The US Supreme Court yesterday struck down a requirement that organisations receiving any amount of PEPFAR funding sign an explicit policy opposing prostitution, known as the anti-prostitution pledge. The court held that the anti-prostitution pledge violated the right to free speech under the First Amendment of the US Constitution. The vote was 6-2 with two of the court’s traditionally conservatives voting with the liberals and Justice Anthony Kennedy, the court’s resident swing vote. Justice Elena Kagan recused herself from the case.
The majority decision by Chief Justice John Roberts noted that Congress can impose restrictions on funding, but cannot “seek to leverage funding to regulate speech outside the contours of the program itself”. The majority admits that the line is not always clear, but in this case, the majority reasons that the anti-prostitution pledge compels grantees to adopt the government’s belief regarding sex work as a condition for funding, which the court finds is an undue burden on the right to free speech under the Constitution.
The court makes a distinction between restrictions on how the specific government funding can be used, which is not a violation of the First Amendment and those restrictions which not only limit the use of government funding but also of other privately-acquired funds. In this case, the anti-prostitution pledge requires organisations to profess a certain view on sex work which they then cannot change when engaging in activities not funded by the US government. This the court reasons “goes beyond defining the limits of the federally-funded program to defining the recipient”.
The decision is a real victory for US-based organisations working to end HIV around the world. As the organisations argued, the anti-prostitution pledge makes it harder for them to effectively reach out to sex workers, which is necessary to curb the negative impact of HIV.
However, the judgment is limited to US-based organisations and does not apply to HIV organisations in southern Africa, many of whom receive PEPFAR money and are forced to sign the anti-prostitution pledge. The hope is that this decision will lead the US government to remove the unnecessary requirement not only for US-based organisations but for all organisations.