AGENCY FOR INTERNATIONAL DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL
In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“the Act”). Through the Act, Congress apportioned billions of dollars towards the funding of non-governmental organizations (“NGOs”) involved in the fight against HIV/AIDS. NGOs qualify to receive this funding only if they satisfy certain conditions. One of these conditions requires that all federally funded NGOs implement a policy explicitly opposing prostitution.
The Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, and InterAction are NGOs that receive funding under the Act. The NGOs brought suit against the Agency for International Development and the other agencies responsible for enforcing the Act, challenging the constitutionality of the Act’s funding provisions. The NGOs argued that the funding provisions violate the First Amendment by restricting the organizations’ speech and forcing them to promote the government’s viewpoint on prostitution. The district court agreed with the NGOs and held that the provisions were too broad of a restriction on free speech. The agencies appealed and the United States Court of Appeals for the Second Circuit affirmed.
Does a requirement that non-governmental organizations institute an explicit anti-prostitution policy in order to receive federal funding violate the First Amendment?
Legal provision: First Amendment
Yes. Chief Justice John G. Roberts, Jr. delivered the majority opinion. The Court held 6-2 that the government may not use funding and the threat of the loss of funding as a method for the regulation of speech and policies of non-governmental organizations. Because the Act’s funding provisions represent an ongoing condition on the actions of the group receiving funding, the provisions essentially act as government coercion. The Court held that the funding provisions require the groups to accept the beliefs of the government, which infringes on their First Amendment rights.
Justice Antonin Scalia wrote a dissent in which he argued that the government has the right to choose to give financial support only to groups which share its views on how to address a particular issue. The fact that the government must often choose among many policy options does not mean that the government is coercing groups to adopt its views. Justice Clarence Thomas joined in the dissent.
Justice Elena Kagan did not participate in the discussion or decision in this case.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., PETITIONERS v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 20, 2013]
Chief Justice Roberts delivered the opinion of the Court.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 117Stat. 711, as amended, 22 U. S. C. §7601 et seq., outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world. As part of that strategy, Congress authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to assist in the fight. The Act imposes two related conditions on that funding: First, no funds made available by the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” §7631(e). And second, no funds may be used by an organization “that does not have a policy explicitly opposing prostitution and sex trafficking.” §7631(f). This case concerns the second of these conditions, referred to as the Policy Requirement. The question is whether that funding condition violates a recipient’s First Amendment rights.I
Congress passed the Leadership Act in 2003 after finding that HIV/AIDS had “assumed pandemic proportions, spreading from the most severely affected regions, sub-Saharan Africa and the Caribbean, to all corners of the world, and leaving an unprecedented path of death and devastation.” 22 U. S. C. §7601(1). According to congressional findings, more than 65 million people had been infected by HIV and more than 25 million had lost their lives, making HIV/AIDS the fourth highest cause of death worldwide. In sub-Saharan Africa alone, AIDS had claimed the lives of more than 19 million individuals and was projected to kill a full quarter of the population of that area over the next decade. The disease not only directly endangered those infected, but also increased the potential for social and political instability and economic devastation, posing a security issue for the entire international community. §§7601(2)–(10).
In the Leadership Act, Congress directed the President to establish a “comprehensive, integrated” strategy to combat HIV/AIDS around the world. §7611(a). The Act sets out 29 different objectives the President’s strategy should seek to fulfill, reflecting a multitude of approaches to the problem. The strategy must include, among other things, plans to increase the availability of treatment for infected individuals, prevent new infections, support the care of those affected by the disease, promote training for physicians and other health care workers, and accelerate research on HIV/AIDS prevention methods, all while providing a framework for cooperation with international organizations and partner countries to further the goals of the program. §§7611(a)(1)–(29).
The Act “make[s] the reduction of HIV/AIDS behavioral risks a priority of all prevention efforts.” §7611(a)(12); see also §7601(15) (“Successful strategies to stem the spread of the HIV/AIDS pandemic will require . . . measures to address the social and behavioral causes of the problem”). The Act’s approach to reducing behavioral risks is multifaceted. The President’s strategy for addressing such risks must, for example, promote abstinence, encourage monogamy, increase the availability of condoms, promote voluntary counseling and treatment for drug users, and, as relevant here, “educat[e] men and boys about the risks of procuring sex commercially” as well as “promote alternative livelihoods, safety, and social reintegration strategies for commercial sex workers.” §7611(a)(12). Congress found that the “sex industry, the trafficking of individuals into such industry, and sexual violence” were factors in the spread of the HIV/AIDS epidemic, and determined that “it should be the policy of the United States to eradicate” prostitution and “other sexual victimization.” §7601(23).
The United States has enlisted the assistance of nongovernmental organizations to help achieve the many goals of the program. Such organizations “with experience in health care and HIV/AIDS counseling,” Congress found, “have proven effective in combating the HIV/AIDS pandemic and can be a resource in . . . provid[ing] treatment and care for individuals infected with HIV/AIDS.” §7601(18). Since 2003, Congress has authorized the appropriation of billions of dollars for funding these organizations’ fight against HIV/AIDS around the world. §2151b–2(c); §7671.
Those funds, however, come with two conditions: First, no funds made available to carry out the Leadership Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” §7631(e). Second, no funds made available may “provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except . . . to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.” §7631(f). It is this second condition—the Policy Requirement—that is at issue here.
The Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) are the federal agencies primarily responsible for overseeing implementation of the Leadership Act. To enforce the Policy Requirement, the agencies have directed that the recipient of any funding under the Act agree in the award document that it is opposed to “prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.” 45 CFR §89.1(b) (2012); USAID, Acquisition & Assistance Policy Directive 12–04, p. 6 (AAPD 12–04).II
Respondents are a group of domestic organizations engaged in combating HIV/AIDS overseas. In addition to substantial private funding, they receive billions annually in financial assistance from the United States, including under the Leadership Act. Their work includes programs aimed at limiting injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HIV transmission in Kenya, and promoting safer sex practices in India. Respondents fear that adopting a policy explicitly opposing prostitution may alienate certain host 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. They are also concerned that the Policy Requirement may require them to censor their privately funded discussions in publications, at conferences, and in other forums about how best to prevent the spread of HIV/AIDS among prostitutes.
In 2005, respondents Alliance for Open Society International and Pathfinder International commenced this litigation, seeking a declaratory judgment that the Government’s implementation of the Policy Requirement violated their First Amendment rights. Respondents sought a preliminary injunction barring the Government from cutting off their funding under the Act for the duration of the litigation, from unilaterally terminating their cooperative agreements with the United States, or from otherwise taking action solely on the basis of respondents’ own privately funded speech. The District Court granted such a preliminary injunction, and the Government appealed.
While the appeal was pending, HHS and USAID issued guidelines on how recipients of Leadership Act funds could retain funding while working with affiliated organizations not bound by the Policy Requirement. The guidelines permit funding recipients to work with affiliated organizations that “engage in activities inconsistent with the recipient’s opposition to the practices of prostitution and sex trafficking” as long as the recipients retain “objective integrity and independence from any affiliated organization.” 45 CFR §89.3; see also AAPD 12–04, at 6–7. Whether sufficient separation exists is determined by the totality of the circumstances, including “but not . . . limited to” (1) whether the organizations are legally separate; (2) whether they have separate personnel; (3) whether they keep separate accounting records; (4) the degree of separation in the organizations’ facilities; and (5) the extent to which signs and other forms of identification distinguish the organizations. 45 CFR §§89.3(b)(1)–(5); see also AAPD 12–04, at 6–7.
The Court of Appeals summarily remanded the case to the District Court to consider whether the preliminary injunction was still appropriate in light of the new guidelines. On remand, the District Court issued a new preliminary injunction along the same lines as the first, and the Government renewed its appeal.
The Court of Appeals affirmed, concluding that respondents had demonstrated a likelihood of success on the merits of their First Amendment challenge under this Court’s “unconstitutional conditions” doctrine. 651 F. 3d 218 (CA2 2011). Under this doctrine, the court reasoned, “the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient’s constitutionally protected rights, even if the government has no obligation to offer the benefit in the first instance.” Id., at 231 (citing Perry v. Sindermann, 408 U. S. 593, 597 (1972) ). And a condition that compels recipients “to espouse the government’s position” on a subject of international debate could not be squared with the First Amendment. 651 F. 3d, at 234. The court concluded that “the Policy Requirement, as implemented by the Agencies, falls well beyond what the Supreme Court . . . ha[s] upheld as permissible funding conditions.” Ibid.
Judge Straub dissented, expressing his view that the Policy Requirement was an “entirely rational exercise of Congress’s powers pursuant to the Spending Clause.” Id., at 240.
We granted certiorari. 568 U. S. ___ (2013).III
The Policy Requirement mandates that recipients of Leadership Act funds explicitly agree with the Government’s policy to oppose prostitution and sex trafficking. It is, however, a basic First Amendment principle that “freedom of speech prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 61 (2006) (citing West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) , and Wooley v. Maynard, 430 U. S. 705, 717 (1977) ). “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994) ; see Knox v. Service Employees, 567 U. S. ___, ___–___ (2012) (slip op., at 8–9) (“The government may not . . . compel the endorsement of ideas that it approves.”). Were it enacted as a direct regulation of speech, the Policy Requirement would plainly violate the First Amendment. The question is whether the Government may nonetheless impose that requirement as a condition on the receipt of federal funds.A
The Spending Clause of the Federal Constitution grants Congress the power “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, §8, cl. 1. The Clause provides Congress broad discretion to tax and spend for the “general Welfare,” including by funding particular state or private programs or activities. That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U. S. 173 , n. 4 (1991) (“Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.”).
