The Supreme Court Can Strike a Blow Against Compelled Speech

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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