Law
3:48 pm
Thu June 20, 2013

Supreme Court: Provision In AIDS Law Violates Free Speech

Originally published on Thu June 20, 2013 8:18 pm

The U.S. Supreme Court, headed into its final days of the term, left all of its marquee cases undecided on Thursday. Still being hashed out in private by the justices are two same-sex-marriage cases, plus major tests of affirmative action in higher education and the Voting Rights Act. No more decisions are expected this week.

Thursday's court session produced important business and First Amendment decisions, nonetheless. On the First Amendment front, the court ruled that the government cannot force private health organizations to denounce prostitution to get money to fight HIV/AIDS overseas.

A 2003 federal law provided billions of dollars to private nongovernmental organizations to fight AIDS, particularly in areas where it has become pandemic — sub-Saharan Africa and the Caribbean. But the NGOs must essentially promise to explicitly oppose prostitution. Since many of these organizations work with prostitutes to get them to use safe-sex practices, the organizations figured that explicitly condemning prostitution would make their work more difficult, and they challenged the law in court. They contended that the 2003 law unconstitutionally compelled them to do the government's bidding outside the confines of their programs.

Writing for the court majority, Chief Justice John Roberts observed that the government clearly can put conditions on how the money it gives out is spent.

"As a general matter, if a party objects to those limits, its recourse is to decline the funds," Roberts wrote. "However, in some cases, a funding condition can result in an unconstitutional burden on First Amendment rights."

And that was the case here, the court decided. Congress had gone too far by seeking to impose conditions outside the confines of the grant itself.

"By requiring [grant] recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient," Roberts wrote.

Paying The Piper

Generally, under the Constitution's Spending Clause, the rule is: He who pays the piper calls the tune.

"The question is: What more besides the tune does the payer get to control?" noted Eugene Volokh of the University of California, Los Angeles, law school.

He summarized the government's position in this case this way: "Look, if you want to be the piper, not only do you have to play the tunes that we ask you to play; you also have to sign a pledge saying that you do not endorse rap music," Volokh said. "And that, the Supreme Court says, that's not permissible."

Here, it wasn't rap music the government wanted a grantee to condemn; it was prostitution. And the court said that was a violation of the First Amendment right to free speech.

In his opinion for the majority, Roberts drove home the point that requiring organizations to "pledge allegiance to the Government's policy of eradicating prostitution" would run afoul of the Constitution by quoting Justice Robert Jackson's famous 1943 flag salute decision. That ruling struck down a state law requiring public school students to pledge allegiance to the 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 word or act their faith therein," Jackson wrote 70 years ago.

'A Middle Ground'

Dissenting from Thursday's decision were Justices Antonin Scalia and Clarence Thomas. Writing for the two, Scalia said that the First Amendment "does not mandate a viewpoint-neutral government" and "may enlist the assistance of those who believe in its ideas to carry them to fruition."

The ruling has implications for every sort of government contractor, according to the Cato Institute's Ilya Shapiro. Thus, he says, if the government has a program for treatment of drug abuse, it now will be unable to bar the people doing the treatment from advocating for legalization of drugs, as long as they do so on their own time or when using private money. Similarly, Shapiro said, "if the government has a contractor running an adoption agency, well, you can run an adoption agency whether you're pro-choice or pro-life. And if this case had gone the other way, then the government could have started imposing these sorts of compelled-speech provisions."

But some groups, like the Coalition Against Trafficking in Women, disagreed strongly with the court's decision. Norma Ramos, executive director of the group, called the decision "extremely disturbing" and "a defeat for human rights."

The dozens of groups that get federal money to fight AIDS, however, were relieved.

"Just because you're receiving some government money, you're doing business with the government, or you're partnering with the U.S. government, doesn't mean that you forfeit your First Amendment rights," said David Bowker, who represented the groups in the Supreme Court.

Stanford Law School's Michael McConnell sees the court ruling as sensible.

"This is actually kind of a middle ground," McConnell said. "It gives the government a lot of authority, and I think rightly so, to make sure that its funded projects are done in accordance with government policy — but no more than that."

A Ruling On Arbitration

On the business front Thursday, the court limited the rights of merchants to bring class-action claims in arbitration courts.

By a 5-3 vote, the justices ruled that businesses must go through arbitration individually instead of joining together to litigate a common claim when resolving disputes with American Express and other large corporations.

