SUPREME COURT OF
THE UNITED STATES
AGENCY FOR
INTERNATIONAL DEVELOPMENT, et al., PETITIONERS v.
ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC.,
et al.
June 20, 2013
Chief Justice Roberts delivered the
opinion of the Court.
The United States Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Act of 2003
(Leadership Act) outlined a comprehensive strategy to
combat the spread of HIV/AIDS around the world. As part of
that strategy, Congress authorized the appropriation of
billions of dollars to fund efforts by nongovernmental
organizations to assist in the fight. The Act imposes two
related conditions on that funding: First, no funds made
available by the Act “may be used to promote or advocate
the legalization or practice of prostitution or sex
trafficking.” And second, no funds may be used by an
organization “that does not have a policy explicitly
opposing prostitution and sex trafficking.” This case
concerns the second of these conditions, referred to as
the Policy Requirement. The question is whether that
funding condition violates a recipient’s First Amendment rights.
I
Congress passed the Leadership Act in
2003 after finding that HIV/AIDS had “assumed pandemic
proportions, spreading from the most severely affected
regions, sub-Saharan Africa and the Caribbean, to all
corners of the world, and leaving an unprecedented path of
death and devastation.” According to congressional
findings, more than 65 million people had been infected by
HIV and more than 25 million had lost their lives, making
HIV/AIDS the fourth highest cause of death worldwide. In
sub-Saharan Africa alone, AIDS had claimed the lives of
more than 19 million individuals and was projected to kill
a full quarter of the population of that area over the
next decade. The disease not only directly endangered
those infected, but also increased the potential for
social and political instability and economic devastation,
posing a security issue for the entire international
community.
In the Leadership Act, Congress
directed the President to establish a “comprehensive,
integrated” strategy to combat HIV/AIDS around the
world....The Act “make[s] the reduction of HIV/AIDS
behavioral risks a priority of all prevention
efforts.” The Act’s approach to reducing behavioral
risks is multifaceted. The President’s strategy for
addressing such risks must, for example, promote
abstinence, encourage monogamy, increase the availability
of condoms, promote voluntary counseling and treatment for
drug users, and, as relevant here, “educat[e] men and boys
about the risks of procuring sex commercially” as well as
“promote alternative livelihoods, safety, and social
reintegration strategies for commercial sex workers.”
Congress found that the “sex industry, the trafficking of
individuals into such industry, and sexual violence” were
factors in the spread of the HIV/AIDS epidemic, and
determined that “it should be the policy of the United
States to eradicate” prostitution and “other sexual
victimization.”
The United States has enlisted the
assistance of nongovernmental organizations to help
achieve the many goals of the program. Such organizations
“with experience in health care and HIV/AIDS counseling,”
Congress found, “have proven effective in combating the
HIV/AIDS pandemic and can be a resource in . . .
provid[ing] treatment and care for individuals infected
with HIV/AIDS.” Since 2003, Congress has authorized the
appropriation of billions of dollars for funding these
organizations’ fight against HIV/AIDS around the world.
Those funds, however, come with two
conditions: First, no funds made available to carry out
the Leadership Act “may be used to promote or advocate the
legalization or practice of prostitution or sex
trafficking.”Second, no funds made available may “provide
assistance to any group or organization that does not have
a policy explicitly opposing prostitution and sex
trafficking, except . . . to the Global Fund to
Fight AIDS, Tuberculosis and Malaria, the World Health
Organization, the International AIDS Vaccine Initiative or
to any United Nations agency.” §7631(f). It is this
second condition—the Policy Requirement—that is at issue
here.
The Department of Health and Human
Services (HHS) and the United States Agency for
International Development (USAID) are the federal agencies
primarily responsible for overseeing implementation of the
Leadership Act. To enforce the Policy Requirement, the
agencies have directed that the recipient of any funding
under the Act agree in the award document that it is
opposed to “prostitution and sex trafficking because of
the psychological and physical risks they pose for women,
men, and children.”
