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Law School Case Brief

Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. - 570 U.S. 205, 133 S. Ct. 2321 (2013)


It is a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say. At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.


In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S.C. §7601 et seq., Congress has authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to combat HIV/AIDS worldwide. The Leadership Act imposes two related conditions: (1) No funds “may be used to promote or advocate the legalization or practice of prostitution,” §7631(e); and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution,” §7631(f). To enforce the second condition, known as the Policy Requirement, the Department of Health and Human Services (HHS) and the United States Agency for International Development require funding recipients to agree in their award documents that they oppose prostitution. Respondents, recipients of Leadership Act funds who wish to remain neutral on prostitution, sought a declaratory judgment that the Policy Requirement violates their First Amendment rights.


Did the policy requirement of expressly opposing prostitution in order to receive federal funds to fight the spread of HIV/AIDS violate the First Amendment?




The U.S. Supreme Court held that the policy requirement violated the First Amendment by compelling, as a condition of federal funding, the affirmation of a belief that by its nature could not be confined within the scope of the government program. While conditions which specified the activities Congress sought to subsidize were proper, the policy requirement under the Leadership Act sought to leverage funding to compel speech outside the scope of the federal program itself. Further, the additional requirement under the Leadership Act prohibiting federal funding from being used to promote or advocate the legalization or practice of prostitution was sufficient to ensure that federal funds would not be used for prohibited purposes, and requiring the organization to adopt and espouse the government’s view on an issue of public concern as their own was unconstitutional.

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