The Supreme Court, the 'anti-prostitution pledge' and free speech

On Monday, the Supreme Court will hear a case that has gained little attention in the media, but has earned support from a diverse set of groups. At the heart of the case is the question of how much power the government can assert to curtail constitutional rights when it provides grants and other discretionary funding to private organizations.

The case, USAID v. AOSI, challenges a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 that forces groups receiving funds under the Act to have a policy “explicitly opposing prostitution.” Let’s just stipulate that no one, especially a group that wants to help people fight poverty and disease, supports prostitution. That’s not the issue at hand in this case.

This is what is objectionable: even if an organization merely wishes to remain silent on the issue, as is the case for AOSI, the government forces the organization to express its agreement publicly with the government’s viewpoint.  And the government prohibits the organization from saying anything inconsistent with the government’s viewpoint, even in its private activities.


How can this not be a violation of free speech rights? The government has a variety of means at its disposal to ensure public funds are being spent appropriately. When it chooses to fund a particular program it has the power to impose limitations so that the money is used efficiently.

When the government funds private parties to deliver a message, it has the right to ensure that message is delivered appropriately.

The policy requirement attached to this act goes well beyond the scope of the government's authority. The act does not simply enlist recipients’ private organizations to deliver a message on behalf of the federal government. Rather, it compels organizations to state the government’s viewpoint as their own. That means that the Act restricts the views recipients of federal funding may express even in their purely private speech.

The implications of this case go far beyond this particular group or issue. Under the government’s view, it may override the First Amendment’s protection of private speech simply because an organization accepts public funds.

No group, whether it's Republican, Democratic, religious, libertarian, or independent should have to adopt the government’s ideology as a condition of accepting federal funds. Private organizations are just that – private.

To limit their speech in the way the government seeks to do in this case would erode the foundation of our democracy and seriously hinder the free flow of ideas that have contributed to innovation and progress throughout the world.

To learn more about this case, visit