As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient’s exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries’ installing filtering software violated their First Amendment rights, explaining that “[t]o the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance”); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 546 (1983) (dismissing “the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State” (internal quotation marks omitted)).
At the same time, however, we have held that 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.’ ” Forum for Academic and Institutional Rights, supra, at 59 (quoting American Library Assn., supra, at 210). In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights. See Forum for Academic and Institutional Rights, supra, at 59 (the First Amendment supplies “a limit on Congress’ ability to place conditions on the receipt of funds”).
The dissent thinks that can only be true when the condition is not relevant to the objectives of the program (although it has its doubts about that), or when the condition is actually coercive, in the sense of an offer that cannot be refused. See post, at 2–3 (opinion of Scalia, J.). Our precedents, however, are not so limited. In the present context, the relevant distinction that has emerged from our 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 program itself. The line is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition. We have held, however, that “Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.” Legal Services Corporation v. Velazquez, 531 U. S. 533, 547 (2001) .
A comparison of two cases helps illustrate the distinction: In Regan v. Taxation With Representation of Washington, the Court upheld a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation. The tax-exempt status, we explained, “ha[d] much the same effect as a cash grant to the organization.” 461 U. S., at 544. And by limiting §501(c)(3) status to organizations that did not attempt to influence legislation, Congress had merely “chose[n] not to subsidize lobbying.” Ibid. In rejecting the nonprofit’s First Amendment claim, the Court highlighted—in the text of its opinion, but see post, at 5—the fact that the condition did not prohibit that organization from lobbying Congress altogether. By returning to a “dual structure” it had used in the past—separately incorporating as a §501(c)(3) organization and §501(c)(4) organization—the nonprofit could continue to claim §501(c)(3) status for its nonlobbying activities, while attempting to influence legislation in its §501(c)(4) capacity with separate funds. Ibid. Maintaining such a structure, the Court noted, was not “unduly burdensome.” Id., at 545, n. 6. The condition thus did not deny the organization a government benefit “on account of its intention to lobby.” Id., at 545.
In FCC v. League of Women Voters of California, by contrast, the Court struck down a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds. 468 U. S. 364 –401 (1984). Even a station receiving only one percent of its overall budget from the Federal Government, the Court explained, was “barred absolutely from all editorializing.” Id., at 400. Unlike the situation in Regan, the law provided no way for a station to limit its use of federal funds to noneditorializing activities, while using private funds “to make known its views on matters of public importance.” 468 U. S., at 400. The prohibition thus went beyond ensuring that federal funds not be used to subsidize “public broadcasting station editorials,” and instead leveraged the federal funding to regulate the stations’ speech outside the scope of the program. Id., at 399 (internal quotation marks omitted).
Our decision in Rust v. Sullivan elaborated on the approach reflected in Regan and League of Women Voters. In Rust, we considered Title X of the Public Health Service Act, a Spending Clause program that issued grants to nonprofit health-care organizations “to assist in the establishment and operation of voluntary family planning projects [to] offer a broad range of acceptable and effective family planning methods and services.” 500 U. S., at 178 (internal quotation marks omitted). The organizations received funds from a variety of sources other than the Federal Government for a variety of purposes. The Act, however, prohibited the Title X federal funds from being “used in programs where abortion is a method of family planning.” Ibid. (internal quotation marks omitted). To enforce this provision, HHS regulations barred Title X projects from advocating abortion as a method of family planning, and required grantees to ensure that their Title X projects were “ ‘physically and financially separate’ ” from their other projects that engaged in the prohibited activities. Id., at 180–181 (quoting 42 CFR §59.9 (1989)). A group of Title X funding recipients brought suit, claiming the regulations imposed an unconstitutional condition on their First Amendment rights. We rejected their claim.
We explained that Congress can, without offending the Constitution, selectively fund certain programs 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. 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.” Rust, 500 U. S., at 193, 196.
In making this determination, the Court stressed that “Title X expressly distinguishes between a Title X grantee and a Title X project.” Id., at 196. The regulations governed only the scope of the grantee’s Title X projects, leaving it “unfettered in its other activities.” Ibid. “The Title X grantee can continue to . . . engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” Ibid. Because the regulations did not “prohibit[ ] the recipient from engaging in the protected conduct outside the scope of the federally funded program,” they did not run afoul of the First Amendment. Id., at 197.B
As noted, the distinction drawn in these cases—between conditions that define the federal program and those that reach outside it—is not always self-evident. As Justice Cardozo put it in a related context, “Definition more precise must abide the wisdom of the future.” Steward Machine Co. v. Davis, 301 U. S. 548, 591 (1937) . Here, however, we are confident that the Policy Requirement falls on the unconstitutional side of the line.
To begin, it is important to recall that the Leadership Act has two conditions relevant here. The first—unchallenged in this litigation—prohibits Leadership Act funds from being used “to promote or advocate the legalization or practice of prostitution or sex trafficking.” 22 U. S. C. §7631(e). The Government concedes that §7631(e) by itself ensures that federal funds will not be used for the prohibited purposes. Brief for Petitioners 26–27.
The Policy Requirement therefore must be doing something more—and it is. The dissent views the Requirement as simply a selection criterion by which the Government identifies organizations “who believe in its ideas to carry them to fruition.” Post, at 1. As an initial matter, whatever purpose the Policy Requirement serves in selecting funding recipients, its effects go beyond selection. The Policy Requirement is an ongoing condition on recipients’ speech and activities, a ground for terminating a grant after selection is complete. See AAPD 12–04, at 12. In any event, as the Government acknowledges, it is not simply seeking organizations that oppose prostitution. Reply Brief 5. Rather, it explains, “Congress has expressed its purpose ‘to eradicate’ prostitution and sex trafficking, 22 U. S. C. §7601(23), and it wants recipients to adopt a similar stance.” Brief for Petitioners 32 (emphasis added). This case is not about the Government’s ability to enlist the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding.
By demanding that funding recipients adopt—as their own—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.” Rust, 500 U. S., at 197. A recipient cannot avow the belief dictated by the Policy Requirement when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime. By requiring recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient. See ibid. (“our ‘unconstitutional conditions’ cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program”).
The Government contends that the affiliate guidelines, established while this litigation was pending, save the program. 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. 45 CFR §89.3. 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 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. Brief for Petitioners 38–39, 44–49.
Neither approach is sufficient. 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. See Rust, supra, at 197–198. 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 guidelines themselves make that clear. See 45 CFR §89.3 (allowing funding recipients to work with affiliates whose conduct is “inconsistent with the recipient’s opposition to the practices of prostitution and sex trafficking” (emphasis added)).
The Government suggests that the Policy Requirement 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.” Brief for Petitioners 27 (citing Holder v. Humanitarian Law Project, 561 U. S. 1 , ___–___ (2010) (slip op., at 25–26)). 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 Government cites but one case to support that argument, Holder v. Humanitarian Law Project. That case concerned the quite different context of a ban on providing material support to terrorist organizations, where the record indicated that support for those organizations’ nonviolent operations was funneled to support their violent activities. 561 U. S., at ___ (slip op., at 26).
Pressing its argument further, the Government contends that “if organizations awarded federal funds to implement Leadership Act programs could at the same time promote or affirmatively condone prostitution or sex trafficking, whether using public or private funds, it would undermine the government’s program and confuse its message opposing prostitution and sex trafficking.” Brief for Petitioners 37 (emphasis added). But the 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.” Barnette, 319 U. S., at 642.* * *
The Policy Requirement compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. In so doing, it violates the First Amendment and cannot be sustained. The judgment of the Court of Appeals is affirmed.
It is so ordered.
Kagan, J., took no part in the consideration or decision of this case.
SUPREME COURT OF THE UNITED STATES
AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., PETITIONERS v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 20, 2013]
Justice Scalia, with whom Justice Thomas joins, dissenting.
The Leadership Act provides that “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking” may not receive funds appropriated under the Act. 22 U. S. C. §7631(f). This Policy Requirement is nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the Constitution.
The First Amendment does not mandate a viewpoint-neutral government. Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense. For example: One of the purposes of America’s foreign-aid programs is the fostering of good will towards this country. If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it.
The argument is that this commonsense principle will enable the government to discriminate against, and injure, points of view to which it is opposed. Of course the Constitution does not prohibit government spending that discriminates against, and injures, points of view to which the government is opposed; every government program which takes a position on a controversial issue does that. Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates, etc. The constitutional prohibition at issue here is not a prohibition against discriminating against or injuring opposing points of view, but the First Amendment’s prohibition against the coercing of speech. I am frankly dubious that a condition for eligibility to participate in a minor federal program such as this one runs afoul of that prohibition even when the condition is irrelevant to the goals of the program. Not every disadvantage is a coercion.
But that is not the issue before us here. Here the views that the Government demands an applicant forswear—or that the Government insists an applicant favor—are relevant to the program in question. The program is valid only if the Government is entitled to disfavor the opposing view (here, advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of those who are to administer the program. There is no risk that this principle will enable the Government to discriminate arbitrarily against positions it disfavors. It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure prostitution. But here a central part of the Government’s HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.
