D.C. Appeals Court Rules Against Free Speech In Condom Distribution

In a ruling handed down Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit upheld a congressional mandate that companies that receive federal funds to provide condoms to people in third-world countries pledge to oppose prostitution and sex trafficking. 

Rep. Chris Smith (R-NJ), who authored the anti-prostitution amendment which was tacked onto the 2003 United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, lauded the decision as "an integral part of any global effort to eliminate HIV/AIDS." 

Smith, whose conservative religious views are well-known on Capital Hill, claimed in a press release issued today that, "To say you are opposed to the global spread of HIV/AIDS but not the global sex trade industry is not only counter-productive to the fight against HIV/AIDS, it is detrimental to U.S. efforts to end the heinous crime of human trafficking. Above all, sex trafficking and prostitution degrades and exploits women and young girls." 

The appeals court ruling overturned a lower court ruling in favor of DKT International, a D.C.-based service organization founded in 1989 by Philip D. Harvey, owner of Adam & Eve, the adult mail-order company. 

Smith's amendment to the U.S. Leadership Act states that "the reduction of HIV/AIDS behavioral risks shall be a priority of all prevention efforts in terms of funding, educational messages, and activities by promoting abstinence from sexual activity and substance abuse, encouraging monogamy and faithfulness, promoting the effective use of condoms, and eradicating prostitution, the sex trade, rape, sexual assault and sexual exploitation of women and children." 

With the adoption of the Smith amendment, the U.S. Agency for International Development (USAID), which provides funds for third-world health programs, began requiring that all fund recipients sign a pledge that their organizations have "a policy explicitly opposing prostitution and sex trafficking." 

DKT refused to sign the pledge, since, according to the District Court opinion, it "believes that a policy explicitly opposing prostitution will likely result in stigmatizing and alienating many of the people vulnerable to HIV/AIDS - the sex workers - and may result in limiting access to the group DKT is trying to reach."  

The Court of Appeals rejected DKT's argument, ruling that, "In this case the government's objective is to eradicate HIV/AIDS.  One of the means of accomplishing this objective is for the United States to speak out against legalizing prostitution in other countries." 

DKT, however, while agreeing that the government could legitimately bar grantees from using government money to support legalizing prostitution, argued that signing USAID's pledge would restrict its speech in its application of non-government funds, over which the government theoretically should have no control. 

The government argued, though, and the appeals court agreed, that "It would make little sense for the government to provide billions of dollars to encourage the reduction of HIV/AIDS behavioral risks, including prostitution and sex trafficking, and yet to engage as partners in this effort organizations that are neutral toward or even actively promote the same practices sought to be eradicated.  The effectiveness of the government's viewpoint-based program would be substantially undermined, and the government's message confused, if the organizations hired to implement that program by providing HIV/AIDS programs and services to the public could advance an opposite viewpoint in their privately-funded operations." 

The appeals court did not delve into the question of how the government believes that condom-based prostitution increases the risk of HIV/AIDS, ruling instead that, "Nothing prevents DKT from itself remaining neutral and setting up a subsidiary organization that certifies it has a policy opposing prostitution." 

Phil Harvey could not be reached for comment at press time.