## Facts

- Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, funding overseas HIV/AIDS programs through federal agencies, including USAID.
- The Act imposed a use-of-funds restriction barring grant money from being used to “promote or advocate the legalization or practice of prostitution or sex trafficking.”
- The Act also imposed a separate “Policy Requirement” conditioning eligibility for funding on an organization having “a policy explicitly opposing prostitution and sex trafficking.”
- Domestic nongovernmental organizations working in HIV/AIDS prevention and outreach—including work involving sex workers—received or sought Leadership Act funds.
- The organizations alleged the Policy Requirement compelled them to affirm an ideological position as an institution, impairing their ability to build trust with target populations and to speak and associate outside the federally funded program.
- The organizations sought declaratory and injunctive relief, claiming the Policy Requirement violated the First Amendment.
- The district court enjoined enforcement of the Policy Requirement against the plaintiffs; the Second Circuit affirmed.

## Issues

1. Whether conditioning Leadership Act funding on adoption of an organizational policy explicitly opposing prostitution and sex trafficking violates the First Amendment.
2. Whether the Policy Requirement is an unconstitutional condition because it compels recipients’ speech and regulates expression outside the scope of the federally funded program.

## Decision

- The Supreme Court affirmed the judgment enjoining enforcement of the Policy Requirement against the domestic organizational plaintiffs.
- The Court held the Policy Requirement violates the First Amendment because it compels recipients, as a condition of funding, to affirm the government’s viewpoint as their own.
- The Court distinguished permissible program conditions that define how federal funds may be used from conditions that reach recipients’ privately funded speech and activities outside the program.
- The Court rejected the argument that recipients could avoid the constitutional problem by creating separate affiliates to take the funds and adopt the policy.

## Legal Principles

- The government may not deny a benefit on a basis that infringes constitutionally protected freedom of speech, including by compelling affirmation of a belief.
- Under the Spending Clause, Congress may define and limit the activities it subsidizes (including imposing use-of-funds limits), but it may not condition funding on acceptance of an ideological viewpoint that operates beyond the program’s scope.
- A condition is unconstitutional when, by its terms and operation, it controls recipients’ speech and beliefs outside the federally funded program rather than specifying the program’s funded activities.
- The availability of separate corporate affiliates does not cure a funding condition that compels the primary organization itself to adopt the government’s position.

## Conclusion

The Court held that the Leadership Act’s requirement that funding recipients adopt an institutional policy explicitly opposing prostitution and sex trafficking is an unconstitutional condition because it compels speech and extends beyond defining the limits of the federally funded program.


Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013)