A federal judge has struck down a US policy that requires US-based AIDS groups to formally denounce prostitution in order to receiving federal funding. The groups that filed the legal challenge spend tens of millions of dollars in AIDS-related programs overseas.
In New York, Judge Victor Marrero issued a preliminary injunction, saying the policy violates the right to free speech. In 2003 Congress passed a law requiring AIDS groups to state their opposition to sex work and prostitution if they wanted funding. Supporters said they hoped to reduce risky sexual behavior.
The lawsuit was filed on behalf of the Alliance for Open Society International, the Open Society Institute and Pathfinder International.
Rebekah Diller is an attorney for the Access to Justice Project at New York University’s Brennan Center for Justice. She spoke to English to Africa reporter Joe De Capua about the legal argument used in the case.
“We argued that it violated the First Amendment for two main reasons. One was that it extended so far as to restrict what organizations could do with their private funds. And second, it forced organizations to adopt the government’s point of view on a contested social issue in order to be eligible to receive government funding.”
As for the decision’s effect, Diller says, “I think it will have broad impact. It’s clear from the decision that government cannot under the First Amendment force organizations to make ideological pledges in order to be eligible to participate in government programs. And it’s also clear that the government can’t restrict the privately funded speech of organizations with which it partners in government programs.”
A change in the government’s position opened the way for the challenge. “It started out as something only applied to foreign groups. The reason for that was that the (US) Department of Justice had said it would be unconstitutional to apply it to domestic groups. So, we were surprised that the Department of Justice reversed its initial position, which was actually the correct position with regard to the Constitution,” she says.