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Abstract

Can Congress require AIDS service organizations to pledge fidelity to the government's view opposing prostitution as a condition of receiving funding? This term, the Supreme Court will decide whether the First Amendment permits such censorship in USAID v. Alliance for Open Society International (AOSI).

The 2008 legislation reauthorizing the President's Emergency Plan for AIDS Relief (PEPFAR) requires host countries to support “activities promoting abstinence, delay of sexual début, monogamy, and fidelity.” PEPFAR's “conscience clause” allows organizations with a moral or religious objection to opt out of providing services to patients with a sexual orientation of which they disapprove. In addition, the law requires grantees to adopt “a policy explicitly opposing prostitution” and to refrain from any speech or activities the government deems “inconsistent” with that policy. The antiprostitution pledge extends not only to what a recipient says or does with PEPFAR funds, but even to what it says or does with its own private funds. The government, however, has not enforced the pledge against U.S.-based nongovernmental organizations partly because of a preliminary injunction granted by the lower courts. That injunction is now at risk if the Supreme Court upholds the loyalty oath.