II
Respondents are a group of domestic
organizations engaged in combating HIV/AIDS overseas. In
addition to substantial private funding, they receive
billions annually in financial assistance from the United
States, including under the Leadership Act. Their work
includes programs aimed at limiting injection drug use in
Uzbekistan, Tajikistan, and Kyrgyzstan, preventing
mother-to-child HIV transmission in Kenya, and promoting
safer sex practices in India. Respondents fear 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 in the fight against
HIV/AIDS. They are also concerned that the Policy
Requirement may require them to censor their privately
funded discussions in publications, at conferences, and in
other forums about how best to prevent the spread of
HIV/AIDS among prostitutes.
In 2005, respondents Alliance for Open
Society International and Pathfinder International
commenced this litigation, seeking a declaratory judgment
that the Government’s implementation of the Policy
Requirement violated their First
Amendment rights. Respondents sought a
preliminary injunction barring the Government from cutting
off their funding under the Act for the duration of the
litigation, from unilaterally terminating their
cooperative agreements with the United States, or from
otherwise taking action solely on the basis of
respondents’ own privately funded speech. The District
Court granted such a preliminary injunction, and the
Government appealed....
We granted certiorari.
III
The Policy Requirement mandates that
recipients of Leadership Act funds explicitly agree with
the Government’s policy to oppose prostitution and sex
trafficking. It is, however, a basic First
Amendment principle that “freedom of speech
prohibits the government from telling people what they
must say.” Were it enacted as a direct regulation of
speech, the Policy Requirement would plainly violate the First Amendment. The question is
whether the Government may nonetheless impose that
requirement as a condition on the receipt of federal
funds.
A
The Spending Clause of the Federal
Constitution grants Congress the power “[t]o lay and
collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general
Welfare of the United States.” Art. I, §8, cl. 1. The
Clause provides Congress broad discretion to tax and spend
for the “general Welfare,” including by funding particular
state or private programs or activities. That power
includes the authority to impose limits on the use of such
funds to ensure they are used in the manner Congress
intends. Rust v. Sullivan, 500
U. S. 173, n. 4 (1991).
As a general matter, if a party objects
to a condition on the receipt of federal funding, its
recourse is to decline the funds. This remains true when
the objection is that a condition may affect the
recipient’s exercise of its First
Amendment rights. See, e.g., United States v.
American Library Assn., Inc. (2003) (rejecting a claim by
public libraries that conditioning funds for Internet
access on the libraries’ installing filtering software
violated their First Amendment
rights, explaining that “[t]o the extent that libraries
wish to offer unfiltered access, they are free to do so
without federal assistance”).
At the same time, however, we have held
that the Government “ ‘may not deny a benefit to a
person on a basis that infringes his constitutionally
protected . . . freedom of speech even if he has
no entitlement to that benefit.’ ” In some cases, a
funding condition can result in an unconstitutional burden
on First Amendment
rights.
The dissent thinks that can only be
true when the condition is not relevant to the objectives
of the program (although it has its doubts about that), or
when the condition is actually coercive, in the sense of
an offer that cannot be refused. Our precedents, however,
are not so limited. In the present context, the relevant
distinction that has emerged from our cases is between
conditions that define the limits of the government
spending program—those that specify the activities
Congress wants to subsidize—and conditions that seek to
leverage funding to regulate speech outside the contours
of the program itself. The line is hardly clear, in part
because the definition of a particular program can always
be manipulated to subsume the challenged condition. We
have held, however, that “Congress cannot recast a
condition on funding as a mere definition of its program
in every case, lest the First
Amendment be reduced to a simple semantic
exercise.” Legal Services Corporation v. Velazquez (2001)
....
B
As noted, the distinction drawn in
these cases—between conditions that define the federal
program and those that reach outside it—is not always
self-evident. As Justice Cardozo put it in a related
context, “Definition more precise must abide the wisdom of
the future.” Here, however, we are confident that the
Policy Requirement falls on the unconstitutional side of
the line.
To begin, it is important to recall
that the Leadership Act has two conditions relevant here.
