A Striking Defeat for U.S. Government’s Anti-Prostitution Pledge

On January 30, a federal court made an unqualified declaration: when it comes to the work of American public health groups, the First Amendment doesn’t stop at the U.S. border.

The ruling, handed down by the United States District Court for the Southern District of New York, affirmed a 2013 decision by the U.S. Supreme Court, which found that the government cannot tell its American grantees what they can and cannot say. It doesn’t matter whether the grantee works from their headquarters in Chicago, or from their far-away affiliate office in Kyrgyzstan—the right to free speech is protected equally in both locations.

This is just the latest win in a decade-long legal challenge to a provision known as the anti-prostitution pledge, part of the U.S. government’s HIV and AIDS program. Along with our co-plaintiffs, InterAction and Pathfinder International, we have challenged this pledge, which mandates that organizations receiving money from the U.S. government have a policy in place opposing prostitution.

This requirement isn’t just wrong because it amounts to unconstitutional forced speech; it actually harms our collaborations with critical partners, like sex workers, in the effort to limit the spread of HIV.

The roots of last month’s victory stretch back to 2013, when our case reached the U.S. Supreme Court and the justices agreed: the Anti-Prostitution Pledge violates the First Amendment. At argument, Justice Alito warned that forcing such speech on recipients of federal funds was a “dangerous proposition.”

While the government could say how it wants its money spent, it couldn’t tell grantees what they could actually say—or believe. Parties from across the ideological spectrum shared this view, from the CATO Institute to Heartbeat International.

But what seemed like a solid victory for freedom of speech soon turned into something much more watered-down.

The government continued to impose the pledge on American organizations by arguing that while our right to free speech might apply on U.S. soil, our affiliate offices in other countries are not protected by the Constitution. In other words, if the Open Society Foundations’ office in Cape Town wants to receive HIV and AIDS funding, it would need to sign the pledge, even though our office in New York would be exempt.

The contradiction and confusion—and more importantly, the damage done to both speech rights and public health—made the Supreme Court’s ruling untenable. We returned to court in the fall of 2014 to get the issue resolved.

In his January ruling, Judge Marrero of the federal court in New York didn’t buy the government’s argument. He referred to the Supreme Court’s warning that forcing an organization to take a position through its affiliate office in order to comply with the pledge imposes the “price of evident hypocrisy.” Judge Marrero further found that the “constitutional violation is the same regardless of the nature of the affiliate.” After all, these offices may be in different places, but they share the same brand and the same mission.

In an important win for our co-plaintiffs and us, the judge demanded that the government abide by the Supreme Court’s ruling, and permanently enjoined the government from forcing the pledge on both our foreign and domestic affiliates. The courts have spoken: the government must now do the right thing and stop undermining important public health work all over the world. 

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What about the other anti-prostitution pledge? (The anti-trafficking/TVPA one?) Are there any plans to change or challenge that? As far as I know it is unaffected by PEPFAR rulling and continues to influence USAID policy and funding around the world.

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