The Supreme Court on Thursday imposed an important limit on how far the government can go in controlling the speech of a group that takes government money.
In Agency for International Development v. Alliance for Open Society International, the court found that the federal government violated the First Amendment when it required that organizations receiving money to combat H.I.V./AIDS must have a policy opposing prostitution. Chief Justice John Roberts Jr., writing for the 6-to-2 majority, said that the mandate that recipients "pledge allegiance to the government’s policy" breached their right to free expression. (Justice Elena Kagan was recused.)
The United States Leadership Against H.I.V./AIDS, Tuberculosis, and Malaria Act, a 2003 federal statute, finances a wide range of public health initiatives to treat and prevent disease around the world. That law prohibits the use of any government money to "promote or advocate the legalization or practice of prostitution." But it goes beyond that reasonable provision to require almost all recipients of funds to "have a policy explicitly opposing prostitution" and to refrain from any speech the government deems "inconsistent with" that policy.
The government contended that placing a condition on federal dollars is a legitimate way to promote its policies and those who do not want to make an explicit pledge can avoid it by not taking government money. As Justice Antonin Scalia wrote in his dissenting opinion, "the government is not forcing anyone to say anything."
But as Chief Justice Roberts explained, this condition is coercive because a recipient has to take an affirmative position and is not allowed to get 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 advocate the government’s position, without the option of staying silent, the court said this policy could hurt outreach programs by undermining trust with sex workers, who may avoid seeking help from groups with a declared anti-prostitution agenda.
This ruling does not limit the government’s power to specify the kind of activities it wants to subsidize. For example, the court has long held that the government can prohibit federal family planning dollars from being used to advocate for abortion services; in those cases, the recipient groups are permitted to use nongovernmental money for that advocacy.
Chief Justice Roberts, quoting from a 1943 opinion barring the government from requiring public schoolchildren to salute the flag, noted: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." That principle guided the court to the right result in this case.