It sounded a lot like "no promo homo" – the kinds of restrictions the late Senator Jesse Helms used to introduce, trying to bar federal funds to any organization that "promoted" homosexuality. This time around, the federal government had a "no promo prostitution" policy with regard to funding global efforts against HIV/AIDS. And the U.S. Supreme Court, in a 6-2 vote (with Justice Elena Kagan recused), said Thursday that the policy violates the First Amendment.
That was good news in a couple of ways. It was good news to the protectors of civil liberties, of course. But it was also a good sign to see Chief Justice John Roberts lead the majority and carry conservative Justice Samuel Alito along with him.
Their other two conservative colleagues on the court – Justices Antonin Scalia and Clarence Thomas – dissented. The splitting of the court's conservative vote bodes well for people who hope to see Proposition 8 and a portion of the Defense of Marriage Act declared unconstitutional, too. Those decisions are expected out sometime next week.
In writing the majority opinion in Agency for International Development v. Alliance for Open Society International, Roberts said that, while the constitution provides Congress with the authority to impose limits on the use of funds, it is a "basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say."
At issue was a policy passed by Congress in 2003 to authorize billions of dollars in funding for the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. In doing so, Congress imposed two conditions on any non-governmental organization receiving federal funding for its global AIDS effort. One condition was that the NGO could not use the federal funds "to promote or advocate the legalization or practice of prostitution or sex trafficking." The second condition was that the recipient of federal funds has "a policy explicitly opposing prostitution and sex trafficking."
Some NGOs objected, saying that they did outreach to prostitutes and that those high-risk targets of their educational outreach might be distrustful of NGOs that "explicitly" stated their opposition to prostitution. (The act required that the president's program for addressing AIDS globally promote abstinence, encourage monogamy, increase the availability of condoms, and, educate men and boys about the risks of using prostitutes.) And they worried the policy could have a chilling effect on their own conversations and writings generally about AIDS prevention to prostitutes and in countries where the practice is less stigmatized.
The AOSI and other NGOs working overseas filed a lawsuit, challenging the stipulation as a violation of the group's First Amendment rights to freedom of expression. The 2nd U.S. Circuit Court of Appeals agreed.
Roberts noted that NGOs were free to reject federal funding for their activities, but that Supreme Court precedent has held that the federal 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."
In this case, said Roberts, rebuffing an argument made in dissent by Scalia, the requirement that NGOs have a "explicit" policy opposing prostitution "is an ongoing condition on recipients' speech and activities, a ground for terminating a grant after selection is complete. ... It is about compelling a grant recipient to adopt a particular belief as a condition of funding."
No LGBT-specific organization submitted a brief in the case, but Jon Davidson, legal director for Lambda Legal Defense and Education Fund, called it an "important and welcome ruling."
"The decision helps ensure that the government not overreach by limiting who can receive government funds based on whether they agree with the government on unrelated issues," said Davidson. "It means that, for example, National Endowment for the Arts recipients cannot be required to express the view, as a condition of getting the funding, that life begins at conception or that marriage should be limited to being between a man and a woman."
The American Civil Liberties Union filed a brief saying, "The First Amendment prohibits the government from imposing a system of ideological conformity" and that the government "may not use its spending power to impose ideological oaths."
And the amfAR, the Foundation for AIDS Research, praised the decision. It was one of more than 200 groups, including AIDS United and the Elton John AIDS Foundation, that joined a brief against the policy, saying it was, in fact, important to include sex workers as part of the AIDS prevention outreach.