According to the Court, however, this transgresses a constitutional line between conditions that operate inside a spending program and those that control speech outside of it. I am at a loss to explain what this central pillar of the Court’s opinion—this distinction that the Court itself admits is “hardly clear” and “not always self-evident,” ante, at 8, 11—has to do with the First Amendment. The distinction was alluded to, to be sure, in Rust v. Sullivan, 500 U. S. 173 (1991) , but not as (what the Court now makes it) an invariable requirement for First Amendment validity. That the pro-abortion speech prohibition was limited to “inside the program” speech was relevant in Rust because the program itself was not an anti-abortion program. The Government remained neutral on that controversial issue, but did not wish abortion to be promoted within its family-planning-services program. The statutory objective could not be impaired, in other words, by “outside the program” pro-abortion speech. The purpose of the limitation was to prevent Government funding from providing the means of pro-abortion propaganda, which the Government did not wish (and had no constitutional obligation) to provide. The situation here is vastly different. Elimination of prostitution is an objective of the HIV/AIDS program, and any promotion of prostitution—whether made inside or outside the program—does harm the program.
Of course the most obvious manner in which the admission to a program of an ideological opponent can frustrate the purpose of the program is by freeing up the opponent’s funds for use in its ideological opposition. To use the Hamas example again: Subsidizing that organization’s provision of social services enables the money that it would otherwise use for that purpose to be used, instead, for anti-American propaganda. Perhaps that problem does not exist in this case since the respondents do not affirmatively promote prostitution. But the Court’s analysis categorically rejects that justification for ideological requirements in all cases, demanding “record indica[tion]” that “federal funding will simply supplant private funding, rather than pay for new programs.” Ante, at 14. This seems to me quite naive. Money is fungible. The economic reality is that when NGOs can conduct their AIDS work on the Government’s dime, they can expend greater resources on policies that undercut the Leadership Act. The Government need not establish by record evidence that this will happen. To make it a valid consideration in determining participation in federal programs, it suffices that this is a real and obvious risk.
None of the cases the Court cites for its holding provide support. I have already discussed Rust. As for Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983) , that case upheld rather than invalidated a prohibition against lobbying as a condition of receiving 26 U. S. C. §501(c)(3) tax-exempt status. The Court’s holding rested on the conclusion that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” 461 U. S., at 549. Today’s opinion, ante, at 9, stresses the fact that these nonprofits were permitted to use a separate §501(c)(4) affiliate for their lobbying—but that fact, alluded to in a footnote, Regan, 461 U. S., at 545, n. 6, was entirely nonessential to the Court’s holding. Indeed, that rationale prompted a separate concurrence precisely because the majority of the Court did not rely upon it. See id., at 551–554 (Blackmun, J., concurring). As for FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984) , the ban on editorializing at issue there was disallowed precisely because it did not further a relevant, permissible policy of the Federal Communications Act—and indeed was simply incompatible with the Act’s “affirmativ[e] encourage[ment]” of the “vigorous expression of controversial opinions” by licensed broadcasters. Id., at 397.
The Court makes a head-fake at the unconstitutional conditions doctrine, ante, at 12, but that doctrine is of no help. There is no case of ours in which a condition that is relevant to a statute’s valid purpose and that is not in itself unconstitutional (e.g., a religious-affiliation condition that violates the Establishment Clause) has been held to violate the doctrine.* Moreover, as I suggested earlier, the contention that the condition here “coerces” respondents’ speech is on its face implausible. Those organizations that wish to take a different tack with respect to prostitution “are as unconstrained now as they were before the enactment of [the Leadership Act].” National Endowment for Arts v. Finley, 524 U. S. 569, 595 (1998) (Scalia, J., concurring in judgment). As the Court acknowledges, “[a]s a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds,” ante, at 7, and to draw on its own coffers.
The majority cannot credibly say that this speech condition is coercive, so it does not. It pussyfoots around the lack of coercion by invalidating the Leadership Act for “requiring recipients to profess a specific belief” and “demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern.” Ante, at 12 (emphasis mine). But like King Cnut’s commanding of the tides, here the Government’s “requiring” and “demanding” have no coercive effect. In the end, and in the circumstances of this case, “compell[ing] as a condition of federal funding the affirmation of a belief,” ante, at 15 (emphasis mine), is no compulsion at all. It is the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject. Section 7631(f) “defin[es] the recipient” only to the extent he decides that it is in his interest to be so defined. Ante, at 12.* * *
Ideological-commitment requirements such as the one here are quite rare; but making the choice between competing applicants on relevant ideological grounds is undoubtedly quite common. See, e.g., Finley, supra. As far as the Constitution is concerned, it is quite impossible to distinguish between the two. If the government cannot demand a relevant ideological commitment as a condition of application, neither can it distinguish between applicants on a relevant ideological ground. And that is the real evil of today’s opinion. One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons.
The Court’s opinion contains stirring quotations from cases like West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) , and Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994) . They serve only to distract attention from the elephant in the room: that the Government is not forcing anyone to say anything. What Congress has done here—requiring an ideological commitment relevant to the Government task at hand—is approved by the Constitution itself. Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.
1 * In Legal Services Corporation v. Velazquez, 531 U. S. 533 (2001) , upon which the Court relies, the opinion specified that “in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives,” id., at 548.
ORAL ARGUMENT OF SRI SRINIVASAN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument next this morning in Case 12-10, Agency for International Development v. The Alliance for Open Society International.
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:
Congress's comprehensive program to address the worldwide problem of HIV and AIDS includes a policy of opposing prostitution and sex trafficking because they contribute to the diseases spread.
And correspondingly, Congress determined -- determined that the government should partner with and should grant limited competitive Federal funding to those organizations that agree with the policy opposing prostitution and sex trafficking, because organizations that agree with that policy are most likely to carry out the Federal program in conformity with the Federal policy priorities.
Now, no organization that carries out HIV programming is required to subscribe to the Federal government's views, but if an organization wants to partner with the Federal government and get Federal funds to carry out the Federal program, well, that organization--
Chief Justice John G. Roberts: Well, but I guess the problem is that there are a number of different ways you could carry out the program.
And let's say you have an organization that focuses on a particular -- you know, the administration of hospitals or whatever it is that's covered by the program, and they regard this issue as collateral to what they're concerned with.
There -- there have to be some limitations on what type of loyalty oath you can require them to sign, isn't there?
Sri Srinivasan: --Well, I think, Mr. Chief Justice, the way that Congress looked at this was to look at -- at the organizations with which the government is going to partner across the mine run of situations.
And I think what one can do is look at Respondents' brief, because Respondents encompass a variety of different types of organizations.
But Respondents' brief itself tells you, at pages 11 to 12 and at pages 32 and 33, that there are going to be situations, in their own experience, in which these issues about prostitution and--
Chief Justice John G. Roberts: Well, what if they--
Sri Srinivasan: --and sex trafficking come into issue.
Chief Justice John G. Roberts: --All right.
I appreciate that.
What if they're not?
What if the government has, in addition to this policy, a strong policy in promoting, you know, recycling, and so they require everybody with whom they're going to do business, every grantee, to adopt a policy in favor of using renewable resources?
Any problem with that?
Sri Srinivasan: Mr. Chief Justice, I think that would present a different question.
Of course, you know that it presents a different question, but it would be a little bit more difficult for the -- for the following reason: That there is a germaneness component to Congress's -- the constitutionality of Congress's funding decisions in this area.
And the more sweeping and the less germane the condition would be, the more it's open to constitutional attack.
Now, this condition is very, very germane, because as -- because as Congress found, prostitution and sex trafficking contribute to the spread of the disease.
And so it makes good sense that Congress would have imposed this condition.
And I think it's important to understand--
Justice Stephen G. Breyer: Well -- well, it would on that particular point.
What should we do -- as far as I can tell from the briefs, the people who work with the prostitutes to try to prevent AIDS uniformly tell us that if you go to those prostitutes and you try to get them to take steps to stop AIDS, it's very hard to do if at the same time you've announced you're against all prostitution.
So what they're saying is that the condition imposed will interfere with the objective, and if there is a germaneness requirement -- and nobody says the opposite.
I mean, I've noted nobody denies what they're saying in terms of the effectiveness of their work, so -- I don't think.
At least, I didn't read them all with great care; maybe you can point to somebody who does.
But if everyone is telling us that this is counterproductive and the exact opposite, then can we say, well, it isn't germane.
Sri Srinivasan: --Well, Justice Breyer, I don't think so, and two responses on that score.
First of all, everybody is not telling you that, and I'll tell you who's not telling you that in a second.
But the more -- but the overarching point is that this is a policy determination that Congress, of course, took into account when it fashioned the statute, and it concluded that it was important to have an opposition to prostitution and sex trafficking.
Now, as far as the organizations that aren't telling you that, there is an amicus brief that's filed by 46 organizations that it's in our support--
Justice Stephen G. Breyer: Well, that's quite a few, yes.
Sri Srinivasan: --that's in our support, and the lead organization is the Coalition Against Trafficking in Women, and they -- they support us.
And they think that the best way -- and they -- and they argued this passionately in their brief -- they think that the best way to provide services to the target audience is under a rubric of opposition to prostitution and sex trafficking.
And I would urge you to take a look at that brief, because it explains why the program should be conducted in this fashion.
