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Supreme Court Strikes Down Anti-Prostitution Pledge, Saying It Violates First Amendment Free Speech Rights

“In a ruling [.pdf] backing robust free speech rights for recipients of government funds, the Supreme Court on Thursday struck down as unconstitutional the federal government’s requirement that groups accepting U.S. aid declare their opposition to prostitution,” Politico reports. “In a 6-2 decision, the justices found a 2003 law violated the First Amendment by demanding that groups receiving funding to fight HIV, AIDS and certain other diseases affirmatively reject prostitution,” the news service notes (Gerstein, 6/21). Under PEPFAR, “organizations receiving … U.S. funding had to comply with two separate conditions laid out by Congress,” Scientific American’s “Observations” blog writes, adding, “The first was that funds could not be used to promote or advocate the legalization of prostitution. The other, more controversial, provision — and the one struck down by the Supreme Court [Thursday] — forced groups receiving U.S. funds to sign a pledge saying they would not provide ‘assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking’” (Maron, 6/20). “The Alliance for Open Society International and Pathfinder International … sued in 2005, citing the guarantee of free speech in the U.S. Constitution’s First Amendment,” Reuters states (Hurley, 6/20).

In addition to imposing on their right to free speech, the groups “argued that adopting such a policy would undermine efforts to fight HIV/AIDS: denouncing prostitution would alienate prostitutes in need of contraception and treatment,” The Economist’s “Democracy in America” blog notes (6/20). “More than 200 organizations filed briefs supporting the challenge to the pledge,” the Center for Global Health Policy’s “Science Speaks” adds (Barton, 6/20). “The Obama administration argued in favor of the constitutionality of the law, contending that rules Obama officials set out in 2010 allowing aid recipients to work with affiliates that disagreed with the government policy were sufficient to address any First Amendment problems,” but “[t]he court’s majority explicitly rejected that position,” Politico writes (6/21). In the majority opinion, Chief Justice John Roberts “said these decisions involve the government’s refusal to subsidize certain activities,” according to the Los Angeles Times’ “Politics Now” blog. “The government may not go further, he said, and ‘leverage funding to regulate speech outside the contours of the program itself,’” the newspaper notes. “The law requiring groups to declare their opposition to sex trafficking ‘falls on the unconstitutional side of the line,’ he said,” according to the newspaper (Savage, 6/20). “Justice Elena Kagan recused herself from the case, presumably because she had worked on it when she was President Obama’s solicitor general,” the Washington Post states. “Justices Antonin Scalia and Clarence Thomas dissented,” the newspaper notes, adding, “Scalia said the government was not coercing speech but simply acquiring partners who share its beliefs” (Barnes, 6/20). The case is Agency for International Development v. Alliance for Open Society International, U.S. Supreme Court, No. 12-10.