The Supreme Court overturned a mandate that certain organisations receiving HIV/AIDS funding state their opposition to prostitution. Credit: Bigstock

By Carey L. Biron
WASHINGTON, Jun 20 2013 (IPS)

The U.S. Supreme Court on Thursday overturned a decade-long practise under which the government linked global HIV/AIDS funding to a controversial requirement that organisations explicitly state their opposition to prostitution.

The court’s decision to overturn the mandate surprised many observers, with the 6-2 ruling now being lauded as a major victory by a broad coalition of global health, women’s rights and free speech advocacy groups.

“We are surprised but very happy to hear how the decision came down,” Crystal DeBoise, co-director of the Sex Workers Project at the Urban Justice Centre, a New York advocacy group, told IPS.

“This is a very good progression for the human rights of sex workers and will be a positive development for organisations that are best situated to meet the needs of sex workers and other people who have social and health risks,” DeBoise said.

“Hopefully this indicates that we’re moving in the direction of serving the most vulnerable members of our societies better and more efficiently.”

The anti-prostitution mandate has been part of U.S. policy since 2003, enacted as part of the President’s Emergency Plan for AIDS Relief (PEPFAR). That programme, focused particularly on Africa, offered the largest ever commitments to fight HIV and AIDS.

In the decade since it was enacted, PEPFAR has made available almost 46 billion dollars for HIV/AIDS programmes, according to official figures, directly providing antiretroviral medicines to more than five million people. For this and next year, President Barack Obama has requested another 13 billion dollars.

Yet from the start, Congress wrote the legislation in such a way that any organisation receiving PEPFAR funding would need to explicitly state its opposition to prostitution. Since then, experts from the health community have warned that such a policy runs counter to the aim of wiping out the HIV/AIDS epidemic.

“This policy didn’t emerge from within the public health field, but rather arose when some U.S. legislators saw an opportunity, through PEPFAR, to insert and enforce an ideological purity about sex work,” Serra Sippel, president of the Centre for Health and Gender Equity (CHANGE), a Washington advocacy group, told IPS.

“That was disturbing in part because it’s not a public health intervention to silence people or require organisations to adopt a specific viewpoint of some legislators.”

Building trust

The U.S. government has always explained the anti-prostitution oath by stating that stamping out sex work is a central component of the country’s broader anti-HIV policy. Civil society has also been split on this issue, with some groups – particularly anti-trafficking organisations – supporting the pledge in some way (several such groups contacted by IPS were unable to respond by deadline).

Still, many critics on the ground have for years warned that the oath stood in the way of the independent thinking necessary to find an end to the HIV epidemic. In particular, it distanced health workers from sex workers.

“It’s considered a best practise in public health to build trust among sex workers and to work to end the stigma and discrimination that fuel the epidemic,” Sippel said.

She noted that forcing an organisation like Pathfinder International – a sexual health advocacy and implementing group, and one of the lead plaintiffs in the Supreme Court case – to sign the pledge essentially pushed the organisation to adopt policy stating that it opposed the very people it was supposed to serve."We signed the pledge, knowing that we would wilfully ignore it."
-- Kevin Frost

“There’s no question that the programmatic goal of ending prostitution comes into conflict with the programmatic goal of trying to end HIV infection,” Kevin Frost, CEO of amfAR, the Foundation for AIDS Research, told IPS. “You end up making it exponentially more difficult to reach and built trust with the kind of individuals who are on the front lines of this issue.”

Such contortions led Frost’s organisation to sign the pledge and then continue to do what it thought best.

“Like many, our hand was forced into signing the prostitution pledge, even though we felt from the beginning that this was bad both policy-wise and programmatically and would have a negative impact on our ability to reach the population that needed the kind of services we offer the most – commercial sex workers,” Frost noted.

“So we signed the pledge, knowing that we would wilfully ignore it. We discussed the policy at the board level and signed on, but did so with objection.”

Still law

Thursday’s court decision hinges on a view of the anti-prostitution oath as infringing on free speech, as guaranteed by the U.S. Constitution’s first amendment.

“The [oath] requirement mandates that recipients of federal funds explicitly agree with the Government’s policy to oppose prostitution,” Chief Justice John Roberts wrote for the majority. “The First Amendment, however, ‘prohibits the government from telling people what they must say.'”

Given the polarised nature of sex work in the United States, the case before the court had been specifically tailored to deal solely with this free speech context. As such, the court did not weigh in on the merits of arguments or policies regarding sex work more generally.

Nor did the decision actually strike down the prostitution oath. Rather, it found that the oath infringed on the free speech of the organisations that were directly party to the court case.

More broadly, the case’s interpretation will affect only U.S., rather than international, groups receiving PEPFAR funding. Yet amfAR’s Frost noted that the majority of groups that receive PEPFAR funding are based in the United States and that the programme’s ability to enforce diktat for international organisations is limited.

Still, with the oath still on the books even after Thursday’s decision, the impetus will now come down to how President Obama’s administration proceeds. To date, administration officials have refused to discuss their view of the oath, given that it has been the subject of legal proceedings since Obama took office.

“This is not over – it’s an important milestone in defeating this policy, but the work needs to continue to make sure it’s not applied in a negative way to groups on the ground,” CHANGE’s Sippel said.

“This decision now gives us an opportunity to look at specific instances where U.S. funding can engage sex workers on a more critical agenda,” Sippel added. “Globally, we’re making a lot of progress on HIV/AIDS, particularly in looking at this from a public health and human rights perspective.

“This case now helps us continue to move the conversation in that direction.”