Now, is there a debate about--
Justice Ruth Bader Ginsburg: Mr. Srinivasan, there isn't -- at least I'm not familiar with anything quite like this where if you're not told, if you want to run a government program, you have to speak the government's speech.
This doesn't require the recipient to speak to anybody at all, except to the government itself, to say, I pledge that my policy is the government's policy.
So it's making somebody adopt as her own the government's policy rather than saying, I understand that I get my government money, I have to follow the government's rules about what I can say to the public.
Here -- and is -- is there anything else quite like this where you make a pledge to the government, but with respect to third parties doesn't apply?
Sri Srinivasan: --Justice Ginsburg, if I could just fight the premise of your question just very slightly and then explain why I think this kind of requirement makes sense in this particular context.
The goal of this is not to persuade somebody to change their view.
The goal of this is to partner with organizations that self-identify as organizations that agree with the government's policy priorities.
And the reason the government has done that, and the reason why Congress could -- felt that that was a good idea is straightforward, and that is that those organizations that agree with Congress's policy priorities are going to be more likely to be reliable and effective partners in carrying out the government's program.
And one way to think about it is to envision this: You have a circumstance in which you're down to your last few dollars of a discretionary Federal funding and you're looking at two different organizations that are competing for that money.
One of them comes to you and says, we agree with your policy of an opposition to prostitution and sex trafficking, and the other one says, we're not going to tell you whether we agree; we're going to remain studiously neutral.
But we'll tell you that we'll conduct our affairs in a manner that's not inconsistent with your policy priorities.
I think it makes all the sense in the world for Congress to decide that the government should preferably partner with the former organization rather than the latter, because they're going to be more reliable and more effective at carrying out the government's program.
And there's another aspect of this that I think that is important to highlight, and that is that we're not just talking about circumstances in which the conduct is -- is arguably going to be neutral, so that there's going to be no position taken.
There's also going to be occasions in which the organizations that are providing services are going to have the opportunity to affirmatively embrace the government's policy in opposition to prostitution and sex trafficking.
Justice Samuel Alito: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees.
I'm not aware of any case in which that kind of compelled speech has been permitted.
And I would be interested in -- and it seems to me like quite a -- a dangerous proposition.
I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating.
Other than the requirement of germaneness, is there anything else.
Sri Srinivasan: There -- there is germaneness, Justice Alito, and I can point to a couple of other limiting principles that have been noted in this Court's decisions and I think that are satisfied here.
One is that Finley talked about, and I think it captures some other decisions in this -- this respect, disallowing the government from leveraging its control over funding conditions in a manner that services a speech-suppressive objective.
And so you have to be careful, and I think this maps--
Justice Antonin Scalia: Say it again.
I didn't understand the point.
Sri Srinivasan: --It -- it -- the government is limited from leveraging its control over funding conditions so that it can achieve a speech -- speech-suppressive objective.
And I think what the Court was getting at is that you want to be careful that the speech condition, the speech-related condition, is tightly tethered to the programmatic objective and not allow the government to -- to have the program seep into other areas where it doesn't have to go.
Justice Samuel Alito: Well, let me give you this example, which is mentioned in one of the amicus briefs.
The government provides lots of funding to universities to -- in various forms, either directly or through student loans, in the form of tax exemptions, so anything that would be germane to the general purpose of higher education presumably could be attached as a condition to those funds.
Would that be correct?
Sri Srinivasan: With -- with certain limitations.
I mean, I think germaneness is a -- is a criterion.
Justice Samuel Alito: With what -- with what limitations?
Sri Srinivasan: Well, I think--
Justice Samuel Alito: The government could have a whole list of things, of principles that it thinks should be incorporated into higher education, and it could require a university as a condition of receiving these -- this money, let's say directed through student loans, to express agreement with all of these propositions.
Would that be true.
Sri Srinivasan: --Well, I'm not sure, Justice Alito, and of course it's going to be hard for me to decide that we are not going to defend something.
But let me just give you a limiting idea that's out there, which is that I think there is an important distinction between circumstances in which the government is partnering with an organization to carry out a government program, and circumstances in which the government is extending a Federal subsidy to an individual organization as kind of an across-the-board entitlement.
So in the generally applicable across-the-board--
Justice Antonin Scalia: What do you mean by partnering?
How does this partnering differ, partnering differ from just giving them the money to do the job?
Sri Srinivasan: --Well, I don't know that it the differs from giving the money to do the job.
I guess what I'm saying is there are going to be circumstances, for example, like in Speiser, where the financial question doesn't have to do with the expenditure of the money by the recipient in a manner that's commensurate with congressional goals.
In that context you're giving a generally applicable entitlement, and you're not so worried about how the money is being spent because that person is not partnering with the government in carrying out a Federal program.
Here the organizations are partnering with the government in carrying out the Federal program, because it's the Federal HIV program that's--
Justice Antonin Scalia: I don't know what you -- what do you mean by partnering?
You're saying they are given money to carry out a particular program.
Is that all--
Sri Srinivasan: --Yes.
Justice Antonin Scalia: --Is that all you mean by partnering?
Sri Srinivasan: They are given money to carry out--
Justice Antonin Scalia: To carry out a particular program.
Sri Srinivasan: --But in concert with Federal policy priorities.
So it's not just -- it's not just a naked grant of money.
If you had an entitlement, Justice Scalia, for example, let's just consider your classic entitlement--
Justice Antonin Scalia: I understand.
It is a naked grant of money to implement a particular program.
Sri Srinivasan: --To implement a particular program and--
Justice Antonin Scalia: And you call that “ partnering with the Federal government ”.
Sri Srinivasan: --I do.
Justice Antonin Scalia: Terrible verb, anyway.
Sri Srinivasan: Okay.
My apologies for that, for associating with the organization recipient in carrying out a Federal program.
Justice Ruth Bader Ginsburg: Mr. Srinivasan, on this, it does seem to me unusual, as Justice Alito brought out, requiring somebody to say “ I believe this ” or
"I agree with the government on that. "
The Rust v. Sullivan, which is one of the precedents on which you rely, made it a point that the doctor was not required to represent as his own views, not required to represent an opinion that he doesn't hold.
He has to adhere to the government's program in his dealings with the public, but he doesn't have to say “ I agree with the government ”.
Sri Srinivasan: Yes.
That's true, Justice Ginsburg.
But here's why--
Justice Ruth Bader Ginsburg: Is that just an irrelevant consideration in Rust, that no one -- no one was being obliged to say I believe something that they don't believe.
Sri Srinivasan: --Well, here's why I think it makes sense in this context.
It is distinct in that respect, but here's why I think it makes sense in this specific context.
What Congress wanted to do is secure an ex ante commitment from the organizations with which the government works to assure that they agreed with the government's policy priorities.
Now, where these programs are carried out is in the main in foreign territory, in distant lands, and in that context I think Congress would have understood that monitoring of conduct can be particularly challenging.
And that monitoring is made all the more challenging because these issues can come into play through a myriad of interactions between the organizations that are working with the government and local communities and local officials.
Justice Stephen G. Breyer: I see that, and I see you have two sides to the policy question.
And then it seems to me that the case that Justice Ginsburg was speaking of is pretty relevant.
Well, that case, Regan and League of Women Voters, all seem quite comparable.
They are trying to balance the -- the desire of the government to further a policy objective with the undesirability of the government invading what would otherwise be a constitutional protected right to speech.
And the way they have done it is quite technical and narrow, but it may be applicable.
In both, what they said was: Don't worry about your protected speech as much as you are because there is another way you can do it here.
You go through a -- an independent structured organization.
And where that wasn't present, namely the League of Women Voters, the Court struck it down.
Now if that's the right framework, then here I don't see how you could have an independently structured organization for the reason that a group that said I am -- I am opposed completely to prostitution, publicly, to get the money, and then set up a structure that said the opposite, would be seen as totally hypocritical.
They wouldn't be able to get their message across.
They wouldn't be able to express in any way what it is they think about the administration of AIDS in the context -- anti-AIDS in the context of prostitution.
That's a long question, but you see where -- where I've ended up.
Sri Srinivasan: I think I do.
Justice Stephen G. Breyer: At the moment, for purposes of the question.
So why isn't this case more like League of Women Voters and less like the other two?
Sri Srinivasan: For the following reasons, Justice Breyer: There is an alternative affiliated organizational vehicle in this case as well, and I think that's constitutionally significant.
Now, I'm not going to quibble with Your Honor's point about how the organization that's the funding recipient has made this policy agreement and that that can have ripple effects, but here's why that matters.
The point of having an alternate vehicle is not that it remedies a constitutional problem that already exists.
The point of it is to get to this leveraging purpose that I was talking about earlier, and it's to show that what the government is doing is keeping the condition within its appropriate confines, and it's not allowing that condition to spread beyond that into other realms.
And that purpose is fully served by the organizational affiliate alternative here.
And I think it's important--
Justice Ruth Bader Ginsburg: But, Mr. Srinivasan, there is a difference in this international setting.
Most of those separate affiliates was in Taxation Without Representation and it was the cure for the Legal of Women Voters.
But here, as the D.C. district court said in its opinion, which was in your favor: Oh, all you have to do is spin off a subsidiary that gets the government money; it's just a simple matter of corporate reorganization.
But you know that getting an NGO, a new NGO, recognized in dozens of foreign countries is no simple thing to accomplish.
