WASHINGTON — Groups receiving federal financing to combat AIDS abroad may not be required to adopt policies opposing prostitution, the Supreme Court ruled on Thursday.
Under a 2003 law, the federal government has distributed billions of dollars to private groups to help fight AIDS around the world, imposing two conditions in the process. First, the money may not be used “to promote or advocate the legalization or practice of prostitution and sex trafficking.” That condition was not before the court.
The question for the justices was whether the second condition, requiring recipients to have “a policy explicitly opposing prostitution and sex trafficking,” passed constitutional muster.
Chief Justice John G. Roberts Jr., writing for a six-justice majority, said the condition ran afoul of the First Amendment because it required recipients “to pledge allegiance to the government’s policy of eradicating prostitution.”
He said the groups challenging the law feared that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes.”
Marine Buissonniere, the director of the Open Society Public Health Program, one of the groups that challenged the condition, said the policy was counterproductive. “Public health groups cannot tell sex workers that we ‘oppose’ them, yet expect them to be partners in preventing H.I.V.,” she said in a statement. “Condemnation and alienation are not public health strategies.”
Chief Justice Roberts acknowledged that the Supreme Court’s jurisprudence on “unconstitutional conditions” was confusing. As a general matter, he said, the government has no obligation to spend money, just as recipients are not required to take the government’s money. But sometimes, he wrote, “a funding condition can result in an unconstitutional burden on First Amendment rights.”
“The line is hardly clear,” the chief justice wrote, but it is crossed when the government seeks “to leverage funding to regulate speech outside the contours of the program itself.”
The condition requiring groups receiving AIDS money to adopt an antiprostitution policy was on the wrong side of the line, he said. “A recipient cannot avow the belief dictated” by the government, he wrote, “and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime.”
Chief Justice Roberts rejected an argument by the Obama administration that the requirement to adopt a policy was needed to protect the prohibition on the use of government money to promote prostitution. Money is fungible, it said, and the availability of government money could free up private money to promote prostitution.
The Supreme Court accepted a similar argument in Holder v. Humanitarian Law Project, a 2010 decision that said the First Amendment did not protect benign assistance in the form of speech to groups that the government said had engaged in terrorism. Chief Justice Roberts, who wrote the majority opinion in the 2010 case, said the earlier case was different because there had been evidence that “support for those organizations’ nonviolent operations was funneled to support their violent activities.”
Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr. and Sonia Sotomayor joined the majority decision on Thursday.
In dissent, Justice Antonin Scalia said the contested condition did nothing more than allow the government to “enlist the assistance of those who believe in its ideas.”
“That,” he continued, “seems to me a matter of the most common common sense.” He gave an example: “A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society.”
Justice Clarence Thomas joined the dissent.
Justice Elena Kagan recused herself from the case — Agency for International Development v. Alliance for Open Society International, No. 12-10 — presumably because she had worked on it as solicitor general.
In 2011, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York,blocked the law, saying it “compels grantees to espouse the government’s position on a controversial issue.”
In summarizing the majority opinion in the courtroom on Thursday, Chief Justice Roberts said he could not improve on what Justice Robert H. Jackson had said in announcing a decision from the bench “70 years ago last Friday.”
That 1943 decision, West Virginia State Board of Education v. Barnette, struck down a law compelling public school students to salute the flag. “If there is any fixed star in our constitutional constellation,” Chief Justice Roberts said, quoting Justice Jackson, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”