Supreme Court Strikes Anti-Prostitution Pledge for American Organizations Fighting HIV/AIDS

The Supreme Court ruled that requiring U.S. organizations fighting HIV/AIDS abroad to take an anti-prostitution pledge violates the First Amendment.

The Supreme Court ruled Thursday that the anti-prostitution loyalty oath (APLO) violates the First Amendment when it is applied to U.S. organizations. The APLO, an amendment to the 2003 President’s Emergency Plan for AIDS Relief (PEPFAR), required non-governmental organizations working to improve global health to adopt an explicit policy opposing prostitution as a condition of receiving U.S. funding. The decision does not address application of the pledge to foreign non-government organizations receiving U.S. funding.

The case represents an important, if partial, victory in the decades-long campaign by right-wing politicians to shame and stigmatize sex workers and cut off aid to some of the most effective organizations in the field.

PEPFAR was established to prevent the spread of HIV and treat AIDS-related illnesses, but from the start became mired in conservative politics and policies. One of these was the “anti-prostitution pledge,” originally sponsored by Rep. Chris Smith (R-NJ), a staunch opponent of women’s rights. The APLO required organizations to adopt a policy stating they did not “promote” or “advocate” “the legalization or practice of prostitution,” and required them to explicitly oppose prostitution and sex trafficking. The pledge is similar in some sense to the global gag rule in that the pledge requirement limits what recipients can do with all funding, not just PEPFAR funding. But unlike the global gag rule, PEPFAR recipients are not simply “gagged” from discussing prostitution; they are compelled to take a specific stance against prostitution, and it’s a specific stance dictated by the U.S. government.

In 2005 the Alliance for Open Society International (AOSI) sued, arguing the pledge violated the organization’s First Amendment rights to be free from government-compelled speech. AOSI won a temporary injunction blocking the pledge. Numerous appeals and attempts to settle the case happened, until 2011 when the Second Circuit Court of Appeals affirmed the injunction, striking the pledge and holding that it “falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds” because it “does not merely require recipients of [PEPFAR] funds to refrain from certain conduct, but goes substantially further and compels recipients to espouse the government’s viewpoint.”

This was the issue the Roberts Court took up. Writing for the 6-2 majority (Justice Elena Kagan recused herself from the decision) the Chief Justice held that the pledge falls outside the dictates of the PEPFAR program and thus violates the First Amendment rights of the U.S. organizations that received its funds, placing the decision in a long and often convoluted line of case law that seeks to reconcile government funding that comes with strings attached.

The Spending Clause of the Constitution generally grants Congress broad discretion to fund private programs or activities for the “general welfare.” This includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Generally speaking, if a party objects to the limits Congress has set on receiving those funds, the answer is to not take the money. But sometimes Congress crosses a line, and a funding condition can become an unconstitutional burden on First Amendment rights. The distinction that has emerged from this Court’s cases on this issue is, like many Supreme Court distinctions, fuzzy. But the Court tries to strike a difference between conditions that define the limits of the government-spending program—that is, those that specify the activities Congress wants to subsidize, and those conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself. The prostitution pledge, the Court held, was the latter.

To get to this conclusion, Chief Justice John Roberts and the majority relied on an important reproductive health care decision, Rust v. Sullivan. In Rust, the Court considered Title X of the Public Health Service Act, which authorized grants to health-care organizations offering family planning services, but prohibited federal funds from being “used in programs where abortion is a method of family planning.” The organizations received funds from a variety of sources other than the federal government for a variety of purposes, but the act specifically prohibited the use of Title X funds this way. To enforce the anti-abortion provision, Health and Human Services regulations barred Title X projects from advocating abortion and required grantees to keep their Title X projects “physically and financially” separate from their other projects that engaged in the prohibited activities.

A group of Title X funding recipients brought suit, claiming the regulations imposed an unconstitutional condition on their First Amendment rights. The Supreme Court rejected their claims, holding that Congress can constitutionally fund certain programs selectively to address an issue of public concern without funding alternative ways of addressing the same problem. In Title X, Congress had defined the federal program to encourage only particular family planning methods. According to the Court, the challenged regulations were simply “designed to ensure that the limits of the federal program are observed” and “that public funds [are] spent for the purposes for which they were authorized.” These regulations were valid, the Court explained in Rust, because they governed only the scope of the grantee’s Title X projects, leaving the grantee free to engage in abortion advocacy through programs that were independent from its Title X projects. Because the regulations did not prohibit speech “outside the scope of the federally funded program,” they did not run afoul of the First Amendment, the Court reasoned.

In the case of the PEPFAR pledge, the Roberts Court determined that by:

…demanding that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, the Policy Requirement by its very nature affects protected conduct outside the scope of the federally funded program. A recipient cannot avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.

The government had argued that the affiliate guidelines, established while this litigation was ongoing, resolved the First Amendment problems. Under those guidelines, funding recipients are permitted to work with affiliated organizations that do not abide by the condition, as long as the recipients retain “objective integrity and independence” from the unfettered affiliates. The government suggests the guidelines alleviate any unconstitutional burden on the respondents’ First Amendment rights by allowing them to either: (1) accept Leadership Act funding and comply with the policy requirement, but establish affiliates to communicate contrary views on prostitution, or (2) decline funding themselves (thus remaining free to express their own views or remain neutral), while creating affiliates whose sole purpose is to receive and administer Leadership Act funds, thereby “cabin[ing] the effects” of the policy requirement within the scope of the federal program.

But the Court wasn’t buying it, and the discussion on the role of affiliates is interesting given the battle domestically over funding for Planned Parenthood. The Court wrote:

When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy.

The government also argued that the pledge is necessary because, without it, the grant of federal funds could free a recipient’s private funds “to be used to promote prostitution or sex trafficking.” This is a classic co-mingling argument that conservatives have brought out to argue in favor of defunding health-care organizations that provide comprehensive reproductive care. The fact that the Roberts Court rejected it is a good, but cautious, sign in that battle. “That argument assumes that federal funding will simply supplant private funding, rather than pay for new programs or expand existing ones. The Government offers no support for that assumption as a general matter, or any reason to believe it is true here. And if the Government’s argument were correct, League of Women Voters would have come out differently, and much of the reasoning of Regan and Rust would have been beside the point,” the Court wrote.

Interestingly, the only case the government relied on in arguing that the funding requirement was constitutional deals with providing material support for terrorism, Holder v. Humanitarian Law Project, arguing the pledge was necessary to guarantee federal funds would not be used in a way that would undermine federal policy—a fact the majority noted in closing the opinion.

[T]he Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

As a result of the decision, U.S. organizations receiving U.S. funds for HIV and other efforts will no longer be required to adopt the oath, and those that have already adopted it will not be required to comply. However, it will still be applicable to organizations based outside the United States receiving U.S. funds, which inherently limits the scope of the ruling. While the decision does not have any immediate impact on compelled speech and funding prohibitions in the case of reproductive health care and the campaign to defund Planned Parenthood and its affiliates, the opinion does offer some glimpses into a Roberts Court that is reluctant to adopt the conservative talking point on commingling of funds and government-compelled speech, at least broadly. And with at least two cases exploring the First Amendment constitutional limitations of funding, or not funding, family planning programs making their way through the federal courts of appeals, that’s the kind of signal reproductive health advocates like to see.