By Court TV Staff
U.S.-based humanitarian groups operate through a global network of affiliates that share their name and logo to bring HIV prevention programs to families, sex workers and other vulnerable communities in foreign countries.
For their work, these non-governmental organizations rely on federal funding through legislation known as the Leadership Act.
Enacted under President George W. Bush in 2003, the Leadership Act devotes federal funds to the global fight against HIV and AIDS. It also includes a controversial requirement that’s being challenged at the Supreme Court of the United States for the second time.
In order to receive Leadership Act funding, aid groups must have a policy “explicitly opposing prostitution and sex trafficking,” according to the legislation. But NGOs focused on HIV prevention work closely with sex workers and sex trafficking victims. In court documents challenging the requirement, the groups say adopting the policy could put them at odds with their mission and alienate them from the communities they work in.
Legal challenges to the requirement began in 2005 and first made it to the Supreme Court in 2013. Representatives of a coalition of leading NGOs, including CARE and Save the Children, argued the requirement violates their First Amendment right by forcing them to adopt the government’s view. The U.S. Agency for International Development defended the requirement, saying it was part of a strategy to reduce the behavioral risks that foster the spread of HIV/AIDS.
The Court ruled 6-2 in favor of the aid groups.
“The policy requirement does not just say, ‘Don’t do anything to undermine the government’s policy.’ It says, ‘You must adopt the government’s policy as your own,'” U.S. Supreme Court Chief Justice John Roberts said in announcing the ruling.
Nevertheless, the government continued to apply the requirement to foreign affiliates of U.S.-based aid groups, setting up the next Supreme Court battle. When lawyers for U.S. AID and the Alliance for Open Society International return to court, the question will be whether the First Amendment protects legally distinct foreign partners of U.S.-based NGOs.
Lawyer Megan Brown co-wrote a brief in support of the NGOs for the libertarian think tank, the Cato Institute. From Cato’s perspective, the outcome could have broader First Amendment implications for groups beyond the NGOs, Brown said.
“It’s really a question about the government’s power here to pick and choose among opinions, and to condition any grant of federal funds on this requirement that you agree with it.”