Prostitution Clause in AIDS Policy Ruled Illegal

Two federal judges in the past two weeks have ruled unconstitutional the government's policy of forcing U.S. health groups to denounce prostitution as a condition for receiving funds for international AIDS work.

Both judges said the requirement violated the First Amendment right to free speech. The most recent ruling, issued yesterday in Washington by U.S. District Court Judge Emmet G. Sullivan, found that the regulation "casts too wide a net and is not narrowly tailored," forcing aid organizations to "parrot the government's policies" and preventing them from using even privately raised funds to assist sex workers with AIDS prevention.

On May 9, U.S. District Judge Victor Marrero issued a similar ruling in New York. The government's "somewhat cavalier take-it-or-leave-it answer to an infringement of speech -- which can more or less be characterized as 'if you don't like it, lump it' -- is simply not in keeping with the expectations our society derives from First Amendment freedoms," he wrote.

Congress mandated the prohibitions in 2003, though it exempted some organizations, such as the World Health Organization. The Justice Department originally told the U.S. Agency for International Development -- which distributes AIDS contracts -- that the prohibition was unconstitutional, and so the agency declined to enforce it. But Justice reversed itself, and in 2005, USAID began to require organizations to state that they oppose prostitution and sex trafficking and sign a form before receiving funds.

Julie M. Carpenter, a lawyer at Jenner & Block LLP who litigated the Washington case, said, "The effect of the statute was to quell any dispute with the federal government. What this does is say to the government that it can't use its spending power to constrain private speech."

Rebekah Diller, associate counsel of the poverty program at the Brennan Center for Justice at NYU School of Law, who argued the New York case, said the requirements made it very difficult for groups to use even privately raised funds to teach prostitutes about AIDS prevention methods. She said health organizations could not collectively distribute condoms to groups of prostitutes, or work with other groups that tried to change laws or policies concerning prostitutes. "It cast a very big chill on being able to do this outreach," Diller said.

A USAID spokeswoman did not return a call for comment.

The New York case was brought by three health organizations, while the Washington case was brought by DKT International, a not-for-profit organization that works in 11 countries. Its representative in Vietnam refused to sign papers certifying that DKT "has a policy explicitly opposing prostitution and sex trafficking."