USAID v. AOSI Defending Free Speech for Recipients of Government Funds

LATEST (January 30, 2015): Relying on the United States Supreme Court’s 2013 decision in the same litigation, the United States District Court for the Southern District of New York holds that the Anti-Prostitution Pledge violates the free speech rights of plaintiffs even if they carry out government funded HIV and AIDS work through their foreign affiliates with which they are “clearly identified.”

In June of 2013, the U.S. Supreme Court ruled that the Anti-Prostitution Pledge, a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violates freedom of speech under the First Amendment.

This provision, or “policy requirement,” compels organizations to have a policy “explicitly opposing prostitution” in order to qualify for federal funds to fight HIV and AIDS. This goes far beyond saying how government money must be spent—it forces recipients to adopt the government’s viewpoint on an organization-wide basis, even in separate, privately funded programs. Private grantees are prohibited from saying or doing anything that the government deems to be “inconsistent” with the policy.

The problem with the policy requirement is that it disregards recipients’ First Amendment rights to hold their own views and speak freely on important public health issues with private funds. It also restricts their ability to interact with key populations in the fight against HIV and AIDS.

In 2011, the U.S. Court of Appeals for the Second Circuit ruled that the policy requirement violated private recipients’ constitutional rights. “Compelling speech as a condition of receiving a government benefit,” the court wrote, “cannot be squared with the First Amendment.” The court also held that the policy requirement is impermissibly viewpoint-based because it requires adoption of the government’s position on a particular issue.

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What is “the pledge”?

Under the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“Leadership Act”), public health groups receiving U.S. funds are required to pledge their opposition to prostitution in order to continue their HIV-prevention work.

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