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Posted by on Jun 20, 2013

Supreme Court Upholds First Amendment Rights for Grant Recipients

In a 6-2 decision released this morning, the Supreme Court upheld the First Amendment rights of grant recipients. In Agency for International Development v. Alliance for Open Society, the Court examined the power of the federal government and awarding agencies to impose certain award terms and conditions that would require a recipient to “adopt and espouse, as their own, the Government’s view on an issue of public concern.” The Court ruled that a condition of federal funding “requiring recipients to profess a specific belief” exceeds the government’s power to administer a federally funded program and is therefore a violation of the recipient’s First Amendment rights.

In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the President’s Emergency Plan for AIDS Relief (PEPFAR). Congress authorized the disbursement of program funding to nongovernmental organizations and appropriated $3 billion annually for five years. A provision in the Act denied funds to “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” The full text of the law can be found at

Two recipient organizations, the Alliance for Open Society International and Pathfinder International, challenged the provision by arguing the condition of aid violated the First Amendment by forcing recipients to adopt the government’s message as their own. The organizations maintained a neutral policy towards prostitution and argued that adopting the government’s position and message would marginalize sex workers and limit the organizations’ ability to achieve the program’s goal in preventing the spread of HIV.  The respondents’ brief can be found at

In its brief, the federal government argued that “Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.” The government maintained the policy did not violate the First Amendment rights of the recipients because nothing compels organizations to apply for funding and that “private entities that do not wish to comply with those conditions may avoid them simply by declining federal funds.”  The government’s brief can be found at

The Court recognized the ability of the government to establish terms and conditions for recipients of federal funding.  In this situation, however, the Court determined the condition of aid required the recipients to “pledge allegiance to the Government’s policy of eradicating prostitution.” The Court found the recipients’ First Amendment rights were violated because the award terms and conditions went “beyond defining the limits of the federally funded program to defining the recipient.” The policy requirement, the Court determined, would infringe the recipients’ ability to effectively administer programs financed with non-government funds.  “A recipient cannot avow the belief dictated by the condition when spending [PEPFAR] funds, and assert a contrary belief when participating in activities on its own time and dime.”

This ruling is a significant victory for grant recipients. The Court upheld the First Amendment rights of recipient organizations and established guidelines for award terms and conditions. With this decision, Congress and awarding agencies cannot establish award terms and conditions that exceed the scope of the program.

The Court’s decision can be found at

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