I mean, to take a concrete example, look what happened about a year and a half ago in Egypt when the U.S. NGO's were indicted for criminal -- for not complying with the permit requirements of the country.
So it's one thing to set up a 501(c)(3) and 501(c)(4) operating in the United States, each does its thing.
But to require an NGO to then in the countries where it's operating get the necessary permits is quite an arduous thing.
Sri Srinivasan: --Well, Justice Ginsburg, I guess it depends on which direction it runs as a principal point.
I mean, of course, the recipient organization that's been conducting the program to date can continue to conduct the program and the affiliate that's set up could be the alternate channel.
And so you could run in the opposite direction and I think you wouldn't run into that problem.
But I would like to address on this score an important point, which is that I think Respondents have suggested that there is a material distinction between, Justice Breyer, the circumstances in Rust and the circumstances in this case, because Rust involves separate programs within a legal entity, and this case involves separate organizations.
And I think the point the Respondents are trying to make is that there is a distinction because at least there one legal entity could have multiple programs, some of which are subject to the condition and some of which are not, whereas here there is a difference because this condition applies to an entire organization.
But I think that's a false premise.
Justice Stephen G. Breyer: I wasn't exempting that one.
Sri Srinivasan: Okay.
Justice Stephen G. Breyer: The main difference it seemed to me is, assuming all of that away, is that here the separate structure does not fulfill the constitutional need simply because the basic condition has to do with express speech.
Because when A says “ I believe in X ” and then they set up a separate structure -- and every one knows they have set it up; I mean, that's the point of it -- and the structure says, “ just kidding ”, nobody believes them from day one.
And so you can't do it and if the government has its way and has awarded the thing properly, according to your criteria, the part that won't be believed is the “ just kidding ” part.
And so the structure, separate structure, just doesn't work in terms of communicating their belief.
And I don't think that's true in Rust, and I don't think it's true in Regan, and I do think it's true in FCC v. League of Women Voters.
Sri Srinivasan: I guess I'd -- I'd make two points, Justice Breyer.
One is, as I was suggesting earlier, the purpose of having this alternate channel is not to remedy a constitutional violation that otherwise would exist.
I mean, of course, we start from the premise that it's okay to require this condition at the front end.
It's not that it's unconstitutional, and the way to compensate for that is to create this affiliate alternative.
We think the condition's okay ab initio.
What the alternate vehicle does is to address this other problem, that it shows that the condition is appropriately tailored.
It's not reaching beyond its appropriate confines, because it's allowing--
Justice Stephen G. Breyer: Boy, if -- if the structure -- the separate structure is not really part of a constitutional analysis, then the government could say, why not?
It's easy to find policy reasons, and really find very, very decent and thoughtful people who agree with the policy reason, you know?
There -- there are people on both sides of these questions, and they come in and they say, okay, we're giving money for an anti-abortion purpose or a pro-abortion purpose, you know--
Sri Srinivasan: --Well--
Justice Stephen G. Breyer: --and -- and suddenly people can't say anything in these areas in face of such a condition.
Sri Srinivasan: --Well, as part of the -- as part of the constitutional analysis, I guess it's just addressing a different part of the constitutional analysis than -- than what Your -- Your Honor is addressing.
I guess the other points that I'd make are twofold.
One is that I think there is something to the notion that if the organizations are sufficiently separate, then -- as they have to be to comply with the regulations -- then it does work that one organization can say that we have a particular policy, and the organization -- another organization -- another organization can say that we have a different policy, precisely because of the premise that they're sufficiently distinct.
So I'm not seeing the same degree of cognitive dissonance you are--
Justice Sonia Sotomayor: But that's--
Sri Srinivasan: --and the other point I'd make--
Justice Sonia Sotomayor: --I'm sorry.
Finish answering him and then I'll--
Sri Srinivasan: --Thank you, Justice Sotomayor.
The other point I'd make is this, that the speech-related objections that Respondents levy are twofold.
One is, they complain about the threshold condition.
But the second is -- and this is -- may -- manifests at pages 11 to 12 and 32 and 33 of their brief -- is that they want to engage in activities that involve affirmative speech.
They want to be able to participate in the dialogue about prostitution and sex trafficking and whether they should be legalized.
And with respect to that aspect of what Respondents are complaining -- complaining about, I think the alternate affiliated organization opportunity is a perfect remedy, in the same way that it was in Rust, and in the same way that it -- that it was in Regan.
Justice Sonia Sotomayor: --The problem that I have with that answer is that it doesn't cure the organization's need to stay true to its own beliefs.
Because if -- and I think this is what Justice Breyer is trying to get to -- if it truly an independent organization speaking, then that's that organization's belief; it's not an alternative under Rust to the needs of that organization to have its own personal views.
And -- and so I have that problem, which is how is it an alternative for that organization to be able to have its views?
Let me posit a hypothetical that I'm actually very troubled by.
Let's assume a city government is undertaking a campaign to prevent teen pregnancy and its associated problems, and it wants to promote the use of contraceptives that protect from contracting, you know, diseases, things like that.
And some of its programs involve the distribution of contraceptives, but others involve parenting classes for teenage mothers and offering them free daycare.
And a church seeks funds for the daycare part and the parenting part.
Can the city now say because we have this really important need to avoid sexually transmitted diseases, anyone who seeks our funds also have to say they believe in the use of contraceptives?
Sri Srinivasan: Justice Sotomayor--
Justice Sonia Sotomayor: The church there would say, we don't believe and why should we say we believe.
Sri Srinivasan: --I -- I'd certainly understand why a church would be reluctant to do that.
I mean, I guess, you know, one way to look at it is that the city I think would have to think very long and hard about whether that's a -- a desirable policy objective, precisely because some of the organizations with which it wants to work are going to have difficulty abiding by it.
And so there's going to have to be a front end determination as a matter of policy about whether that's an appropriate thing to pursue.
But if the city, as Congress did in this case, thought that it was an appropriate thing to do, then I think I would -- I think I would defend that -- apart from, you know, free exercise issues of other things that aren't in play here -- I think I would defend it as long as it's sufficiently germane, and as long as it's in furtherance of the policy objectives that Congress or by, in your hypothetical, the city--
Justice Samuel Alito: But why don't I give you another example that's along the same lines.
The Federal government provides lots of funds to entities and individuals who are involved in the provision of health care.
So let's suppose Congress says that we think that the issue of guns is very germane to public health, and therefore, we will not allow anybody to receive any of these funds directly or indirectly unless that entity or person proclaims agreement with whatever we happen to think at the moment about guns.
So they must either say we believe that guns should be strictly limited -- access to them should be strictly limited for public health purposes or that guns should be freely available because we think that promotes public health.
That would be permissible, wouldn't it?
Sri Srinivasan: --I don't know that it would, Justice Alito, on that--
Justice Samuel Alito: Well, why would it not?
Sri Srinivasan: --because -- because I think, first of all, it would depend on whether there -- there is the requisite germaneness.
It would depend on whether in fact the organizations are working with -- I'm trying to avoid using the word “ partnering with ” -- but are working with the -- the government in carrying out the program.
It would depend on those kinds of considerations.
And whether -- another point to be made here is that a limitation that's been recognized in this Court's cases is that at the end of the day, the government -- the government can't be seeking to suppress speech, or to suppress disfavored viewpoints, even in the context of subsidization.
And you'd have to ask the question whether that scheme is designed to do that.
Now, if -- if it crossed all those thresholds, then I think yes, I would defend that as well, but I do think that it presents different and more difficult questions.
I would like to--
Justice Anthony Kennedy: One -- one thing before your time is up.
I have the same concerns that Justice Ginsburg expressed about the difficulty of simply creating structures in -- in foreign countries.
If -- and I've looked through all of your cases.
What's your closest case, your best case for the fact that you should get extra deference because this is the foreign affairs field?
I mean, I think of U.S. v. Curtis Wright.
Anything more specific than that?
Sri Srinivasan: --I don't know that I have a particular case other than the doctrine generally, Justice Kennedy.
But I do think that the foreign location of this is significant vis-a-vis the concern that I think many of you have raised about why have an affirmative condition that requires espousal of a policy.
Precisely because the conduct here is carried out in foreign areas, and precisely because it can involve myriad interactions with local officials and local policymakers, as Respondents admittedly want to do, on these sensitive questions, it makes sense in this context -- particular sense in this context to secure an ex ante commitment of agreement with the government's policy, because that will have a self-policing aspect to it.
It will be more designed to secure conduct in those areas that, in conformity with Federal policy, in a realm in which that conduct is particularly -- particularly difficult to monitor.
I'd like to reserve the balance of my time for rebuttal, if I might.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF DAVID W. BOWKER ON BEHALF OF THE RESPONDENTS
David W. Bowker: Mr. Chief Justice, and may it please the Court:
Respondents do not dispute that the Spending Clause gives the government significant authority to fund the programs of its choosing and to control speech and conduct within those programs.
The problem with the policy requirement is that it aims at grantees, requiring that they profess a personal belief, and refrain from certain private speech outside the context of the government program.
In Rust v. Sullivan, the Court held that the government could ban abortion-related speech in the government's own family planning program, but the grantees there were left unfettered in their personal beliefs and in their private speech outside the program.
Chief Justice John G. Roberts: I don't see why this is a -- you talk about banning their speech.
The government is just picking out who is an appropriate partner to -- to assist in this project.
