Independent Sector Argues for Protection of Nonprofits' First Amendment Rights in Amicus Brief

In a continuing effort to preserve nonprofits' First Amendment rights, on December 22, 2006, Independent Sector filed an amicus curiae brief (PDF) with the U.S. Court of Appeals for the Second Circuit in the case of Alliance for Open Society International, Inc., et. al., v. U.S. Agency for International Development, et. al.

The case challenges the federal government’s requirement that nonprofit organizations that receive Leadership Act funds from the U.S. Agency for International Development must adopt a policy expressly opposing prostitution and cease all activities, including those that are wholly funded through private sources, that are inconsistent with opposition to prostitution. IS’s brief argues that the government's requirement undermines the independence of nonprofits by restricting their constitutional rights of free speech when using private funds.  

Background
In 2003, Congress enacted the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act ("The Leadership Act") (Pub Law 108-25), authorizing the allocation of $15 billion in federal funds over five years toward activities that battle HIV/AIDS throughout the world. Included in the Act is a requirement that fund recipients adopt "a policy explicitly opposing prostitution and sex trafficking." In addition, several federal agencies have held that fund recipients are prohibited from using their own private funding to engage in activities determined to be insufficiently opposed to prostitution. Although initially applied only to foreign organizations, currently U.S.-based organizations are also required to comply with the anti-prostitution pledge.

Responding to the application of the pledge to U.S.-based organizations, the Alliance for Open Society International (AOSI) and Pathfinder International brought a suit in fall 2005 against the federal agencies that distribute Leadership Act funds, arguing that the pledge violates organizations' First Amendment rights and seeking injunctive relief from the requirement. The district court granted AOSI and Pathfinder's request; the decision is currently under appeal.

Several of Independent Sector's U.S.-based members receive Leadership Act funds and are directly impacted by the pledge requirement.

Last Updated: December 29, 2006

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