The Supreme Court will decide whether the federal government can force groups that receive funding for overseas anti-HIV/AIDS programs to adopt policies opposing prostitution and sex trafficking.
The provision is part of a 2003 law that authorized billions of dollars to combat infectious diseases around the world. But the groups that do the work said the requirement would undermine their anti-AIDS efforts and is an intrusion on their free-speech rights.
The U.S. Court of Appeals for the 2nd Circuit agreed with the groups.
“Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment,” Circuit Judge Barrington Parker wrote in a 2 to 1 decision.
“Furthermore, the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate. The right to communicate freely on such matters of public concern lies at the heart of the First Amendment.”
The case was one of six the Supreme Court accepted Friday as it begins to complete its docket for the current term.
Solicitor General Donald B. Verrilli Jr. told the court that the language in the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 is meant to ensure that its nongovernmental partners comply with a “strategy that seeks not only to treat HIV/AIDS but to reduce the behavioral risks that foster its spread.”
Congress has determined that “participating in the sex trade or sex trafficking carries serious risks for women, men and children across the globe,” Verrilli wrote.
But the groups in the coalition that brought the suit, which include Pathfinder International and InterAction, say their work in Africa and Asia could be hurt by adopting the provision.
The groups in their brief told the court that they recognize the harms associated with prostitution but also believe “adopting a policy that explicitly opposes prostitution would jeopardize [their] effectiveness in working with high-risk groups to fight HIV/AIDS.”
They added that the broadly worded restriction would “compel them to adopt and espouse as their own a certain viewpoint, and to prohibit ‘inconsistent’ speech and activities, even if undertaken with private funds outside the scope of any federally funded program.”
The case is U.S. Agency for International Development v. Alliance for Open Society International . Justice Elena Kagan recused herself from the case, presumably because she had worked on it during her time as President Obama’s solicitor general.
In other action, the justices said they would tackle a question that has split lower courts: whether a defendant’s silence before he is arrested and read his Miranda rights can be used against him in court.
The case comes from Texas, where Genovevo Salinas was suspected of shooting and killing Juan and Hector Garza after a party in December 1992. Police went to see Salinas after he was identified as one of the attendees and his father had turned over a shotgun.
Salinas cooperated with questioning at the police station until he was asked whether the shells found at the crime scene would match the shotgun. He did not answer and was later charged.
The first attempt to convict Salinas ended in a mistrial. At the second, over the objections of Salinas’s defense lawyer, prosecutors put considerably more emphasis on his refusal to answer the question about the shotgun shells, according to court briefs.
The prosecutor told the jury that “an innocent person” asked such a question would say no. Salinas, on the other hand “wouldn’t answer that question.” Salinas did not testify.
Salinas’s conviction was upheld by the Texas Court of Criminal Appeals. But it noted that “nearly all of the courts that have addressed this issue have noted the conspicuous split and the lack of guidance from the Supreme Court,” according to the Salinas brief.
The state of Texas said the appeals court came down on the right side of the split.
But Stanford law professor Jeffrey L. Fisher, representing Salinas, said the court should make it clear that silence is a right in all circumstances.
“When law enforcement agents question someone about his or her potential involvement in criminal activity, the individual has two choices: speak or remain silent,” Fisher wrote. “If the latter necessarily creates evidence of guilt, then the right the Constitution grants him to remain silent is little more than a trap for the unwary.”
The case is Salinas v. Texas .