Thursday, July 7, 2011
Commitment Against Prostitution and Sex Trafficking Violates Free Speech
That's what a panel of the Second Circuit held yesterday in Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Development. The issue was whether the government can require assorted NGOs engaged in the fight against various diseases including HIV/AIDS to have a policy opposing prostitution and sex trafficking as a condition of receiving federal funds for their causes. By a 2-1 vote, the panel held that it cannot and upheld the injunction against that portion of the "Leadership Act."
The case has an involved procedural history, but the upshot seems to be that, in the majority opinion's view, the provision is not salvaged by Congress's broad spending powers because it imposes an unconstitutional condition on the receipt of funds (the majority distinguished Rust v. Sullivan). "Compelling speech as a condition of receiving government funds cannot be squared with the First Amendment." (majority opinion, at 23). Note, though, that cases like Barnette are distinguishable from this context, since those dealt with existing benefits, while this one involves a putative funding program.
But setting aside the doctrine for a moment, and in light of Michael's smart post below about the jurisdictional quality of the First Amendment, a question arises for me about this. Even if one views the First Amendment as jurisdictional, can it be right to say that asking organizations which make a claim on the government's money to have a policy against sex trafficking or prostitution is outside the government's proper ken, especially when those precise activities threaten the aims of the very reason to provide the funding in the first place? Here Congress found specifically that as part of its effort to combat the spread of the HIV/AIDS epidemic, it ought to be helping to eliminate prostitution and the sexual exploitation of women and children. So what sense does it make to say that it is unconstitutional for the government to demand that organizations which accept funds for the exact purpose of combating these diseases concomitantly affirm a commitment to fighting prostitution and sex trafficking? Maybe there is a distinction to be drawn between sex trafficking and prostitution here?
Thoughts from those more knowledgeable than I about free speech? Mike?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/07/commitment-against-prostitution-and-sex-trafficking-violates-free-speech.html
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Marc, I initially shared your inclination to think there is something wrong with conditioning funds to fight HIV on a recipient's articulating a policy against prostitution. But I'm less convinced of that after reading the opinion.
Assume it is correct that (a) there is a disputed question here - the government taking the position that opposing prostitution is the best way to combat HIV and others arguing that "reduction of penalties for prostitution—to prevent such penalties from interfering with outreach efforts— [is] among the best practices for HIV/AIDS prevention" and (b) "being forced to declare their opposition to prostitution 'harms [their] credibility and integrity as NGOs, which generally avoid taking controversial policy positions likely to offend host nations [and] partner organizations,' and risks 'offending all of the[] groups whose approach to HIV/AIDS may differ from that of the government,” not to mention some of the very people, prostitutes, 'whose trust they must earn to stop the spread of HIV/AIDS.'"
If that is the case, isn't the court's position defensible?