The U.S. government mandated that if a group wanted to get funding to combat HIV/AIDS, well then that group could not use any funds “to promote or advocate the legalization or practice of prostitution or sex trafficking.” Further, it imposed the following policy requirement:
No funds made available to carry out this Act . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
In other words, if you wanted Uncle Sam’s bucks, your group needed to explicitly take up Uncle Sam’s puritanical position with respect to Love Brokers. The problem with that is, it amounts to compelled speech — which is prohibited by the First Amendment.
Pursuant to [the] “unconstitutional conditions” doctrine, as it has come to be known, the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipient’s constitutionally protected rights, even if the government has no obligation to offer the benefit in the first instance. See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”). As the Supreme Court recently reiterated, “the government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59 (2006) (“FAIR”) (Op. at 17-18)
Accordingly, the government may not condition the doling out of funds upon the recipients adopting and espousing the government’s position. The case is Alliance for Open Society International, Inc, et al v. United States Agency for International Development et al, ___ F.3d ___ (2d Cir. 2011).
