Appeals court: US can't force anti-sex-work pledge

AP News
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Posted: Jul 06, 2011 4:04 PM
Appeals court: US can't force anti-sex-work pledge

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.

Two original plaintiffs _ Alliance for Open Society International Inc., which runs a program in Central Asia to prevent the spread of HIV/AIDS by reducing drug use, and Pathfinder International, which provides family planning and reproductive health services in more than 20 countries _ went to the courts after they adopted policy statements opposing prostitution in order to keep their eligibility for funding intact. Pathfinder did so even though it wishes to remain neutral on the issue or prostitution, the court noted.

In a lengthy dissent, Judge Chester J. Straub urged the Supreme Court to "set us straight," pointing to a 2007 decision by a federal appeals court in Washington, D.C., that upheld the government requirement when it was challenged there by another organization.

He said the requirement ensures that no funds would be used to promote prostitution and that only organizations that share the government's disapproval of prostitution and sex trafficking participate.

The majority wrote that its decision was similar to the outcomes of other court fights, including when the government failed in 1958 to force veterans to declare they do not advocate the forcible overthrow of government if they want to receive property tax exemptions and in 1943 when the government lost an attempt to require children to salute the flag if they wanted to attend school.

Jerika Richardson, a government spokeswoman, said there was no immediate comment on the ruling.

Rebekah Diller, who argued the case for the plaintiffs, called it "a terrific decision."

She said it means an injunction will continue to block enforcement of the rules.

"It means our clients, some of the major humanitarian groups doing AIDS prevention, can continue their life saving work in the way that's most effective," she said.

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