Big Brother and AIDS: DKT International vs. USAID

In Washington DC in May 2006, Judge Emmet Sullivan of the DC Federal Circuit Court handed down a major decision on free speech in the case of DKT International v. USAID.¹ The result was a major victory for DKT, for free speech and for the integrity and independence of private US organisations.

Ruling that current US law, insofar as it requires DKT “to have a policy explicitly opposing prostitution and sex trafficking” is an unconstitutional violation of the First Amendment, Judge Sullivan permanently enjoined USAID from enforcing the policy against DKT. His findings generally rest on the same legal grounds as a decision a few days earlier by Judge Marrero in a related case taken by Open Society in New York.² The US government may not require private organisations to parrot the government’s chosen speech as a condition for receiving government funding.

Prior to the decision, scores of other organisations had signed the pledge, agreeing to adopt organisation-wide policies opposing prostitution and sex trafficking – policies which bind those organisations even when they use their own private funds.

In seeking support for the DKT case, I found universal detestation for this policy among non-governmental organisations (NGOs). Here is why. The adoption of a policy “opposing prostitution” sets those organisations at odds with the very people they are trying to help. Carrying out such a policy forces them to condemn some of the people at highest risk of contracting and transmitting HIV, those most in need of assistance. The policy thus undermines the trust required for an effective partnership between NGO representatives and sex workers as they collaborate on programmes to help prevent the spread of the disease.

This policy also constitutes coerced speech. While the government is free to prescribe those things which can and cannot be done with the funds it supplies to NGOs, it does not have the authority to prescribe policies for private organisations. Such policies apply to the speech and activities of the affected organisations even when they are using their own private funds. The government may not require private parties to promote the government’s party line with their own money.

In addition, most NGOs feel very strongly about their private and independent nature. Indeed, USAID itself over the years has made much of its preference for dealing with organisations that are not overly dependent on the US Government for their funding and which therefore “retain their private nature”. Being told what “policies” we must have is an infringement of our integrity.

The policy thus represents government at its Big Brother worst. No one pretends that “opposing prostitution” will contain or ameliorate the darker aspects of the world’s oldest profession. Rather it appears to represent posturing by American politicians who are appealing to their most extreme constituents, and who are increasingly seen around the world as patronising, bullying and just plain wrong.

DKT’s refusal to accede to USAID’s demands cost it valuable support for an HIV prevention project in Vietnam. With Judge Sullivan’s decision, we are again eligible for funding and are once more actively seeking USAID support in Vietnam and elsewhere. Other NGOs are seeking ways to use the DKT decision (and the closely related decision in New York) to nullify this deeply resented policy for their own organisations.

As expected, however, the government has filed notice of appeal in our case and we will now enter another 9–12 month cycle. The government will file its brief (not soon), we will reply, etc. Arguments before the DC Court of Appeals will likely fall between April and July 2007. Meantime, DKT will be exempt from the USAID policy per Judge Sullivan’s order.

We would be pleased to have amicus support in contesting the appeal and would welcome case histories and examples (such as Busza’s recent article³) of how the USAID prostitution policy has had a negative impact on HIV/AIDS prevention work in developing countries.