US Can't Compel Prostitution Message

Injunction on AIDS funding restriction stands.


In a long-pending lawsuit, US District Judge Victor Marrero, of the Southern District of New York, issued a ruling maintaining a preliminary injunction against a provision requiring recipients of federal government funding for overseas HIV prevention work to maintain policies “explicitly opposing prostitution and sex trafficking.” The August 8 ruling by Marrero also ordered that additional organizations can be added to the lawsuit as co-plaintiffs.

On May 9, 2006, Marrero had issued his initial ruling authorizing an injunction against the ideologically-based requirement from Congress, imposed by the US Leadership Against HIV/AIDS Act of 2003. The Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative, and any United Nations agency receiving funding under that statute were specifically exempted from the prostitution provision.

As a result, even as quasi-governmental organizations remained immune from the requirement, Congress placed the responsibility for speaking out against prostitution on private AIDS prevention charitable groups.

The original plaintiffs, Alliance for an Open Society International, Inc. and Pathfinder International, persuaded Marrero that it was a violation of their First Amendment rights to require them to adopt overt policies in order to receive federal funding. The government responded that it understood the injunction to be valid only regarding those two plaintiffs, but that it would not exempt any other AIDS organizations.

AIDS groups see the congressional mandate as burdensome and counterproductive because in many countries an important part of their work is engaging prostitutes and other sex-workers in HIV prevention and education efforts. Overt policies condemning prostitution, they believe, would undermine their effort.

The government's argument that it had an interest in not appearing to tolerate prostitution by funding groups that adopt a non-judgmental approach toward sex work was undermined by its express exemption of quasi-governmental organizations receiving aid. That exemption left the door open for a serious First Amendment challenge when the speech provision was evaluated with a strict scrutiny standard requiring the government to demonstrate a compelling reason for the restriction.

As the government pursed an appeal of Marrero's 2006 injunction with the New York-based 2nd Circuit, the plaintiffs sought to get their complaint amended to add additional plaintiffs – confederations representing other organizations doing overseas prevention work. The government refused to consent to such additions, arguing that individual members of these umbrella groups presented unique circumstances regarding the degree of burden they suffered. Marrero cut through these arguments, ruling that most of the prospective new plaintiffs could be added.

Marrero confronted a more serious issue in evaluating new guidelines the government had issued to meet the 2003 statutory requirement. Under the guidelines, federal aid recipients would be required to spin off totally separate organizations if they engaged in work with prostitutes or sex-traffickers but were unwilling to adopt the overt policy against prostitution. In other words, struggling groups would be required to divert resources to setting up duplicative entities in order to preserve their “ideological purity.”

Based on this new position by the government, the 2nd Circuit deferred ruling on its appeal and sent the case back to Marrero.

Marrero saw this for the nonsense that it is, and reiterated his earlier finding that the government seeks to impose an unconstitutional condition on the private sector aid recipients.

The judge specifically distinguished this situation from two other federal government funding restrictions. The US Supreme Court previously upheld a provision requiring that organizations receiving funding for family planning activities not provide, advocate for, or offer information about abortion. The Legal Services Corporation Act bans legal services organizations receiving federal funding from engaging in class action lawsuits against government agencies.

Marrero found that the abortion restriction did not require aid recipients to advocate the government's position, but merely not to use government money to advocate for or provide abortion-related services. The restriction did not compel speech as such. The judge pointed out that the Legal Service restriction was content-neutral, forbidding class action lawsuits against the government regardless of their subject matter.

In contrast, the prostitution provision compels private AIDS prevention organizations to adopt a political viewpoint in order to be eligible for funding. Back in 2006, Marrero ruled that was an infringement of their First Amendment rights, and this month found that the new government guidelines for implementing the restriction “do not remedy this constitutional defect.”

The government will surely seek to return to the 2nd Circuit for a substantive review of this ruling.