It wants to go and find people who, like them, are opposed to prostitution.
And all they want to do is make sure that you're opposed to prostitution.
It's like any other sort of condition.
You know, we want to make sure that you haven't been convicted of tax fraud over the last 10 years, so sign a certification that you -- you haven't.
Yes, it's related to speech, but the whole program is about that.
Why would they want to sign up with somebody who didn't share the objectives of the program?
David W. Bowker: Well, I think the policy requirement here has been applied a little differently than Mr. Chief Justice suggests.
It -- it is applied in a way that is a funding condition, not part of the selection criteria.
When the government goes out to select its partners in this case, it -- it goes out with requests for applications, and those requests for applications pertain to the particular program at issue.
And they are very detailed about what precisely is required for that program, including--
Chief Justice John G. Roberts: So it would be a different case, in your -- your view, as if -- when they have those criteria, they have one of them is, oh, by the way, you must agree with the objective of the program, which is to eliminate to the extent possible prostitution and sex trafficking?
David W. Bowker: --No.
I don't -- I don't think that's right.
I -- I think the government absolutely can pick partners who are dedicated to the particular program for which they are applying, but there are constitutionally permissible ways to do that.
One of the ways to do that is to look at technical capacity, past performance, references: What have you done before that shows you're able to do this particular program?
Justice Antonin Scalia: Well, it isn't just able to do.
Are -- are you saying that they -- they just can't make it a -- a prior condition, but they can select applicants on the basis of which ones they know agree with the government's objectives?
You -- you have two equally qualified -- technically, two equally qualified applicants, and the government intentionally picks the one whose views on -- on prostitution are -- are similar to the government's.
Is -- is that bad?
David W. Bowker: Yes.
And -- and the reason it's bad is because the government there is focused on viewpoint and not on ability to perform the program.
The problem -- the problem with focusing--
Justice Anthony Kennedy: But let -- let me -- let me ask you this: Suppose that you're a Congressman or a Congresswomen and you are a constitutional expert and you take your oath to uphold the Constitution very seriously.
A funding bill comes before you.
You're the chairman of the committee, and you decide that you're going to fund A rather than B because you like their speech much better.
Is that a violation of the Constitution?
David W. Bowker: --Well--
Justice Anthony Kennedy: Because you like their policies much better?
David W. Bowker: --The -- the Congress can certainly fund a particular program and not fund others.
And we have no -- we have no argument with that.
The spending condition -- the Spending Clause definitely comes with that ancillary power.
And in fact that's what the Congress did here.
It said, We want to -- We want to fund a fight against HIV/AIDS.
We don't want to support that disease.
And we want to oppose prostitution.
We don't want to support that practice.
What it cannot do, then, is take its viewpoint and impose its viewpoint on the grantee and make it a -- make it a condition.
Justice Anthony Kennedy: Well, I'm -- I'm not quite sure I -- I see the difference.
That the -- a conscientious Congressperson cannot -- can, in your view, say, I'm going to prefer organization A over organization B because I like their policies better--
David W. Bowker: Well, I don't--
Justice Anthony Kennedy: --across the board, with reference to drugs, with reference to guns, with reference to public health.
David W. Bowker: --If -- if Congress is looking at the viewpoint of an organization and deciding whether to fund it based on its viewpoint, I think that's problematic.
And the reason I think it's problematic is because this Court has said to deny a subsidy or a benefit on the basis of the exercise of one's First Amendment rights, including holding one's own views, to deny a subsidy on that ground--
Justice Antonin Scalia: Well, my goodness.
David W. Bowker: --is problematic.
Justice Antonin Scalia: --they can't fund the Boy Scouts of America because they like the programs that the BSA has?
They -- they have to treat them equivalently with the Muslim Brotherhood?
Is that really what you're suggesting?
David W. Bowker: Not at all.
Justice Antonin Scalia: Well, then you can take into account the -- the principles and the -- and the policies of -- of the organization that you're giving funding to.
David W. Bowker: --Well, this Court has never said that the Congress can make a decision based on viewpoint alone.
Justice Stephen G. Breyer: But there's no way to separate -- with an organization in the field that does things, there is no way, I don't think, to separate what they do from what they say.
Congress has two opposite views on this in front of it.
David W. Bowker: Sure.
Justice Stephen G. Breyer: One is the view that the way to fight AIDS is consistent with and is furthered by longer term efforts to abolish trafficking in women, okay, prostitution.
The other view is the better way to do it is to go into the active sex worker area and -- and not express views on the merits of what they are doing.
So they have two opposite views, and -- and, moreover, the groups that do this act on those views.
So why can't they say, we prefer view A or B, whichever it is, because that's what our program is about?
David W. Bowker: Congress can -- can certainly decide what programs to fund and what programs not to fund.
But when Congress makes that decision, Congress then can't take the next step to say the only people who can get funds under this particular program are people who agree with us and who will refrain from saying anything inconsistent in their private speech.
Justice Antonin Scalia: But you -- you go further than that.
In answer to my question, you -- you go further than that, and you say, Moreover, even without making it a condition precedent to getting the money, Congress can -- the government cannot intentionally select those people that it thinks are in accord with its views.
Isn't that what you said?
David W. Bowker: The Court has never said that's okay, and it's our -- and it's our--
Justice Antonin Scalia: I'm not asking what the Court said; I'm asking what you're saying.
David W. Bowker: --It's our position that it is constitutionally problematic to make funding decisions based on the viewpoint of grantees.
Justice Antonin Scalia: Problematic or -- or unconstitutional?
David W. Bowker: Unconstitutional as applied here.
Justice Antonin Scalia: Okay.
David W. Bowker: However -- however, we are not saying that there is no circumstance in which the government's interest wouldn't be compelling enough to override the First Amendment right.
Now, in our situation--
Chief Justice John G. Roberts: So just say the government wants to have an ad campaign to discourage people from smoking and they are looking for ad agencies to -- to help them with it.
And an ad agency comes in and says, Look, we are the best ad agency there is; we know exactly how to get to the markets; we know what's persuasive and all of that.
And yet -- and then the ad agency says, you know, come work at our agency if you smoke; we think smoking is okay; we have smoking breaks; we do all this.
"The government can't take that into account? "
David W. Bowker: --I think the rules are different when the government hires a spokesperson.
When the government hires a spokesperson, the government has the right under the -- under its ancillary power under the Spending Clause to control what that spokesperson says for the government.
Chief Justice John G. Roberts: Well, isn't that part of what's going on here?
One of the things we want to do is eradicate prostitution and sex trafficking, and we want you to get that message out, and the one thing we're sure of is if you're not in -- if you're in favor or you're not opposed to it because you have other objectives, you're not going to help get the message out at all.
David W. Bowker: Well, the -- the government does say that.
The government says, What we need to prevent is the situation where the -- the government spokesperson says one thing with public funds, turns right around and says the opposite with private funds.
And what we say is this is an as-applied challenge.
We have -- the government concedes my clients have not been enlisted as government spokespersons and they are not responsible for conveying any viewpoint or any message.
And I'd like to talk for a moment about what my clients really do.
In the field, my clients provide services in the fight against HIV/AIDS, things such as preventing mother-to-child transmission of HIV in Tanzania, caring for orphans of AIDS victims in Kenya, and providing HIV/AIDS support services in places like Vietnam.
And -- and this is a JA88 and 89, where you can see the list of things that my clients do.
None of those things relate to an opposition to prostitution and none of those things relates to messaging.
Justice Sonia Sotomayor: Excuse me.
That's my problem, which is I'm trying to tease out what your position is.
I -- I have an understanding of you're saying: You can't compel me to say I don't like something.
And -- and that's like a oath of loyalty.
That -- that's understandable.
But if the government said the following more clearly -- this is an oddly phrased policy, okay, because it seems to be requiring this oath.
But if it simply said,
"If you're an organization that wants our funds, you have to say that you're not going to promote actively the contrary policy. "
would that be okay?
"You're not going to go out there and do things to promote the legalization of prostitution because that's going to undermined our message. "
Those are two different positions, so tell me where you draw the line.
David W. Bowker: Certainly, that would be okay within the four corners of the government program.
The government controls speech and conduct within its program.
It can tell us what not to say within the program.
And that's Rust.
Justice Sonia Sotomayor: Yes, that's Rust.
David W. Bowker: And that's Rust.
Justice Sonia Sotomayor: This is a step further.
David W. Bowker: --And what Rust says, and I -- I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech.
And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said,
"The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold. "
Chief Justice John G. Roberts: But that is saying this is what's happening in Rust, okay?
And Rust is okay.
That's very different from saying it has to be that way and if it's any other way it's no good.
It seems to me that you're just taking the limitation on the facts in Rust and saying that is an absolute requirement, which is a misreading of the case.
David W. Bowker: --Rust does not say that, to be clear.
But the reasoning of Rust, and the majority's reasoning there, makes quite clear that the reason the Court was comfortable there is that the recipient was not the target of the control.
The control was around the program and the recipient was free outside the program.
And -- and Respondents here have respected that line.
There is no question that for the past 10 years, even though the policy requirement has not been enforced -- initially because the Department of Justice concluded that it is unconstitutional, and then subsequently because the district court enjoined it -- it has not been enforced for the last decade, essentially.
Justice Sonia Sotomayor: So--
David W. Bowker: And there's no evidence of harm at all here, so there's none of this undercutting the program that the government is alleging here.
