Agency for International Development v. Alliance for Open Society International, Inc.

Brief Fact Summary.

Respondents, a group of domestic organizations engaged in combating HIV/AIDS overseas, feared that adopting a policy explicitly opposing prostitution may alienate certain 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. Respondents sought a preliminary injunction barring the Government from cutting off their funding under the Act.

Synopsis of Rule of Law.

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.

Facts.

Congress passed the United States Leadership Against HIV/AIDS Act to reduce HIV/AIDS behavioral risks to prevent those diseases. Congress passed the Act based upon its findings that the sex industry, the trafficking of individuals into such industry, and sexual violence were the factors in the spread of those diseases. Since Congress passed the Act, it authorized the appropriation of billions of dollars for funding various organizations’ fight against HIV/AIDS around the world. However, Congress did not make the funds available if used to promote or advocate the legalization or practice of prostitution or sex trafficking. Moreover, organizations must have a policy explicitly opposing prostitution and sex trafficking to be eligible. The Act was challenged.

Issue.

Does the conditions that the funds under the Act must not be used to promote or advocate the legalization or practice of prostitution or sex trafficking and organizations must have a policy explicitly opposing prostitution and sex trafficking to be eligible violate the First Amendment?

Held.

Yes, because Congress cannot attach a condition on funding as a mere definition of its program in every case if the First Amendment rights are violated. The Act is an ongoing condition on recipients’ speech and activities.

Dissent.

Justice Scalia

The Government’s requiring and demanding have no coercive effect. Compelling as a condition of federal funding the affirmation of a belief is no compulsion at all. It is a reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject. The Act expressly defines the “recipient” only to the extent he or she decides that it is in his or her interest to be so defined. Thus, the Act must be held constitutional.

Discussion.

Through the Act, the Government compels a grant recipient to adopt a particular belief as a condition of funding. By demanding that funding recipients adopt, 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 Act and then turn around and assert a contrary belief, when participating in activities of its own time. By requiring recipients to profess a particular belief, the Act goes beyond defining the limits of the federally funded program to defining the recipient.