Yesterday, the Supreme Court, in Agency for Int'l Development v. Alliance for Open Society Int'l, held unconstitutional a federal program that granted funds to participant organizations conditioned on expressly declaring their opposition to prostitution. The decision will likely have free speech and policy implications on nonprofits that receive federal funding as part of their programming budgets.
Nonprofits should be heartened at the Court’s strong reaffirmation of First Amendment free speech for organizations. Not infrequently the viewpoints of nonprofit organizations may be at odds with what governmental bodies may consider “best policy.” The Court’s ruling should preserve avenues through which organizations may partner with these governmental bodies on worthy causes without having to adopt wholesale governmental policy positions.
The program in question was part of a broad federal effort to address the problems of the HIV virus worldwide. Participant organizations received federal funding on two conditions: First no funds to the organizations could be “used to promote or advocate the legalization or practice of prostitution or sex trafficking.” Second, no funds could be made available to “provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” (Emphasis added). While the Court affirmed the validity of the first condition, it held the second condition to be unconstitutional.
As Lyle Dennison explains, “It is one thing, the Court said, for the government to forbid these organizations to use the federal funds they receive to pay for public policy expressions that contradict the government’s policy goals, but it is another to try to take control of their right to frame and express their own views. Such a viewpoint control approach, the Court concluded, is an invalid form of coercing private speech, and that violates the First Amendment.” Lyle Denniston, Opinion recap: Easing the leash on speech, SCOTUSblog (Jun. 20, 2013, 12:58 PM), http://www.scotusblog.com/2013/06/opinion-recap-easing-the-leash-on-speech/
In citing West Virginia State Board of Education v. Barnette, the Court reiterated, “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 word or act their faith therein.