The Supreme Court announced that it will review the 2nd Circuit Court of Appeals decision in Alliance for an Open Society International, Inc. v. U.S. Agency for International Development, 651 F.3d 218 (2011), en banc review denied, 678 F.3d 127 (2012), which held that the federal government probably violated the 1st Amendment rights of the plaintiff agencies by conditioning their receipt of funding under the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 on the agencies having a policy expressly opposing prostitution and sex trafficking and taking no positions or actions inconsistent with such a policy. In so holding, the 2nd Circuit panel, by a vote of 2-1, upheld a preliminary injunction that the district court had issued against enforcement of the policy pending a full trial on the merits. The ruling arguably conflicts with a D.C. Circuit ruling rejecting a 1st Amendment challenge to the policy, DKT Int’l, Inc. v. U.S.A.I.D., 477 F.3d 758 (D.C. Cir. 2007). The circuit split on the constitutionality of a federal statute has now captured the Supreme Court’s attention. U.S.A.I.D. v. Alliance for an Open Society, No. 12-10, 2013 WL 135533 (cert. granted, Jan. 11, 2013).
At the heart of the case is the complicated doctrine of “unconstitutional conditions” that the Supreme Court has developed through a series of cases involving restrictions placed by Congress on the recipients of federal funds. Perhaps the most notorious of these cases is Rust v. Sullivan, 500 U.S. 173 (1991), which rejected a constitutional challenge to the requirement that federal family planning money not be “used in programs where abortion is a method of family planning.” Regulations issued under the relevant statute prohibited projects receiving federal funds from providing abortion counseling or referrals, or engaging in any activities that would encourage, promote or advocate abortion as a method of family planning. The Supreme Court rejected the argument that this was unconstitutionally compelled speech, pointing out that the law authorized federal funding recipients to establish separate organizations that would not receive federal money and could undertake abortion-related activities, and that funding recipients were not required to articulate an anti-abortion message, but merely to remain silent about abortion if they wanted federal money. The Court’s explanation was that Congress could dictate the content of speech that it was paying for as part of a federally-funded family planning program.
The majority of the 2nd Circuit panel, Circuit Judges Barrington Parker and Rosemary Pooler, found this holding, and other similar rulings by the Supreme Court and other 2nd Circuit panels, to be distinguishable from the HIV restriction case, primarily because the challenged statute goes beyond requiring silence and neutrality, instead conditioning federal money on the recipient agency articulating the government’s position as if it was the agency’s own position. Dissenting Circuit Judge Chester Straub rejected this distinction, arguing that this case was controlled by Rust and similar cases, and that the government was entitled to control the speech of HIV-prevention organizations that operated with federal financial assistance.
When the government unsuccessfully sought en banc review of the panel ruling, two other members of the circuit court joined with Judge Straub in dissenting from the denial of en banc review, arguing, among other things, that the split with the D.C. Circuit signified the importance of the issue, meriting reconsideration by the full circuit bench.
When the case was pending before the district court, the government argued that the plaintiffs did not have standing to seek a constitutional ruling because they had failed to take an alternative course offered by regulations to set up separate affiliated organizations that could continue with non-governmental funds to undertake activities seeking to engage prostitutes in HIV-prevention measures, without being compromised in those efforts by having to articulate policy positions hostile to prostitution. The panel majority pointed out that this “affiliated organization” device for avoiding the restriction did not save the statute from constitutional challenge, because the statute went too far in requiring funding recipients to adopt an express policy position with which they may disagree.
“Furthermore,” the court said, “the targeted speech, concerning prostitution in the context of the international HIV/AIDS prevention effort, is a subject of international debate. The right to communicate freely on such matters of public concern lies at the heart of the First Amendment. The Policy Requirement offends that principle, mandating that Plaintiffs affirmatively espouse the government’s position on a contested public issue where the differences are both real and substantive. For example, the World Health Organization (“WHO”) and the Joint United Nations Programme on HIV/AIDS (“UNAIDS”) have recognized advocating for the reduction of penalties for prostitution – to prevent such penalties from interfering with outreach efforts – as among the best practices for HIV/AIDS prevention. Plaintiffs claim that being forced to declare their opposition to prostitution ‘harms their credibility and integrity as NGOs, which generally avoid taking controversial policy positions likely to offend host nations and partner organizations’ and risks ‘offending all of the groups whose approach to HIV/AIDS may differ from that of the government,’ not to mention some of the very people, prostitutes, ‘whose trust they must earn to stop the spread of HIV/AIDS.’”
The plaintiffs (now respondents in the Supreme Court) are represented by the Brennan Center for Justice and attorneys at Wilmer Cutler Pickering Hale & Dorr PC. Their lawsuit attracted amicus support from a large group of public health and human rights organizations.