Prostituting the Constitution

An adult entertainment magnate takes on foreign aid prudery

Back in the 1980s, when Attorney General Edwin Meese was leading a spirited, if futile, crackdown on obscenity, Adam & Eve impresario Phil Harvey spent eight years and $3 million fighting for his right to peddle XXX wares to the American public. Three administrations later, Harvey is again embroiled in a free speech battle with the feds—but this time, instead of fighting for the right to say and sell what he pleases, he's suing for the right to stay silent. (Full disclosure: Harvey is a donor to Reason Foundation, the nonprofit that publishes Reason Online.)

Harvey won't sign the "anti-prostitution pledge," a 15-word proclamation dreamed up in the halls of Congress. That's a problem, because Harvey is president of DKT International, a charitable organization that markets subsidized condoms in developing countries. In addition to proceeds from Adam & Eve, the adult entertainment firm he started to fund his charitable activities, Harvey and DKT rely on grants from the United States Agency of International Development (USAID). When DKT put in a request for $60,000 to fund condom-related work in Vietnam in June, the organization was essentially told: If you want the cash, sign the pledge.

The much-hated anti-prostitution pledge was born in 2003, when President Bush signed the Global AIDS Act and appropriated $15 billion to fight the disease. The act contained a provision that denies any piece of that windfall to organizations that "promote the legalization or practice" of sex work or do not "have a policy explicitly opposing" the trade. The Department of Justice ruled in early 2004 that the restriction did not apply to U.S.-based organizations, who enjoy the benefit of constitutionally protected free speech. Then DOJ changed its mind. As of today, if you want to fight HIV/AIDS with taxpayer cash, you've got to promise that none of your policies "promote the practice" of the world's oldest profession.

USAID has long wrapped its gifts in stipulations. The Mexico City Policy, introduced by Reagan in 1984, denies aid to organizations that perform abortions in cases other than a threat to the woman's life, rape, or incest; provide counseling and referral for abortion; or lobby to make abortion legal. DKT challenged that policy in 1988, and the courts decided the rule lawfully applied to foreign organizations but not domestic ones. The policy therefore requires foreign organizations to conform to a standard U.S.-based organizations can ignore. Bill Clinton rescinded the rule on the first day of his presidency. George W. Bush reinstated it on the first day of his.

It may not seem entirely unreasonable that a legislature contributing $15 billion to fight AIDS make some demands about the way it is used. Indeed, if Congress had simply asked that its billions not be used to give condoms to sex workers, DKT would not have a case. But rather than specify how the money be used, the Act determines who is eligible for government funds. And it makes that determination based on what's called "viewpoint-based speech." That, says DKT, is verboten, for the same reason that the state can't compel children to recite the Pledge of Allegiance as a condition of receiving public schooling. The Supreme Court has repeatedly held that the government can't make participation in government programs conditional on holding a specific viewpoint.

Consider how deeply the pledge affects the private activities of DKT. If it wants that $60,000 for Vietnam, the organization must agree to apply the prostitution pledge to unrelated speech and activities all over the world—including those bankrolled by the Gates Foundation, Hewlett-Packard, the Indian, Dutch, German and Irish governments, and, of course, the customers of Adam and Eve. DKT only accepts 13 percent of its funds from USAID, yet if the organization is to dip into that $15 billion, it must conform 100 percent of its activities to congressional demands.

Do any organizations actually promote prostitution, or is this just a fun exercise in First Amendment pettifoggery? It's hard to sy what it means to "promote the practice" of selling sex, but aid workers say reaching and educating prostitutes is key to fighting sexually transmitted disease. Stigmatizing the trade, they say, only makes hard-to-find sex workers harder to reach. The Brazilian government has been brash enough to turn down $40 million in USAID money rather than sign. In May, 200 organizations sent a letter to President Bush declaring that the policy would undermine their work. One hundred or so other organizations then responded with a scare-quote-ridden letter of their own, asking the president to hold firm. Though the second batch of letter writers have clearly lost the prostitution pledge popularity contest, they're riding a wave of conservative successes on foreign aid issues. Rep. Mark Souder (R-Ind.) is trying to push an anti–harm reduction pledge, which would do to needle exchange what the current pledge is doing to sex-worker outreach.

Harvey, who has won a string of suits on First Amendment grounds, says he expects the pledge controversy will be hashed out much like the Mexico City Policy storm was years ago—with a policy that applies only to foreign organizations. If he prevails, domestic groups can spend less time thinking about vice and more time thinking about international development. Of course, for Phil Harvey, the two have long been intimately related.