Opposing Voices Come Together to Protect Free Speech
By Zoe Hudson
In Washington, finding common ground among those who frequently disagree is rare. But in a case pending before the U.S. Supreme Court, more than a dozen groups from across the ideological spectrum have come out in force to defend free speech and the First Amendment.
On April 22, the U.S. Supreme Court will hear arguments in a case that could have dramatic consequences for NGOs, faith-based groups, and civil society. The case, USAID v AOSI, challenges a 2003 law that requires all groups receiving U.S. government funds for international HIV and AIDS work to have “a policy opposing prostitution.” This rule goes far beyond prescribing what organizations can do with government money—it tells them what they must do and think even in their privately funded work.
Lower courts found this policy requirement unconstitutional. Now the Supreme Court will decide whether to give government dramatic new powers—in particular, the ability to use the power of the purse to force groups to adopt the government’s policy position on any given issue, and gag all private speech the government finds objectionable.
That’s why pro-life and pro-choice groups strongly oppose the government’s position. That’s why Democrats and Republicans, libertarians and social conservatives, faith-based groups, and health care providers are against it as well. They all agree on one principle: Requirements like this erode the free speech rights of organizations and destroy the marketplace of ideas on which our democracy rests.
It’s worth a look at the amici briefs submitted in this case. A diverse mix of groups filed the briefs because, no matter what their political persuasion and viewpoint, each believes that the First Amendment is sacred. Here, in their own words, is why many groups believe this law endangers the First Amendment rights of advocates from all backgrounds:
“Such a ‘get with the program’ power would let the government badly distort the marketplace of ideas by strengthening groups that toe the government line and financially crippling groups that refuse to say what the government demands. And such a power to coerce ideological conformity would unacceptably burden religious groups’ rights to speak or not speak in accordance with the truth as they see it… Likewise, no official should be permitted to acquire such a power by using the government’s vast resources as a tool for control of groups that participate in government programs.”
“The relatively uncontroversial content of this policy should not obscure what is at stake. The Rutherford Institute is troubled by the government’s attempt to seize power to control private speech and belief, through a virtually limitless Spending Clause authority and a dramatic expansion of the government speech doctrine. The power claimed by the government to require express policy agreements, free from First Amendment scrutiny, is novel. It would authorize all manner of forced statements of belief so long as they are attached to government spending… In an era of expanding entanglement between government, private citizens, and organizations, Congress and the Executive must be held to the standards imposed by the First Amendment. Government should not be allowed to use the public fisc to purchase agreement in the marketplace of ideas.”
“These requirements invade individual ‘freedom of mind’ and conscience by restricting a person’s ability to decide for himself whether and how to express his thoughts, ideas, and beliefs; they allow the government to manipulate and distort the First Amendment-protected open marketplace of ideas by co-opting and skewing private speech to increase the volume of the government’s desired message; and they smack of government paternalism—offensive to basic human dignity—which the First Amendment unequivocally rejects.”
“The Anti-Prostitution Pledge being challenged in this case amounts, in effect, to a loyalty oath. Unlike the loyalty oaths of the past, however, the Anti-Prostitution Pledge does not command loyalty to the nation; instead, it commands fealty to the government’s policy positions. In doing so, it does not dictate the terms of public discourse but the content of private belief. […] In short, the Anti-Prostitution Pledge has less to do with government messaging than ideological conformity. That is not a price that the government may exact, even when the government is administering a grant program. To be sure, the government may require grant recipients to spend government funds for their intended purposes… But any attempt by the government to dictate the thoughts or beliefs even of those it is funding crosses a critical constitutional line.”
“The public health field is empirically driven and depends upon access to information. When the marketplace of ideas in public health operates without ideological restrictions, researchers and organizations on the ground can work hand in hand to develop best practices and to disseminate information about those best practices. This free circulation of ideas is particularly critical in the fight against HIV/AIDS, where public health researchers have found that some of the most effective strategies for combating the disease involve actively engaging sex workers as partners in the fight.”
“This Court has consistently held that Congress may not condition the receipt of federal funds or other public benefits on the relinquishment of First Amendment rights. There is no dispute that when Congress chooses to fund a program, it may impose limitations to ensure that federal funds are used only for that program. There is likewise no dispute that when Congress funds private parties to deliver a message for the government, it may ensure that its message is delivered accurately. This Court, however, has repeatedly held that Congress may not impose conditions on funding that prevent a person from exercising First Amendment rights outside the program being funded.”
The stakes in this case are high. The good news is that opposing voices can still come together when the Bill of Rights is on the line.
Until June 2013, Zoe Hudson was a senior policy analyst at the Open Society Foundations.