Justice Sonia Sotomayor: --No, no, no.
I cut you off.
But -- but I guess what I'm -- I keep going back -- you keep going back and forth on this it -- it's not okay to tell me to take an oath of loyalty.
But would it be okay for you to step outside the doors of this program and pass out literature that promotes the legalization of prostitution?
Am I making my question clear?
David W. Bowker: Yes.
Justice Sonia Sotomayor: Which is how do you -- how do you answer the question of why does the Constitution bar the government from saying, look, if you're going to work with me, you can't go out there and promote a -- actively promote--
David W. Bowker: Right.
Justice Sonia Sotomayor: --a different message?
David W. Bowker: That's not the case here, but taking that case--
Justice Sonia Sotomayor: Well--
David W. Bowker: --Taking that case, I think the government can't do that.
I think the government cannot gag an organization's private speech outside the program.
Now, even the government says there has to be some germaneness between what they are doing in the program and what our requirement is.
So I do think it would be a tougher case for us and a stronger case for the government if my clients were engaged in a program that opposed prostitution -- we're not, but if we were -- and then we went right outside and said the opposite with our private funds, I think they would have an easier time showing that there is some compelling interest that overrides the First Amendment interest.
Now, I think it would depend on the facts, and those are not the facts here.
Justice Stephen G. Breyer: Only because -- see, it's not -- it's not, in my opinion, not a viewpoint matter if they're going to fund a -- a group that wants to end discrimination against women around the world because they think all kinds of good things will flow from that.
The government wants to fund it.
Of course such a group has a viewpoint; that's why they're in the business.
So the word isn't viewpoint.
And you started to say something about that there is more than that here, it has to do with the express nature.
And then, in answering Justice Sotomayor, you went a little bit further on that.
And what are the form of words, if you were me and if I were to decide in your favor, what form of words would you dictate to describe where it is in your opinion that the First Amendment cuts in with a preventative restriction?
How do you describe it?
I -- I don't think you can in terms of viewpoint.
David W. Bowker: I don't think you can in terms of viewpoint either, Justice Breyer.
I do think that the key, the key that this Court outlined in Rust is the government's authority to control its program.
And if there is a threat to its program and the government needs to take some action in order to protect its program, prevent the message from being garbled or distorted, whatever the language is, then the government's case is strongest.
Here, that is not at all what is happening.
As I described, our programs are not opposition to prostitution programs.
Our programs are HIV testing.
These are mother-to-child transmission situations where we're trying to stop the disease from spreading.
Justice Antonin Scalia: Let me -- can I -- can I be sure--
David W. Bowker: Yes.
Justice Antonin Scalia: --I understand what you've just conceded in -- in your response to Justice Breyer.
The government could require as a condition to come into this program and become a partner with the United States, that the recipient not have the viewpoint of favoring prostitution.
David W. Bowker: No.
Justice Antonin Scalia: Well, you said it's not a viewpoint thing.
David W. Bowker: No.
The government cannot target viewpoint, and for us, that's -- that's a bright-line rule.
Justice Antonin Scalia: I thought that's what you just said to Justice Breyer.
Justice Stephen G. Breyer: I did too, because I -- I didn't see the reason.
I thought that was -- I can think of dozens and dozens of programs all over the world that the government supports in some way or another, and of course the people in those programs have a certain viewpoint, and of course, they don't hold the opposite viewpoint.
Otherwise, they wouldn't be in the program.
So -- so that's why I didn't find that useful.
But now, I don't think you can have it both ways between answering these questions.
Justice Antonin Scalia: Him or me?
You have to choose.
David W. Bowker: Mr. Chief Justice, I need your help on--
Chief Justice John G. Roberts: You can always choose me, too.
David W. Bowker: --Well, our position here is that viewpoint is not the basis on which a decision can be made.
That is our position.
We think the government has a multitude of permissible grounds on which to make these types of decisions, and they do it every day in every other program where they don't have this odd policy requirement.
They do it every day.
Chief Justice John G. Roberts: Your approach, it seems to me, is just dealing with the breadth of the program.
If the program here solely concerned prostitution and sex trafficking and not other areas where you say, look, we do a great job in these other areas, we just don't get involved in that area.
But if the sole program was on prostitution and sex trafficking, you -- you wouldn't have a leg to stand on, would you?
David W. Bowker: We absolutely would have a leg to stand on, and let me just explain--
Chief Justice John G. Roberts: So you're an organization--
David W. Bowker: --what I attempted to concede before, and that is, if -- if the government -- in that narrow case where the government is hiring a spokesperson, which is what they've focused on, saying one thing with public funds and turning right around and saying another with private funds, there is no case that says they can gag the private speech of that spokesperson.
But what we're saying is it is certainly possible that they would have a stronger case in that particular circumstance; however, this is an as-applied challenge, my clients are not spokespersons, they concede that.
My clients are not delivering a message or any particular viewpoint on behalf of the government and they concede that.
Justice Anthony Kennedy: Let me -- let me just ask -- ask this one more time.
It seems -- because it seems to me that when you get into the details of your answer, you indicate, oh, well, the government has lots of other criteria it could use, which seems to me just an invitation to disguise what the government's real motive is.
Suppose the government's interested in preventing and stopping the spread of malaria.
And there's an organization that's marvelous at delivering the proper message for this, but they criticize the United States often.
So they choose an organization that's not quite as good but is quiet on these other issues.
Is that permissible for the Congress to do?
David W. Bowker: No, I don't think it is.
To the extent the -- the criteria used by the Congress are merely pretext to--
Justice Anthony Kennedy: Well, this isn't -- no.
My concern was that your position was pretext.
Here the Congress is right upfront.
David W. Bowker: --And says this is the reason.
Justice Anthony Kennedy: And they say the reason we're not giving to organization A is because it's always critical of the United States; even though its technical skills are better, we prefer organization B.
Congress cannot do that?
David W. Bowker: Congress cannot do that.
Justice Anthony Kennedy: And your best case for that proposition is what?
David W. Bowker: Well, even the government concedes that -- that they can't do that.
What they say is that in -- it must be germane.
That's their limiting principle.
Justice Anthony Kennedy: Well, I'm -- I'm not sure they should if they're going to -- if they're going to be able to establish the principle that allows them to prevail in this case and that's why I'm asking.
David W. Bowker: I -- I don't think that that's permissible, because all that is, is penalizing a particular viewpoint and withholding a subsidy or benefit based on viewpoint.
Chief Justice John G. Roberts: --I just want to make sure I -- the government has a program to develop water resources.
And let's say it's in South Africa before the abolition of apartheid.
And there's a pro-apartheid group and an anti-apartheid group, and you're saying the government can only decide which one is better at digging wells, and it can't say we're going to prefer the anti-apartheid group.
David W. Bowker: Well, that -- I don't think it can make that decision based on viewpoint.
Chief Justice John G. Roberts: Viewpoint on apartheid.
It can't say, so, the other one shows we've got a better record, we dig the wells quicker.
David W. Bowker: --I mean, the -- the reason that that case is so much tougher than this one is because in this one, they're not attempting to select organizations that will do the best job by using the policy requirement.
The policy requirement is being used after the organization has been selected to say, now that you've been selected, we want you to toe the line.
We want you to profess your belief in our viewpoint and not to say anything with your private funds outside the program.
So it is so far beyond this -- this weighing in a selection situation.
Chief Justice John G. Roberts: It goes to the effectiveness of the program.
It's related to it.
The United States doesn't want the company or the organization that goes into a village and says we're going to bring -- you know, this is from the United States, we're bringing you fresh water and it's a pro-apartheid group.
That does undermine what they are trying to do, just as in this case to have the organization providing the services that your organization provides be identified as as an organization that doesn't want to abolish prostitution.
David W. Bowker: Yes, I understand.
I -- I think the government could -- if it could make the case that an organization will be unable to do this effectively because of what it has said in the past, or what it has done in the past, or how -- how the population associates -- what the population associates with that organization.
But here -- here -- and the government even concedes -- there would -- there has to be some -- I think the word was, it has to be tightly tethered to the programmatic objective.
Now, we think that's -- that's way too easy to fulfill; that should not be the standard.
But that's what they say the limiting principle is, is germaneness, tightly tethered.
In -- in your example, I think that probably doesn't even meet their limiting principle.
But in our case -- in our case, there is no tethering at all.
We are out testing for the disease by extracting blood and running tests.
We're out caring for orphans.
We are out improving public health services that NGOs deliver, and they're saying now you have to profess your belief in our particular viewpoint.
Justice Antonin Scalia: It doesn't say, “ profess belief ”.
I was going to ask you about that.
That's not what the statute says.
It just says they have to have a policy.
David W. Bowker: Well--
Justice Antonin Scalia: A policy.
Which means I suppose they have to tell their employees don't do anything to -- to foster prostitution.
But they don't have to get up -- get up and announce publicly, we oppose prostitution, do they?
David W. Bowker: --Well, as it's been applied to us, it's more than just have a policy.
It's have a policy and then tell us you agree with our policy, and we want to make sure that you believe it so we know that you will do a good job in the program.
So the purpose here is to police--
Justice Antonin Scalia: They can get all that without making you profess it, unless -- unless you consider the only profession to be the assurance to the -- to your partner, the United States government, that you -- that you in fact oppose prostitution.
