The US Supreme Court heard oral arguments Monday in a case about the government’s ability to regulate the speech of organizations that get federal funding in general, but the case addresses a specific requirement the government imposed on those organizations: that they have an explicit policy against prostitution and sex trafficking.
Red Light District near an Amsterdam canal.
(Credit: Alex Nikada/iStockPhoto)
In other words, the government here is not saying someone can’t say something, as is the issue in most free speech cases that come before the Court. Here the government is saying that organizations must say something. And if they don’t say that thing, they don’t get the federal dollars.
The details of the case known as Agency for International Development v. Alliance for Open Society International, Inc., are quite interesting. Just because an organization is receiving funding from the federal government, can the government make that organization publicly declare certain beliefs, even if the organization holds those beliefs?
No one will argue that prostitution and sex trafficking don’t contribute to the spread of HIV/AIDS. So, when Congress allocated billions of dollars to give to organizations that would work around the world to combat the spread of HIV and other diseases like malaria, they attached strings to the money. Specifically, if an organization received money through this program, it had to state in no uncertain terms that it opposed prostitution and sex trafficking.
The problem is not so much the organization’s core beliefs, though. Rather, many of these organizations have said that having an explicit anti-prostitution policy makes it difficult for them to reach out to the populations they aim to serve in many countries throughout the world. How can they expect to develop the trust of prostitutes, who are a key component of their “target” audience, if a policy they have condemns prostitutes?
The US solicitor general is on the opposing side here. The US argues that Congress is perfectly within its right to limit grants to organizations that comply with whatever rules it comes up with. Furthermore, the US argues that organizations can have an anti-prostitution policy and then work with subcontractors who don’t have one—because they aren’t technically receiving money through the program—which can then work directly with prostitutes.
The case seems to hinge on another Supreme Court case known as Rust v. Sullivan, decided in 1991 by a 5-4 majority. Chief Justice Rehnquist wrote for the Court:
The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.
What do you think? How should the Supreme Court decide this case?
Editorial
The Rust Court notwithstanding, I think the government’s wrong here. Let me use a slightly imperfect analogy to explain my point. Imagine the humanitarian organizations are a school superintendent. When they say, “We want to stop the spread of AIDS,” it’s like a superintendent saying, “I’m in this 100 percent for the students.” Peachy. Then, liken a policy that condemns prostitution to the superintendent condemning schools by taking away resources, good classes, and extracurricular activities, or even closing the schools.
Words of humanitarian organizations are being likened to actions of superintendents, but that’s the only hole in the analogy, I think. We also have to overlook the fact that the superintendent, acting in the name of the school district, is the government. But note that the superintendent is not taking action of his own accord but usually following the government’s laws, specifically those outlined in No Child Left Behind or in the strings attached by the US secretary of education for Race to the Top funds.
Anyway, isn’t it hard to believe the superintendent’s stated purpose of being in it 100 percent for the students after harmful actions are taken? It’s the same with humanitarian organizations. If the government makes them declare prostitution harmful, it’s not much different from the government condemning the very schools it’s supposed to be building up. And it will be just as difficult to reestablish trust in their humanitarian mission after hearing their anti-prostitution stand as it is for residents of, say, Chicago to reestablish trust in a school board or CEO after the closing of 54 schools. And when parents and kids can’t trust their schools, well, no good can come of it. That’s not how government is supposed to work for the people, which is why the Supreme Court should strike down this policy.
And not only is the rule that organizations adopt a certain policy an infringement on the free speech rights of the organizations, but the government’s argument that organizations can make use of sub-organizations to work directly with prostitutes is nothing more than a shell game. The Supreme Court should see right through that, because making a law that all but encourages humanitarian organizations to play games with our money is not right.
Another way of looking at this, a view taken by the editorial board of the New York Times, here, is that when the government forces an organization to say something, it’s the same as schools forcing kids to salute the flag. Most kids do it anyway, because doing so is consistent with their beliefs, but the school can’t make them do it. That’s the First Amendment, and it applies to a degree in this case, in my opinion. What’s your opinion?
