United States Agency for International Development v. Alliance for an Open Society, International (U.S. Supreme Court, 2013)
The U.S. Supreme Court, in a 6-2 decision, held that the government cannot compel a non-governmental organization receiving federal funding to affirmatively embrace the government’s point of view in matters not directly related to the purpose of the funding. The Alliance for an Open Society International (AOSI) is a U.S.-based nonprofit that found its mission compromised when the federal government required that it take an oath explicitly opposing prostitution as a condition on receiving grants under the President’s Emergency Plan for AIDS Relief (PEPFAR). AOSI, whose programs abroad include promoting safer-sex practices via peer education among sex workers in India, was joined by other nonprofit organizations in 2005 in suing the federal government because their neutral position on prostitution, which they needed in order for their programs to be effective, was being compromised by the oath requirement, which compelled them to adopt a point of view that fell outside the scope of HIV/AIDS prevention.
The government’s argument before the Supreme Court was notable because it centered around the idea that opposing prostitution somehow helps to prevent the spread of HIV/AIDS — a concept that is not supported by any available evidence, and was actually rebutted by the government’s own reports on the program’s effectiveness.
• Legal Challenge to the Global AIDS Funding Restrictions in AOSI v. USAID (litigation summary, via Brennan Center for Justice at New York University School of Law)
• Infographics: How the Anti-Prostitution Pledge Hinders AIDS Prevention (via The Nation)
• Brief of the Secretariat of the Joint United Nations Programme on HIV/AIDS (amicus curiae (“friend of the court”) brief from the United Nations on HIV/AIDS arguing against the anti-prostitution oath requirement)
Bedford v. Canada (Supreme Court of Canada, pending judgment)
In 2010, a group of Canadian sex workers successfully challenged the constitutionality of Canada’s statutes criminalizing the ownership and operation of a bawdy-house (brothel), transporting to and being within a bawdy-house, living on the avails of a prostitute, and communicating in a public place for the purpose of prostitution. Judge Susan Himel of the Ontario Superior Court concluded that those statutory provisions — which did not criminalize sex work itself — “sufficiently contribut[ed] to the deprivation of security in their persons” by limiting the available locations for sex workers to ply their trade in, and the conditions under which sex workers were forced to work in order not to run afoul of the law. As such, the provisions on owning a brothel, living off the earnings of a prostitute, and communicating in public for the purpose of prostitution were struck as unconstitutional.
In 2012, the Ontario Court of Appeals upheld the overturning of the provision concerning brothels and living off the earnings gained from prostitution. However, it upheld the ban on communications in public for the purposes of prostitution (i.e., the street-solicitation ban). Now pending judgment on the final stage of this case’s appeal, the Supreme Court of Canada heard oral arguments on June 13, 2013. [VIDEO]
Backpage.com, LLC v. Cooper (Nashville, TN: January 6, 2013)
A federal court granted an injunction in favor of adult services-inclusive classified ad site Backpage.com, preventing the State of Tennessee from enforcing its child sex trafficking law. The court considered Backpage.com’s screening process for advertisement, the revenue Backpage.com stood to lose, and the likelihood that there were better ways of cracking down on child sex trafficking, and decided that the Tennessee law would put an undue burden on business, have a chilling effect on speech, and address a problem that virtually did not exist.
Judge says anti-sex trafficking law violates 1st Amendment (via digitaljournal.com)
Doe v. Harris: California Proposition 35, Sex Trafficking Initiative, Blocked By Federal Judge (San Francisco, CA: January 12, 2013)
A federal judge in California blocked a provision in Proposition 35, a ballot initiative passed by majority vote in November 2012, that would have required 73,000 registered sex offenders to give police their online screen names and Internet service providers. The ACLU of Northern California and the Electronic Frontier Foundation joined two anonymous registered sex offenders and won an injunction against the enforcement of that provision, which would have prevented them from commenting or otherwise participating in most commonplace online activity for fear of retribution or harassment.
Judge’s injunction blocks Prop 35’s internet disclosure requirement (via KTVU.com)
Reliable Consultants v. Earle (5th Circuit Court of Appeals, 2008)
The federal 5th Circuit appeals court, which covers Texas, Mississippi and Louisiana, struck a Texas ban on “obscene devices” as unconstitutional after several adult-toy retailers sued the State. Prior to this ruling, the Texas ban on obscene devices included any object “designed or marketed as useful primarily for the stimulation of human genital organs”; the selling, advertising, giving, or lending of such devices was a crime punishable by up to two years in jail unless a defendant could show that the device was being promoted for a “bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.”
Reliable Consultants the only appellate case – and one of very few cases overall to date – that upholds the privacy rights first recognized in the landmark Supreme Court case Lawrence v. Texas (2003), namely that people have a constitutional right to be free from government intrusion into private, consensual sexual activity. Lawrence also held that laws cannot be enacted solely on morality grounds, and Reliable is the only case where this rule was used to strike down sex-negative laws criminalizing consensual activity.
The late, great Molly Ivins discussed the Texas sex toy ban [VIDEO]
COYOTE v. Roberts (Rhode Island, 1981)
In 1976 the Rhode Island chapter of COYOTE, a sex workers’ rights activist organization, sued the Rhode Island attorney general regarding the constitutionality of the state’s prostitution laws. COYOTE argued that the statute’s language was overbroad and encroached on the rights of privacy and association by criminalizing forms of noncommercial sex, going beyond what the statute was supposed to address. After trial was over but before the court issued a ruling, the Rhode Island legislature amended the statute to only criminalize street solicitation.
This case became moot when the Rhode Island legislature rewrote the prostitution statutes over which COYOTE had sued because the re-written statutes contained none of the language that the plaintiffs put at issue. Under the new law prostitution itself, i.e. the exchange or promise of sexual favors in return for a fee or other consideration, was not prohibited until the state legislature re-criminalized it almost 30 years later in 2009.
Because the issue was moot, the court then turned to the question of whether COYOTE could be considered a prevailing party and therefore entitled to attorney’s fees – a provision found in most in civil rights statutes – under the catalyst theory of public interest litigation, where an entity voluntarily corrects a legal issue without a court order or decree while judgment is pending to resolve that very issue and the pending case becomes moot. The Rhode Island federal court found that COYOTE could be considered a “prevailing party” under the catalyst theory, even though no proof was presented that the COYOTE lawsuit was what prompted Rhode Island legislators to amend the prostitution statute.
Not all jurisdictions follow the catalyst theory in public-interest litigation. This case is remarkable not only because COYOTE was awarded fees, but because it got fees without a showing of causation – proof that the COYOTE lawsuit was the reason the law was amended. In fact, the court heard the testimony of several legislators, neighborhood organizers, and law enforcement personnel where all of them denied ever hearing of COYOTE or the pending lawsuit.
Biography of Margo St. James, founder of COYOTE (via poemhunter.com)