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Federal Court Holds “Anti-Prostitution Pledge Requirement” Violates First Amendment

May 9, 2006

For Immediate Release:
Tuesday, May 9, 2006

Kafayat Alli-Balogun, Brennan Center for Justice,
212 998–6735
Rebekah Diller, Brennan Center for Justice,
212 992–8635 or 917 589–5078 (m)
Cara Hesse, Pathfinder International,
617 924–7200, x216
Sarah Miller-Davenport, Open Society Institute,
212 548–0378 or 917 957–8825 (m)

Federal Court Holds “Anti-Prostitution Pledge Requirement” Violates First Amendment

NEW YORK, NY – A federal judge ruled today that a sweeping restriction on the privately funded speech of groups participating in the federal governments international HIV/AIDS program violates the First Amendment.

At issue in the case is a requirement that public health groups receiving U.S. funds pledge their opposition to prostitution in order to continue their life-saving HIV prevention work. Under this pledge requirement, recipients of U.S. funds are forced to censor even their privately funded speech regarding the most effective ways to engage high-risk groups in HIV prevention.

In his opinion issued today, Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled that the pledge requirement violated the First Amendment rights of two plaintiff organizations, Alliance for Open Society International (AOSI) and Pathfinder International, by restricting their privately funded speech and by forcing them to adopt the governments viewpoint in order to remain eligible for funds. The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program, wrote Judge Marrero. The plaintiffs are represented by the Brennan Center for Justice at NYU School of Law.

While none of the relief organizations receiving funds supports prostitution, it is essential that they maintain their ability to engage in proven, effective HIV prevention methods with at-risk populations. Today’s ruling by Judge Marrero enables Pathfinder to continue serving the most vulnerable women in many of the world’s poorest nations without impediment.” said Daniel Pellegrom, President of Pathfinder International, one of the plaintiffs in the case.

“Were delighted that the court recognized the pledge requirement as unconstitutional and overreaching,” said Ricardo Castro, a board member of Alliance for Open Society (AOSI) International, one of the plaintiffs. “The provision not only violates the First Amendment, but also hampers organizations on the front lines of the AIDS epidemic working to save lives through proven prevention methods. We believe that public health policy should be based on science—not ideology.”

Rebekah Diller, Associate Counsel at the Brennan Center, attorney for the plaintiffs, explained. Its wrong for the government to force public health organizations to make ideological pledges on unrelated issues in order to do their work of preventing HIV/AIDS. This decision has wider implications. As nonprofit organizations partner with government to address social problems, it should be clear that what counts is whether they do the work, not whether they are willing to espouse ideological positions.

The plaintiffs are among a chorus of voices that have objected to a requirement that interferes with proven HIV prevention approaches. In July 2005, Brazil declined tens of millions of dollars in U.S. funds for its anti-AIDS work. In February 2005, 13 charitable organizations, including the International Rescue Committee, Save the Children and CARE, criticized the pledge requirement, saying that it greatly undermines AIDS prevention efforts.

The lawsuit, Alliance for Open Society International v. United States Agency for International Development, was brought by Pathfinder International, AOSI, and the Open Society Institute, with which AOSI is affiliated. The Brennan Center for Justice, through its Non-Profit Rights Project which works to protect the freedom of non-profit organizations when they partner with government, is counsel to the plaintiffs. Defendants are the United States Agency for International Development, the U.S. Department of Health and Human Services, and the U.S. Centers for Disease Control, all of which distribute U.S. funds for international HIV/AIDS work.

In his ruling today, Judge Marrero determined that a preliminary injunction against the enforcement of the pledge requirement was necessary to prevent AOSI and Pathfinder from suffering irreparable harm. While the courts decision applies directly only to AOSI and Pathfinder, it could have a broad impact on the many other public health organizations also forced to sacrifice their privately funded speech in order to receive government funds.

Plaintiff AOSI is an independent nongovernmental organization headquartered in the United States that is affiliated with the Open Society Institute (OSI). Plaintiff OSI, a private operating and grantmaking foundation, aims to shape public policy to promote democratic governance, human rights, and economic, legal, and social reform.

Plaintiff Pathfinder International, based in Watertown, Massachusetts, provides reproductive health services and HIV/AIDS prevention to women and families in many of the worlds most economically challenged countries.

The Brennan Center for Justice at NYU School of Law unites thinkers and advocates in pursuit if a vision of inclusive and effective democracy. Its mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education and legal action that promotes equality and human dignity while safeguarding fundamental freedom.