At the end of 2011, 34 million people were living with HIV, according to the World Health Organization, and AIDS took the lives of 1.7 million people that same year. In 2003, Congress took action to prevent the spread of infectious diseases worldwide by passing the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act). The Act designates federal funds to non-governmental organizations that fight against the spread of HIV/AIDS so long as the organization also opposes prostitution and sex trafficking. Petitioner United States Agency for International Development (USAID) argues that this policy requirement targets prostitution and sex trafficking as significant contributors to the spread of HIV/AIDS while minimally impacting, if at all, the speech of a federally funded organization. In contrast, respondent Alliance for Open Society International (AOSI) argues that the policy requirement violates the protections of the First Amendment by forcing a federally funded organization to adopt a viewpoint that may not only be insensitive to localized concerns regarding the trust of victims but also may distort public debate by inhibiting field research.
Questions as Framed for the Court by the Parties
Whether the United States Leadership Against HIV/ AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.
Does the government violate the First Amendment by funding organizations to stop the spread of HIV/AIDS only if they also oppose prostitution and sex trafficking?
In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act) to reinforce the commitment of the United States in preventing the worldwide spread of HIV/AIDS, tuberculosis, and malaria. The Act includes provisions for developing vaccines, increasing medical research on treatments, and building partnerships between federal agencies and non-governmental organizations (NGOs) to enhance the effectiveness of medical responses. The Act specifically requires that any funds for carrying out the Act would not also be used to advocate prostitution or sex trafficking in any way, including efforts to legalize prostitution. Additionally, the Act requires that organizations funded through the Act have active policy provisions opposing prostitution and sex trafficking.
Respondent Alliance for Open Society International (AOSI) filed for an injunction to stop enforcement of the requirement for a policy opposing prostitution. AOSI argued that the Act’s requirement violates the First Amendment because it imposes the government’s viewpoint on prostitution and so compels speech. AOSI also argued that the Act’s requirement is unconstitutionally vague because it does not specify which actions constitute “advocating prostitution.” In response to the injunction, Petitioner United States Agency for International Development (USAID) argued that Congress may infringe on the First Amendment rights of agencies that receive discretionary government funding. USAID contended that the Spending Clause of the U.S. Constitution allows the Act to impose various conditions on the receipt of federal funds. USAID argued that recipients are free to decline funding if the conditions conflict with their viewpoints. Additionally, USAID developed guidelines allowing funding recipients to work with agencies that were not required to follow the provisions of the Act.
The first court to review the case granted AOSI’s motion for an injunction to stop enforcement of the anti-prostitution and anti-sex trafficking policy requirement because the court found the provision in likely violation of the First Amendment. In response, USAID appealed the decision to the Second Circuit, which agreed with the injunction. The Second Circuit reasoned that, although Congress has broad powers, the Spending Clause does not give Congress the power to condition receiving federal money upon compliance with a provision that infringes on an agency’s constitutional rights. The Second Circuit then determined that the Act’s requirement may violate the First Amendment because it compels speech against prostitution and sex trafficking without allowing neutrality to be an option. The Second Circuit concluded that for the purpose of deciding whether the lower court erred in granting the injunction, AOSI demonstrated a likelihood of success in showing a First Amendment violation. Dissatisfied with this result, USAID appealed to the U.S. Supreme Court, which granted certiorari on January 11, 2013, to determine whether the Act’s anti-prostitution and anti-sex trafficking policy requirement on federally funded organizations under the Act violates the First Amendment.
In deciding whether a law requiring an anti-prostitution and anti-sex trafficking policy for receiving federal funding is constitutional, the U.S. Supreme Court may impact the range of restrictions that Congress imposes on agencies applying for government funding. Petitioner United States Agency for International Development (USAID) urges that the policy requirement under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act) allows the government to fund organizations that are effective by targeting practices that spread HIV/AIDS. However, according to respondent Alliance for Open Society International (AOSI), upholding the policy requirement would compel organizations to align their policies with governmental viewpoints and so hinder their flexibility in addressing HIV/AIDS prevention in the ways they find most effective.
Is Prohibiting Prostitution a Necessary Policy to Reduce the Spread of HIV/AIDS?
