Can Congress Place Ideological Conditions on Grant Funds? U.S. Agency for International Development v. Alliance for Open Society, International

The U.S. Supreme Court recently considered whether the government could require grant recipients to share its viewpoint as a condition for receiving federal funds. As expected, the justices’ inquiry focused on where to draw the line for First Amendment protection.

The case revolves around the United States Leadership Against HIV/ AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7631(f). Under the statute, non-governmental organizations (NGOs) receiving federal funding must satisfy a number of conditions. One 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.

Several NGOs, including The Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, and InterAction, filed suit against the Agency for International Development and the other agencies tasked with enforcing the Act. They alleged that the funding provisions are unconstitutional, specifically arguing that they violate the First Amendment by forcing the NGOs to adopt the viewpoint advocated by the U.S. government. The Second Circuit Court of Appeals agreed with the lower court that the Act’s broad provisions ran afoul of First Amendment protections, specifically noting that the prostitution policy mandate was not directly related to the program’s core mission

Simply put, the Court must decide whether the law violates the First Amendment. However, the larger question is what types of funding conditions are permissible and what types will offend free speech rights?

During oral arguments, Deputy U.S. Solicitor General Sri Srinivasan argued that organizations that share the government’s positions are better equipped to administer its programs. Several justices seemed inclined to agree, and the attorney for the NGOs even consented that the government can control speech when it directly relates to funding recipients’ work under the program. However, the consensus ended when they tried to determine where the line is.

“There have to be some limitations on what type of loyalty oath you can require them to sign,” said Chief Justice John G. Roberts Jr.