Public Health Groups Prevail in Free Speech Win at U.S. Supreme Court

NEW YORK—The Open Society Foundations today welcomed a 6 to 2 ruling that allows recipients of federal AIDS funding to operate without ideological interference from the U.S. government. Chief Justice Roberts wrote the opinion for the Court with Justices Breyer, Alito, Kennedy, Ginsberg, and Sotomayor joining.

Public health groups challenged a provision of the 2003 United States Leadership Act against HIV and AIDS, Tuberculosis, and Malaria requiring organizations receiving HIV funds from the U.S. government to pledge that they had adopted a policy “opposing prostitution.” The law forces government grantees to parrot the government’s views, thus gagging open discussion and debate.

“Forcing groups to adopt the government’s position on controversial issues is harmful to the democratic process and a clear violation of the First Amendment,” said Morton H. Halperin, Senior Advisor to the Open Society Foundations. “Thankfully, the Court recognized that while the government can say how it wants its money spent, it cannot tell us what to believe or to control our privately-funded activities.”

The law requires public health groups to condemn prostitution, regardless of whether they have a position. This compromises public health efforts to arrest the spread of HIV and AIDS among sex workers and their families by impeding work with these communities.

“Public health groups cannot tell sex workers that we ‘oppose’ them, yet expect them to be partners in preventing HIV,” said Marine Buissonniere, Director of the Open Society Public Health Program, one of the groups involved in challenging the provision. “Condemnation and alienation are not public health strategies.  The pledge ignores years of evidence that sex workers are critical partners in the fight against AIDS.”

The Court’s ruling preserves a 2006 preliminary injunction issued by the U.S. District Court for the Southern District of New York, which exempted the plaintiffs from having the pledge enforced against them because it violated the First Amendment. However, all other recipients of federal HIV and AIDS funds remained subject to the requirement.

The U.S. Court of Appeals for the Second Circuit upheld the lower court’s injunction in 2011.  

Alliance for Open Society International (AOSI) v. United States Agency for International Development was brought by Pathfinder International and AOSI, with which Open Society Foundations is affiliated. The case was later joined by InterAction and the Global Health Council.

WilmerHale is counsel to the plaintiffs and argued the case before the Court on April 22.

The United States Agency for International Development, the U.S. Department of Health and Human Services, and the U.S. Centers for Disease Control, defended the pledge requirement in court. All agencies distribute U.S. funds for international HIV and AIDS work.

For more information, including a timeline of the case and court filings, visit: www.pledgechallenge.org.

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The Open Society Foundations work to build vibrant and tolerant democracies whose governments are accountable to their citizens. Working with local communities in more than 100 countries, the Open Society Foundations support justice and human rights, freedom of expression, and access to public health and education.