The first—unchallenged in this litigation—prohibits
Leadership Act funds from being used “to promote or
advocate the legalization or practice of prostitution or
sex trafficking.” The Government concedes that
§7631(e) by itself ensures that federal funds will
not be used for the prohibited purposes.
The Policy Requirement therefore must
be doing something more—and it is. The dissent views the
Requirement as simply a selection criterion by which the
Government identifies organizations “who believe in its
ideas to carry them to fruition.” As an initial matter,
whatever purpose the Policy Requirement serves in
selecting funding recipients, its effects go beyond
selection. The Policy Requirement is an ongoing condition
on recipients’ speech and activities, a ground for
terminating a grant after selection is complete. In any
event, as the Government acknowledges, it is not simply
seeking organizations that oppose prostitution. Rather, it
explains, “Congress has expressed its purpose ‘to
eradicate’ prostitution and sex trafficking, and it wants
recipients to adopt a similar stance.” This case is not
about the Government’s ability to enlist the assistance of
those with whom it already agrees. It is about compelling
a grant recipient to adopt a particular belief as a
condition of funding.
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....
Pressing its argument further, the
Government contends that “if organizations awarded federal
funds to implement Leadership Act programs could at the
same time promote or affirmatively condone prostitution or
sex trafficking, whether using public or private funds, it
would undermine the government’s program and confuse its
message opposing prostitution and sex trafficking.” But
the Policy Requirement goes beyond preventing recipients
from using private funds in a way that would undermine the
federal program. It requires them to pledge allegiance to
the Government’s policy of eradicating prostitution. As to
that, we cannot improve upon what Justice Jackson wrote
for the Court 70 years ago: “If there is any fixed star in
our constitutional constellation, 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.”
The Policy Requirement compels 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. In so doing, it violates the First Amendment and cannot be
sustained. The judgment of the Court of Appeals is
affirmed.
Justice Scalia, with whom Justice
Thomas joins, dissenting.
The Leadership Act provides that “any
group or organization that does not have a policy
explicitly opposing prostitution and sex trafficking” may
not receive funds appropriated under the Act. This Policy
Requirement is nothing more than a means of selecting
suitable agents to implement the Government’s chosen
strategy to eradicate HIV/AIDS. That is perfectly
permissible under the Constitution.
The First
Amendment does not mandate a viewpoint-neutral
government. Government must choose between rival ideas and
adopt some as its own: competition over cartels, solar
energy over coal, weapon development over disarmament, and
so forth. Moreover, the government may enlist the
assistance of those who believe in its ideas to carry them
to fruition; and it need not enlist for that purpose those
who oppose or do not support the ideas. That seems to me a
matter of the most common common sense. For example: One
of the purposes of America’s foreign-aid programs is the
fostering of good will towards this country. If the
organization Hamas—reputed to have an efficient system for
delivering welfare—were excluded from a program for the
distribution of U. S. food assistance, no one could
reasonably object. And that would remain true if Hamas
were an organization of United States citizens entitled to
the protection of the Constitution. So long as the
unfunded organization remains free to engage in its
activities (including anti-American propaganda) “without
federal assistance,” refusing to make use of its
assistance for an enterprise to which it is opposed does
not abridge its speech. And the same is true when the
rejected organization is not affirmatively opposed to, but
merely unsupportive of, the object of the federal program,
which appears to be the case here. (Respondents do not
promote prostitution, but neither do they wish to oppose
it.) A federal program to encourage healthy eating habits
need not be administered by the American Gourmet Society,
which has nothing against healthy food but does not insist
upon it.
The argument is that this commonsense
principle will enable the government to discriminate
against, and injure, points of view to which it is
opposed. Of course the Constitution does not prohibit
government spending that discriminates against, and
injures, points of view to which the government is
opposed; every government program which takes a position
on a controversial issue does that. Anti-smoking programs
injure cigar aficionados, programs encouraging sexual
abstinence injure free-love advocates, etc. The
constitutional prohibition at issue here is not a
prohibition against discriminating against or injuring
opposing points of view, but the First
Amendment’s prohibition against the coercing of
speech. I am frankly dubious that a condition for
eligibility to participate in a minor federal program such
as this one runs afoul of that prohibition even when the
condition is irrelevant to the goals of the program. Not
every disadvantage is a coercion.
