Antonin Scalia

Supreme Court Mulls Sex Positions – Er, Positions on Paying for Sex

Can the federal government link organizational funding with taking a formal stand against prostitution?

|

Blah blah legal briefs pun blah blah blah
Credit: le calmar / Foter.com / CC BY-NC

Today the Supreme Court took on the question of whether the federal government can tie grants to organizations to certain positions being held by said groups. In this case, Agency for International Development v. Alliance for Open Society, can the federal government require an organization to take a position against prostitution in order to receive federal AIDS and HIV-prevention funding, or is it a violation of the First Amendment?

Both Bloomberg and SCOTUSblog reported a conflicted Supreme Court at today's hearing, struggling to figure out the difference between making a decision to fund an organization based on having matching policies versus funding an organization based on matching views.  From Bloomberg:

Justice Samuel Alito said the government was advancing "quite a dangerous proposition" by requiring an expression of agreement with federal policy. He asked whether the government could provide funding to universities only if they agree with a list of positions advocated by the government.

"I'm not aware of any case in which this court has held that it is permissible for Congress to condition federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees," Alito said.

The Supreme Court has said Congress generally can place conditions on the receipt of federal funds. David Bowker, the lawyer for the organizations, said Congress was going further by requiring an anti-prostitution policy.

"Outside the government program, the government cannot control private speech," Bowker argued.

But the obvious complication is that positions and points of view tend to influence what organizations do with their policies, and therefore the grants. The groups pushing this case say they work with prostitutes in third-world countries on HIV education and are worried about what the impact of having to take such a position might be on their efforts. Lyle Denniston at SCOTUSblog noted justices Anthony Kennedy and Antonin Scalia asking if the case was truly about speech or about policy:

When Justice Anthony M. Kennedy wondered whether a member of Congress as a committee chairman could choose to vote for funding an organization because it liked that group's views better, the organizations' lawyer said Congress could pay for a particular program instead of another, but that Congress had done with the HIV/AIDS program was to "impose its viewpoint on the grantee," and that would not be constitutional.

Justice Antonin Scalia a moment later pounced on that line of argument, asking why Congress could not prefer to give money to the Boy Scouts of America rather than to the Muslim Brotherhood.  It was meant, apparently, to be rhetorical question, because it was obvious that Scalia thought that would be permissible. Bowker did not respond directly to the question, saying only that the Court had never allowed the government to make spending decisions "based on viewpoint."

That this policy is stupid and counterproductive sadly isn't a matter for the courts. According to Bloomberg, the Obama Administration's defense of the rule that HIV/AIDS organizations must be anti-prostitution is because prostitution and sex-trafficking "contributes to the disease's spread." How forcing a health organization to take a political position on prostitution is going to reduce the spread of HIV is a bit of a mystery.

NEXT: Philly Man with AR- 15 Defends Home from Invader

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Supreme Court Mulls Sex Positions

    You are a God among men, Shackford.

    1. That line has me currently scrubbing my brain with bleach, TYVM.

      1. You don’t have a thing for wise latinas?

  2. “can the federal government require an organization to take a position against prostitution in order to receive federal AIDS and HIV-prevention funding, or is it a violation of the First Amendment?”

    Red herring.

    1. Yes, another case all about handouts and not about rights.

      1. And the whores in the picture are the ugliest ones I’ve seen as an illustration since … ever. What craphole part of Europe are they from?

        1. They are apparently from Canada.

          1. Should have used a picture from Eastern Europe, where they still try to look like television/movie hookers.

            1. ooh he could’ve used a picture of Jon Voit.

          2. Are they women or t-girls? It’s hard to tell.

  3. If the feds want to give me other people’s tax money, I’ll take whatever position they want on whatever issue. WHO’S THE WHORE NOW?

    1. Tony’s mom.

      1. Wasn’t she on the cover of Crack Whore magazine?

  4. OT: NYC at it again. Wants to raise cigarette purchase age to 21.

    http://online.wsj.com/article/…..lenews_wsj

    1. This would have been on topic in this thread.

      1. Shit must of missed that one.

  5. …the Obama Administration’s defense of the rule that HIV/AIDS organizations must be anti-prostitution is because prostitution and sex-trafficking “contributes to the disease’s spread.”

    Whores for Obama won’t be pleased about this.

  6. Would the federal government require an organization to take a position against gay men in order to receive federal AIDS and HIV-prevention funding? After all, over 60% of all new HIV infections in 2010 were among gay or bisexual men.

    For some reason I don’t think that would fly.

  7. “We can’t have young women copulating. Here, have some birth control pills.”

  8. The libertarian (big L, small l ???) view is glaringly clear. Why is the federal government funding any of this? Issues like this would never arise if the government was limited to Constitutional limits.

    1. I came here to say just that.

      The govt has no business funding any of this shit.

      1. You say government shouldn’t fun HIV/AIDS mitigation programs, even though that’s the only thing that’s going to eradicate it. Fine. I say it should, because it’s obviously a worthy thing to do. I win.

        1. Yes, because redistributing stolen money/”taxes’ is the only way to cure AIDS/H.I.V. Not the millions that have been invested in it by no profits. /progtard.

          1. I wonder if there could be some sort of situation where people used condoms to prevent themselves from contracting HIV. Like they were making sex safer for themselves?

            1. But how would they get condoms if someone wasn’t paying for them?

        2. You say government shouldn’t fun HIV/AIDS mitigation programs, even though that’s the only thing that’s going to eradicate it. Fine. I say it should, because it’s obviously a worthy thing to do. I win

          Jesus you are a fucking moron.

          What if the govt progarm to “mitigate” AIDS is to execute everyone with AIDS. It would be, honestly, the most effective program imaginable. I’m sure you would say “I win” right?

          1. Wow it’s like you don’t get it at all. Like, at all.

  9. I think it’s reasonable to say the government can choose what it wants to give money to for any reason but that it can’t impose political views after the fact. It should have to deal with the political views of the organizations that exist and try to find the best fit.

    1. That’s a pretty difficult line to draw, though, because organizations will get an incentive to change their positions in order to become that “best fit” according to the criteria either laid down by Congress or used by the Executive Branch. Most of these things are annual grants, too, so even if the organization then is free to change its policy (back) after the fact without losing money, it will still be jeopardizing future funding, as it will no longer be a “best fit.”

      OTOH, in the particular case, the respondents argue that the anti-prostitution mission is irrelevant to the anti-AIDS program, but that ends up implying that if Congress had called it the “anti-sex trafficking and anti-AIDS” program, instead of just having the anti-prostitution as a restriction, it would be fine.

    2. I think it’s reasonable to say the government can choose what it wants to give money to for any reason

      And you wonder why the commentariat loves to shit all over you.

    3. Does this include the Boy Scouts?

    4. I think it’s reasonable to say the government can choose what it wants to give money to for any reason

      This is your first, and maybe biggest problem.

  10. Did the poor woman on the right have her right leg amputated below the knee? It just seems to disappear.

Please to post comments

Comments are closed.