Agency for International Development v. Alliance for Open Society International, Inc.
Does the First Amendment permit the federal government to require private organizations, as a condition of receiving federal funding to fight HIV/AIDS abroad, to adopt and express a policy explicitly opposing prostitution and sex trafficking?
The Decision
6-2 decision · Opinion by John Roberts · 2013
Majority Opinion— John Robertsconcurring ↓dissent ↓
The Supreme Court ruled 6–2 in favor of the respondent organizations, holding that the Policy Requirement violated the First Amendment. Chief Justice John Roberts wrote the opinion for the majority.
The majority began by acknowledging that Congress has substantial power to set conditions on how federal funds are spent. The Court recognized that it had previously upheld restrictions on speech within federally funded programs — most notably in Rust v. Sullivan, where it allowed the government to prohibit doctors in federally funded family planning clinics from discussing abortion with patients. However, the Court drew a critical distinction: in Rust, the restriction merely defined the limits of the federal program itself; the government was simply choosing not to fund certain activities. The Policy Requirement, by contrast, went much further. It did not simply limit what organizations could do or say with government money — it compelled them to adopt and express a specific belief as their own, across the entirety of their operations.
Chief Justice Roberts explained that there is a fundamental difference between conditions that define the scope of a government spending program and conditions that seek to leverage funding to change an organization's beliefs and speech outside the program. The Policy Requirement fell squarely into the latter category. It required each organization to make a public pledge — an affirmative statement of organizational belief opposing prostitution — that necessarily affected how the organization presented itself to the world in all contexts, not just when spending federal money. As the Court put it, by demanding that funding recipients espouse a particular viewpoint as their own, the requirement struck at the heart of the freedom of speech.
The Court also noted that the government could not cure this constitutional problem by allowing organizations to set up legally separate affiliates to engage in contrary speech. The requirement targeted the organization's own beliefs and public identity, and an organization's right not to be compelled to speak is not satisfied by telling it to create a separate entity to say what it actually believes. The majority concluded that the Policy Requirement fell outside the bounds of Congress's spending power because it crossed the line from setting reasonable program conditions into compelling private organizations to profess the government's preferred ideology.
Concurring Opinions
Justice Kagan took no part in the consideration or decision of the case, having recused herself, which reduced the participating bench to eight justices. There were no separate concurring opinions filed.
Dissenting Opinions
Antonin Scaliajoined by Clarence Thomas
Justice Scalia argued that the Policy Requirement was a perfectly legitimate exercise of Congress's spending power. In his view, requiring funding recipients to oppose prostitution was no different from any number of reasonable conditions the government places on grants, and refusing to subsidize organizations that disagree with a program's goals is not the same as compelling speech.
- The government is not obligated to fund organizations that work at cross-purposes with a program's objectives, and requiring grant recipients to share the program's anti-prostitution stance is simply a way of ensuring effective use of taxpayer dollars.
- No one is forced to say anything — organizations that object to the Policy Requirement can simply choose not to accept the funding, which means their speech is not truly being compelled.
- The majority's distinction between conditions that define a program and conditions that regulate speech outside it is unworkable and not grounded in prior precedent, because all funding conditions to some degree influence an organization's broader behavior and messaging.
Background & Facts
In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act — a sweeping law that authorized billions of dollars in federal spending to combat the global HIV/AIDS epidemic. Because sex work is closely linked to the spread of HIV in many parts of the world, Congress included two provisions addressing prostitution. First, a straightforward spending restriction prohibited federal funds from being used to promote or advocate the legalization or practice of prostitution or sex trafficking. Second — and far more controversially — Congress added what became known as the 'Policy Requirement,' which stated that no funds could be given to any organization that did not have a policy explicitly opposing prostitution and sex trafficking. In other words, organizations did not merely have to avoid spending federal dollars on prostitution-related advocacy; they had to affirmatively adopt, as their own organizational belief, a stance against prostitution.
Alliance for Open Society International, Inc. and Pathfinder International were nongovernmental organizations engaged in fighting HIV/AIDS around the world. They wanted to receive Leadership Act funding but objected to the Policy Requirement. These organizations argued that being forced to publicly declare a specific viewpoint on prostitution as a condition of receiving government money amounted to compelled speech in violation of the First Amendment. They noted that adopting an official anti-prostitution policy stance could undermine their public health work by alienating sex workers — the very population they were trying to reach with HIV prevention and treatment programs.
The organizations filed suit in the U.S. District Court for the Southern District of New York, seeking a preliminary injunction to block enforcement of the Policy Requirement. The District Court agreed with the organizations and granted the injunction, finding that the requirement likely violated the First Amendment. The U.S. Court of Appeals for the Second Circuit affirmed the District Court's ruling.
The federal government — represented by the Agency for International Development (USAID) and other agencies that administered the program — then petitioned the Supreme Court for review. The government argued that Congress has broad authority to attach conditions to federal spending, and that the Policy Requirement was simply a reasonable way of ensuring that taxpayer dollars went to organizations whose mission aligned with the goals of the program. The Supreme Court agreed to hear the case to resolve this important question about the limits of the government's spending power when it intersects with free speech rights.
The Arguments
The government argued that Congress has wide latitude to attach conditions to federal spending, and the Policy Requirement was simply a permissible condition that ensured funding recipients shared the program's goal of fighting prostitution and sex trafficking. The government contended this was no different from other cases in which the Court had allowed the government to define the boundaries of a spending program.
- Under the spending power, Congress can choose to fund only those organizations whose beliefs and activities align with the objectives of the federal program, much as it did in Rust v. Sullivan where the Court upheld restrictions on abortion counseling in federally funded family planning clinics.
- The Policy Requirement merely defined who was eligible to participate in the program — it did not prevent organizations from saying whatever they wanted, it simply withheld taxpayer money from those who refused to adopt the program's core values.
- Organizations remained entirely free to decline the funding and maintain whatever position on prostitution they wished, so the requirement did not truly compel speech — it simply set the terms of a voluntary government grant.
The respondent organizations argued that requiring them to adopt and publicly profess a specific policy viewpoint as a condition of receiving government funding was a form of compelled speech that violated the First Amendment. They contended the Policy Requirement went far beyond limiting how federal dollars could be spent and instead sought to control their core organizational beliefs.
- The Policy Requirement did not merely restrict what organizations could do with government funds — it demanded they adopt an organization-wide belief, affecting all of their speech and activities, including those funded entirely with private money.
- The unconstitutional conditions doctrine prevents the government from using the leverage of federal funding to coerce private organizations into surrendering their constitutional rights, including the right to be free from compelled speech.
- Forcing organizations to take a public stance against prostitution undermined their public health mission by alienating sex workers, the very population most vulnerable to HIV/AIDS that the organizations needed to reach.