Supreme Court: Provision In AIDS Law Violates Free Speech The U.S. Supreme Court on Thursday ruled that the government cannot force private health organizations to denounce prostitution to get money to fight HIV/AIDS overseas.
NPR logo

Supreme Court: Provision In AIDS Law Violates Free Speech

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Supreme Court: Provision In AIDS Law Violates Free Speech


Supreme Court: Provision In AIDS Law Violates Free Speech

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.


And I'm Robert Siegel.

The U.S. Supreme Court is headed into its final days of the term with a group of landmark decisions expected, but today, none of them. Instead, the court resolved several other cases.

BLOCK: One was an important business case in which retailers challenged American Express. The justices ruled against the retailers. The decision limits the rights of merchants to band together to challenge what they claim are the monopolistic practices of major corporations.

SIEGEL: And in the big constitutional decision of the day, the justices ruled that the government cannot force private health organizations to denounce prostitution in order to get taxpayer money to fight HIV/AIDS. NPR's legal affairs correspondent Nina Totenberg explains that ruling.

NINA TOTENBERG, BYLINE: Federal law provides billions of dollars to private non-government organizations to fight AIDS in the developing world. But under a 2003 provision, the NGOs must essentially promise to explicitly oppose prostitution. Since many of these organizations work with prostitutes to get them to use safe sex practices, the organizations figured that explicitly condemning prostitution would make their work more difficult, and they challenged the law in court.

They contended that the 2003 law unconstitutionally compelled them to do the government's bidding when they're using private money outside the confines of the government programs. Generally, under the Constitution's spending clause, the rule is he who pays the piper calls the tune.

EUGENE VOLOKH: The question is, what more besides the tune does the payer get to control?

TOTENBERG: Eugene Volokh of UCLA Law School summarizes the government's position in this case this way.

VOLOKH: Look, if you want to be the piper, not only do you have to play the tunes that we ask you to play, you also have to sign a pledge saying that you do not endorse rap music, let's say. And that, the Supreme Court says, that's not permissible.

TOTENBERG: Well, here, it wasn't rap music the government wanted a grantee to condemn. It was prostitution, and the court said that was a violation of the grantees' First Amendment right to free speech. Writing for the court majority, Chief Justice John Roberts observed that the government clearly can put conditions on how the money it gives out is spent. If you disagree with the conditions, your recourse is not to take the money.

But, said the chief justice, matters get more complicated when the government seeks to impose its conditions outside the confines of the grant itself. And here, Congress, he said, went too far. Ilya Shapiro of the Cato Institute says the ruling has implications for every sort of government contractor.

ILYA SHAPIRO: Let's say the government has a program to treat drug abuse. Well, that has little to do with the views of the person treating for drug abuse on drug legalization. Or if the government has a contractor running an adoption agency. Well, you can run an adoption agency whether you're pro-choice or pro-life. And if this case had gone the other way, then the government could have started imposing these sorts of compelled speech provisions in these other cases.

TOTENBERG: But some groups disagreed strongly with the court's decision and with the grant recipients. Here's Ruth Teitelbaum, who represents the Coalition Against Trafficking in Women.

RUTH TEITELBAUM: They talk about this as sex work, as if this is legitimate, as if it is inevitable that women are going to work as prostituted people. And the Coalition Against Trafficking in Women's position is that it's not inevitable. This is a human rights violation.

TOTENBERG: David Bowker represents the groups who prevailed in the case.

DAVID BOWKER: Just because you're receiving some government money, you're doing business with the government or you're partnering with the U.S. government doesn't mean that you forfeit your First Amendment rights.

TOTENBERG: But Stanford Law School's Michael McConnell sees the court ruling as sensible.

MICHAEL MCCONNELL: This is actually kind of a middle ground. It gives the government a lot of authority - and I think rightly so - to make sure that its funded projects are done in accordance with government policy, but no more than that.

TOTENBERG: Dissenting from today's decision were Justices Antonin Scalia and Clarence Thomas. Writing for the two, Scalia said that the First Amendment does not mandate a viewpoint-neutral government and that the government may enlist the assistance of those who believe in its ideas to carry them to fruition. Nina Totenberg, NPR News, Washington.

SIEGEL: And, Nina, before you go, there are several major cases yet to be decided...


SIEGEL: ...before the Supreme Court ends its term. So let's talk briefly about those. We have some really big ones left, big issues.

TOTENBERG: Yes. We have two same-sex marriage cases, we have affirmative action and the Voting Rights Act. Those are all still right sitting there on the griddle.

SIEGEL: So what's going on? What's taking so long?

TOTENBERG: To be truthful, I would have thought that today we would have gotten one of them, and it was quite a scene in the courtroom. It was very clear the chief justice had an opinion. He would be - typically, we would expect him to write one of these very big cases.

I saw, I think, Justice Breyer's wife in the courtroom. I assumed that meant that Breyer was going to have a dissent from the bench. She looked very serious, and he was fiddling with his script, essentially, while the other justices were announcing other opinions. And then he comes up with a case that has - is not one of the four big ones.

SIEGEL: Fake out.

TOTENBERG: Fake out, total fake out. And all of our hair goes on fire because we're looking forward to next week when I don't know how we're going to do all these cases jammed into one, two, maybe if we're lucky, three days.

SIEGEL: Well, do we know how many days the court will take issuing rulings next week?


SIEGEL: Monday we assume, don't we?

TOTENBERG: Monday's on schedule. We - no, they're - we're going to have opinions on Monday. Beyond that, we don't know what other days they're adding. We just assume they'll add some days.

SIEGEL: The Supreme Court very often leaves its most important, most controversial cases for the end of the term. Is this about as big an end-of-the-term lineup of decisions that you've seen?

TOTENBERG: I don't know. You remember last year we had a couple of very, very big ones just left till the end. There's always a train wreck because justices are like everybody else. It's very - and these are very difficult cases. And this year, three out of four of those cases were argued quite late in the term in, essentially, in March and April.

And it just gets backed up, and we don't know. Maybe they can't get to five on some of these. That's what - maybe there isn't a decision for the court in some of these so that there are multiple decisions and no one doctrine that can be announced for the court. Now, that's sort of the worst of all outcomes.

SIEGEL: Well, Nina, enjoy all your free time between now and Monday.

TOTENBERG: I will tell you this, Robert. In the old days, it was a little more clear when we were leaving because we knew what was the day that Justice Brennan had reserved a place for his car on the ferry to the vineyard...


TOTENBERG: ...and there's nothing certain like that anymore.

SIEGEL: OK. That's NPR legal affairs correspondent Nina Totenberg.

Copyright © 2013 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.