Appeals Court: US Can't Force Anti-Sex-Work Pledge

The federal government cannot compel AIDS organizations to publicly denounce sex work and human trafficking as a condition of receiving federal money for work abroad, the US 2nd Circuit Court of Appeals in Manhattan ruled on July 6. Two organizations filed suit in 2005, after having complied with the mandate in order to maintain project funding. Alliance for Open Society International Inc. and Pathfinder International argued their Constitutional rights were being violated by the 2003 congressional requirement.

“Compelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment,” the majority wrote in the court’s 2-1 decision, which noted Pathfinder’s wish to remain neutral on the issue of prostitution. “The right to communicate freely on such matters of public concern lies at the heart of the First Amendment.”

The majority noted as motive in creating the mandate a concern about social, cultural, and behavioral factors intersecting with HIV/AIDS. However, the requirement went beyond a mandate to refrain from certain conduct and compelled partners “to espouse the government’s viewpoint,” the majority wrote, citing two historic First Amendment-related cases.

However, in a long dissent to the circuit’s ruling, Judge Chester J. Straub advocated seeking final adjudication by the Supreme Court to “set us straight” on the matter. He cited a 2007 decision by a District of Columbia federal appeals court that upheld the mandate, and he opined that the law would ensure no federal funds were used to promote sex work and that only organizations that shared the government’s disapproval of such work could be grant partners.

The circuit’s decision upholds a lower court ruling in favor of the plaintiffs. The latest ruling means an injunction will continue to block the law’s enforcement for now, said Rebekah Diller, counsel for plaintiffs. A government spokesperson had no immediate comment on the ruling.

The case docket number is 08-4917-cv.

The Friends of AIDS Foundation is dedicated to enhancing the quality of life for HIV positive individuals and empowering people to make healthy choices to prevent the spread of the HIV virus. To learn more about The Friends of AIDS Foundation, please visit: http://www.friendsofaids.org.


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