FUNDING CONDITIONS AND FREE SPEECH FOR HIV/AIDS NGOS: HE WHO PAYS THE PIPER CANNOT ALWAYS CALL THE TUNE

Abstract

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance. Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires grant recipients to surrender their First Amendment right to freedom of speech by compelling speech and impermissibly discriminating on the basis of viewpoint. This Note addresses the circuit split that has resulted from differing conceptions of what constitutes compelled speech, what conditions act as a penalty, and what conditions suppress alternate viewpoints. To resolve this split, this Note adopts the framework of analysis used by dissenting Judge Chester Straub in the Second Circuit and applies his framework to assert that the Leadership Act’s policy requirement unconstitutionally denies NGOs the ability to express alternate messages with nonfederal funds.