Friday, July 8, 2011

Anti-prostitution policy requirement violates the First Amendment

The Court of Appeals has held that recipients of government money to fight AIDS and other diseases around the world cannot be forced to affirmatively take a public stand against prostitution. This case strikes down that requirement under the First Amendment, which prohibits viewpoint discrimination.

The case is Alliance for Open Society International v. U.S. Agency for International Development, decided on June 6. The viewpoint discrimination doctrine is confused and difficult, borne out by a few Supreme Court rulings over the years, including Rust v. Sullivan, which held in 1991 that the First Amendment did not prohibit the government from requiring family planning offices to refrain from encouraging or promoting abortion as a method of family planning if they wanted to receive government money.

But first, the question most of us may have is, "why can't these aid recipients just take a stand against international prostitution?" There is an answer to this question, as Judge Parker points out for the 2-1 majority:

the WHO and UNAIDS have taken a public position at odds with the Policy Requirement, recognizing the reduction of penalties for prostitution as a best practice in the fight against HIV/AIDS. Defendants attempt to distinguish these exempted recipients on the ground that they are “public international organizations,” such that forcing them to adopt an anti-prostitution policy would require “multilateral negotiations.” But if anti-prostitution advocacy were central to the government’s program, it could, of course, simply choose not to fund these organizations. In short, the Agencies’ suggestion that requiring Plaintiffs to adopt an anti-prostitution policy statement is integral to the Leadership Act program is undermined by the fact that the government has chosen to fund high-profile, global organizations that remain free to express—and indeed openly express—a contrary policy, or no policy at all.

Anyway, the Policy Requirement to take a stand against prostitution violates the First Amendment in a couple of ways. While the government may impose conditions on the receipt of public money, this case pushes things "considerably further and mandates that recipients affirmatively say something — that they are 'opposed to the practice[] of prostitution,' The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position."

The Court adds, "Although viewpoint-based funding conditions that target speech are not necessarily unconstitutional, such conditions are constitutionally troublesome." As "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," the government cannot impose its viewpoint in order to receive money to fight AIDS and other diseases around the world.

The anti-prostitution requirement also represents compelled speech, a doctrine known to most of us through the cases holding that children cannot be forced to recite the Pledge of Allegiance. The Court of Appeals says, "where, as here, the government seeks to affirmatively require government-preferred speech, its efforts raise serious First Amendment concerns." Compelled speech is a separate doctrine from viewpoint discrimination, but it's also prohibited under the Constitution.

The Second Circuit is nothing if not cautious. It outlines the limits of this decision in stating that the government may, in other cases, force its viewpoints on others if that viewpoint is central to the policy for which it is distributing government money. The Court says:

We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. ... [I]f the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

1 comment:

Ronald B. McGuire said...

The court's reasoning on compelled speech as a condition for government funding is a bit unconvincing. The majority concedes that the government can require an affirmative statement on drug use as a condition for funding a drug use prevention program.
Then why can't Congress define the government's purpose as funding programs that aim to prevent AIDS by preventing prostitution? If that is the purpose of the government program, then, under the court's logic, the government could require that the program oppose prostitution as a condition for funding.
The majority opinion seems to reduce the question of compelled speech to a question of semantics.
In a non-public forum context the government could effectively compel recipients of government funds to espouse the government's positions by artful drafting of the purposes of the program.