A federal appeals court will today weigh whether Congress violated the First Amendment by requiring anti-AIDS groups to pledge that they oppose the legalization of prostitution in order to receive federal funds for work done in other countries.

Should the U.S. 2nd Circuit Court of Appeals in Manhattan, which hears oral arguments in the case today, decide the requirement is unconstitutional, judges here would be in disagreement with their counterparts on the appellate bench in the District of Columbia Circuit. Such a discrepancy would increase the odds that the U.S. Supreme Court would have to clarify the legal circumstances under which Congress can require federal grant recipients to adopt prescribed viewpoints.

The anti-prostitution pledge stems from a 2003 law. Eradicating prostitution across the globe is part of the government’s strategy to stem AIDS, Justice Department lawyers said in a court brief.

“To permit the government-funded partners to engage in speech inconsistent with the government’s established policy of eradicating prostitution would inevitably mix the government’s message and negatively impact its program,” the government brief states.

The suit challenging the policy is being brought by two groups, including one founded by billionaire George Soros. The Soros group, Alliance for Open Society International, had received a $16.5 million government grant over five years, a lawyer representing the group, Laura Abel, said.

Both the Soros group and the second group, Pathfinder International, “do not seek to advocate the practice of prostitution,” their brief said. “Rather they seek the freedom to discuss and use the most effective techniques to fight HIV/AIDS, including empowering prostitutes to protect their own health and exercise their human rights.”

Forcing the groups, which also receive private funding, to oppose prostitution is ” an unwarranted intrusion into First Amendment rights,” their brief said.

A lower court judge, Victor Marrero of the U.S. District Court in New York, last year sided with the two groups and ruled that the restriction was unconstitutional. In February, a federal appellate court in D.C., ruled differently on a similar case. The D.C. Circuit Court found the requirement was constitutional because the “government may use criteria to ensure that its message is conveyed in an efficient and effective fashion.”