David W. Bowker: --Well, that's -- that's precisely it, Justice Scalia, is we are required to profess our allegiance to the government.
Justice Antonin Scalia: To tell the government.
That's -- that's the only profession you're talking about.
David W. Bowker: That's the profession that we're required to--
Justice Antonin Scalia: Oh.
David W. Bowker: --that's the pledge.
As -- as the author of -- of the provision called it, it was the pledge.
That's the pledge to the government.
Justice Stephen G. Breyer: And then they're doing that, they say, because we're part of the belief as a matter of policy that the best way to go about this, whether you think so or not, is to restrict the grants to those people who will oppose the long-term extension of prostitution expressly.
Now, that's their view of how to get rid of AIDS, you say.
Might disagree with it, but there are plenty of people who think the opposite.
So they're saying we're not doing it for any reason other than to further our policy.
David W. Bowker: --The government no doubt has a good reason for putting it there.
The problem is the First Amendment, and where does that -- where does that end?
What is the limiting principle?
If all that's required here is germaneness and then you give a dollar and you own the viewpoint and you own the private speech, where does that end?
What that means is -- on the government's theory, the government can give you -- can give anyone in the country a dollar in Medicare funds and say, okay, now that you've taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech.
That is -- that is wildly inconsistent with the First Amendment.
That's exactly what's happening here.
The only difference is the subject of prostitution.
That's what makes it less palatable.
But for us--
Justice Ruth Bader Ginsburg: Are you -- what -- are you saying that you can -- within the government program, within the government program, the government can specify whatever it wants, including this -- this policy, but it can't then say and the organization outside the program is also bound by this profession?
David W. Bowker: --Within the program, they can tell us, if we are speaking for them, what to say, and -- on their behalf, not ours.
And they can tell us what not to say, which is Rust.
They cannot command fealty to their viewpoint and they certainly cannot control our private speech outside the program.
Now, to be clear, I just want to address one last thing before my time runs.
To be clear, Respondents here do not promote prostitution nor do they approve of it.
They merely want to be free in their own private programs to operate those programs as they see fit, consistent with public health objectives, and they want to be able to participate in the policy conferences.
They want to be able to publish papers, and they want to be able to be a part of the discussion in the marketplace of ideas right here in the United States, not in the -- in the nether reaches of the world -- right here in the United States.
They would like to be free to engage in this important discussion and to be unfettered by a policy requirement that demands fealty to the government's viewpoint.
Now, the First Amendment gives Respondents that right, and -- and that's why we are here.
So unless the Court has further questions--
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Srinivasan, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF SRI SRINIVASAN ON BEHALF OF THE PETITIONERS
Sri Srinivasan: Thank you, Mr. Chief Justice.
Just a -- a few points in rebuttal.
First, by -- by way of characterizing this requirement, I think there has been a suggestion made that what we are trying to do is impose a viewpoint on organizations.
This is not a matter of imposing a viewpoint on somebody.
It's a matter of picking organizations with which to work who self-identify as having views that are commensurate with the government's views, so that they will be reliable in carrying out the government's program.
Now, Justice Kennedy, you'd asked about why -- whether the foreign context of the case--
Justice Samuel Alito: I don't want to interrupt your rebuttal, but I don't see the difference between those two, those two things that you just tried to distinguish.
Sri Srinivasan: --Because it goes to the limitation that the Court has imposed in its decisions about leveraging funding so as to suppress viewpoints.
That's not what's going on here.
This is not a case in which funding is being leveraged to suppress a viewpoint.
It's a case in which we are trying to get an ex ante determination of whether the organizations that are going to carry out the Federal program agree with our policies.
If they do, they can participate--
Justice Samuel Alito: Well, suppose you have an organization that previously has expressed support for the legalization of -- of prostitution.
Then when you tell them, well, if that's your policy you can't get our money, they say, well, we need your money, so we're going to have to say uncle and now we are opposed to the legalization of prostitution.
That then -- that isn't trying to change people's viewpoint?
Sri Srinivasan: --I don't think--
Justice Samuel Alito: --to change the viewpoint that they are expressing?
Sri Srinivasan: --It's not -- Justice Alito, with all respect, I don't think it's trying to change their viewpoint.
I think if they decide later on that they would affirm to us that they agree with the policy at that point in time, well, we may -- we may take that observation and engage them.
But I don't think that effort is to try to change their viewpoint.
It's to try to get them to self -- self-identify that they are going to be reliable in carrying out the government program.
Justice Kennedy, you'd asked the question about whether the foreign context matters, and I talked about why it matters in the sense that monitoring can be challenging in this context.
It also matters in another sense that I should add, which is that when the organizations are doing this work in those areas, they are identified as working with the United States government.
There is a statutory provision at 291(a) of the petition appendix, which is 22 U.S.C. 7611(h), and that requires the global AIDS coordinator to develop a message that enhances awareness by program recipients that the program is an effort on behalf of the citizens of the United States.
So there is a real perception out there that when the organization is carrying out its functions, it's doing so at the behest of the United States citizens.
And part of what Congress wanted to do was to avoid a misimpression about why -- about what the United States' policy priorities are.
And one way to do that is to assure that the organizations with which the United States works share the United States' policy commitment against prostitution and sex trafficking.
Justice Sonia Sotomayor: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement and -- medical science -- vaccinators are exempted.
There seems to be a bit of selection on the part of the government in terms of who it wants to work with.
It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
Sri Srinivasan: Justice Sotomayor, Congress is not required to -- to pursue every objective no matter what the cost may be.
The Court confronted a similar situation in Regan.
That case involved an exemption for veterans.
The Court applied a rationality standard and said -- said that was fine.
And there's certainly a rationale here.
Justice Ruth Bader Ginsburg: Mr. Srinivasan, that was one, veterans.
Everybody else was subject to the lobbying restriction.
Here it's 20 percent of the funds go to the organizations that are free from this pledge.
Sri Srinivasan: Justice Ginsburg, I think the exemption for these organizations makes good sense if you consider the character of the organizations.
Three of the four are -- have members that are sovereign entities.
And so one can understand--
Chief Justice John G. Roberts: Mr. Srinivasan--
Sri Srinivasan: --Can I just finish this thought?
One can understand why Congress would have wanted to tread with sensitivity when -- when we are dealing with foreign countries, especially foreign countries that have different views about prostitution.
And there's less of a danger -- and this is the final point -- there's less of a danger in that context that those entities' views are going to be misattributed to the United States precisely because they are foreign countries.
Chief Justice John G. Roberts: --Thank you, counsel, counsel.
The case is submitted.
Chief Justice John G. Roberts: I have our opinion this morning in case 12-10, United States Agency for International Development versus the Alliance for Open Society International.
In 2003, Congress passed a United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act.
That Act set forth a comprehensive strategy to among other things combat the spread of HIV/AIDS around the world. As part of that strategy, Congress appropriated billions of dollars to fund efforts by nongovernmental organizations to assist in the fight.
The money, however, comes with two related conditions First, no funds made available by the Act may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.
And second, no funds may be used by an organization that does not have a policy explicitly opposing prostitution and sex trafficking.
This case concerns the second condition referred to as the Policy Requirement.
The respondents are grant recipients under the Act who object to that requirement.
They work with prostitutes to try to stop the spread of AIDS and think that it will be hard to do that effectively if the prostitutes are afraid the organizations want to take away their livelihood.
The organizations claim that the Policy Requirement violates their First Amendment rights by compelling them to adopt a particular view on a matter of public concern.
Now, if the requirement were a direct regulation, it would of course violate the First Amendment.
The Government cannot tell you what to believe.
What makes this case hard is that the requirement is imposed only as a condition on the receipt of federal funds.
As the Government puts it, “If you do not like the requirement that you have a policy opposing prostitution, don't take the money.”
Under our cases, that answer is usually sufficient when it comes to funding conditions in general.
In some cases, however, we have said that a funding condition can give rise to a First Amendment violation that it's not enough to say, “Just don't take the money.”
The line that emerges from our cases and it is not a clear one is between conditions that regulate how the federal funds are to be used in the program and conditions that seek to leverage the funding to regulate speech outside the program.
So, where does the Policy Requirement fall?
It does not just tell an organization how it can use the funds.
If you remember, the first condition does that.
It says, “You can't use the funds to promote legalization or the practice of prostitution.”
The Policy Requirement does more.
It tells an organization what it must believe.
It must have a policy explicitly opposing prostitution.
That compelled belief goes with the organization wherever it goes.
The organization cannot say it has one belief when it comes to the federal program and the different belief when it is working on its own time and dime.
It is the very nature and purpose of the Policy Requirement that it apply outside the confines of the particular federal program.
The Government, therefore, cannot insist that organizations adopt the anti-prostitution policy as the price of obtaining Leadership Act Funds.
The Government says, “Organizations that receive funds under the Act should not be allowed to undermine the Government's policy opposing prostitution.”
But the Policy Requirement does not just say, “Don't do anything to undermine the government's policy.”
It says, “You must adopt the Government's policy as your own.”
Now as to that, we cannot improve on what was said in this courtroom, from this bench 70 years ago last Friday.
That was when Justice Robert Jackson announced the decision of this Court in the Flag Salute case.
He said, “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.”
The judgment below has affirmed.
Justice Scalia has filed a dissenting opinion which Justice Thomas has joined.
Justice Kagan took no part in the consideration or decision of this case.