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Freedom of Speech and HIV/AIDS

By on January 13, 2013
File of demonstrators marching at a rally during the United Nations' High Level Meeting on HIV & AIDS at the UN headquarters in New York

It was bound to happen. Whenever you couple millions of dollars and policies, legal issues will arise.

At issue is a case the Supreme Court agreed to consider on if the government can require groups that get federal monies for overseas HIV/AIDS Supreme_Ct_2010programs have to have explicit policies that oppose prostitution and sex trafficking. What do you think?

The case is one of six that the court on Friday agreed to hear in its current term, with oral arguments most likely in April. Among the other cases is one examining the reach of the court’s landmark 1966 Miranda v. Arizona decision on the right to remain silent when questioned by the police.

The HIV/AIDS funding case thrusts the court into another sensitive social issue, the spread of sexually transmitted diseases, in a term in which it is also considering the legality of same-sex marriage, affirmative action and a key voting rights law. It involves the government’s effort to overturn a July 2011 lower court decision voiding the policy requirement set forth in the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.

According to the government, requiring funding recipients to take a public stand against prostitution and sex trafficking can change habits and help thwart the spread of HIV/AIDS.

Some aid groups argued, and the 2nd U.S. Circuit Court of Appeals in New York agreed, that it violated their free speech rights under the First Amendment to the U.S. Constitution.

Judge Barrington Parker wrote for a 2-1 panel of the 2nd Circuit that the requirement “compels recipients to espouse the government’s viewpoint.” He added that advocacy against prostitution is not central to the fight against HIV and AIDS.

The Alliance for Open Society International Inc, a nonprofit opposing the law, said the 2nd Circuit correctly recognized that Congress may not condition the receipt of public funds on giving up First Amendment rights. Eight justices will decide the case. Justice Elena Kagan recused herself, perhaps because she had worked on it as Solicitor General.

Among the other Supreme Court cases accepted for review:

  • Whether the government can require a former federal sex offender who had served his sentence and been freed from custody to register a change of address;
  • Whether state or federal law governs payment of death benefits under a federal worker’s life insurance policy;
  • Whether a federal law making it a crime to obtain “property” by threats applies when a person uses a threat to get the withdrawal of a recommendation to the New York State comptroller to reject a pension fund investment for his company.
  • Whether federal law preempts a municipal port from limiting access to federally licensed motor carriers.

Decisions in the six cases are expected by the end of June.

The HIV/AIDS funding case is U.S. Agency for International development et al v. Alliance for Open Society International Inc et al, U.S. Supreme Court, No. 12-10.

One Comment

  1. Marylou Daugherty

    January 21, 2013 at 1:00 pm

    Two groups — Alliance for Open Society International Inc., which runs a program in Central Asia to prevent the spread of HIV/AIDS by reducing drug use, and Pathfinder International, which provides family planning and reproductive health services in more than 20 countries — went to the courts after they adopted policy statements opposing prostitution in order to keep their eligibility for funding intact. Pathfinder did so even though it wishes to remain neutral on the issue or prostitution, the appeals court said.

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