What if the government was awarding a contract to fight malaria in a developing country, and an organization bidding for the work had all the technical expertise the work called for, but also a history of criticizing the government? Should that keep the organization from getting the contract?
Could one of the strings attached to getting funding for a clean water project include taking an anti-apartheid stance during the years of South Africa’s separatist racist regime?
What if the entire, one-and-only point of a program was to rid the world of prostitution? Would everyone agree then, that it wasn’t asking too much for the government to insist on anyone receiving money to further the program’s goals take a pledge of being absolutely against prostitution?
In oral arguments Monday before the United States Supreme Court in the case of United States Agency for International Development v. Alliance for Open Society International, (AOSI) et al – also known as the case of the “anti-prostitution pledge,” the answers to the above from the attorney for the respondent, AOSI, and the organizations that joined it in the suit against the pledge requirement, were no, no, and no.
What the questions had in common was an attempt to explore whether the United States Government can ever ask that a recipient of its money share its views. (The answer, the respondent affirmed, is “no.”) The specific question was if the right to free speech is violated by a policy that requires U.S. recipients of funding for programs under the President’s Emergency Plan For AIDS Relief to explicitly pledge opposition to prostitution, and to refrain from appearing to indicate any sentiment to the contrary, even outside of its PEPFAR work. (Yes, that violates free speech, says the respondent; no it doesn’t, says USAID.) The case is before the Supreme Court because a lower court found that the requirement does violate the First Amendment protection of free speech, and the government is seeking to restore the policy.
Public health experts and groups, including those representing the HIV Medicine Association, submitted a brief earlier this month supporting AOSI, et. al, saying the pledge also conflicts with the interests of public health. A group of organizations opposed to “sex trafficking”submitted a brief earlier supporting the government, saying that fighting sex work and fighting AIDS are necessarily linked. But questions of public health, the merits of sex work, and the effects of condemning sex work were not the topics being argued Monday morning. Nor did the subject of other policies surrounding responses to HIV worldwide come up (a policy against homophobic stances, for example, was not an example).
Watching the oral arguments was a little like watching a tennis game, with one player returning serves from seven players on the other side of the net (Justice Elena Kagan, who worked on the case as Solicitor General recused herself, and Justice Clarence Thomas had no questions). It is an agile sport, but attorneys can only return what they are served.
That meant a series of interesting analogies (they also included comparisons to hypothetical policies on guns and recycling), but little about what is accomplished by a policy that further marginalizes an already pretty thoroughly marginalized population, although it could be argued that one of the points of the right to free speech is to prevent further marginalizing those who lack power.
In the end, Deputy Solicitor General Sri Srinivasan offered that the pledge is crucial to letting the world know the United States’ policy priorities.
“And one way to do that,” he said, “is to assure that the organizations with which the United States works share the United States policy commitment against prostitution and sex trafficking.”
Attorney David Bowker, representing the respondent, in turn, offered an analogy at the end:
“What that means is – on the government’s theory, the government can give you – can give anyone in the country a dollar in Medicare funds and say, okay, now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is, that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.”
A full transcript of the arguments is available here