But that is not the issue before us
here. Here the views that the Government demands an
applicant forswear—or that the Government insists an
applicant favor—are relevant to the program in question.
The program is valid only if the Government is entitled to
disfavor the opposing view (here, advocacy of or
toleration of prostitution). And if the program can
disfavor it, so can the selection of those who are to
administer the program. There is no risk that this
principle will enable the Government to discriminate
arbitrarily against positions it disfavors. It would not,
for example, permit the Government to exclude from bidding
on defense contracts anyone who refuses to abjure
prostitution. But here a central part of the Government’s
HIV/AIDS strategy is the suppression of prostitution, by
which HIV is transmitted. It is entirely reasonable to
admit to participation in the program only those who
believe in that goal.
According to the Court, however, this
transgresses a constitutional line between conditions that
operate inside a spending program and those that control
speech outside of it. I am at a loss to explain what this
central pillar of the Court’s opinion—this distinction
that the Court itself admits is “hardly clear” and “not
always self-evident,” has to do with the First Amendment. The distinction
was alluded to, to be sure, in Rust v. Sullivan, but not
as (what the Court now makes it) an invariable requirement
for First Amendment validity.
That the pro-abortion speech prohibition was limited to
“inside the program” speech was relevant in Rust because
the program itself was not an anti-abortion program. The
Government remained neutral on that controversial issue,
but did not wish abortion to be promoted within its
family-planning-services program. The statutory objective
could not be impaired, in other words, by “outside the
program” pro-abortion speech. The purpose of the
limitation was to prevent Government funding from
providing the means of pro-abortion propaganda, which the
Government did not wish (and had no constitutional
obligation) to provide. The situation here is vastly
different. Elimination of prostitution is an objective of
the HIV/AIDS program, and any promotion of
prostitution—whether made inside or outside the
program—does harm the program.
Of course the most obvious manner in
which the admission to a program of an ideological
opponent can frustrate the purpose of the program is by
freeing up the opponent’s funds for use in its ideological
opposition. To use the Hamas example again: Subsidizing
that organization’s provision of social services enables
the money that it would otherwise use for that purpose to
be used, instead, for anti-American propaganda. Perhaps
that problem does not exist in this case since the
respondents do not affirmatively promote prostitution. But
the Court’s analysis categorically rejects that
justification for ideological requirements in all cases,
demanding “record indica[tion]” that “federal funding will
simply supplant private funding, rather than pay for new
programs.” This seems to me quite naive. Money is
fungible. The economic reality is that when NGOs can
conduct their AIDS work on the Government’s dime, they can
expend greater resources on policies that undercut the
Leadership Act. The Government need not establish by
record evidence that this will happen. To make it a valid
consideration in determining participation in federal
programs, it suffices that this is a real and obvious
risk....
The majority cannot credibly say that
this speech condition is coercive, so it does not. It
pussyfoots around the lack of coercion by invalidating the
Leadership Act for “requiring recipients to profess a
specific belief” and “demanding that funding recipients
adopt—as their own—the Government’s view on an issue of
public concern.” But like King Cnut’s commanding of the
tides, here the Government’s “requiring” and “demanding”
have no coercive effect. In the end, and in the
circumstances of this case, “compell[ing] as a condition
of federal funding the affirmation of a belief” is no
compulsion at all. It is the reasonable price of admission
to a limited government-spending program that each
organization remains free to accept or reject.
Ideological-commitment requirements
such as the one here are quite rare; but making the choice
between competing applicants on relevant ideological
grounds is undoubtedly quite common. See, e.g., Finley. As
far as the Constitution is concerned, it is quite
impossible to distinguish between the two. If the
government cannot demand a relevant ideological commitment
as a condition of application, neither can it distinguish
between applicants on a relevant ideological ground. And
that is the real evil of today’s opinion. One can expect,
in the future, frequent challenges to the denial of
government funding for relevant ideological reasons....
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