Case Pitting Speech Against Funding Set for Review

The Associated Press

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The U.S. Supreme Court has agreed to review a First Amendment dispute over whether the United States can force private health groups to denounce prostitution as a condition to get AIDS funding. The justices said on Jan. 11 they will hear the government's appeal of a ruling of the U.S. Court of Appeals for the Second Circuit that the anti-prostitution pledge violated the groups' constitutional rights.

At issue is the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. It requires groups seeking federal money to announce publicly that they oppose prostitution and sex-trafficking. The government often attaches conditions to the receipt of federal funds. A divided circuit panel concluded in Alliance for Open Society International v. U.S. Agency for International Development, 08-4917-cv, the law went well beyond what is permissible (NYLJ, July 7, 2011).

Four organizations filed a challenge to the law in 2005. Southern District Judge Victor Marrero (See Profile) sided with the groups and a 2-1 circuit panel affirmed. The majority said the rule doesn't merely force organizations to refrain from certain conduct, but also requires them "to espouse the government's viewpoint." The circuit subsequently declined to review the case en banc. The case is likely to be argued in April, with a decision due by the end of June.

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