The Supreme Court grappled with a tough First Amendment question today: What speech limitations may be placed on private groups that receive federal grant money to fight HIV/AIDS abroad? As NPR legal affairs correspondent Nina Totenberg reports, the court appeared closely divided and not along the usual liberal-conservative line.

NINA TOTENBERG, BYLINE: Federal law provides billions of dollars to private nongovernment organizations to fights AIDS. But under a 2003 provision, the NGOs must essentially take a pledge explicitly opposing prostitution. The groups balked, contending the provision unconstitutionally compels them to do the government's bidding outside the confines of their programs. On the steps of the Supreme Court today, their lawyer, David Bowker, said his clients are, in fact, opposed to prostitution.

DAVID BOWKER: The problem here is that it affects what my clients do with their private funds. They engage in public health debates, policy conferences. They publish papers, and they just want to be able to do that freely, consistent with the First Amendment.

TOTENBERG: Inside the Supreme Court chamber, Deputy Solicitor General Sri Srinivasan defended the law, contending that Congress was well within its rights to fund anti-AIDS organizations that agree with its policy against prostitution. Chief Justice Roberts was the first of many justices to ask where the limits are on these sorts of conditions. Supposing the government adopted a strong policy in favor of recycling, would every federal contractor have to pledge to adopt a renewable resources policy?

Justice Ginsburg questioned the justification for a pledge made to the government that has nothing to do with what's happening in the field. Justice Alito: It seems to me a dangerous proposition to say that Congress may require the recipient of federal funds to agree with government ideas that the recipient disagrees with.

Justice Sotomayor: Supposing a city government is undertaking a campaign to prevent teen pregnancy, part of the program promotes the use of contraceptives and part involves parenting classes for teenage mothers and free day care. Are you saying the city could require a church to agree with all aspects of the program before it could qualify for a grant to provide parenting and day care services? Answer: If the city wanted to require total agreement, it could.

After the government's advocate sat down, the justices were equally hard on the lawyer for the nongovernment organizations, David Bowker. My clients are opposed to prostitution, and they do not dispute the government's authority to fund programs of its choosing and to control the conduct of those programs, Bowker said. But this policy requires individuals to refrain from certain private speech outside the context of the government's program.

Chief Justice Roberts: The government isn't banning speech. It's just picking out an appropriate partner to assist in this project of fighting AIDS. Answer: my clients have nothing to do with prostitution. They provide services to prevent mother-to-child transmission of HIV in Tanzania. They care for AIDS orphans in Kenya, and they provide HIV/AIDS support services in Vietnam.

Justice Sotomayor: Would it be OK for them to step outside the doors of this program and pass out literature that promotes the legalization of prostitution? Answer: That's not this case, but I think the government cannot gag an organization's private speech outside the program.

Justice Kennedy: Suppose the government has a program to stop the spread of malaria, and there's an organization that's marvelous at this but it criticizes the United States all the time, would it be permissible for the U.S. to fund a different organization that's not quite as good but is not critical of the U.S.? Answer: No, because that's penalizing a particular viewpoint.

Chief Justice Roberts: Let's say the government wants to support water resources in South Africa before the abolition of apartheid and one group is superb at drilling wells but it's pro-apartheid. Are you saying the government can't prefer an anti-apartheid well-drilling group? Bowker was less adept at dodging the tough questions than his adversary had been, but neither lawyer had smooth sailing. Nina Totenberg, NPR News, Washington.



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