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Let’s Talk About Sex (Workers)

Zoe Hudson writes this guest post on the Second Circuit’s decision that global AIDS funding restrictions violate the First Amendment.

  • Zoe Hudson
July 8, 2011

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.