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That law prohibits the use of any government money to "promote or advocate the legalization or practice of prostitution." But it also goes beyond that reasonable provision to require almost all recipients of funds to "have a policy explicitly opposing prostitution" — to make an anti-prostitution pledge — and to refrain from any speech the government deems "inconsistent with" the policy.
On Monday, in Agency for International Development v. Alliance for Open Society International, the Supreme Court heard oral arguments on whether this provision violates the recipients' First Amendment right to freedom of expression. It clearly does by requiring them to speak and advocate the government's position, without the option of staying silent. This provision could also hurt outreach programs by undermining trust with sex workers, who may avoid seeking help from organizations with a declared anti-prostitution agenda.
The government contends that placing a condition on federal dollars is a legitimate way to promote its policies and those who do not want to make an explicit pledge can avoid it by not taking government money.
While the Supreme Court has said organizations receiving federal money can be restricted from different forms of expression, like talking about abortion as a medical option, the United States Court of Appeals for the Second Circuit said correctly in 2011 that the anti-prostitution speech provision "pushes considerably further and mandates that recipients affirmatively say something" by declaring their opposition to prostitution.
Compelling that speech is unconstitutional, as are other forms of compulsion by government, like requiring schoolchildren to salute the flag as a condition of going to public school, which the Supreme Court rejected in a landmark case as "official control" over personal beliefs.
Justice Samuel Alito Jr. said at Monday's oral argument, "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." He called that "a dangerous proposition."
The Justice Department initially said the condition "cannot be constitutionally applied to U.S. organizations" and it was not enforced. Then the department, saying that view had been tentative, changed its mind. The Supreme Court should affirm the appeals court and rule that the First Amendment prohibits this form of official control.
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