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Supreme Court: Anti-prostitution pledge in AIDS law violates free speech

A 2003 US law providing funding to fight AIDS required recipients to explicitly oppose prostitution. The Supreme Court, by a 6-2 margin, rejected the pledge of 'allegiance to the government's policy.'

By Staff writer / June 20, 2013


The US Supreme Court on Thursday struck down as a violation of free speech a portion of a 2003 federal law that required recipients of government money in an international anti-AIDS program to embrace and advocate a US policy explicitly opposing prostitution.

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In a 6-to-2 decision the high court ruled that the government-imposed requirement violated the First Amendment by forcing US aid recipients to adopt a position that extended beyond the administration of the anti-AIDS program.

“The policy requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the government’s policy of eradicating prostitution,” Chief Justice John Roberts wrote in the majority opinion.

He quoted former Justice Robert Jackson’s famous opinion in a landmark First Amendment case: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

In a dissent, Justices Antonin Scalia and Clarence Thomas said the government was free to seek out those who agree with its ideas and enlist their assistance in effectively spending government money to achieve its goals.

“In the end, and in the circumstances of this case, compelling as a condition of federal funding the affirmation of a belief is no compulsion at all,” Scalia said.

“It is the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject,” he said.

The central issue in the case was whether the government could force participants in a federal program to espouse a certain policy position as a condition of receiving US funding.

“This decision is a victory for human rights,” Serra Sippel, president of the Center for Health and Gender Equity, said in a statement. “The anti-prostitution loyalty oath was based on discrimination against one of the groups most at risk of HIV infection, and had nothing to do with evidence or best practices.”

“This will allow organizations fighting HIV to address the epidemic in the most effective way possible,” Ms. Sippel said.

In passing the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Congress found that HIV/AIDS had reached pandemic proportions. More than 65 million individuals had been infected by HIV, and 25 million had died. HIV/AIDS was the fourth largest cause of death worldwide, Congress found.

In sub-Saharan Africa, alone, more than 19 million had died of AIDS, with projections that a quarter of the population would die of AIDS in the next decade.

The Leadership Act was designed to put in place a comprehensive, multi-billion-dollar US response to the unfolding tragedy – including an attempt to address the underlying causes of the spread of HIV/AIDS.

Key in that goal was a strong policy opposing prostitution and sex trafficking. As a result, the law included two conditions:

First it prohibited recipients from using Leadership Act funds to “promote or advocate the legalization or practice of prostitution or sex trafficking.”


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