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Originally published June 20, 2013 at 5:54 PM | Page modified June 20, 2013 at 8:41 PM

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High court: U.S. funds can’t be used to limit groups’ speech

The case raised the recurring question of whether the government can use its funding power to require grant recipients to follow its rules and policies.

Tribune Washington Bureau

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The answer is so basic, JUST STOP FUNDING 'EM ALL. Our Government has a long running h... MORE

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WASHINGTON — The government may not require people or groups to “pledge allegiance” to its policies as a condition of obtaining grants, the Supreme Court ruled Thursday in a broad defense of the First Amendment’s protection of freedom of speech.

The 6-2 decision written by Chief Justice John Roberts strikes down part of a federal law that requires groups that receive funding to fight AIDS overseas to announce policies “opposing prostitution and sex trafficking.”

Under a 2003 law, the federal government has distributed billions of dollars to private groups to help fight AIDS, imposing two conditions. First, the money may not be used “to promote or advocate the legalization or practice of prostitution and sex trafficking.” That condition was not before the court.

The question for the justices was whether the second condition, requiring recipients to have “a policy explicitly opposing prostitution and sex trafficking,” passed constitutional muster.

Several groups that receive the federal money sued to challenge that requirement on the grounds that it would make it difficult for them to work with sex workers who need testing and treatment, and that it would violate the groups’ First Amendment rights.

The case raised the recurring question of whether the government can use its funding power to require grant recipients to follow its rules and policies. In the past, the court has upheld federal laws that required libraries to filter pornography from computers and that told doctors in subsidized clinics they may not advise patients about abortion.

But in Thursday’s opinion, Roberts said those decisions involved the government’s refusal to subsidize certain activities. The government may not go further, he said, and “leverage funding to regulate speech outside the contours of the program itself.”

The law requiring groups to declare their opposition to sex trafficking “falls on the unconstitutional side of the line,” he said. “It is about compelling a grant recipient to adopt a particular belief as a condition of funding. ... It requires them to pledge allegiance to the government’s policy of eradicating prostitution.”

Roberts also cited a famous Supreme Court opinion by Justice Robert Jackson, which 70 years ago this month struck down the laws that required schoolchildren, including those who were Jehovah’s Witnesses, to salute the American flag.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by work or act their faith therein,” the chief justice repeated in quoting Jackson.

Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor joined the majority.

Justices Antonin Scalia and Clarence Thomas dissented. “The First Amendment does not mandate a viewpoint-neutral government,” Scalia said. He called the funding condition in this case “The reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject.”

Justice Elena Kagan, formerly the U.S. Solicitor General whose office defended the law, recused herself from the case of Agency for International Development v Alliance for Open Society.

Ruth Messinger, president of the American Jewish World Service, called the decision “a huge victory in the battle against HIV/AIDS worldwide. ... Organizations fighting HIV/AIDS cannot take the necessary steps to address the epidemic if the funding available requires that they not work with people engaged in the sex trade.”

Class-action suit

The Supreme Court, in its latest ruling to bar class-action claims against big corporations, blocked restaurant owners from joining to sue American Express over high credit-card fees.

In a 5-3 decision Thursday, Justice Antonin Scalia said American Express can use its arbitration agreement to squelch the class-action claim from the restaurant, even if the dominant credit-card company is violating antitrust laws and the class action is the only affordable way to raise the claim. “The antitrust laws do not guarantee an affordable path to the vindication of every claim,” Scalia said.

In a strongly worded dissent, Justice Elena Kagan said the decision means “the monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

The ruling was the third in three years to shut down class-action efforts brought on behalf of employees, consumers and now, small-business owners.

Lawyers on both sides of the issue said the court’s conservative wing was determined to shield companies from these broad lawsuits.

The court has taken “another big step down the road of permitting companies to use arbitration agreements to entirely insulate themselves from class-action liability,” said Vanderbilt Law professor Brian Fitzpatrick, a former Scalia clerk.

Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito joined Scalia in the majority.

Justices Ruth Bader Ginsburg and Stephen Breyer joined in Kagan’s dissent. Justice Sonia Sotomayor was recused because she was on the appeals court in New York when the case arrived there.

Material from The New York Times is included in this report.

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