Supreme Court Strikes Down Government’s Anti-Prostitution Mandate As First Amendment Violation

Under a law signed by President George W. Bush, organizations that receive federal funding for HIV and AIDS prevention were required to openly oppose both prostitution and sex trafficking — a mandate that put organizations who often deal precisely with those populations in a particularly untenable position.

In a 6–2 ruling, the U.S. Supreme Court said this anti-prostitution pledge violates the groups’ First Amendment rights, holding that organizations cannot be required to “pledge allegiance to the Government’s policy of eradicating prostitution” as a condition of federal funding. This means that the federal government cannot use federal funds as “leverage” to suppress speech it doesn’t like. It can, however, dictate that that only particular kinds of speech can be funded by the government’s money, so long as organizations are permitted to fund other speech through other sources.

At Slate, Amanda Marcotte explains the context of this policy:

The prostitution pledge was something concocted by the Bush administration, and it just so happened that the existence of the pledge helped make sure that more of the funding for anti-AIDS efforts went to conservative Christian organizations that enthusiastically supported it. Because of this, the pledge did more than damage HIV organizations’ ability to work with sex workers, but it also meant more money for groups with an abstinence-only worldview, instead of the harm reduction approach favored by secular health care experts. The court’s decision today will not only improve outreach to sex workers in danger of contracting HIV, but will also help improve the efficacy of HIV outreach overall.


The ruling is not only a major victory for health workers who will feel empowered to speak more freely and target some of the populations most vulnerable to HIV/AIDS; it also appears to have expanded free speech rights, as SCOTUSblog’s Lyle Denniston explains.