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WASHINGTON-Nongovernmental organizations that receive federal funds are closely watching a First Amendment battle in federal court here over a law’s requirement that they pledge to oppose prostitution in order to get federal monies to combat the spread of AIDS worldwide. A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia recently heard arguments in DKT International Inc. v. U.S. Agency for International Development, No. 06-5225. The Bush administration is appealing a district court decision last spring striking down the so-called pledge requirement as an unconstitutional condition that restricts privately funded speech outside the scope of the federal program. At issue is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The act includes two specific conditions on funding: First, no funds “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking,” and second, only organizations that have a “policy explicitly opposing prostitution and sex trafficking” will be eligible for funding to provide HIV/AIDS programs and services on behalf of the government. DKT, a U.S.-based nonprofit corporation that provides family planning and HIV/AIDS services and programming in 11 countries, does not challenge the first condition, which is clearly constitutional under U.S. Supreme Court precedent, said its counsel, Julie Carpenter, a partner at Chicago’s Jenner & Block. Alienating a core group? But the second condition would force her client to abandon its neutral position on prostitution, she added, in order to parrot a government position which is not only bad law but bad social policy, since it threatens to alienate and further isolate a core group in need of HIV/AIDS services. The Bush administration chose not to enforce the condition in 2003 because of concerns about its constitutionality. It changed its position in 2004. The government now argues that the pledge condition “reflects the common-sense reality that an organization is more likely to advance Congress’ chosen message that two behavioral risks for HIV/AIDS (prostitution and sex trafficking) should be eradicated if the organization opposes the underlying practices in question,” according to the government’s brief. The Constitution’s spending clause and First Amendment recognize the principle that where the government provides funding to promote its chosen viewpoint, it may impose conditions that are germane to the program, according to the government’s brief. Twenty-six public health agencies and public health experts filed an amicus brief supporting DKT.

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