Guest bloggers Kat Thomas and Lauren Parnes observed the April 22, 2013 session of the Supreme Court of the United States in Washington D.C. and provided the Best Practices Policy Project with the following post.

This week the U.S. Supreme Court heard oral arguments on the case, Agency for International Development (USAID) v. Alliance for Open Society International (OSI). The constitutional law at issue is the First Amendment: the government cannot infringe on the peoples’ “freedom of speech.” This case considers whether a so-called “anti-prostitution pledge”—this particular restriction is part of larger federal law relating to HIV/AIDS, the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003—violates the freedom of speech of US organizations receiving US global HIV/AIDS funding (known as PEPFAR funding) by telling them to “adopt and espouse” a policy against prostitution and trafficking. Although PEPFAR distributes money to international groups as well as those based in the US for programs abroad, the First Amendment protections would only apply to the US-based organizations.

Why is a policy that has a negative impact globally on sex workers’ health, labor, and sexual rights being challenged in terms of its impact on the “free speech” rights of US organizations? To fully answer why we cannot take most human rights issues to the Supreme Court would require delving too far into constitutional history for one blog posting. It is helpful to understand that the Supreme Court primarily considers cases relating to the US Constitution and federal law. Given our country’s high regard for the First Amendment—which includes the right to free speech—the legal strategy adopted by OSI effectively brought the anti-prostitution pledge to the forefront of the judiciary and the media.

As written, the law requires that in order to receive US global HIV/AIDS funding to work with, for example, people living with HIV in India, an organization must agree in writing to the US government that it will adopt the policy of anti-prostitution and express it as its own. Further, the pledge prohibits the organization from engaging in activities or dialog that is inconsistent with an anti-prostitution stance. If this policy is held to be constitutional the requirement applies to the organization funded through the PEPFAR program – even if the organization is also funded by private donors. OSI’s attorney argued yesterday that this is a violation of a US-based organization’s freedom of speech:  “They want to be able to publish papers, and they want to be able to be a part of the discussion in a marketplace of ideas…unfettered by a policy requirement that demands fealty to the government’s viewpoint” (David W. Bowker, OSI Counsel). 

There are many complicated layers to the arguments in this case, but one of the main ones dealt with requiring organizations to profess the government’s viewpoint. Courts have found it constitutional for Congress to stipulate that the government will not fund organizations that speak in support of policies to which the government is opposed. For instance, the US government may deny funding to US family planning programs if they promote “abortion as a method of family planning” or disperse information on seeking abortions (as per, Title X of the Health and Services Act, Section 1008).

What is different about this case, as Justice Ginsberg pointed to in her questioning, is that the government cannot now compel such organizations to tell their patients, “I agree with the government, you shouldn’t be getting an abortion.”  And as Justice Alito noted, it seems unprecedented and “quite a dangerous proposition” to not only gag organizations, but require the organization to take the government’s viewpoint with which it doesn’t agree. Courts have held that the government has the right to fund certain organizations to the exclusion of others, but a funding requirement cannot compel the organization’s expression of a position consistent with the government’s.

Even though in theory everyone has a right to free speech, because of the government’s current stance on sex work, the US may seem less inclined to consider the First Amendment rights of organizations working with sex workers and sex worker groups. This was exactly OSI’s point yesterday:

“… on the government’s theory, the government can give you — can give anyone in the country a dollar in Medicare funds and say, okay,  now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is — that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.”  (David W. Bowker, OSI Counsel)

This on-point analogy had several of the Justices nodding (even Chief Justice Roberts).

What was unfortunate was that OSI’s attorney followed up by saying that he needed “to be clear” that OSI does not “approve” of prostitution. We do not know whether OSI would have endorsed their counsel’s use of the word “approve,” which is not interchangeable with the word “promote,” and was not used in the OSI briefs. Unfortunately the press echoed this comment that was perhaps misspoken, further deepening stigmatizing attitudes towards sex workers. For example, National Public Radio reported that, “Bowker said his clients are opposed to prostitution”.

Challenging the anti-prostitution pledge before judges who may not want to hear about sex worker rights in the courtroom took strategic and careful planning and it is a victory that this case was heard by the highest court in the land. But are we still at a point where the only way to advocate for sex workers’ rights through the judicial system is to first assure the public that we do not approve of sex work? For this reason, yesterday’s discussion at the Supreme Court was disquieting. It revealed the problematic nature of a strategy that required OSI’s attorney to deny the human rights of sex workers in order to access First Amendment protections.

Bowker’s comment and the silence about what constitutes a health and rights approach to working with sex workers in the media, left many in sex worker communities feeling confused. OSI has engaged with and supported these communities in the past. Perhaps it is again time to sit at the table with sex workers rights groups and help sex workers and advocates understand what happened in the courtroom yesterday. The more we can engage, discuss and clear up misunderstandings, the more we can support one another and protect the dignity of sex workers. After all, isn’t the freedom of “unfettered” discussion what OSI was fighting for and what the First Amendment is supposed to protect?

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The full transcript of the oral arguments at the Supreme Court is available online, as are many other documents relating to the case of USAID v OSI.