The Supreme Court Can Strike a Blow Against Compelled Speech

A case before the court this week could protect the rights of organizations that receive federal money.

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Congress has the authority to place conditions on organizations that receive federal funding. For example, recipients may be required to show they use the funds for the intended purpose and submit to audits to prove it, and it often requires recipients to pledge they will comply with other federal laws. But the imposition of those conditions cannot violate the constitutional rights of recipients. The Supreme Court has a chance to reaffirm this principle in a free expression case that will be argued Tuesday.

The Alliance for Open Society International, an organization in George Soros’ philanthropic network that fights HIV/AIDS worldwide, is challenging the U.S. Agency for International Development’s attempt to force AOSI’s foreign affiliates to adopt the government’s position opposing prostitution.

But USAID v. Alliance for Open Society International Inc.is not a case about prostitution. It’s about whether the government has the power to compel speech. And it’s about free association—the degree to which organizations can set their own policies and govern themselves. AOSI is not pro-prostitution, and it uses no taxpayer money to promote it. But AOSI disagrees with the government’s characterization of all prostitution as “sex trafficking.” And to partner with the government to fight HIV/AIDS, the government demands that AOSI not just restrict the use of taxpayer funds, but also affirmatively pledge that it believes what the government believes. 

In the first time around with this case in 2013, the Supreme Court struck down the “policy requirement” provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act). That provision had forced some public-health organizations like AOSI to endorse the government’s policy in opposition to prostitution by adopting an official organization policy “explicitly opposing prostitution and sex trafficking” and demonstrating adoption of such a policy to USAID. The Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative, and all U.N. agencies are exempt from the requirement.

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  1. Avatar photo
    DougCLE

    I’m more interested in why Congress cares so much about it. You don’t come back for a second round at the SC over something that doesn’t matter to you, but as the author pointed out, whether or not prostitution is called “sex trafficking” needn’t have any bearing on what the policy is toward it. The Helms amendment prohibits U.S. international aid from being used for abortions, but doesn’t require aid agencies to call it “murder”.
    So what am I missing? Why are they fighting so hard over this?

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    1. Michael V

      I’ll second that question—why are they so focused on finding a loophole to force this sort of compliance, when the SC smacked down the first round so thoroughly?

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        Xsearnold

        A better question: Why did SCOTUS even agree to hear the case? I would have thought this fell under the heading of "asked and answered." Now, go away and let us hear more important cases.

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    George.Skinner

    Similar issue in Canada with the federal government having tried to tie summer job funding to endorsement of positions on abortion and LGBTQ issues in 2018. The key should be whether the organization is using the funding to fulfill the specified policy, not trying to strongarm others into agreeing with one's political positions. Where it's going to get sticky is when organizations are also engaged in political activity. Does government funding end up enabling that sort of activity? One thinks of unions engaged in political activism, or an organization like Planned Parenthood providing birth control counselling but also lobbying for abortion rights. Probably the only thing to do is tell the government to keep the politics out of it, and ensure that there are regular audits of organizations to ensure that they're not spending funding on political activism either.

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    Scarlette Tarte

    Great, I hope they strike down all "compelled speech". Then the states will not be able to "compel" doctors to lie to women about abortion.

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    Marty

    Bless you for supporting the rights of an organization funded by George Soros, the bete noir of the Right. The vicious, slanderous attacks on him, to say nothing of the thinly veiled (or not veiled at all, in some cases) antisemitism, is disheartening and disturbing. I hasten to add that the Left's demonization of the Koch brothers is equally wrongheaded and equally distressing.

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