In the US AIDS Leadership Act, Congress prohibited grant funds to any organization “that does not have a policy explicitly opposing prostitution.” Some grant recipients filed suit, claiming a violation of the First Amendment as an unconstitutional condition on this spending program. Public health groups supported this challenge, believing that the weight of evidence established that HIV/AIDS outreach efforts are more effective when prostitutes are not stigmatized.
Today, the Supreme Court, led by Chief Justice Roberts, agreed with the grant recipients, but not on public health grounds. The Court (6-2, with Kagan recused) permitted restrictions on what happens with program funds directly, but the First Amendment protects what the groups do on their own “time and dime.”
Justices Scalia and Thomas provided the dissent, discussing a hypothetical application by Hamas for US government funds. Money is fungible and the US Government should have freedom to choose grant recipients based on many factors, including their other activities. Scalia would draw the line only when Congress imposed unconstitutional conditions unrelated to the program goals. Here, prostitution is part of the etiology of the AIDS epidemic, and so the restriction should be constitutional.
This case adds complexity to future cases involving public health and the First Amendment. Of course, Scalia is right that money is fungible, but his solution would have been a blanket invitation for Congress to meddle with unpopular but effective public health practices in other settings. But the majority opinion, while a tactical victory for public health, limits the power of Congress under the spending power to conditions “inside” grant programs. Limiting the power of Congress under the spending power is a long-term Republican goal. Today it attracted 3 Democrats as well.