US court to rule whether law’s anti-prostitution policy requirement violated free speech rights

BMJ 2013; 346 doi: (Published 24 April 2013) Cite this as: BMJ 2013;346:f2641
  1. Michael McCarthy
  1. 1Seattle

The US Supreme Court heard oral arguments on 22 April about whether Congress can require HIV/AIDS programs working overseas to adopt explicit policies opposing prostitution and sex trafficking in order to secure federal funding.

The case—Agency for International Development et al (Petitioner) v Alliance for Open Society International Inc, et al—addresses a provision of the 2003 Leadership Against HIV/AIDS, Tuberculosis and Malaria Act,1 a global health funding legislation that has funneled billions of US dollars to international programs.

In that act, Congress noted that prostitution and sex trafficking was one of the factors in the spread of the HIV/AIDS epidemic and mandated that: “No funds made available to carry out this Act, or any amendment made by this Act, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”

Some groups working in overseas HIV/AIDS programs protested that the law would severely limit their ability to reach out to sex workers and their customers, seriously hampering the organizations’ efforts to tackle the HIV/AIDS epidemic.

Moreover, they argued, because the provision required recipient organizations to adopt the government’s views as their own, it violated the First Amendment of the US Constitution guaranteeing the right of free speech, and in 2005 the Alliance for Open Society International, an open government group based in New York city filed a lawsuit seeking an injunction. Pathfinder International, a family planning and reproductive health group with headquarters in Massachusetts, joined the suit shortly afterwards. Numerous organizations on both sides of the dispute have filed amicus briefs.

A lower court agreed with the non-governmental organizations that the provision was unconstitutional, and it issued an injunction, which was subsequently upheld by an appeals court.

The courts found that, although Congress can attach such conditions to programs whose express purpose is to deliver a particular message—such as the US government sponsored “Just say no” anti-drug campaign—it could not force organizations to espouse its views when they were conducting activities using funds from other sources.

The government initially responded to the decisions by modifying its rules so that groups could receive federal funding under the act if they conducted activities proscribed by the law through separate, independent organizations.

But neither the lower nor the appeals court accepted this modification, leading the federal government to take the appeal to the Supreme Court.2

A decision is expected in June.


Cite this as: BMJ 2013;346:f2641