Second Federal Judge Rules U.S. Policy Requiring Overseas HIV/AIDS Groups To Condemn Commercial Sex Work Violates Free Speech

U.S. District Judge Emmet Sullivan on Thursday in Washington, D.C., 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 Washington Post reports. Sullivan is the second federal judge to rule the requirement unconstitutional after U.S. District Judge Victor Marrero in New York last week issued a similar ruling (Kessler, Washington Post, 5/19). 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 in a New York federal court. OSI had 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, 5/10). In the latest case, DKT International, a not-for-profit organization that provides family planning services in 11 countries, sued USAID over the policy. DKT officials said they would not sign the pledge because the group runs condom distribution programs for sex workers in Vietnam and signing the pledge would stigmatize and alienate their clients (Locy, AP/Minneapolis Star Tribune, 5/18).

Ruling, Reaction
Sullivan in his ruling on Thursday wrote that the requirement "casts too wide a net and is not narrowly tailored." He added that the requirement would make organizations "parrot the government's policies" and would prevent them from using privately raised funds to promote HIV/AIDS prevention among sex workers (Washington Post, 5/19). "By mandating that DKT adopt an organizational wide policy against prostitution, the government exceeds its ability to limit the use of government funds," Sullivan wrote (Sullivan ruling, 5/18). Julie Carpenter, who worked on the DKT case, said the ruling tells the government "it can't use its spending power to constrain private speech." Rebekah Diller, a lawyer who represented the three groups in the New York case, said the U.S. policy "cast a very big chill on being able to do" HIV prevention work. A USAID spokesperson did not return a call for comment, the Post reports (Washington Post, 5/19).