Friday, January 11, 2013
The United States Supreme Court today granted certiorari in United States Agency for International Development v. Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction.
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply 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.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.
A divided panel of the Second Circuit held the provision unconstitutional in July 2011, affirming the district judge. The majority found it important that the purpose of the program and the mandated message were not synonymous. At times, the panel reasoned,
the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.
As we discussed, the Second Circuit refused to grant a rehearing en banc, over a dissent joined by three judges, with an interesting concurring opinion discussing the doctrinal disarray. This focused the disagreement with the Sixth Circuit and made the issue ripe for certiorari.
Justice Kagan did not participate in the grant of certiorari and will presumably be recused from what promises to be a major First Amendment case of the Term.
[image: Prostituierte in Brants Narrenschiff (1506) von Albrecht Dürer via]