Supreme Court upholds free speech for groups fighting AIDS

WASHINGTON — The government may not require people or groups to “pledge allegiance” to its policies as a condition of obtaining grants, the Supreme Court ruled Thursday in a broad defense of the 1st Amendment’s protection of freedom of speech.

The 6-2 decision written by Chief Justice John G. Roberts Jr. strikes down part of a federal law that requires groups that receive funding to fight AIDS overseas to announce policies “opposing prostitution and sex trafficking.”

Since 2003, Congress has appropriated billions of dollars for funding organizations that combat HIV and AIDS. As a condition of receiving money, the groups must have public policies opposing prostitution and sex trafficking. Several groups that receive funding sued to challenge that requirement on the grounds that it would make it hard for them to work with sex workers who need testing and treatment, and that it would violate the groups’ 1st Amendment rights.

The case raised the recurring question of whether the government can use its funding power to require grant recipients to follow its rules and policies. In the past, the court has upheld federal laws that required libraries to filter pornography from its computers and that told doctors in subsidized clinics they may not advise patients about abortion.

But in Thursday’s opinion, the chief justice said those decisions involved the government’s refusal to subsidize certain activities. The government may not go further, he said, and “leverage funding to regulate speech outside the contours of the program itself.”

The law requiring groups to declare their opposition to sex trafficking “falls on the unconstitutional side of the line,” he said. “It is about compelling a grant recipient to adopt a particular belief as a condition of funding.... It requires them to pledge allegiance to the government’s policy of eradicating prostitution.”

Roberts also cited a famous Supreme Court opinion by Justice Robert Jackson, which 70 years ago this month struck down the laws that required schoolchildren, including those who were Jehovah’s Witnesses, to salute the American flag.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by work or act their faith therein,” the chief justice repeated in quoting Jackson.

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr. and Sonia Sotomayor joined the majority.

Praising the decision, Sam Worthington, president of InterAction, said the “policy requirement affected the ability to provide life-saving health services to vulnerable populations.”

Ruth Messinger, president of the American Jewish World Service, called the decision “a huge victory in the battle against HIV/AIDS worldwide.... Organizations fighting HIV/AIDS cannot take the necessary steps to address the epidemic if the funding available requires that they not work with people engaged in the sex trade.”

Justices Antonin Scalia and Clarence Thomas dissented. “The 1st Amendment does not mandate a viewpoint-neutral government,” Scalia said. He called the funding condition in this case “the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject.”

Justice Elena Kagan, formerly the U.S. solicitor general whose office defended the law, recused herself from the case of Agency for International Development vs. Alliance for Open Society.

david.savage@latimes.com