Judge Rules in Favor of AOSI, Says USAID Pledge Rule Is Unconstitutional

NEW YORK—In a victory for free speech and sound public health policy, a federal judge ruled today that a sweeping restriction on the activities of groups participating in the federal government’s international HIV/AIDS program violates the First Amendment.

At issue in the case is a requirement that public health groups receiving U.S. funds pledge their “opposition to prostitution” in order to continue their life-saving HIV prevention work. The pledge requirement law was passed by Congress in 2003, as part of the Global AIDS Act. Under this policy, recipients of U.S. aid are restricted in how they use even their private funds, impeding their ability to deliver effective prevention services to those most vulnerable to HIV/AIDS.

In his opinion issued today, Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled that the pledge requirement violated the First Amendment rights of two plaintiff organizations, Alliance for Open Society International (AOSI) and Pathfinder International, by restricting their privately funded speech and by forcing them to adopt the government’s viewpoint in order to remain eligible for funds. “The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program,” wrote Judge Marrero.

“It’s wrong for the government to force public health organizations to make ideological pledges in order to do their work of preventing HIV/AIDS,” said Rebekah Diller, Associate Counsel at the Brennan Center for Justice at NYU School of Law, which represented the plaintiffs. “This decision has wider implications. As nonprofit organizations partner with government to address social problems, it should be clear that what counts is whether they do the work, not whether they are willing to espouse the government’s positions.”

The pledge requirement flies in the face of sound public health policy. It is essential that public health organizations maintain their ability to engage in proven, effective HIV prevention methods with at-risk populations, such as sex worker, without forcing them to condemn the people they are trying to help.

“Today's ruling by Judge Marrero enables Pathfinder to continue serving the most vulnerable women in many of the world's poorest nations without impediment,” said Daniel Pellegrom, Executive Director of Pathfinder International, one of the plaintiffs in the case.

“We’re delighted that the court recognized the pledge requirement as unconstitutional and against our national commitment to open debate,” said Ricardo Castro, a board member of AOSI. “The provision not only violates the First Amendment, but also hampers organizations on the frontlines of the AIDS epidemic working to save lives through proven prevention methods. We believe that public health policy should be based on science—not ideology.”

The plaintiffs are among a chorus of voices that have objected to a requirement that interferes with proven HIV prevention approaches. Last year, Brazil declined tens of millions of dollars in U.S. funds for its anti-AIDS work, and 13 charitable organizations, including the International Rescue Committee, Save the Children and CARE, criticized the pledge requirement, saying that it “greatly undermines” AIDS prevention efforts.

In his ruling today, Judge Marrero determined that a preliminary injunction against the enforcement of the pledge requirement was necessary to prevent AOSI and Pathfinder from suffering irreparable harm. While the court’s decision applies directly only to AOSI and Pathfinder, it could have a broad impact on the many other public health organizations also forced to adopt the government’s viewpoint to receive federal funds.

The lawsuit, Alliance for Open Society Interational v. United States Agency for International Development, was brought by Pathfinder International, AOSI, and the Open Society Institute, with which AOSI is affiliated. The Brennan Center for Justice, through its Non-Profit Rights Project, which works to protect the freedom of non-profit organizations when they partner with government, is counsel to the plaintiffs.

Defendants are the United States Agency for International Development, the U.S. Department of Health and Human Services, and the U.S. Centers for Disease Control, all of which distribute U.S. funds for international HIV/AIDS work.

AOSI—which receives support from the Open Society Institute—was required to sign the pledge in order to receive continued government funding to administer USAID’s Drug Demand Reduction Program in Central Asia. The Drug Demand Reduction Program has operated since 2002 in Central Asia , where HIV/AIDS is spread overwhelmingly through injection drug use and is likely to have a devastating social and economic impact.

Pathfinder International, based in Watertown, Massachusetts, provides reproductive health services and HIV/AIDS prevention to women and families in many of the worlds most economically challenged countries.

The AOSI decision is available for download below, or may be viewed, with additional filings, at http://www.brennancenter.org/content/resource/aosi_v_usaid.