The Supreme Court has ruled Thursday with a six-justice majority that the “Anti-Prostitution Loyalty Oath” (APLO) in the 2003 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria act violated the First Amendment and was unconstitutional. The APLO required groups receiving government funds to fight HIV/AIDS around the globe to adopt policies opposing prostitution and human trafficking. Chief Justice Roberts acknowledged that the Supreme Court’s jurisprudence on “unconstitutional conditions” was confusing. As a general matter, he said, the government has no obligation to spend money, just as recipients are not required to take the government’s money. But sometimes, he wrote, “a funding condition can result in an unconstitutional burden on First Amendment rights.”
“The line is hardly clear,” the chief justice wrote, but it is crossed when the government seeks “to leverage funding to regulate speech outside the contours of the program itself.”
The condition requiring groups receiving AIDS money to adopt an antiprostitution policy was on the wrong side of the line, he said. “A recipient cannot avow the belief dictated” by the government, he wrote, “and then turn around and assert a contrary belief, or claim neutrality, when participating in activities on its own time and dime.”
Chief Justice Roberts rejected an argument by the Obama administration that the requirement to adopt a policy was needed to protect the prohibition on the use of government money to promote prostitution. Money is fungible, it said, and the availability of government money could free up private money to promote prostitution.
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