Appeals court in NYC rules First Amendment prevents US from requiring anti-prostitution pledge

Published: July 6, 2011

The United States cannot force partners in its international fight against AIDS to denounce prostitution as a condition to get funding, a federal appeals court said Wednesday, citing the First Amendment.

The 2-to-1 ruling by the U.S. 2nd Circuit Court of Appeals in Manhattan upheld a lower court decision in favor of four health organizations. The groups had sued the government in 2005, saying their Constitutional rights were violated by a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.

"Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment," the majority wrote. "The right to communicate freely on such matters of public concern lies at the heart of the First Amendment."

The rule, set to be enforced by the U.S. Agency for International Development, the U.S. Department of Health and Human Services and the U.S. Centers for Disease Control and Prevention, went well beyond what the Supreme Court and the 2nd Circuit have upheld as permissible conditions on the receipt of government funds, the 2nd Circuit said. The government had required organizations seeking government funding to publicly announce they opposed prostitution and sex trafficking.

The appeals court said the provision does not merely require the organizations to refrain from certain conduct but compels them "to espouse the government’s viewpoint." The court noted that the rule reflects Congress’ concern with the social, cultural and behavioral causes of HIV/AIDS.

Some organizations advocate for a reduction in penalties for prostitution to prevent interference with outreach efforts. They also try to avoid controversial policy positions likely to offend host nations and partner organizations and the prostitutes whose trust they must earn to stop the spread of diseases.

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