22 April 2013

Can the government compel speech of an organization that receives federal funding as a condition of that funding?

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

This morning, the Supreme Court will hear oral argument in the case of Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. The controversy centers around the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. The Act was passed by Congress in 2003 and contains a provision, 22 U.S.C. § 7631(f), which states that
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking...
The George Soros-funded Alliance for Open Society Int'l, Inc. and several other organizations who received funding objected to making this policy statement on the grounds that it violated their free speech (to be clear--these organizations do not explicitly support prostitution and sex trafficking, but fear that publicly opposing them will hurt their efforts). In return, the Government argues that these private organizations have a choice to participate in the program, and in offering a choice does not offend the organization's First Amendment rights. After all, they can simply choose not to participate. Thus far, the lower courts have found this explicit policy provision to unlawfully compel or coerce speech. The question before the Court is whether the Act, which 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, violates the First Amendment.

I'll have a follow-up post to on this case when the Supreme Court renders its decision.
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