Small businesses had tried to collectively arbitrate a claim against American Express, arguing that the company violated federal antitrust laws by using its monopoly in the credit card market to charge inflated fees. The retailers argued that since each merchant only lost a few thousand dollars, and since proving an antitrust claim costs hundreds of thousands of dollars in expert testimony and studies, it made no sense to bring individual claims, and a class action was the only way to go.

But in the latest Supreme Court decision supporting arbitration clauses, the court majority said the Federal Arbitration Act "does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery."

Advocates for small businesses, consumers and employees denounced the ruling.

"Now that the Supreme Court has ruled that those clauses are enforceable, there appears to be no way for the claims to go forward, and the merchants will have no chance to obtain compensation for the millions of dollars in damages that they say American Express inflicted on them as a group," said Scott Nelson of Public Citizen.

Mary Alice McLarty, president of the American Association for Justice, said the decision hands big corporate entities "fine print ... licenses to steal and violate the law." She called on Congress to pass legislation that would undo many of the court's recent decisions on "forced arbitration" for small businesses, consumers and employees. Without congressional action, she said, "all federal and state civil rights, employment, antitrust and consumer protections are at risk of being wiped away by the fine print" in contracts that deny signers the right to court and require all disputes to be resolved by individual arbitrations.

But Dallas lawyer Christopher D. Kratovil said the decision "is hardly surprising, as the court has long held that arbitration agreements are contractual in nature and that, as such, their terms will be rigorously enforced absent a contrary congressional command.

"The majority found that there is no contrary congressional command here, as no federal law mandates that arbitration must be inexpensive or that class action-type procedures must be available in arbitration," he said. "Stated simply, the Supreme Court once again held that the parties get what they contracted for in their arbitration agreement — nothing more and nothing less."

Still, Brian Fitzpatrick, a law professor at Vanderbilt University, characterized the ruling as "another big step" toward companies' being able to "insulate themselves from class-action liability."

"Two years ago, the court held companies could do this for state law claims; today, it held companies could do so for federal law claims. The case today involved federal antitrust claims, and it is possible it will not apply to more recently enacted federal statutes in the labor and employment discrimination area, but I would not hold my breath," he said. "The writing is on the wall now more clearly than ever: There is little future for consumer and employment class actions, and even shareholder class actions may not survive."

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

The U.S. Supreme Court is headed into its final days of the term with a group of landmark decisions expected, but today, none of them. Instead, the court resolved several other cases.

BLOCK: One was an important business case in which retailers challenged American Express. The justices ruled against the retailers. The decision limits the rights of merchants to band together to challenge what they claim are the monopolistic practices of major corporations.

SIEGEL: And in the big constitutional decision of the day, the justices ruled that the government cannot force private health organizations to denounce prostitution in order to get taxpayer money to fight HIV/AIDS. NPR's legal affairs correspondent Nina Totenberg explains that ruling.

NINA TOTENBERG, BYLINE: Federal law provides billions of dollars to private non-government organizations to fight AIDS in the developing world. But under a 2003 provision, the NGOs must essentially promise to explicitly oppose prostitution. Since many of these organizations work with prostitutes to get them to use safe sex practices, the organizations figured that explicitly condemning prostitution would make their work more difficult, and they challenged the law in court.

They contended that the 2003 law unconstitutionally compelled them to do the government's bidding when they're using private money outside the confines of the government programs. Generally, under the Constitution's spending clause, the rule is he who pays the piper calls the tune.

EUGENE VOLOKH: The question is, what more besides the tune does the payer get to control?

TOTENBERG: Eugene Volokh of UCLA Law School summarizes the government's position in this case this way.

VOLOKH: Look, if you want to be the piper, not only do you have to play the tunes that we ask you to play, you also have to sign a pledge saying that you do not endorse rap music, let's say. And that, the Supreme Court says, that's not permissible.

TOTENBERG: Well, here, it wasn't rap music the government wanted a grantee to condemn. It was prostitution, and the court said that was a violation of the grantees' First Amendment right to free speech. Writing for the court majority, Chief Justice John Roberts observed that the government clearly can put conditions on how the money it gives out is spent. If you disagree with the conditions, your recourse is not to take the money.

