Published July, 2011

Alliance for Open Society Int'l v. United States Agency for Int'l Development, No. 08-4917(2d Cir. 2011)

In a 2-1 decision, the U.S. 2nd Circuit Court of Appeals struck down a provision of the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 ("Leadership Act") that required U.S. organizations to explicitly oppose sex work if they received federal funds to engage in global HIV/AIDS activities, including education, prevention, treatment, or partnership building efforts.

Section 7631(f) of the Leadership Act provides that   "[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."  This provision requires organizations, as a condition of receiving Leadership Act funds, to adopt a policy opposing prostitution, and prohibits recipients from engaging in any activities "inconsistent" with an anti-prostitution stance. Under the Leadership Act, recipients of U.S. funds are forced to censor even privately funded speech regarding the most effective ways to engage sex workers in HIV prevention.

The Second Circuit upheld the lower court's injunction barring U.S. agencies from enforcing the policy on the grounds that the provision violated freedom of speech. "Congress's spending power, while broad, is not unlimited, and other constitutional provisions may provide an independent bar to the conditional grant of federal funds," U.S. Circuit Judge Barrington Parker wrote in the decision joined by Judge Rosemary Pooler.

The provision, also known as the "anti-prostitution pledge policy" or the "anti-prostitution loyalty oath," was not removed during reauthorization legislation passed by Congress and signed by President Bush in 2008.