…What is different about this case, as Justice Ginsberg pointed to in her questioning, is that the government cannot now compel such organizations to tell their patients, “I agree with the government, you shouldn’t be getting an abortion.” And as Justice Alito noted, it seems unprecedented and “quite a dangerous proposition” to not only gag organizations, but require the organization to take the government’s viewpoint with which it doesn’t agree. Courts have held that the government has the right to fund certain organizations to the exclusion of others, but a funding requirement cannot compel the organization’s expression of a position consistent with the government’s.
Even though in theory everyone has a right to free speech, because of the government’s current stance on sex work, the US may seem less inclined to consider the First Amendment rights of organizations working with sex workers and sex worker groups. This was exactly OSI’s point yesterday:
“… on the government’s theory, the government can give you — can give anyone in the country a dollar in Medicare funds and say, okay, now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is — that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.” (David W. Bowker, OSI Counsel)
This on-point analogy had several of the Justices nodding (even Chief Justice Roberts).
What was unfortunate was that OSI’s attorney followed up by saying that he needed “to be clear” that OSI does not “approve” of prostitution. We do not know whether OSI would have endorsed their counsel’s use of the word “approve,” which is not interchangeable with the word “promote,” and was not used in the OSI briefs. Unfortunately the press echoed this comment that was perhaps misspoken, further deepening stigmatizing attitudes towards sex workers. For example, National Public Radio reported that, “Bowker said his clients are opposed to prostitution”.
Challenging the anti-prostitution pledge before judges who may not want to hear about sex worker rights in the courtroom took strategic and careful planning and it is a victory that this case was heard by the highest court in the land. But are we still at a point where the only way to advocate for sex workers’ rights through the judicial system is to first assure the public that we do not approve of sex work? For this reason, yesterday’s discussion at the Supreme Court was disquieting. It revealed the problematic nature of a strategy that required OSI’s attorney to deny the human rights of sex workers in order to access First Amendment protections.
Bowker’s comment and the silence about what constitutes a health and rights approach to working with sex workers in the media, left many in sex worker communities feeling confused. OSI has engaged with and supported these communities in the past. Perhaps it is again time to sit at the table with sex workers rights groups and help sex workers and advocates understand what happened in the courtroom yesterday. The more we can engage, discuss and clear up misunderstandings, the more we can support one another and protect the dignity of sex workers. After all, isn’t the freedom of “unfettered” discussion what OSI was fighting for and what the First Amendment is supposed to protect?