A Karachi street during the rioting on Sep. 21. Credit: Adil Siddiqi/IPS

By Kim-Jenna Jurriaans
NEW YORK, Oct 3 2012 (IPS)

U.S. President Barack Obama’s unequivocal defence of First Amendment protections of blasphemy and hateful speech during last week’s address to the 67th United Nations General Assembly defied calls from Muslim protesters and some foreign government leaders to ban a controversial YouTube video and support stronger restrictions to religious criticism.

Obama’s remarks followed two weeks of riots in countries including Libya, Egypt and Pakistan that resulted in an estimated 50 deaths, and courts in Russia, Turkey, Brazil, Sri Lanka and Kyrgyzstan banning online access to a video depicting the Prophet Muhammad as a fraud and a philanderer.

The extreme response to the video overseas has overshadowed what the film itself is a symptom of – an unprecedented rise in domestic hate groups across the United States since 2000.

Between 2000 and 2011, the number of hate groups in the U.S. rose from 602 to 1,018, according to Mark Potok, an expert on extremism at the Southern Poverty Law Center (SPLC), which collects data on hate groups nationally.

The number of right wing “patriot” groups – which blend fears over the loss of white power with fears of impeding civil war between rich and poor – grew from 148 in 2008 – the year Obama was elected and the economy crashed – to 1,274 in 2011.

While much of the rest of the world continues to be baffled by U.S.-style protection of expression, Obama – himself a frequent target of racist speech – reaffirmed the First Amendment’s adage that “the strongest weapon against hateful speech is not repression – it is more speech.”

“The U.S. is very protective of speech vis-à-vis the rest of the world,” David Hudson, a first Amendment Scholar at the Freedom Forum First Amendment Center at Vanderbilt University, told IPS. “Free speech is a sacred right here – our blueprint for personal freedom.”

While the U.S. Supreme Court acknowledges restrictions when it comes to direct threats, incitement of imminent lawless acts, or “fighting words”, these three categories are narrowly defined and much hateful or repugnant speech doesn’t fall into any of them, according to Hudson.

“Truth Will Prevail”

“On hate speech, the United States Supreme Court has generally held that speech that disparages a group on the basis of racial, religious, ethnic, sexuality, or gender identity cannot be criminalised,” Ruthann Robson, a professor of law and university distinguished professor at the City University of New York (CUNY) School of Law, told IPS.

“The underlying idea is that ‘truth will prevail’ and that ‘bad ideas’ will suffer in a ‘marketplace of ideas.’ Of course, not everybody agrees with this.”

In Canada, for example, courts apply a balancing test that weighs equality concerns against free speech concerns, Robson explained. “In the U.S.,” on the other hand, “free speech is generally considered more central.”

In addition to the blasphemous nature of the Muhammad video, public discussions on possible restrictions to its content have focused on whether the video’s incitement of riots across the world could trigger First Amendment exceptions.

“The incitement standard really was made for people on a soap box,” Robson explained, adding that actions involving books or the internet are likely “too attenuated” for the restriction to apply.

“The notion behind it is that if you’re watching something or you’re reading something, you are alone – you are not being whipped up by a crowd.”

The person who is speaking also has to be intent on inciting the violence that ensues and it has to be objectively likely that the intended result will happen immediately, according to the scholar.

The Mohammad video – which Obama called “crude and disgusting” – in fact led a quiet existence on YouTube for two months before an Egyptian TV station aired part of it last month.

Extremist leaders, who have lost footing since the Arab spring brought moderates into power in countries like Egypt, were eager to capitalise on the video by amplifying the outrage and creating new platforms for themselves.

With the actual rabble-rousing happening halfway across the world, the reactions to the video were hardly immediate nor unmediated to pass the incitement test.

Robson concedes that the legal field has been somewhat in “disarray” when it comes to the doctrine of incitement in the new media age, struggling with situations that the doctrine really wasn’t anticipated to take into account.

So far, “the default has been that it’s not imminent action.”

A true marketplace of ideas

Chad Johnston is the executive director of two public access television channels in North Carolina, which by their mission are uncensored, uneditorialised community platforms that aim to facilitate the open market place of ideas that the First Amendment envisions.

This also means that a local hate group has the same opportunity to use the station’s facilities and airtime as the local knitting club does.

Classifying when speech crosses boundaries into unprotected expression has occasionally required the staff to do some “long and hard thinking”, Johnston said.

“The First Amendment is so great and so tricky at the same time. In the end, I think it is much more dangerous to a healthy democracy and – on a micro scale – a healthy community to tell people that they can’t speak their mind.”

What public access does best, according to Johnston, is create feedback loops in communities by inviting viewers to produce content in response to views they find offensive.

That kind of dialogue is essential to understanding how complex and diverse communities are, Johston said, while bringing views out of the “dark shadows” of society.

As repulsive as those views may be, expressions made on public access TV would be hard to criminalise on the basis on the First Amendment alone, according to Robson, and are much more likely to be in violation of Federal Communications Commission (FCC) rules.

The internet, however, is not yet subject to such regulations, and government is facing public pushback over attempts to regulate internet content.

Working harder

As the marketplace of ideas goes global, we are challenged with the fact that misinformation invariably spreads faster than valuable information, Arjun Appadurai, a well-known social-cultural anthropologist, recently said at the U.N.

The reason hate-oriented propaganda is successful, according to Appadurai, is that true information requires education and debate, while misinformation is bred in conditions of misery and anxiety, “which are widely available in a world of competition, misery and unequal opportunity.”

Like SPLC – which has taken the recent surge in hate propaganda as an opportunity to build stronger alliances to counter misinformation and blatant lies about minorities – Johnston, too, sees hate speech as an invitation to work harder on building understanding.

“I want to know if the (white supremacy group) KKK is active in my community – that gives me motivation to go out and fix that,” he said.

So while the “more speech” adage may be a testament to the United States’ deep-rooted mistrust of government – it also puts faith in another great value: rolling up your sleeves to make things better.