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Federal Anti-Prostitution Pledge Violates Speech Rights of Public Health Groups

NEW YORK—The Open Society Foundations, Pathfinder International, and InterAction welcome a federal court decision that rejects the federal government’s attempts to narrow the scope of the US Supreme Court’s 2013 decision striking down as unconstitutional an Anti-Prostitution Pledge in the context of a US government’s global program to combat the spread of HIV & AIDS. In its 2013 decision, the Supreme Court ruled that the First Amendment prohibits the government from requiring US-based organizations or their affiliates to adopt and espouse the government’s viewpoint as a condition of receiving HIV & AIDS funding.

On January 30, 2015, Judge Victor Marrero of the United States District Court for the Southern District of New York confirmed that the Supreme Court’s 2013 decision protects US-based organizations and all their affiliates, whether in the United States or overseas. The US government had insisted that the Supreme Court’s ruling did not prohibit the imposition of the Pledge on the foreign affiliates of US organizations, but Judge Marrero firmly rejected the government’s attempt to narrow the Supreme Court’s ruling in this way. As the Supreme Court decided in 2013 – and as Judge Marrero has now confirmed in his decision enforcing that judgment—the First Amendment prohibits the US government from imposing the Pledge on US organizations and their affiliates, regardless of where the affiliates are located.

This is the sixth victory for non-governmental public health groups in a ten-year challenge to a provision of the 2003 United States Leadership Act against HIV & AIDS, Tuberculosis, and Malaria. The law requires organizations receiving HIV funds from the US government to pledge that they have adopted a policy “opposing prostitution.” This compromises public health efforts to arrest the spread of HIV & AIDS by impeding work with vital communities, including sex workers and their families.

“Time and again the courts have found that while the government can say how it wants its money spent, it cannot tell us what to believe,” said Jasmine Tyler, the Open Society Foundation’s senior policy analyst for global health and drug policy. “Condemning sex workers only stigmatizes and alienates communities who are our vital partners in the HIV response.”

“This decision enables us to use the US Government’s generous and steadfast funding to address HIV and AIDS more meaningfully. We persevered with this case because we believe it is critical to retain the ability of individual organizations to provide a range of life-saving health services to whomever needs them without sacrificing the right to free speech,” said Purnima Mane, President & CEO of Pathfinder. “This latest ruling affirms the need to protect intellectual debate and differences of opinion among the wide range of organizations that partner with the U.S. Government.”

“Judge Marrero’s decision makes it clear that the federal government’s continued efforts to restrict the free speech of US NGOs working abroad  is unacceptable,” said Lindsay Coates, acting president and CEO of InterAction—the largest U.S. alliance of nongovernmental organizations working on global poverty and humanitarian assistance issues. “From the ACLU to the CATO Institute, this case has brought together a broad and diverse coalition of supporters of the First Amendment against unconstitutional funding conditions and this decision is a victory for all of US civil society.”

Despite the 2013 decision by the US Supreme Court the government has continued to impose the requirement on organizations’ affiliates abroad. It claims that those affiliates are not protected, despite sharing, the same name, brand, and mission. Judge Marrero disagreed with the government, noting that the Supreme Court has ruled that just as the Government may not compel U.S.-based organizations to espouse a certain viewpoint, it likewise may not compel the foreign affiliates of US-based organizations to do so, because the US-based organizations would then be free to express a contrary view only at “the price of evident hypocrisy.”

The plaintiffs have been protected since 2006 by a preliminary injunction issued by the court that exempted them from the Pledge. However, all other recipients of federal HIV and AIDS funds had remained subject to the requirement prior to the Supreme Court’s decision.

Alliance for Open Society International (AOSI) v. United States Agency for International Development was brought by AOSI, with which Open Society Foundations is affiliated, and Pathfinder International. The case was later joined by InterAction and the Global Health Council.

WilmerHale is counsel to the plaintiffs and argued the case before the Court.

The United States Agency for International Development, the U.S. Department of Health and Human Services, and the U.S. Centers for Disease Control, defended the pledge requirement in court. All agencies distribute U.S. funds for international HIV and AIDS work.

For more information, including a timeline of the case and court filings, visit:


The Open Society Foundations work to build vibrant and tolerant democracies whose governments are accountable to their citizens. Working with local communities in more than 100 countries, the Open Society Foundations support justice and human rights, freedom of expression, and access to public health and education.

Pathfinder International is a nongovernmental organization that partners with governments and local communities around the world to provide women, men, and adolescents with quality health services–from contraception and maternal and newborn health to HIV prevention and AIDS care and treatment. Pathfinder advocates for sound reproductive health policies, and, through all of our work, breaks down barriers so all people can enjoy a healthier future.

InterAction is the largest alliance of U.S.-based nongovernmental international organizations, with more than 180 members. Our members operate in every developing country, working with local communities to overcome poverty and suffering by helping to improve their quality of life.

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