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Details: AID v. Alliance for Open Society International

In an opinion by the Chief Justice, the Court held unconstitutional a provision of a statute – called the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 – that required any group that accepted funding for combatting these diseases abroad to have a “policy explicitly opposing prostitution.”  That requirement, the Court held, violates the First Amendment.  Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas; Justice Kagan did not participate in the case.

The Court noted that it is clear that the First Amendment would prohibit the government from directly requiring citizens to publically support the government’s position on prostitution.  But the Court also reaffirmed that Congress can sometimes attach strings to federal funds, even strings involving speech.  The dividing line, the Court held, is between conditions that “define the limits of the Government spending program” by limiting what speech the money can be spent on (which is permissible) and conditions that seek to leverage funding to regulate speech outside the program (which is unconstitutional).

An example of a permissible condition was the restriction approved in Rust v. Sullivan, which prohibits federal family planning funds from being used in a program that treats abortion as a method of family planning.  Congress could constitutionally enforce that limitation by prohibiting a program that accepted such funds from advocating abortion to its clients, given that the law permitted a recipient to set up a separate project without federal funding that could provide any advice it liked.

This case, however, fell on the other side of the line because Congress did more than simply prohibit funding recipients from using federal funds to promote legalization of prostitution; it required them to have a blanket policy against prostitution.  That policy would necessarily extend to all aspects of their operations, not just the federally funded program.  It is impossible, the Court said, for a group to publicly claim that it is against prostitution while administering the federally funded part of its program, then take the opposite position when acting on its own “time and dime.”  Thus, the condition amounted to an unconstitutional attempt to leverage federal funds to prohibit indirectly speech Congress could not prohibit directly, in violation of the First Amendment.

Recommended Citation: Kevin Russell, Details: AID v. Alliance for Open Society International, SCOTUSblog (Jun. 20, 2013, 11:12 AM),