LATEST (June 20, 2013): Supreme Court rules 6–2 to uphold the Second Circuit decision. It finds that “the policy requirement violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.”
On April 22, the U.S. Supreme Court heard oral arguments in the case USAID v AOSI. The Court considered whether a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 violates freedom of speech under the First Amendment.
This provision, or “policy requirement,” compels organizations to have a policy “explicitly opposing prostitution” in order to qualify for federal funds to fight HIV and AIDS. This goes far beyond saying how government money must be spent—it forces recipients to adopt the government’s viewpoint on an organization-wide basis, even in separate, privately funded programs. Private grantees are prohibited from saying or doing anything that the government deems to be “inconsistent” with the policy.
The problem with the policy requirement is that it disregards recipients’ First Amendment rights to hold their own views and speak freely on important public health issues. It also restricts their ability to interact with key populations in the fight against HIV and AIDS.
In 2011, the U.S. Court of Appeals for the Second Circuit ruled that the policy requirement violated private recipients’ constitutional rights. “Compelling speech as a condition of receiving a government benefit,” the court wrote, “cannot be squared with the First Amendment.” The court also held that the policy requirement is impermissibly viewpoint-based because it requires adoption of the government’s position on a particular issue.
What is “the pledge”?
Under the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“Leadership Act”), public health groups receiving U.S. funds are required to pledge their opposition to prostitution in order to continue their HIV-prevention work.
- June 20, 2013: Supreme Court issues 6-2 verdict declaring policy requirement unconstitutional.
- April 22, 2013: Oral argument at the Supreme Court.
- January 11, 2013: Supreme Court grants certiorari.
- Feb. 2, 2012: Second Circuit Court denies government’s motion for rehearing en banc.
- July 7, 2011: Second Circuit panel holds that pledge requirement likely violates First Amendment rights.
- August 8, 2008: District Court extends preliminary injunction to bar enforcement of the pledge against U.S. members of Global Health Council and InterAction.
- June 29, 2006: U.S. District Court enters preliminary injunction barring enforcement of the pledge requirement against AOSI and Pathfinder International.
- May 9, 2006: U.S. District Court rules pledge requirement likely violates First Amendment rights.
- September 23, 2005: Original challenge to pledge requirement is filed.
- February 17, 2004: Justice Department’s Office of Legal Counsel issues an opinion that the pledge requirement “cannot be constitutionally applied to U.S. organizations.”