High court takes up case on compelled speech

Monday, January 14, 2013

WASHINGTON — In 1977, the Supreme Court ruled that New Hampshire could not force drivers to become “couriers” of a government’s ideological message by requiring them to display the state’s motto “Live Free or Die” on their license plates.

The Court found that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” But the landmark ruling in Wooley v. Maynard in no way ended the debate over how far government can go in enlisting private groups and individuals to convey a preferred message to the public.

On Jan. 11, the Court agreed to re-enter the debate by reviewing a 2003 law that has been challenged by recipients of federal grants aimed at combating AIDS internationally. The law requires grantees, as a condition of funding, to adopt “a policy explicitly opposing prostitution and sex trafficking” and not to espouse contrary views. The case, U.S. Agency for International Development v. Alliance for Open Society International, will likely be argued before the justices in April.

The requirement pertains not just to the specific programs funded under the law, but also the entire recipient organization, including privately funded operations. It exempts certain United Nations and other international organizations.

At first, the provision was not enforced because of an internal Justice Department finding that it was unconstitutional. But in 2005 the department’s Office of Legal Counsel changed its view, and rules implementing the requirement were issued. After the Brennan Center for Justice filed a Freedom of Information Act lawsuit, the original opinion against the law was released in November.

The groups challenging the law say that adopting the required policies could offend host nations and high-risk populations they seek to work with, and could thwart certain anti-AIDs strategies, such as advocating lesser punishment for prostitutes. Lower courts have sided with these organizations. The 2nd U.S. Circuit Court of Appeals, for one, ruled that the requirement “falls well beyond what the Supreme Court … [has] upheld as permissible conditions on the receipt of government funds,” because “it does not merely restrict recipients from engaging in certain expression … but pushes considerably further and mandates that recipients affirmatively say something.”

In defending that appeals court ruling, the challengers told the Supreme Court in a brief that the law’s requirement “violates a long line of First Amendment authority in this Court. The Second Circuit was right to recognize that the First Amendment generally does not permit the government to compel speech.” They invoke Wooley v. Maynard as well as the more recent Rumsfeld v. FAIR decision, which said the Court’s precedents “have established the principle that freedom of speech prohibits the government from telling people what they must say.”

But the government, in defending the law, asserts that other Court precedents allow the government to place conditions on funding that further the goals of the program – in this case, combatting sex trafficking as one factor in the spread of AIDS. Both Rust v. Sullivan and Rosenberger v. Rector and Visitors of University of Virginia allow the government to enlist others, through its funding decisions, in conveying its preferred messages, the government asserts. Solicitor General Donald Verrilli Jr. stated in his petition to the Court that the policy requirement is “plainly a ‘legitimate and appropriate’ means to ensure that the government’s goals are advanced and its message communicated wherever the act’s funds are spent.”

Verrilli also argued that precedents like Wooley v. Maynard don’t apply, because they don’t involve selective government spending programs, in which government is entitled to advance its own messages.

But government spending cases also point in different directions, with some stating that the government may not place conditions on funding that violate the constitutional rights of grantees. As Judge Rosemary Pooler of the 2nd Circuit observed in one of the rulings in the case, “the unconstitutional conditions doctrine is messy and unsettled.”

The Supreme Court now has another chance to straighten up that area of its First Amendment jurisprudence.

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