Government Can’t Use Funding to Control Speech: U.S. Agency for Int’l Development v. Alliance for Open Society Int’l

The government cannot force funding recipients to serve as its mouthpiece, the U.S. Supreme Court ruled in one of the most significant First Amendment cases of the term. The justices specifically held that requiring nongovernmental organizations wishing to receive funding from the federal government for HIV and AIDS programs overseas to adopt a policy explicitly opposing prostitution violates the First Amendment.

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.

By a vote or 6-2, the Supreme Court held that the funding condition resulted in an unconstitutional burden on First Amendment rights by seeking to leverage funding to regulate speech outside the contours of the federal program itself.

“The distinction between conditions that define a federal program and those that reach outside it is not always self-evident, but the Court is confident that the Policy Requirement falls on the unconstitutional side of the line,” the court’s opinion states.

As Chief Justice John Roberts further explains, “By demanding that funding recipients adopt-as their own-the Government’s view on an issue of public concern, the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program.’ A recipient cannot avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”