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The United States Agency for International Development Litigation

The United States Agency for International Development (USAID) was created consolidating several foreign assistance organizations and programs into a single agency that was responsible for foreign economic development. In 1961, Congress passed the Foreign Assistance Act of 1961, which transformed U.S. foreign assistance activities with President John F. Kennedy leading the way. He recognized the need to unite foreign economic development assistance resources into a single agency.

“There is no escaping our obligations: our moral obligations as a wise leader and good neighbor in the interdependent community of free nations – our economic obligations as the wealthiest people in a world of largely poor people, as a nation no longer dependent upon the loans from abroad that once helped us develop our own economy – and our political obligations as the single largest counter to the adversaries of freedom.” – John F. Kennedy

In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act or Act) to prevent the spread of infectious diseases worldwide. The Act designates federal funds to non-governmental organizations (NGO’S) that fight against the spread of HIV/AIDS so long as the organization opposes prostitution and sex trafficking. This was challenged by the Alliance for Open Society International Inc. (AOSI). AOSI, is a New York City based non-profit organization to combat drug abuse, promote public health, and human rights, especially in Central Asia. AOSI challenged the condition imposed by the Leadership Act which ties the receipt of federal funds to opposing prostitution and sex trafficking as an unlawful restraint on its Freedom of Speech.

In USAID v. AOSI, AOSI a non-governmental organization bought a suit against USAID challenging the constitutionality of the Leadership Act arguing that the policy requirement of forcing a federally funded private organization to adopt the government’s viewpoint on prostitution violates its First Amendment rights, therefore, it also filed for an injunction to stop enforcement of this requirement.

USAID argued that the policy requirement targeting prostitution and sex trafficking as significant contributors to the spread of HIV/AIDS while minimally impacting, if at all, the freedom of speech of federally funded private organizations.

The United States District Court for the Southern District of New York granted AOSI’S motion for a preliminary injunction stopping enforcement of the anti-prostitution and anti-sex trafficking policy requirements as well as barring the government from cutting off their Leadership Act funding during the litigation. The Second Circuit Court of Appeals affirmed the District Court’s decision concluding that policy requirement violated AOSI’S First Amendment right to freedom of speech. The United States Supreme Court affirmed the Second Circuit’s decision, holding that the government may not use funding or the threat of loss funding as a way to regulate speech and policies of NGO’S. Chief Justice John Roberts in writing for the majority opined:

“…the Policy Requirement goes beyond preventing recipients from using private funds…it requires them to pledge allegiance to the Government’s policy of eradicating prostitution. That condition on funding violates the First Amendment.”