Recently, the Supreme Court heard arguments regarding what is widely known as the “anti-prostitution pledge,” a requirement that organizations receiving government money for overseas disease-prevention work adopt policies opposing prostitution and sex trafficking. The pledge was challenged in court by public health organizations, which argued that by pressuring them to profess agreement with the government’s viewpoint, the requirement violates their free speech rights. In defense of the pledge, the government has argued that when spending its own money to fund programs it is entitled to ensure that its non-governmental organization (NGO) partners will spread a message it approves.
This dispute has dragged on for nearly a decade. The pledge requirement was enacted in 2003, and the lawsuit was filed two years later. In 2006, a trial court issued a temporary order preventing the government from enforcing the pledge on organizations based in the United States. That order was upheld by a federal appeals court, keeping the pledge in abeyance to this day. Meanwhile, another federal court sided with the government in a similar case, resulting in conflicting interpretations of the law. And in a spin-off case, the government fought for years to keep secret a memo from its own lawyers opining that requiring U.S. organizations to take the pledge would violate the Constitution (for reasons unknown; that memo was followed by another that took the opposite view and approved the pledge).
What is at stake in this case? As the American Civil Liberties Union (ACLU) set out in a prior friend-of-the-court brief, the pledge has taken a concrete toll, visible in its impact on overseas health organizations which, unlike their U.S. counterparts, have been subject to the pledge requirement all along. A number of these programs have been defunded, shut down, or otherwise impeded by the pledge. The pledge has variously caused a condom shortage among sex workers in Mali, the withholding of safer sex information from young men in sex work in Cambodia, and the closure of community-based drop-in centers in Bangladesh, where sex workers had previously obtained condoms and health information, as well as respite and solidarity. If the Supreme Court sides with the government, and United States-based health organizations are also subject to the pledge, the human cost will undoubtedly climb.
But the potential impact of this case is much broader. Although the government is generally allowed to attach strings to its grant money to ensure that the money is spent for its intended purpose, the pledge goes much farther. It restricts not just speech occurring within a government-funded program, but also tells organizations as a whole what to say, even when they are using their own, private funds. In other words, the government is attempting to use its dollars to control speech far beyond the work it actually underwrites. The second way in which the pledge is unprecedented and dangerous is that, far from merely requiring organizations hired by the government to convey a governmental message (think “Just Say No to Drugs”), it would operate as a kind of ideological screening that would disqualify organizations that may not share the government’s view but are perfectly capable of carrying out the funded work. As pointed out in the ACLU’s amicus brief to the Supreme Court, this would be unconstitutional. The government can buy our services, but it can’t buy our conscience.
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So where will the Supreme Court come out on the pledge? It’s hard to say. The justices’ questions at oral argument suggested that they understand the government to be asking for an unprecedented expansion of its power to regulate not just speech but personal belief. The insistence that individuals swear fealty to the government’s policy positions would alter dramatically the relationship between citizens and the government, and intrude deeply into personal dignity and integrity. Given the vast range of programs carried out by the government through private partners—including schools and universities of all kinds, scientific research, and health and community programs, to name a few—a ruling permitting the government to extract adherence to its viewpoint as the price of public funding would be cause for concern indeed.