If an organization did not have a “policy explicitly opposing prostitution” – - – the so-called prostitution pledge – - – then the program could not obtain funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. Today, the Second Circuit held this was an unconstitutional condition infringing on free speech.
Successful unconstitutional conditions cases have become relatively rare, but in its 2-1 opinion in Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v. United States Agency for International Development, the Second Circuit distinguished negative precedent such as Rust v. Sullivan.
The panel also noted that the mandated viewpoint was not universal: “the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate,” in which “the differences are both real and substantive.” By requiring the espousal of the government’s position, the program prohibited important political speech.
More analysis on Constitutional Law Prof Blog.