By Zoe Hudson – 07/07/11
This post was written by Zoe Hudson, a Senior Policy Analyst for Open Society Foundations in Washington, D.C. It originally appeared on the Open Society Foundations blog.
Let’s hear it for the U.S. Court of Appeals for the Second Circuit. Really. In a decision yesterday, they defended the right to speak freely about sex workers and in so doing will help us fight HIV/AIDS.
Since the beginning of the AIDS epidemic more than 30 years ago, families, communities, and government have been forced to have difficult conversations about messy topics. Those most in need of HIV treatment and prevention are also people deemed criminals around the world: sex workers, drug users, and men who have sex with men. The U.S. global AIDS program, unhelpfully, asks funding recipients to take a pledge to “oppose prostitution” as a condition of getting funding. While it is unclear what this means—must you send them to jail or simply speak ill of them?—it has prevented debate and discussion where it is most needed.
The Court of Appeals agrees. Yesterday, an appellate court affirmed that the U.S. Constitution protects the right to free speech, including the right to debate, have opinions, or have no opinion at all on the subject of prostitution. In making this decision, they took into account that the debate about prostitution is integral to fighting HIV/AIDS. There are differences of opinion and we need to discuss them. Putting a muzzle on funding recipients violates the U.S. Constitution and undermines our global health programs. Unfortunately, the decision only provides protection to U.S. groups. Foreign NGOs don’t have first amendment protections and are still gagged.
Here are excerpts from the opinion:
The right to communicate freely on such matters of public concern lies at the heart of the First Amendment. The Policy Requirement offends that principle, mandating that Plaintiffs affirmatively espouse the government’s position on a contested public issue where the differences are both real and substantive. For example, the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have recognized advocating for the reduction of penalties for prostitution—to prevent such penalties from interfering with outreach efforts—as among the best practices for HIV/AIDS prevention.
The government has, by compelling NGOs to affirmatively pledge their opposition to prostitution, stepped beyond what might have been appropriate to ensure that its anti-prostitution message would not be "garbled" or "distorted."
We do not mean to imply that the government may never require affirmative, viewpoint-specific speech as a condition of participating in a federal program. To use an example supplied by Defendants, if the government were to fund a campaign urging children to "Just Say No" to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.
Read more on the case here.
Tags: Justice, Non-Profit Rights
By Laura Klein Abel – 10/20/09
(This article also appeared on The Hill's Congress Blog on Oct. 20.)
The Obama Administration has pledged to restore transparency in
government. But last week the Brennan Center had to sue for the
release of a Bush-era opinion by the Department of Justice’s Office of
Legal Counsel (OLC). The opinion calls into question the government’s
continued attempts to enforce an unconstitutional speech restriction –
the “anti-prostitution policy requirement” –
undermining the global
fight against HIV/AIDS.
The requirement forces non-profits that
receive federal funds to fight HIV/AIDS overseas to adopt
organizational policies explicitly opposing prostitution. While the
non-profits do not support prostitution, many use HIV/AIDS prevention
methods developed by public health experts, which include working
closely with prostitutes in a non-judgmental manner. The policy
requirement undermines that work.
In February 2004, OLC wrote a
memo stating that enforcing the policy requirement against U.S.
organizations would be unconstitutional. The opinion was a remarkable
moment of honesty. Because the February 2004 opinion has never been
publicly disclosed, we do not know the particulars of its legal
reasoning. It must have been pretty forceful, though: at least two
government agencies – the U.S. Department of Health and Human Services
(HHS) and the U.S. Agency for International Development (USAID) –
heeded the OLC policy requirement memo, refraining from enforcing the
policy requirement for about 18 months.
OLC’s honesty was short-lived, however. In September 2004, OLC
reversed course, stating in a letter that there existed “reasonable
arguments to support the constitutionality” of the policy requirement.
This letter will look eerily familiar to readers of OLC’s infamous
torture memos. Like them, it ignores settled legal precedent – in this
case several decades of Supreme Court “unconstitutional conditions”
jurisprudence – and relies on old decisions of questionable validity.
For
more than four years, HHS and USAID have relied on the September 2004
letter as a basis for enforcing the policy requirement against U.S.
organizations. Fortunately for the fight against HIV/AIDS, for much of
that time a federal court order has barred them from enforcing the
policy requirement against most U.S. organizations.
Now, HHS is
embarking on a rulemaking process, with the goal of revising
regulations that implement the policy requirement by early January
2010. This is a crucial moment for the public to play a role in
shaping those regulations. Understanding why OLC initially condemned
the policy requirement as unconstitutional could not be more
important. So far, though, OLC, HHS and USAID have refused our FOIA
requests for the February 2004 OLC opinion.
On Inauguration Day,
President Obama instructed the executive agencies to honor FOIA
requests whenever possible, stating: “A democracy requires
accountability, and accountability requires transparency.” Our hope in
filing the lawsuit is that we will obtain the opinion in time to
influence the rulemaking process. Only then will transparency be able
to play the role in the democratic process that President Obama
intended.
