The Supreme Court will hear a very interesting case later this month that will be of interest to anyone concerned with how tax dollars are spent, free speech and international relations. That hopefully should encompass a good majority of the many folks here at Redstate if not many concerned Americans. But first, a little background.
In 2003, Congress passed what is called the Leadership Act which was designed to assist in the arrest and eradication of certain diseases around the world. The official title of the act mentions malaria, tuberculosis and, most importantly for the purposes of this case, HIV/AIDS. As a side comment, say what you will about George W. Bush, but he was a consistent advocate of eradicating AIDS on a global scale and he actually put the money (our tax dollars) where his mouth was. We can debate whether that was or is a wise choice, but that is for another day. Congress held considerable hearings on this law and one fact that seemed to emerge from those hearings was that prostitution and sex trafficking were a major cause of the spread of HIV/AIDS. This “evidence” was presented by experts in the field and from those actually working around the world in foreign countries at the time. Congress also determined that often host countries lacked the financial or logistical resources to combat AIDS and that gap was filled by non-governmental organizations (NGO). Therefore, they decided that appropriated funds could go to these NGOs and, furthermore, that these NGOs adopt a policy opposing prostitution and sex trafficking.
The Society for an Open Society International, one such NGO, filed suit in the 2nd Circuit Court of Appeals arguing that adoption of this policy violated their free speech rights in that the government was compelling them to adopt a government view. That Court of Appeals issued an injunction against the policy adoption provision. Some changes to the regulations while the case was pending made it easier for the NGOs to receive funds provided they were funneled to a subsidiary, but the Society maintained their stance and the Second Circuit ultimately agreed that the provision was an unconstitutional infringement on the free speech rights of the organizations.
This case will attempt to solve a somewhat ambiguous area of constitutional law where the power of Congress under the Spending Clause comes into contact with free speech rights under the First Amendment. The government is arguing to uphold the law as written and Obama’s Justice Department relies very heavily upon a 1991 case which is somewhat similar. That case- Rust v. Sullivan- was authored by then Chief Justice Rehnquist in a 5-4. The Rust decision involved using federal funds for organizations that provided, advocated or counseled women to receive abortions as a means of family planning. The Court ruled then that the language and resulting regulations did not infringe upon the free speech rights of groups like Planned Parenthood. Today, the government argues that this is an analogous case and, indeed, even more air tight since the provision in question is based on Congressional findings, not necessarily a moral viewpoint. Conversely, the Society argues that the right to remain silent on an issue has and should receive as much constitutional protection as spoken or written words. Admittedly, they do have Supreme Court precedent backing up that claim. However, most of that precedent involves political speech or expression/adoption of a political viewpoint.
In effect, the Society argues that the government is coercing them to adopt the government’s position in opposition to prostitution and sex trafficking. They furthermore state that they do not condone either act, but to officially state that as a policy would potentially “offend” some countries or some of the targeted populations. This, they claim, would then negate or lessen their efforts. They argue that doing so would drive prostitutes underground where they can continue to spread the HIV virus willy-nilly. In fact, they state that NGOs that have adopted these anti-prostitution policies have less success than them in reaching the targeted populations. Also, the law specifically excludes from this provision any United Nations organization like the World Health Organization or UNAIDS.
As to this latter “charge,” the WHO and UNAIDS are UN organizations that receive billions of dollars from the United States and they do not have a stated anti-prostitution policy. But, they fall under the umbrella of the United Nations which does have a policy and has negotiated treaties against prostitution and sex trafficking. Thus, by extension, anything that falls under that umbrella has that implied policy. In the end, this argument is no argument at all.
Most importantly, for the Society to prevail in this case, the Supreme Court would have to rethink the Rust decision. Liberals like to rail about how this particular Court likes to “undo” years of Supreme Court decisions. One perfect example is the Citizens United case involving campaign contributions. Of course, they mention only those examples of alleged “undoing” that do not meet with their worldview. In fact, the Roberts Court, like any Court before it, places great emphasis on precedent and stare decisis. The fact they took the case, which usually takes four votes, should be a small reason for concern since four Justices believe this case is somehow unique, or that they may want to reconsider the extent of the Rust decision. However to do so would require a shift in opinion regarding the Rust case and a going back on their alleged deference to precedent.
Furthermore, as recent arguments in the Supreme Court in any number of cases indicate, it would appear that both Justices Kagan and Sotomayor- two Obama appointees- believe in legislative history and the Congressional record when analyzing the possibility of striking down a law. Kagan, in fact, cited language from the legislative proceedings in the recently heard challenge to DOMA and gay marriage. In the “Society” case, it will be interesting to see if Kagan brings up the legislative/Congressional record or if she simply sweeps it aside because that record would lead her to a point of view she may not favor. It is a fine line between being a liberal and a hypocrite and one would suspect that Kagan would come down on the side to amend or modify the Rust decision since she is, at heart, a liberal.
And speaking of liberals, this case illustrates some of their hypocrisy overall. For example, their political apparatus- the Democratic Party- likes to champion themselves the defender of women’s rights as do all liberals in general. What can be more demeaning to women everywhere than prostitution (with the possible exception of pornography). Of course, we can always adopt the liberal view that a woman’s “choice” to be a prostitute or a porn star is an example of a woman exercising her power. Undoubtedly, the trafficking of women for sexual purposes whether here or abroad and whether discussed in the context of eradication of AIDS/HIV or not is not female empowerment, but female exploitation. Thus, the more conservative Congress of 2003 certainly had more in their heart for advancing women’s rights internationally than any liberal can claim today. In fact, sex trafficking of women may very well be one of the biggest international women’s rights issues and, quite frankly, conservative opposition to it and stating so through policy statements and laws places conservatives squarely on the correct side of this issue.
The second point is the concept of entitlement that pervades liberal thought. Because these funds are appropriated, liberal groups like the Alliance for an Open Society and other NGOs think they are entitled to these funds. In this particular case, there is ample evidence from scores of experts testifying before Congress that prostitution and sex trafficking significantly increases the risk and the actuality of the spread of AIDS/HIV in developing countries where these organizations work. How having a stated federal policy against these acts infringes on their free speech rights requires a reworking of years of Supreme Court jurisprudence regarding the Spending Clause. Here is a perfect example of the practicality of this provision applied to another time: Suppose it is 1972 and the US adopts a policy to promote democracy in developing countries and they appropriate funds for those purposes. Would it make sense for the Communist Party to lay claim to those funds because they operate in a foreign country? Predicating the receipt of appropriated funds on behaviors and actions and words that advance a stated government policy is a perfectly acceptable action by Congress. Absolutely nothing prevents these groups from receiving funds from other sources in other countries or even in the United States. The Congress is not telling these people to adopt a viewpoint per se, only to support the government’s stated policy based on facts in exchange for the funds. If the policy is so wrong, then they should make their case before Congress, not in the courts.