Mark Adams: Judge Says Anti-Prostitution Pledge for Federal Funds Violates Free Speech

A U.S. District judge has ruled that it is a violation of free speech rights for USAID to require organizations that fight AIDS to sign a pledge opposing prostitution in order to receive federal funds. Ruling from New York, Judge Victor Marrero issued a preliminary injunction that will prevent USAID from demanding the pledges. The case is expected to be appealed to the Court of Appeals for the Second Circuit.

The ruling does not strike down the original statute that places restrictions on who can receive federal funds to fight AIDS but instead applies only to the USAID's application of that statute.

In May 2003, Congress passed the United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act (Global AIDS Act) and in December 2003, it passed the Trafficking Victims Protection Reauthorization Act (TVPRA). The Global AIDS Act bars the use of federal funds to "promote, support, or advocate the legalization or practice of prostitution or sex trafficking." TVPRA also requires that recipient organizations of anti-trafficking funds state that they do "not promote, support, or advocate the legalization or practice of prostitution."

Initially, the restrictions only applied to foreign nongovernmental organizations. However, in June 2005, USAID released its most recent policy directive on the "Anti-Prostitution Loyalty Oath" requiring all foreign and U.S.-based NGOs to have anti-prostitution and anti-sex trafficking policies before they are eligible to receive U.S. global AIDS funding.

The Alliance for Open Society International (OSI) and Pathfinder International brought the suit against USAID. OSI, which is funded by billionaire liberal activist George Soros, asserted that the policy is unconstitutional as it requires private organizations to adopt the government's position.

In his ruling Marrero 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." He said USAID's pledge requirement "impermissibly discriminates based on viewpoint and compels speech . . . it also violates the First Amendment. . . . Given these circumstances, the court finds that plaintiffs have made the necessary showing of irreparable harm."

Rebekah Diller, a lawyer for the plaintiffs, believes the judge's ruling will have widespread implications. "I think it will have broad impact. It's clear from the decision that government cannot under the First Amendment force organizations to make ideological pledges in order to be eligible to participate in government programs. And it's also clear that the government can't restrict the privately funded speech of organizations with which it partners in government programs," she said. But she may have oversold the result. Some legal analysts note that the scope of the ruling is narrow, leaves the Congressional legislation intact and applies only to the two plaintiffs. Also, since the decision comes from a lower court it may be overturned soon.

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