In support of USAID, the American Center for Law and Justice (ACLJ) argues that Congress may constitutionally require organizations to meet certain criteria to be eligible for receiving federal funding. ACLJ distinguishes eligibility requirements from “unconstitutional conditions” and notes that Congress may select which organizations to fund based in part on the goals of the organization. The ACLJ contends that the Act’s requirement is merely an eligibility criterion for ensuring that the agency is in fact going to use the funds effectively. Additionally, the Coalition Against Trafficking in Women (CATW), promotes the stance that the government should regulate prostitution and sex trafficking because they are abusive and exploitive practices that spread HIV/AIDS. Arguing that the anti-prostitution and anti-sex trafficking policy requirement is a rational requirement, CATW contends that condemning prostitution is a necessary condition for any agency seeking to prevent the spread of HIV/AIDS.
In response, AOSI argues that an anti-prostitution and anti-sex trafficking policy unconstitutionally restricts localized methods for preventing the spread of HIV/AIDS. . AOSI claims that the policy requirement has the potential to alienate sex workers and hinder the building of trust between workers and the non-governmental organization (NGO). Drawing upon its experience, AOSI argues that a neutral policy allows the NGO to organize, inform, and coordinate efforts to reduce HIV/AIDS with sex workers. According to AOSI, maintaining good relationships and open communication with marginalized groups is vital to effectively reducing rates of infection, and adopting the Act’s policy requirement would introduce barriers in connecting with people in most need of assistance and protection. Additionally, the Secretariat of the Joint United Nations Programme on HIV/AIDS argues that a policy against prostitution and sex trafficking might have the unintended effect of increasing the stigma against the most vulnerable and deter them from seeking or accepting help.
Do the Act’s Requirements Compel Speech?
Supporting USAID, ACLJ claims that striking down the policy requirement confuses eligibility requirements with laws that compel speech. ACLJ argues that the policy requirement under the Leadership Act is limited to only those agencies applying for government funding. According to ACLJ, it is reasonable for Congress to insist that its funds go to organizations that oppose prostitution and sex trafficking, which are practices that Congress found to be major contributors to the spread of the diseases targeted in the Act. Additionally, ACLJ argues that striking down the policy requirement threatens to inhibit the ability of Congress to choose criteria for completing other government projects. To ACLJ, treating funding requirements as though Congress is promoting a viewpoint or opinion harmfully narrows the power of Congress to choose how to allocate government money.
In contrast, AOSI argues that the policy requirement under the Act forces organizations seeking federal funding to adopt a viewpoint as though it were their own. According to the Becket Fund for Religious Liberty and the Christian Legal Society, upholding the policy requirement threatens to allow Congress to force any organization that receives federal funding to become mouthpieces for the government. Additionally several professors and deans of public health and public health law argue that practitioners, including those who receive federal funding, need the flexibility and freedom to pursue ideas without over-simplified restrictions on their research. The professors and deans offer as an example the advocacy for the decriminalization of prostitution as a policy that would protect victims of prostitution while potentially conflicting with the anti-prostitution requirement of the Liberation Act. They further argue that although Congress may refuse to fund certain programs, Congress cannot expand this power to force organizations to endorse one viewpoint or oppose another because doing so may distance public debate from those who are most affected by the issues.
Petitioner United States Agency for International Development (USAID) argues that the Spending Clause of the Constitution allows for Congress to implement restrictions when distributing federal funds. Additionally, USAID argues that the requirement to oppose prostitution and sex trafficking is central to effectuate the purpose of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act). In contrast, respondent Alliance for Open Society International (AOSI) states that the anti-prostitution and anti-sex trafficking policy requirement violates the First Amendment of the Constitution by compelling organizations to espouse an opinion of the government to receive federal funding. AOSI also argues that, under the Leadership Act, the ability of a federally funded organization to work with other organizations that do not have an anti-prostitution or anti-sex trafficking policy does not cure the First Amendment violation.
The Spending Clause and the First Amendment
USAID argues that the Spending Clause of the Constitution empowers Congress to attach conditions to receiving federal funds to promote the public welfare of the United States. According to USAID, since the application for and acceptance of federal funds are voluntary, the Leadership Act does not force any organization to support any policy that it does not wish to follow. USAID argues that under South Dakota v. Dole, Congress may condition receiving federal funding on having certain policies that Congress would otherwise be prohibited from requiring through direct regulation. To USAID, because Congress found that opposing sex trafficking and prostitution is necessary to fight the spread of HIV/AIDS, it can choose to fund organizations that oppose sex trafficking and prostitution. Additionally, USAID argues that the Supreme Court of the United States has held that the government may use federal funds to enlist the help of private entities to communicate certain messages. USAID suggests that the anti-prostitution and anti-sex trafficking policy requirement is meant to ensure that Congress is not funding organizations that are actually undermining the goals of the Leadership Act. Further, USAID explains that the policy requirement is not burdensome because an organization may have an anti-prostitution and anti-sex trafficking policy without actively propagating the policy. USAID also argues that the Leadership Act allows for a variety of viewpoints to exist because it targets only organizations receiving government money.
