Articles Posted in U.S. Supreme Court

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The U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7601, authorizes appropriations to fund nongovernmental efforts to combat HIV/AIDS worldwide, with conditions that: no funds “may be used to promote or advocate the legalization or practice of prostitution” and no funds may be used by an organization “that does not have a policy explicitly opposing prostitution” (the Policy Requirement). To enforce the Policy Requirement, the Department of Health and Human Services and the U.S. Agency for International Development require funding recipients to agree that they oppose prostitution. Funding recipients, wishing to remain neutral on prostitution, sought a declaratory judgment that the Policy Requirement violates their First Amendment rights. The district court issued a preliminary injunction, barring the government from cutting off funding during the litigation. The Second Circuit and Supreme Court affirmed. The First Amendment “prohibits the government from telling people what they must say.” The Spending Clause grants Congress broad discretion to fund private programs for the general welfare and to limit the use of funds to ensure they are used in the manner intended. There is a distinction between conditions that define the limits of the spending program and specify the activities Congress wants to subsidize and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself. The Act’s other condition, prohibiting use of funds “to promote or advocate the legalization or practice of prostitution or sex trafficking,” ensures that federal funds will not be used for prohibited purposes. The Policy Requirement goes further and, by its very nature, affects protected conduct outside the scope of the federally funded program. The Requirement goes beyond preventing recipients from using private funds in a way that could undermine the federal program and requires them to pledge allegiance to government policy. View "Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc." on Justia Law