The U.S. Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities, Nicole Franck Masenior & Chris Beyrer, 4 PLoS Medicine 1158 (2007)

This article discusses the implications of the U.S. Global AIDS Act of 2003, which requires that all organizations that receive federal AIDS funding have a policy that explicitly opposes prostitution and sex trafficking. This “Prostitution Pledge” has posed a serious challenge for organizations and governments that work to improve sex workers’ access to education and healthcare, but refuse to officially decry the practice of sex work. The authors of the article reviewed the existing scientific evidence on strategies that effectively reduce the rates of HIV among sex workers and found that the U.S. policy actually may further marginalize sex workers by cutting funding to programs that provide them with health, social and education services. Another key finding was that the U.S. in the Global AIDS Act conflates “sex trafficking” and “prostitution, ” terms which are not usually merged in the scientific literature on HIV/AIDS or by international agencies with AIDS prevention programs. . Many organizations view “sex work” independently of “trafficking,” as many sex workers are consenting adults who sell sex of their own volition. A substantial amount of research suggests that empowerment, organization, and unionization of sex workers can be an effective HIV prevention strategy and can also reduce other harms such as violence, marginalization, unwanted pregnancy, and the number of underage sex workers. However, due to the specific requirements for funding from Global AIDS, the Prostitution Pledge language places restrictions on organizations that advocate for the decriminalization of sex work. . . Moreover, by focusing solely on the eradication of prostitution and placing restrictions on the type of work organizations can do with Global AIDS funding, the U.S. political agenda may actually be frustrating those goals.

Several organizations have also challenged the constitutionality of the Prostitution Pledge, arguing that it violates the First Amendment. One such case won support from the District Court for the Southern District of New York, where the judge ruled that the Prostitution Pledge requirement unconstitutionally compelled speech, was viewpoint based, and placed an unconstitutional condition on the receipt of federal funds. The U.S. government has appealed this case to the Second Circuit. In another case, the D.C. Circuit Court of Appeals upheld the constitutionality of the requirement, but required that USAID allow organizations that wish to engage in speech about prostitution do so through an affiliate that receives no federal funds.