In response, AOSI argues that the Spending Clause does not immunize Congress from violations of First Amendment protections. AOSI argues that the Supreme Court in Sherbert v. Verner held that a choice between forgoing federal benefits and relinquishing constitutional rights could violate First Amendment freedoms in the same way as direct regulation. According to AOSI, if the form of the anti-prostitution and anti-sex trafficking policy requirement were a direct restriction on speech instead of a condition for receiving funding it would unlawfully restrict speech; changing the form of the restriction does not change the unlawful function. Additionally, AOSI argues that the policy requirement forces an organization to express an idea that it may not wish to express. To AOSI, although the Court has upheld restrictions on speech when an organization receives federal funds, the anti-prostitution and anti-sex trafficking policy requirement extends to the entire organization regardless of other funding sources, including private donations. AOSI argues that the Congress is preventing opposing viewpoints about the major contributing factors to the spread of HIV/AIDS from being taken seriously.
Central Provision and Affiliate Organizations
USAID argues that Congress, and not the Court, should decide whether a provision affecting freedom of speech is essential to a funding program. USAID argues that Congress, intending to target factors causing the spread of HIV/AIDS and not just the symptoms, determined that opposing prostitution and sex trafficking is important to reaching the goals of the Leadership Act. According to USAID, an organization complies with the anti-prostitution and anti-sex trafficking policy requirement by signing the contractual agreement for receiving federal funding without taking any further action to certify or publicize their compliance. Additionally, USAID notes that the Act allows a federally funded organization to work with groups that operate inconsistently with the policy requirement and so removes the injury if the policy requirement does violate the First Amendment. Further, USAID argues that the Act is sufficiently clear and does not suffer from vagueness. USAID argues that an organization with a particular set of concerns can request advice from the Department of Health and Human Services, especially if the organization presents research that it cannot meet the Act’s criteria due to the circumstances of a particular community or country.
In contrast, AOSI argues that the goal of the Leadership Act does not explain the anti-prostitution and anti-sex trafficking policy requirement; the Leadership Act distributes government funding to combat the spread of HIV/AIDS and not to end prostitution or sex trafficking. To AOSI, the policy requirement is more similar to an oath than a message paid for by the government. Drawing an analogy to getting a job with the federal government, AOSI argues that the Court rejected the idea that a prospective employee must vow to uphold particular political beliefs or reject certain doctrines as a condition of employment. Additionally, AOSI argues that USAID has not produced evidence that an anti-prostitution and anti-sex trafficking policy would prevent the spread of HIV/AIDS any more so than a neutral policy would. Further, AOSI maintains that allowing federally funded organizations to work with other entities lacking an anti-prostitution and anti-sex trafficking policy would not cure the inability of the federally funded organization to not have the required policy. According to AOSI, the Act’s policy requirement allows federally funded organizations to work only with completely independent affiliates lacking the anti-prostitution and anti-sex trafficking policy; the Act enforces this independent relationship by investigating partnerships—a costly process that chills the flexibility of a federally funded organization in responding to localized concerns against the spread of HIV/AIDS.
USAID argues that Congress may constitutionally require a policy against prostitution and sex trafficking as a condition to accepting federal funds for fighting the spread of HIV/AIDS. In contrast, AOSI argues that the First Amendment prohibits Congress from requiring organizations to speak against prostitution and sex trafficking. AOSI cautions that if the Supreme Court upholds the policy requirement, the power of Congress will expand as it may condition receiving federal money on adopting political positions however unrelated those positions are in effectuating the initial purpose of the funding. However, USAID cautions that striking down the policy requirement may shrink the power of Congress to allocate funds appropriately to address problems of pressing concern, such as preventing the spread of communicable diseases.
- US: Court Overrules Anti-Prostitution Gag Rule for US Groups, Human Rights Watch (July 8, 2011)
- Sex Trafficking in the U.S., Polaris Project (2013).
- The White House National HIV/AIDS Strategy, U.S. Department of Health & Human Services (2013).