By Wendy Parmet
Sometimes it seems as if the First Amendment is the leading legal threat to public health. Not today. In Agency for International Development v. Alliance for Open Society International the Supreme Court in a 6-2 decision struck down on First Amendment ground the so-called “anti-prostitution pledge” imposed by § 7631(f) of the Leadership Act which prohibited the award of anti-HIV grants to groups or organizations that do “not have a policy explicitly opposing prostitution and sex trafficking” constituted an unconstitutional condition. Critical to the Chief Justice Roberts’ opinion was the fact that § 7631(f) did not simply limit grantees’ ability to use federal funds to support prostitution. Rather, it compelled a “grant recipient to adopt a particular belief as a condition of funding.” According to the Court, the government can limit what grantees do with federal funds, but it cannot restrict what they believe.
Although the Court ‘s opinion focused on core First Amendment issues, rather than the public health impact of the anti-prostitution pledge, its decision should remind us of the complex and sometimes ambivalent relationship between public health and the First Amendment. Since the early years of the HIV epidemic, the First Amendment has been a crucial public health ally, limiting government’s ability to censor controversial but critical public health information. In many other cases, however, such as those challenging regulations aimed at tobacco or pharmaceutical advertising, a robust interpretation of the First Amendment seems to hinder public health protection. For public health law advocates, a key question is whether the First Amendment can be interpreted so as to protect health in both sets of circumstances. Equally critical is understanding how we can achieve public health goals without relying on the regulation of speech. Alliance for Open Society may offer some clues, but it clearly does not provide the answers.
I’m not quite so sure this is NOT a bad-news-for-public-health story. As I read the passage of the Court’s opinion talking about the evil of government forcing people to proclaim the government’s opinion, I substituted tobacco warning labels for the prostitution pledge, and it was DC circuit déjà vu all over again. Of course, that’s not an unconstitutional conditions case — yet. But the logic of the arguments about regulating “legal products” could stretch to include the notion that a label is an unconstitutional condition of allowing a firm into a government-regulated market.
I don’t disagree that this may play out in either way in future cases. But I do think that in this particular set of facts it was a win for public health. That’s why we in public health law need to be careful when thinking about the application of First Amendment doctrine to public health issues. Sometimes the First Amendment is protective of publci health; oftentimes, it isn’t.