MONTHLY REFLECTIONS FROM THE PRESIDENT
|Samuel A. Worthington
Picture | Bio
NGOs and the First Amendment
April 2013—Ten years ago, the U.S. Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, one of the most important pieces of foreign assistance legislation in history. The bill laid out the framework of the President’s Emergency Plan for AIDS Relief (PEPFAR), which President George W. Bush announced in 2003. Since then, the U.S. has spent $44 billion on programs to provide life-saving anti-retroviral drugs, HIV testing and counseling, and care for people living with HIV or AIDS. Secretary of State John Kerry recently estimated that PEPFAR has saved the lives of around 5 million children since its creation.
Unfortunately, one small provision in the bill has caused a rather large headache for U.S. NGOs and has resulted in a U.S. Supreme Court case involving InterAction, the Global Health Council, Pathfinder International and the Open Society Institute as plaintiffs. The provision holds that to qualify for federal funds to fight against HIV and AIDS, U.S. NGOs must have a policy “explicitly opposing prostitution.” InterAction has joined a suit arguing that this provision violates the First Amendment rights of InterAction members and other parts of U.S. civil society.
The legality or morality of prostitution is not what is at stake; nor is it our primary concern, even as we strongly oppose the exploitive realities of the global sex trade. The critical question, and the reason InterAction is involved in the suit, is how much policy control, if any, the U.S. government should have over the privately funded policies and programs of nonprofits that receive federal funding for other programs. The anti-prostitution requirement goes far beyond simply stating how government money should be spent, and actually forces NGOs to promote the government’s view on a certain issue in their privately funded programs, speech and activities.
This case has implications for all U.S. nonprofit organizations regardless of political leaning, religious affiliation or any other status. This requirement dictates whether a U.S. NGO can carry out HIV prevention programs with sex workers, but the broader principle of government control over the private operations of U.S. NGOs could apply to any other U.S. government policy provision. For example, it could affect whether faith-based organizations could work with certain religious groups.
U.S. NGOs and other nonprofits are constantly complying with the various regulations and policy requirements that necessarily come with receiving federal dollars. But the anti-prostitution requirement goes a step further by infringing on U.S. NGOs’ freedom of speech. The constitutionality of the requirement has been in doubt since it was passed. The Bush administration initially did not enforce the requirement against U.S. NGOs for over a year because the Department of Justice warned it would be unconstitutional to do so; and we won a preliminary injunction in the district court, which the court of appeals affirmed. No Supreme Court case has previously upheld such a condition on recipients of federal funds.
These freedoms are at the heart of InterAction members’ identity as civil society organizations. Civil society is defined by its independence from government. One of the main reasons U.S. civil society is strong and vibrant is that nonprofits in the U.S. are enabled and supported by the U.S. government and not constrained based on politics, faith or any other status. These freedoms affect civil society’s ability to provide services to vulnerable populations and fulfill the important role of holding government accountable.
This case is ultimately about the freedom of speech of U.S. NGOs and other nonprofits and what they can and cannot do with their own private resources when they receive any amount of federal funds. How the Supreme Court rules on this case will likely go beyond its traditional conservative-liberal divisions and the outcome is unclear. Either way we have much at stake this April.