On June 21, 2013 the U.S. Supreme Court ruled that the Federal Government violated the First Amendment by requiring an organization receiving Federal funds to have a policy opposing prostitution.
- Just in case grant professionals didn’t have enough to worry about, now we need to make sure that by accepting federal grants, we don’t stomp on freedom of speech in the process.
What happened? You Can’t Mandate Thoughts
In 2003 congress passed the United States Leadership Against H.I.V./AIDS, Tuberculosis, and Malaria Act.
- This federal statute funded a variety of public health projects to care for and stop disease across the world.
The statutes stated that federal funds could not be used to “promote or advocate the legalization or practice of prostitution.”
Here was the rub…
But here was the problem…
The law went on to insist grant recipients “have a policy explicitly opposing prostitution” and must also abstain from any expressions that are “inconsistent with” that policy.
The government said that if grantees didn’t like the “rules” they could just decide to not accept the federal money.
- In other words, if you don’t like it, you don’t have to take the money.
What did the court rule?
After hearing the arguments in the Agency for International Development v. Alliance for Open Society International case, the Supreme Court found that the funding requirement that prohibited the expression of any beliefs that were contrary to the government policy violated people’s right to free speech protected by the First Amendment.
- Chief Justice Roberts stated that this requirement coerced grant recipients to agree with the government policy and didn’t allow them to later express a different position even if they are weren’t currently engaged in the activities of the federal award.
Consider this: Once you make the statement the government requires you agree with for the receipt of the federal funds, you can’t ever say you disagree with the government’s policy again-or even just take a neutral position on the policy.
What should grantees watch out for? Activities vs. Advocacy
The Supreme Court ruling doesn’t stop the government from specifying what kind of activities it will pay for, but it does limit the federal government from requiring agreement with a point of view as a requirement for getting federal funds.
- For example, the court has recognized that the federal government can stop federal dollars from being used to advocate for certain types of services, like abortion services.
Grantees should be on the lookout for grant funds being used to sponsor advocacy that limit the free speech rights of others.
Most notably policies that require pledging a certain “official” point of view or an “oath” as a condition of receiving federal funds may interfere with the right of free speech and be viewed by the Supreme Court as unconstitutional.
What does your grant require?
Lucy Morgan CPA, MBA
CEO, Compliance Warrior
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