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to Section One | to Arts & Entertainment
posted Friday, June 21, 2013 - Volume 41 Issue 25
Free speech victory - Feds can't force AIDS groups to oppose prostitution, Supreme Court says
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Free speech victory - Feds can't force AIDS groups to oppose prostitution, Supreme Court says

by Mike Andrew - SGN Staff Writer

The U.S. Supreme Court ruled on June 20 that the federal government may not require AIDS groups to oppose legalized prostitution in exchange for federal money.

In a 6-2 decision written by Chief Justice John Roberts, the court struck down part of the 2003 Leadership Act, requiring federally funded HIV/AIDS prevention organizations to adopt policies 'explicitly opposing prostitution and sex trafficking.'

The law also forbids any federal grant money being used to 'promote or advocate the legalization or practice of prostitution or sex trafficking,' which it says are ways the diseases are sometimes spread. This part of the law was not at issue in the case and remains in force.

A MATTER OF TRUST
While it is U.S. government policy to combat sex trafficking, many AIDS activists say laws against prostitution actually impede efforts to prevent HIV infection, because prostitutes may be reluctant to seek out medical advice and services out of fear of arrest.

'Public health groups cannot tell sex workers that we 'oppose' them, yet expect them to be partners in preventing HIV,' said Marine Buissonniere, director of the Open Society Public Health Program, one of the plaintiffs in the case. 'Condemnation and alienation are not public health strategies. The pledge ignores years of evidence that sex workers are critical partners in the fight against AIDS.'

Roberts was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Samuel A. Alito Jr., while Justices Antonin Scalia and Clarence Thomas dissented.

Justice Elena Kagan recused herself from the case, presumably because she had worked on it while she served as President Obama's solicitor general.

LEGISLATING BELIEF
'This case is not about the government's ability to enlist the assistance of those with whom it already agrees,' Roberts wrote in his opinion. 'It is about compelling a grant recipient to adopt a particular belief as a condition of funding.'

He added that the government can restrict the ways funds are spent, but cannot require recipients to 'pledge allegiance to the government's policy of eradicating prostitution.'

That requirement, Roberts said, would necessarily extend beyond the HIV/AIDS program to all activities in which the groups are involved, including conferences, publications, and other forums.

'A recipient cannot avow the belief dictated by the policy requirement when spending Leadership Act funds, and then turn around and assert a contrary belief or claim neutrality when participating in activities on its own time and dime,' he wrote.

'By requiring recipients to profess a specific belief, the policy requirement goes beyond defining the limits of the federally funded program to defining the recipient.'

SCALIA: FORCED SPEECH OK
In his dissent, Scalia said that the federal government is entitled to enlist the support of like-minded groups.

'The First Amendment does not mandate a viewpoint-neutral government,' Scalia wrote. 'The government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense.'

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