20 June 2013

Law in Plain English: Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.

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.

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.

Passed by Congress in 2003, the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act contains a provision which requires that recipients of its funding make an explicit policy opposing prostitution and sex trafficking. 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. The lower courts have found this explicit policy provision to unlawfully compel or coerce speech. The question before the Court was 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, violated the First Amendment. In a 6-2 decision (with Justice Kagan recused), the Supreme Court ruled 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. As a result, the recipients of the funds do not have to make such policy statements. The practical impact of this decision is that the Government is limited its in power to demand that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, when that requirement affects protected conduct outside the scope of the federal funded program.
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