Feds Trampled Speech With Prostitution Pledge

     WASHINGTON (CN) - AIDS charities need not take an "anti-prostitution pledge" if they want federal funding, the U.S. Supreme Court ruled Thursday, affirming an injunction.
     Passed by Congress in 2003, the Leadership Act supported an international campaign to fight AIDS, tuberculosis, and malaria pandemics through the development of vaccines and treatments and partnerships between federal agencies and nongovernmental organizations.
     A controversial subclause of the legislation states: "No funds made available to carry out this Act ... may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking."
     In 2005, the nonprofit groups Alliance for an Open Society International and Pathfinder International sued the agencies implementing the funding.
     Organizations of this ilk have long argued that such a pledge costs them international credibility, compromises their institutional integrity, interferes with prevention outreach to sex workers and violates the organizations' free speech rights.
     The United States Agency for International Development (US-AID) and U.S. Department of Health and Human Services issued less restrictive guidelines after a federal judge blocked the pledge with a preliminary injunction, but the court found that an injunction was still appropriate.
     A divided three-judge panel of the 2nd Circuit affirmed in July 2011.
     The issue also divided the Supreme Court, which ruled 6-2 for the nonprofits Thursday.
     "As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds," Chief Justice John Roberts wrote for the majority. "This remains true when the objection is that a condition may affect the recipient's exercise of its First Amendment rights.
     "At the same time, however, we have held that the gov­ernment '"may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit,"' Roberts added. "In some cases, a funding condition can result in an unconstitution­al burden on First Amendment rights."
     Roberts emphasized that the case "is about compelling a grant recipient to adopt a particular belief as a condition of funding."
     "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,'" he continued. "A recipient cannot avow the belief dictated by the policy requirement when spend­ing Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when partici­pating in activities on its own time and dime. By requir­ing recipients to profess a specific belief, the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient."
     The government's amended guidelines additionally do not save the program, according to the ruling.
     "Under those guidelines, funding recipients are permitted to work with affiliated organizations that do not abide by the condition, as long as the recipients retain 'objective integrity and independence' from the unfettered affiliates," Roberts noted.
     But the government's alternatives are still insufficient, according to the ruling.
     "When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program," Roberts wrote. "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 evident hypocrisy." (Emphasis in original.)
     Justice Elena Kagan took no part in the consideration or decision of the case.
     In a dissent joined by Justice Clarence Thomas, Justice Antonin Scalia said he would have reversed.
     "The First Amendment does not mandate a viewpoint­-neutral government," Scalia wrote. "Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense. For example: One of the purposes of America's foreign-aid programs is the fostering of good will towards this country. If the organization Hamas - reputed to have an efficient system for delivering welfare - were excluded from a program for the distribution of U. S. food assis­tance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitu­tion. So long as the unfunded organization remains free to engage in its activities (including anti-American propa­ganda) 'without federal assistance,' refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organiza­tion is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitu­tion, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it.
     "The argument is that this commonsense principle will enable the government to discriminate against, and injure, points of view to which it is opposed," Scalia added. "Of course the Consti­tution does not prohibit government spending that dis­criminates against, and injures, points of view to which the government is opposed; every government program which takes a position on a controversial issue does that. Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates, etc. The constitutional prohibition at issue here is not a prohibition against discriminating against or injuring opposing points of view, but the First Amendment's prohi­bition against the coercing of speech. I am frankly dubi­ous that a condition for eligibility to participate in a minor federal program such as this one runs afoul of that prohi­bition even when the condition is irrelevant to the goals of the program. Not every disadvantage is a coercion." (Emphasis and parentheses in original.)
     Noting that the government's HIV/AIDS strategy hinges in part "on the suppression of prostitution, by which HIV is transmitted," Scalia said "it is entirely reasonable to admit to participation in the program only those who believe in that goal."
     "Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution - whether made inside or outside the program - does harm the program," Scalia added.