Tags: Justice, Non-Profit Rights
10/30/06
by Laura K. Abel & David Pedulla
*Cross-posted from TortDeform.com
Fifty years ago this month, William J. Brennan took his seat on the
Supreme Court. Among his many remarkable opinions was Goldberg v.
Kelly, safeguarding the right of low-income people to be treated fairly
by the government when they seek to enforce their rights. Likewise, in
NAACP v. Button, he affirmed the First Amendment rights of non-profit,
public interest lawyers and their clients to join together to assert
important rights.
At the Brennan Center for Justice
at NYU Law School, one of the ways we carry out the ideals of Justice
Brennan is by working to ensure that low-income people have access to
the justice system to ensure that their rights are protected.
Throughout the country, non-profit civil legal aid organizations work
with low-income individuals, families, and communities to ensure that
parents and children remain together, tenants can stay in their homes,
and workers receive the wages they deserve. Unfortunately, these
organizations don’t have enough funding to carry out their vital work.
And even the limited funding that they receive often comes with
significant restrictions on the work that they are able to pursue. This
post explores some of the difficulties civil legal aid organizations
face and some of our attempts to overcome them.
Funding for Civil Legal Services in the United States:
Approximately half of the funding for civil legal aid in the United
States comes from a Congressional appropriation for the Legal Services
Corporation (LSC). LSC, a private non-profit corporation established by
Congress in 1974, distributes federal funding to 138 local legal aid
programs throughout the country. The remaining funding for civil legal
aid comes from a combination of state, local, and private sources.
Over time, the federal appropriation for LSC has dramatically
declined. In inflation adjusted dollars, LSC today receives just 49
percent of what it did in 1981. Unfortunately, the decrease in funding
has not coincided with a decrease in need. Respected studies show that
over four-fifths of the civil legal needs of low-income families go
unmet.
This is a real crisis, because many of the legal needs confronting
low-income people affect their most basic human needs: their daily
subsistence, their homes, and their families. When organizations that
represent low-income people lack adequate funding, entire families and
communities suffer.
Legal Services Restrictions:
In 1996, Congress enacted a “private money” restriction prohibiting
organizations that receive LSC funding from engaging in certain
important activities on behalf of low-income people with both their
public and private funding. This restriction bars LSC-funded
organizations from bringing class action lawsuits, performing outreach
to potential clients who may not be aware of their legal rights,
claiming attorneys’ fee awards, providing legal services to many
categories of immigrants, or engaging in other work for their clients.
The only exception is a theoretical one. LSC permits its grantees to
use their non-LSC funds to engage in these activities, but only if they
do so through a legally and physically separate entity, with separate
premises, equipment and personnel. This is so expensive that few legal
aid programs have been able to do it, and those that do create a
physical separate entity find that it exerts a severe strain on their
already scarce resources.
The private money restriction has far-reaching and detrimental
effects on the lives and well-being of low-income people. For example,
the inability of LSC-funded organizations to carry out class action
suits has had a negative effect on elderly and low-income homeowners in
Chicago, where there was an enormous increase in home foreclosures in
the late 1990s and early 2000s. One 75-year-old who had owned her home
for 30 years was forced into foreclosure in April 2002 when she refused
to repay a bogus $50,000 loan. The loan had been fraudulently taken out
in her name by a contractor. The contractor kept the cash; he never did
the work. A series of lawsuits brought by an LSC-funded legal services
provider in Chicago, and a set of complaints filed by Chicago and by
the Illinois Attorney General, didn’t stop the contractor’s lawless
activities. For the contractor, these small interferences were just
part of the cost of conducting a fraudulent business. A class action
lawsuit could have compelled the contractor to disclose the names of
all of the victims, led to damages and attorneys’ fees payments to the
victims, and even produced a cease and desist order preventing the
contractor from further scheming. Even though the LSC-funded
organization in Chicago had sufficient private funds to file the class
action suit, the restriction barred it from pursuing such a strategy.
The consequence has been the continued exploitation of elderly and
low-income people.
Working Towards a Solution:
The Brennan Center is challenging the restrictions placed on the
private funding of legal aid organizations. Collaborating with us are
over 100 civil legal aid non-profits, foundations, state and local bar
associations, unions, civil rights organizations, and religious
organizations, via a federal lawsuit, Dobbins/Velazquez v. Legal
Services Corporation, as well as a national campaign urging public
support to repeal the restriction.
To get involved, or to find out more information about our work to
remove the restrictions on civil legal aid organizations, please visit the Brennan Center’s website.
If you are interested in receiving updates about what’s going on nationally in the civil legal aid community, please subscribe to the Brennan Center’s Legal Services E-Lert.
Tags: Justice, Civil Justice, Civil Legal Aid, Fair Forums, Non-Profit Rights
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