Several U.S. based non-governmental organizations engaged in HIV/AIDS prevention work abroad initiated this case to challenge the Leadership Act which mandated them to take a position against prostitution; Whether under the ‘Spending Clause’ the U.S. Congress has the power to enforce this mandate; The scope of the First Amendment as applied to U.S. based non-governmental organizations.
Plaintiffs are awaiting notice as to whether the USAID will seek a rehearing in the Second Circuit or review by the Supreme Court. The deadline for the defendants to seek a rehearing is August 22, 2011.
Although this decision was exclusive to U.S. based organizations, it could potentially have a broader impact on those organizations based outside the U.S. who are still bound to this pledge and attendant requirements. In addition, it is an important decision furthering the elaboration of the scope of extra-territorial obligations of States and Non-state actors – i.e. to what extent States or other actors have human rights obligations outside of their territorial boundaries. In this case, the Second Circuit established that First Amendment rights of U.S. based organizations, extends to their work outside of the United States and that State obligations not to infringe on this right also extend outside U.S. borders. In addition, this is an important victory for organizations engaged in HIV/AIDS prevention work with high-risk communities and helping to support access to medicines.
Pathfinder International; Alliance for Open Society International (AOSI); Open Society Institute; InterAction; Global Health Council; Brennan Center for Justice; and AIDS Action.