Supreme Court rejects USAID’s anti-prostitution fund pledge

The U.S. Agency for International Development got its knuckles rapped Thursday by the U.S. Supreme Court. The court rejected a requirement that organizations receiving funds affirm their opposition to prostitution. The majority of the court ruled that this requirement was a violation of free speech.

The case came from the Alliance for Open Society International, Inc., which uses USAID funds to fight HIV/AIDS. Alliance for Open Society said it was neutral to prostitution and sought a declaratory court judgement that the requirement was unconstitutional.

Both USAID and the U.S.  Department of Health and Human Services require recipients of funds from certain programs to promise that they will not promote or advocate the legalization or practice of prostitution or sex trafficking. Recipients also must have a clear policy opposing prostitution, according to a summary of the decision from the Cornell University Legal Information Institute.

USAID fought a U.S. district court ruling against the requirement all the way to the Supreme Court.  A number of federal grant programs have similar requirements.

“The distinction that has emerged from this court’s cases is between conditions that define the limits of the government spending program — those that specify the activities Congress wants to subsidize — and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself,” said the decision by Chief Justice John Roberts.

The requirement makes fund recipients pledge allegiance to the government’s policy of eradicating prostitution, and that condition on funding violates the First Amendment, the decision said.

Antonin Scalia and Clarence Thomas issued dissent in which they said the requirements were a means of selecting suitable agents to implement the government’s chosen strategy to eradicate HIV/AIDS.

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