If you ran a small public health or workers' rights organization with a shoestring budget, what on earth could make you refuse to take a lot of money from the government?
For some, being asked to take the so-called was enough. The pledge is a few lines in a big law. The law — the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act — pours billions of dollars into the global fight against AIDS and other diseases. The pledge says that to get some of this money, groups doing HIV prevention work have to mouth the government's position "opposing prostitution," and avoid doing anything an official might construe as promoting prostitution. In practice, that has meant that health services providers and advocates for the rights of vulnerable workers have to close their doors to women and men who need help but who are involved in sex work.
The anti-prostitution pledge has caused many organizations to bite the hand that had fed them. Some, in places like Thailand, India, and Brazil, rejected U.S. funding because the pledge is too far out of line with humanitarian and human rights principles, or because they simply couldn't do effective HIV prevention work while ignoring a group of people who are both vulnerable to infection and potentially key allies in the promotion of sexual health. Some U.S.-based organizations brought suit, challenging the pledge as a violation of the Constitution's guarantee of free speech.
Yesterday, the ACLU and the NYCLU filed a friend-of-the-court brief in that lawsuit on behalf of almost 25 public health and human rights organizations.
In terms of free speech, there's a lot at stake in this case. It's about the government doling out some money to private organizations, and then trying to dictate what those organizations can say — anywhere, anytime — about a controversial issue. According to the U.S. government, as long as an organization has taken a penny of government money to do HIV prevention work, it has to toe the party line, even when it is engaged in activity funded by money from sources other than the government. While it's true that in some situations the government can choose to promote one message over another when government funds are directly involved, that notion is now being stretched to dangerous lengths.
But the stakes in this case are highest in the real world. In a multitude of ways, the pledge has made it harder for organizations in the trenches of the fight against AIDS to do their job. Internationally-acclaimed HIV prevention programs have shut down or downsized, condom distribution programs have been slashed, and doctors and counselors have refused to provide sexual health information to people who need it. And women sex workers who, with the help of aid organizations, had united to oppose violence perpetrated against them by clients and police have found themselves isolated once again. All of this means needless infection, and needless suffering and death. It's hard to imagine a starker triumph of politics and ideology over human life.
A lower court has already suspended the pledge twice, and the government is now appealing. If the appeals court sides with the government, it will be a victory for state orthodoxy and a defeat for free speech, public health, and sensible public policy.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.