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Justices: Federal Funds Can't Infringe On Nonprofits' Free Speech

The Supreme Court has struck down a law mandating that nonprofit organizations adopt a policy opposing prostitution as a condition for receiving federal funds for HIV/AIDS programs abroad, saying such a requirement violated the groups' free-speech rights.

In the 6-2 decision, Chief Justice John Roberts led the majority, with Justice Antonin Scalia and Justice Clarence Thomas dissenting. Justice Elena Kagan recused herself.

The case, Agency for International Development v. Alliance for Open Society International, Inc., stems from a 2003 vote by Congress stating that no federal funds "may be used to promote or advocate the legalization or practice of prostitution" nor go to any organization "that does not have a policy explicitly opposing prostitution."

As NPR's Nina Totenberg reported in April at the time of oral arguments:

"Under a 2003 provision, the NGOs receiving federal money must take a pledge explicitly opposing prostitution.

"The groups balked, contending that the provision unconstitutionally compels them to do the government's bidding outside the confines of their programs. In addition, they contend that such a policy can be counterproductive, since stemming the AIDS epidemic depends in part on persuading prostitutes to use safe-sex practices."

The government had argued that Congress was within its rights to fund only programs that agree with its policy against prostitution, but it was clear during oral arguments that Chief Justice Roberts and several of the other justices were skeptical of that line of reasoning.

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