[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Wednesday that the US government cannot withhold HIV/AIDS funding to organizations based on their prostitution stance, finding a violation of the First Amendment [text]. Upholding the injunction [opinion, PDF] issued by the US District Court for the Southern District of New York [official website], the court agreed that the US Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 [22 USC § 7601 text] violates free speech with Section 7631(f): “[n]o funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution.” The court ruled that this unconstitutionally requires potential fund recipients to “espouse the government’s views.”

Furthermore, the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate. 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. Plaintiffs claim that being forced to declare their opposition to prostitution “harms [their] credibility and integrity as NGOs, which generally avoid taking controversial policy positions likely to offend host nations [and] partner organizations,” and risks “offending all of the groups whose approach to HIV/AIDS may differ from that of the government,” not to mention some of the very people, prostitutes, “whose trust they must earn to stop the spread of HIV/AIDS.”

The plaintiffs, Alliance for Open Society International and Pathfinder International [advocacy website] are both international nonprofit organizations working to eradicate HIV/AIDS. Their attorney, Rebekah Diller, was pleased with the decision [New York Law Journal report], saying that it allows the organization to spend funding the most effective way they can.

Prostitution is controversial across the globe. Last month, a five-judge panel for the Ontario Court of Appeal [official website] extended a stay of a lower court decision [JURIST report] striking down laws banning prostitution-related activities, leaving the activities illegal pending ruling of the court. Although prostitution is legal in Canada, virtually all of the acts ancillary to exchanging sex for money are not. In September, the classified advertising website Craigslist [website] removed its “adult services” section [JURIST report] in the US, replacing it with a “censored” label after 18 state attorneys general criticized the section in a letter [text] sent last month. The letter, written by Connecticut Attorney General Richard Blumenthal [official website] and joined by the attorneys general of 17 other states, called on Craigslist to remove the section due to alleged “rampant prostitution advertisements” and because it is supposedly used to facilitate human trafficking of women and children.