District Judge Rules U.S. Policy Requiring Overseas HIV/AIDS Groups To Condemn Commercial Sex Work Violates Free Speech
U.S. District Judge Victor Marrero on Tuesday in New York ruled that a U.S. policy requiring recipients of federal HIV/AIDS service grants to pledge to oppose commercial sex work violates the groups' First Amendment right to free speech, the AP/Long Island Newsday reports (Neumeister, AP/Long Island Newsday, 5/10). The Bush administration in June 2005 notified U.S. organizations providing HIV/AIDS-related services in other countries that they must sign the pledge to be considered for federal funding. The policy stems from two 2003 laws, including an amendment to legislation (HR 1298) authorizing the President's Emergency Plan for AIDS Relief that prohibits funds from going to any group or organization that does not have a policy "explicitly opposing prostitution and sex trafficking." The Open Society Institute, the Alliance for Open Society International and Pathfinder International last year filed the lawsuit against USAID over the policy. OSI has said the policy "weakens efforts to provide lifesaving services and information to sex workers" and is unconstitutional because it is vague and requires private organizations to adopt the government's position. Assistant U.S. Attorney Richard Rosberger argued that the 2003 law mandating the pledge did not contain any provision intended to deter HIV/AIDS treatment efforts, including those for commercial sex workers (Kaiser Daily HIV/AIDS Report, 4/18).
Marrero on Tuesday said the U.S. 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" (AP/Long Island Newsday, 5/10). Marrero in his opinion said that AOSI, OSI and Pathfinder "allege that adopting a policy opposing prostitution violates" their principles of governance, including opposition to "adopting any policy positions that would lead to the stigmatization of socially marginalized groups." Marrero ruled that the U.S. policy "impermissibly discriminates based on viewpoint and compels speech, [and] it also violates the First Amendment." He added, "Given these circumstances, the court finds that plaintiffs have made the necessary showing of irreparable harm" (Marrero, opinion, 5/9). Marrero's ruling temporarily blocks the government from continuing the policy. A similar lawsuit currently is pending in Washington, D.C., the AP/Newsday reports.
Lawyer Rebekah Diller, who represented the groups, said, "It's really a tremendous victory for public health," adding, "It will enable these organizations to serve very vulnerable women" (AP/Long Island Newsday, 5/10). "We're delighted that the court recognized the pledge requirement as unconstitutional and overreaching," Ricardo Castro, a board member of AOSI, said, adding that the policy "hampers organizations on the front lines of the AIDS epidemic working to save lives through proven prevention methods" (Ascribe, 5/9). Megan Gaffney, spokesperson for the U.S. Attorney's Office in Manhattan, declined to comment on the ruling (AP/Long Island Newsday, 5/10).