Free Speech and AIDS

Groups that receive government funding to fight HIV/AIDS refuse to sign an anti-prostitution pledge.

Buried within the legislation that created a massive $15 billion program to fight HIV and AIDS in 2003 is one small paragraph that has launched a firestorm among U.S. Agency for International Development contractors. It states that no funds can go to any group that does not have a policy explicitly opposing prostitution and sex trafficking.

Some public health organizations say adopting such a policy would erode the trust they have developed with these high-risk groups and that the First Amendment prevents the U.S. government from making funding contingent on this provision. In 2005, public health organizations DKT International in Washington, the Alliance for Open Society International in New York City and Pathfinder International in Watertown, Mass., sued USAID for violating their First Amendment rights by requiring them to adopt the policy. The organizations won, and USAID was ordered to stop enforcing that restriction.

Whether the agency is still implementing the anti-prostitution pledge with other organizations is unclear. USAID declined to explain its current policy, and a statement limiting funds to only those that explicitly oppose prostitution and sex trafficking remains on its procurement Web site. The Justice Department appealed the decision in the DKT case in late July.

In their rulings, the judges declared USAID was controlling what the organizations did with taxpayer dollars and with the rest of their funds, as well. The judge in the DKT case, U.S. District Judge for the District of Columbia Emmet G. Sullivan, pointed out that the Supreme Court repeatedly has found that participation in a government program cannot be contingent on expressing a certain opinion. For example, children cannot be required to recite the Pledge of Allegiance in order to attend public school.

Such a condition would be akin to the government saying, "If you take welfare benefits, you have to vote for the Republican," says Geoffrey R. Stone, University of Chicago Law School professor and author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W. W. Norton & Co., 2004). The government's motive isn't necessarily draconian, Stone adds. It might have a legitimate interest in controlling how funds are used, and it's hard to determine which funds are supporting which activities without a blanket rule.

USAID argued in court that its policy does not restrain speech. For example, DKT, a reproductive health outreach organization, is free to adopt any policy it wants free from government interference. "Organizations, however, have neither an entitlement nor a right to do so with government funds. They most certainly do not have the right to obtain government funds while maintaining a policy at odds with the very purpose for which those funds were appropriated," said Justice Department lawyers. (Until June 2005, Justice had advised the agency against implementing the anti-prostitution provision because it could be unconstitutional, according to court documents, which did not explain why Justice changed its advice.)

Groups like the Salvation Army have rallied in support of USAID's policy. Lisa L. Thompson, the Salvation Army's liaison for the abolition of sexual trafficking, says, "It's not too much to require nongovernmental organizations . . . to believe that what those people are experiencing is actually harmful," much the same way a group that fights poverty should believe poverty is harmful.

Thompson adds that the policy shouldn't make it harder for organizations to build trust with prostitutes because it denounces prostitution, not prostitutes, the same way 19th century abolitionists weren't demeaning slaves but rather the institution of slavery.

"There are always restrictions on government money," says Andrea Lafferty, executive director of the Traditional Values Coalition headquartered in Washington. "Sometimes you have to be a minority, or a woman, or live in a certain community," she says, referring to federal contracting preference programs.

Other contractors have an interest in the outcome of these lawsuits. If the government claims a right to police the privately funded speech of any organization that receives federal funds, then contractors at other agencies should be worried about their free speech rights, says Rebekah Diller, associate counsel at New York University's Brennan Center for Justice, which represented the Alliance for Open Society International in its lawsuit.

Philip D. Harvey, president of DKT, says that if that organization had adopted a policy opposing prostitution, then it would have been more difficult to build trust with prostitutes. DKT gets about 15 percent of its annual $25 million budget from USAID. Harvey has sparred with the government over First Amendment issues before. In his book, The Government vs. Erotica: The Siege of Adam & Eve (Prometheus Books, 2001), he recounts his struggle to defend his North Carolina adult film company, Adam & Eve, which he says he started to help fund his nonprofit work.

Sheila Mitchell, a senior vice president at Family Health International, a nonprofit health organization in Durham, N.C., says the policy initially scared her, because so much of FHI's work focuses on preventing and treating HIV/AIDS among prostitutes and other high-risk populations. But Mitchell soon realized that adopting the policy would not be a problem, because FHI did not advocate for the legalization of prostitution, which is how some organizations interpreted the policy.

"It didn't affect us that much because the certification says neither we nor any of our subcontractors promote the legalization or practice of prostitution. It doesn't in any way limit our ability to meet the health needs of [sex workers]," she says. "People are concerned because they read more into it than is there," she adds. USAID is FHI's largest donor. Family Health International stopped working with DKT in Vietnam because it refused to adopt the policy, but Mitchell says she was able to persuade its other partners to sign the certification.

Other organizations have lost funding as a result of the policy. Last year, BBC World Service Trust, a division of the British Broadcasting Corp. that uses the media to reach out to people in developing countries, refused to sign the certification and USAID ended a three-year contract for a campaign that would have included work with Tanzanian prostitutes. Foreign organizations cannot appeal for protection under the First Amendment.

A 2003 conversation on the floor of Congress between Sens. Patrick Leahy, D-Vt., and Bill Frist, R-Tenn., shows Leahy had concerns about just this kind of controversy. After stating that he abhors prostitution and sex trafficking, Leahy said that because they exist, strategies aimed at fighting HIV/AIDS also must target people involved in those activities, which requires trust. Organizations, he said presciently, might refuse to condemn behavior for fear of eroding that trust.