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Editor: Katharine Van Tassel
Concordia University School of Law

Friday, June 21, 2013

Guest Blogger Professor Jessie Hill - Agency for International Development v. Alliance for Open Society: Brief Thoughts and Implications

Hill_smYesterday, the Supreme Court decided AID v. Alliance of Open Society Int’l, holding that it violated the First Amendment for the government to require organizations to have an explicit policy opposing prostitution in order to receive funding under the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The opinion was 6-2, with Justices Scalia and Thomas dissenting; Justice Kagan did not participate. 

The opinion strikes me as a relatively straightforward application of the unconstitutional conditions doctrine, as much as that doctrine can ever be straightforward. Following the line of cases including Rust v. Sullivan, Regan v. Taxation with Representation, and FCC v. League of Women Voters, the Court restated the principle that the government, in executing a spending program, can place viewpoint-based speech restrictions on the program in which its own funds are being used, but it cannot restrict the grantee’s activity outside the program. In the words of Chief Justice Roberts’s opinion for the majority, the government can impose “conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize,” such as anti-prostitution advocacy and other advocacy of safe-sex practices, but it cannot impose “conditions that seek to leverage funding to regulate speech outside the contours of the program itself” – i.e., the speech activities and advocacy of organizations that is conducted on those organization’s own time and dime.

Though the principle may be straightforward, application is difficult. How do we distinguish between program-defining conditions and conditions that restrict speech outside the program? And how far is the majority willing to go with this view? As Justice Scalia’s dissent demonstrates, the anti-prostitution policy requirement could simply be seen as “nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS.” After all, if the government cannot limit its speech “agents” in this way, then is it also required to allow the Free Love Society to carry its message of abstinence, so long as the organization expresses its own, opposing, views of abstinence separately with its own funds? The majority’s opinion is insufficiently precise in response to this concern.

Now, a few brief observations about the opinion’s implications for other cases. First, I was surprised that neither the majority nor the dissent explicitly referred to the term “government speech.” The notion that the government has the right to control its own message is clearly implicated here, and the use of the “government speech doctrine” by lower courts to justify all sorts of viewpoint-discriminatory government actions has been widespread. Though the concept of government speech lurks in the AID opinions, the term does not, and I wonder whether anything is to be made of this. 

Second, I wonder what effect this case will have on state efforts to de-fund Planned Parenthood. Many states have passed or are considering laws that prohibit any entity that provides abortions services, or is affiliated with an abortion provider, from receiving family planning funds. Some such rules have been successfully challenged as preempted by Medicaid’s requirement that patients have a free choice of providers for medical services (42 U.S.C. § 1396a(a)(23)).But when only state funds are at issue, as in a recent Texas case (Planned Parenthood v. Suehs), Planned Parenthood can still argue that the denial of funds based on its affiliation with an abortion provider is an unconstitutional condition. 

Assuming that Planned Parenthood has a constitutional right either to perform abortions or affiliate with an abortion provider, does AID help it make the case that such funding restrictions unconstitutionally require them to waive such rights in return for funding? If, as in Texas, the program is set up such that Planned Parenthood cannot remain “Planned Parenthood” (indeed, it cannot even keep that name if it wants to receive funds under the Texas Program), then it seems to fall right within AID’s holding. The Texas rule, in excluding Planned Parenthood entirely based on its constitutionally protected activity, regulates the grantee and not just the program. If Planned Parenthood cannot receive funds in one entity and perform abortions even in a physically, legally, and financially separate entity, then the law “does not afford a means for the recipient [i.e., Planned Parenthood] to express its beliefs” or engage in its desired, protected activity, and it is therefore unconstitutional. 

Of course, the doctrinal lines are hazy enough here that we can’t say anything for sure. Whether AID has implications for Planned Parenthood remains to be seen.

- Jessie Hill


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