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Fighting AIDS and Fighting for Free Speech

Mie Lewis,
Women's Rights Project
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December 9, 2010

Today, a federal appeals court in Manhattan heard oral argument in a case challenging the so-called "anti-prostitution pledge," which is part of a law called the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. On one side, the government argued that it can require nonprofit groups who accept any government funding for anti-AIDS work to declare that they oppose prostitution — that is, take the pledge — and that it can bar them from saying or doing anything that could promote prostitution. On the other side was a group of nongovernmental humanitarian organizations that are dedicated to fighting AIDS in the parts of the world most hard-hit by the pandemic. They argued that the pledge requirement violates their First Amendment right to freedom of speech.

But what does the pledge really mean in practice? We can already see its effect overseas, where the pledge has threatened, cut back, or simply ended a host of effective HIV prevention initiatives. They include the distribution of condoms and other HIV prevention tools to sex workers, peer education among sex workers about safer sex practices, and campaigns to end violence against sex workers. As a result of the pledge, drop-in centers that had been providing services to sex workers such as health information, treatment, and training in alternative occupations, have closed. The pledge has especially undercut programs addressing AIDS through the collective empowerment of women in sex work, including programs teaching sex workers how to persuade their clients to use condoms, thereby protecting both the workers and their clients from HIV exposure.

The big question is this: We know that the government can give out money with strings attached, but how far can it go? As the nonprofits told the court today, the pledge goes too far. It forces whole organizations to mouth government-dictated orthodoxy, not just when they're using the government's money to speak, but even when they use money donated to them by private citizens. In effect, the government is saying that when an organization takes its money, it can wave goodbye to its First Amendment rights.

The nonprofit groups also told the court that the pledge requirement is too vague, because it doesn't say — and the government won't really clarify — what counts as promoting prostitution. Under the Constitution, laws that restrict speech run afoul of the First Amendment when they don't make it clear what speech is and isn't allowed. The vagueness of the anti-prostitution pledge came through in today's oral argument when, in response to probing questions by the judges, the government's lawyer wouldn't or couldn't say what, exactly, organizations are not allowed to say or do, aside from the obvious fact that the law bars them from advocating the legalization of prostitution.

The nonprofits also took issue with the pledge because it compels speech. The Constitution is tough on laws that force words to come out of people's mouths, and rightly so. It is truly scary when the government tells nongovernmental groups, "If you take a penny of our money, we can pick one side of a controversial political and moral issue, and we can make you say you agree." Toe the party line, or lose access to a multibillion dollar pot of money that you'd like to spend saving lives. Now that's leverage, not only over the nonprofits themselves, but over public debate.

Promisingly, the judges' questioning demonstrated their understanding of the profound public health implications of the pledge, touching on things like the dangers and risks encountered by sex workers, and the community-by-community variations in health needs. The real costs of the pledge, in terms of human lives, health, and dignity, were the focus of the friend-of-the-court brief filed in this case by the ACLU and New York Civil Liberties Union.

A lower court has already suspended the pledge twice, and the government is now appealing. Now the appeals court will decide whether to reinstate the pledge, or keep it suspended while the case plays out in court. Here's hoping the appeals court — like the lower court — refuses to allow the government to make puppets of civil society organizations.

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