But, said the chief justice, matters get more complicated when the government seeks to impose its conditions outside the confines of the grant itself. And here, Congress, he said, went too far. Ilya Shapiro of the Cato Institute says the ruling has implications for every sort of government contractor.

ILYA SHAPIRO: Let's say the government has a program to treat drug abuse. Well, that has little to do with the views of the person treating for drug abuse on drug legalization. Or if the government has a contractor running an adoption agency. Well, you can run an adoption agency whether you're pro-choice or pro-life. And if this case had gone the other way, then the government could have started imposing these sorts of compelled speech provisions in these other cases.

TOTENBERG: But some groups disagreed strongly with the court's decision and with the grant recipients. Here's Ruth Teitelbaum, who represents the Coalition Against Trafficking in Women.

RUTH TEITELBAUM: They talk about this as sex work, as if this is legitimate, as if it is inevitable that women are going to work as prostituted people. And the Coalition Against Trafficking in Women's position is that it's not inevitable. This is a human rights violation.

TOTENBERG: David Bowker represents the groups who prevailed in the case.

DAVID BOWKER: Just because you're receiving some government money, you're doing business with the government or you're partnering with the U.S. government doesn't mean that you forfeit your First Amendment rights.

TOTENBERG: But Stanford Law School's Michael McConnell sees the court ruling as sensible.

MICHAEL MCCONNELL: This is actually kind of a middle ground. It gives the government a lot of authority - and I think rightly so - to make sure that its funded projects are done in accordance with government policy, but no more than that.

TOTENBERG: Dissenting from today's decision were Justices Antonin Scalia and Clarence Thomas. Writing for the two, Scalia said that the First Amendment does not mandate a viewpoint-neutral government and that the government may enlist the assistance of those who believe in its ideas to carry them to fruition. Nina Totenberg, NPR News, Washington.

SIEGEL: And, Nina, before you go, there are several major cases yet to be decided...

TOTENBERG: Duh.

SIEGEL: ...before the Supreme Court ends its term. So let's talk briefly about those. We have some really big ones left, big issues.

TOTENBERG: Yes. We have two same-sex marriage cases, we have affirmative action and the Voting Rights Act. Those are all still right sitting there on the griddle.

SIEGEL: So what's going on? What's taking so long?

TOTENBERG: To be truthful, I would have thought that today we would have gotten one of them, and it was quite a scene in the courtroom. It was very clear the chief justice had an opinion. He would be - typically, we would expect him to write one of these very big cases.

I saw, I think, Justice Breyer's wife in the courtroom. I assumed that meant that Breyer was going to have a dissent from the bench. She looked very serious, and he was fiddling with his script, essentially, while the other justices were announcing other opinions. And then he comes up with a case that has - is not one of the four big ones.

SIEGEL: Fake out.

TOTENBERG: Fake out, total fake out. And all of our hair goes on fire because we're looking forward to next week when I don't know how we're going to do all these cases jammed into one, two, maybe if we're lucky, three days.

SIEGEL: Well, do we know how many days the court will take issuing rulings next week?

TOTENBERG: No.

SIEGEL: Monday we assume, don't we?

TOTENBERG: Monday's on schedule. We - no, they're - we're going to have opinions on Monday. Beyond that, we don't know what other days they're adding. We just assume they'll add some days.

SIEGEL: The Supreme Court very often leaves its most important, most controversial cases for the end of the term. Is this about as big an end-of-the-term lineup of decisions that you've seen?

TOTENBERG: I don't know. You remember last year we had a couple of very, very big ones just left till the end. There's always a train wreck because justices are like everybody else. It's very - and these are very difficult cases. And this year, three out of four of those cases were argued quite late in the term in, essentially, in March and April.

And it just gets backed up, and we don't know. Maybe they can't get to five on some of these. That's what - maybe there isn't a decision for the court in some of these so that there are multiple decisions and no one doctrine that can be announced for the court. Now, that's sort of the worst of all outcomes.

SIEGEL: Well, Nina, enjoy all your free time between now and Monday.

TOTENBERG: I will tell you this, Robert. In the old days, it was a little more clear when we were leaving because we knew what was the day that Justice Brennan had reserved a place for his car on the ferry to the vineyard...

(LAUGHTER)

TOTENBERG: ...and there's nothing certain like that anymore.

SIEGEL: OK. That's NPR legal affairs correspondent Nina Totenberg. Transcript provided by NPR, Copyright NPR.