Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Ten years after United States v. American Library Association, in Agency for International Development v. Alliance for Open Society International, the Court considered a condition requiring recipients of federal funding for global HIV/AIDs programs to “have a policy explicitly opposing prostitution and sex trafficking.” 1 A group of funding recipients—domestic organizations with programs outside the United States—challenged this policy requirement on free speech grounds, arguing that it would require them to limit even their privately funded activities.2 During the course of the litigation, the federal government issued guidelines allowing funding recipients to work with affiliate organizations that did not have the specified policy so long as the recipients “retain ‘objective integrity and independence from any affiliated organization.’” 3
The Court acknowledged that the government could not adopt the policy requirement “as a direct regulation of speech.” 4 Because the policy requirement was a funding condition,5 however, the Court considered whether it “define[d] the limits of the government spending program” or sought “to leverage funding to regulate speech outside the contours of the program itself.” 6 For a majority of the Court, the policy requirement clearly fell “on the unconstitutional side of [that] line.” 7 The Court reasoned that “the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program’” because it requires recipients to “adopt—as their own—the Government’s view on an issue of public concern.” 8 The government’s guidelines about affiliation with noncompliant entities did not “save” the condition because they required the recipient to either distance itself from its affiliate and their shared message, or clearly identify with its affiliate while espousing the government’s message “only at the price of evident hypocrisy.” 9
The “distinction drawn in these cases—between conditions that define the federal program and those that reach outside it—is not always self-evident.” 10 Nevertheless, it appears to be the line that the Supreme Court has drawn in analyzing funding conditions that affect a recipient’s speech—that is, at least for restrictions that the government could not impose directly.11
- 570 U.S. 205, 208 (2013) (quoting 22 U.S.C. § 7631(f) (2012)).
- Id. at 211 (quoting 45 C.F.R. § 89.3).
- Id. at 213.
- See id. at 214 (explaining that if a party objects to a funding condition, its usual “recourse is to decline the funds,” even if the condition affects the party’s First Amendment rights, but that in some situations, “a funding condition can result in an unconstitutional burden on First Amendment rights” ).
- Id. at 214–15.
- Agency for Int’l Dev.v. All. for Open Soc’y Int’l, 570 U.S. 205, 217 (2013).
- Id. at 218.
- Id. at 219. In 2020, the Supreme Court upheld the same policy condition as applied to the plaintiffs’ foreign affiliates, holding that the First Amendment did not protect separately incorporated, foreign organizations operating abroad. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, No. 19-177, slip op. at 1–7 (U.S. June 29, 2020). The Court explained that the plaintiffs, while domestic organizations, could not “export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.” Id. at 6–7.
- Alliance for Open Soc’y Int’l, 570 U.S. at 217.
- Rumsfeld v. Forum for Acad. & Inst’l Rights, 547 U.S. 47, 59–60 (2006).