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US Can't Impose Anti-Prostitution Pledge on Health Groups: 2nd Cir.

By Stephanie Rabiner, Esq. on July 08, 2011 9:46 AM

Nonprofit organizations fighting HIV/AIDS abroad have won an important victory this week, with the 2nd Circuit Court of Appeals ruling that the federal government cannot predicate funding on an organizations adoption of an anti-prostitution pledge.

Finding that a funding requirement that forces health groups to denounce prostitution and sex-trafficking is akin to compelled speech, the court, in a 2-1 vote, affirmed the District Court's preliminary injunction.

In 2003, Congress passed the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which, through the U.S. Agency for International Development (USAID), provides funding to nonprofit organizations fighting HIV/AIDS abroad.

As a condition to the receipt of funding, nonprofits must affirmatively denounce prostitution and sex trafficking.

While this may seem like an innocuous requirement, the Associated Press reports that most of these groups wish to remain neutral as to not offend host countries. Additionally, educating prostitutes is an essential part of stopping the spread of disease.

Two groups sued USAID, arguing that the anti-prostitution pledge violated the First Amendment's prohibition of compelled speech. The court agreed.

Ordinarily, Congress may place conditions and requirements on federal funding as a means to achieve policy goals. However, as the 2nd Circuit points out, this power is not absolute.

Congress cannot "place a condition on the receipt of a benefit...that infringes upon the recipient's constitutionally protected rights."

The Supreme Court has repeatedly said that the government cannot compel a person into making a pledge in support of, or denouncing, a particular policy.

While this will certainly ease the burden placed on those fighting HIV/AIDS, this is likely not the end of the anti-prostitution pledge. USAID may still appeal.

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