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Justices scoff at 'loyalty oath' in AIDS funding issue

| Sunday, June 16, 2013, 12:01 a.m.

WASHINGTON — The Supreme Court appeared split on Monday on whether the government can insist that outside groups using its money to fight HIV/AIDS overseas must oppose prostitution and sex trafficking.

The case, which is expected to be decided by late June, presents a test of the First Amendment's right to free speech as well as what strings the government can attach to its money.

At a policy level, it pits two worthy goals against each other: preventing the spread of HIV/AIDS and opposing the sex traffic that ensnares young women and girls, particularly in Africa and Asia.

After an hour-long argument, it seemed that the only thing less popular among the justices than the government's “loyalty oath,” as Chief Justice John Roberts put it, was the idea that it can't choose who gets funding.

“The government is just picking out who is an appropriate partner to assist in this project,” Roberts said, comparing it to an anti-smoking campaign that avoids giving money to defenders of smoking.

The justices let loose with a barrage of hypotheticals designed to back up their arguments. Some wondered whether the government could require its vendors to recycle, promote gun control or oppose apartheid. Justice Antonin Scalia argued the government must be able to favor the Boy Scouts over the Muslim Brotherhood.

On the other hand, both conservative and liberal justices worried that the government was trampling on free speech by requiring its partners fighting AIDS to oppose the sex trade. Groups opposed to the mandate argue that it's often more effective to work with prostitutes and brothels to prevent the infection's spread than to criticize them.

“If you want to run a government program, you have to speak the government's speech,” Justice Ruth Bader Ginsburg scoffed disdainfully. Justice Samuel Alito called it “compelled speech,” adding, “It seems to me like quite a dangerous proposition.”

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