Yesterday, in an important First Amendment decision, the Supreme Court ruled that the government may not require federal grant recipients to endorse the government's policy positions. The decision in Agency for International Development v. Alliance for Open Society International, which was written by Chief Justice Roberts, also has important implications for public health.
Under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, nongovernmental organizations are eligible to receive federal funding to fight HIV/AIDS around the world. But Congress attached two conditions to the use of those funds. First, the funds cannot be used "to promote or advocate the legalization or practice of prostitution or sex trafficking." The legal basis for this condition is well-established: Congress can place restrictions on the ways that recipients of federal funds use those funds without violating First Amendment rights because there is no Constitutional right to federal funding. Congress is free to choose to fund certain types of programs, like HIV/AIDS prevention, and decline to fund others, like advocacy for legalizing prostitution.
The second restriction on Leadership Act money, however, was the subject of the Court's recent decision. Under the Leadership Act, any NGO that received money to fight HIV/AIDS was required to have a policy "explicitly opposing prostitution and sex trafficking." Arguing that this "anti-Prostitution Pledge" requirement violated the grant recipients' First Amendment rights by forcing them to affirmatively and explicitly pledge agreement with a government position, some of the organizations that had received Leadership Act grants, including the Alliance for an Open Society International, sued for the right to receive Leadership Act funds while remaining neutral on the topic of prostitution. Among other things, they argued that adopting the policy that the government demanded would in fact impede their ability to work with prostitutes to stem the spread of HIV/AIDS.
The ACLU filed an amicus curiae brief in support of AOSI arguing that the "anti-Prostitution Pledge" was more than governmental regulation of the use of federal funds. Instead, we argued, it unconstitutionally imposed the government's opinion on private organizations. The government argued that it could place conditions on funding without violating First Amendment rights because non-governmental organizations were free to reject federal funding and adopt any stance on prostitution that they wished, or work through an affiliate.
Yesterday, the Supreme Court rejected the government's arguments, recognizing a critical distinction between restricting the use of federal funds to define the scope of a program, which is constitutional, and using federal funds to coerce grant recipients into adopting a particular ideological viewpoint that is separate from its use of those funds, which is not. Requiring that a grant recipient affirmatively adopt a government-sanctioned policy position infringes on the recipient's First Amendment right to avoid compelled speech.
As Steven R. Shapiro, the ACLU's National Legal Director, said on Thursday, this "decision places real limits on the ability of government to impose its views on others by attaching strings to government dollars. The price of obtaining a government grant should not be the loss of First Amendment rights." Thus, "the government, like any other funder, can take steps to ensure that the money it gives to private organizations is spent for its intended purpose. Under the First Amendment, however, the government cannot tell grant recipients what they must believe or what they can say with private funds."
Today, we celebrate the Court's reaffirmation of the First Amendment and its rejection of Congress's attempt to dictate the content of free speech.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.