court in Rust said it was not viewpoint discrimination. Then-Chief Justice Rehnquist explained that “[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”

In the case of the Leadership Act, the fund recipients say the condition is different. They say it is not simply a choice by the government to identify program goals and to fund those goals. They say the condition imposed on organizations requires them to actively advocate the government’s opposition to prostitution rather than to merely refrain from taking positions that are inconsistent with the federal program. Specifically, the organizations say they are not looking to take a position favoring prostitution reform or decriminalization. They just want to be able to remain silent on the subject to better facilitate their work with populations abroad that need the HIV and AIDS education and support.

The government responds that the policy does not obligate unwilling organizations to do anything and should not trigger First Amendment concerns. Organizations may choose to adopt the goals of the program, including efforts to reduce prostitution, or may elect not to participate and to pursue other avenues to combat the spread of HIV and AIDS, the government says.

With high stakes on the line, not just for the global fight against HIV and AIDS but for insight about the scope of government authority to attach conditions to federal spending, a decision in the case is likely in June.

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Prostitution and free speech, SCOTUSblog (Apr. 2, 2013, 12:40 PM),