Supreme Court Preview: Free Speech and the War Against HIV/AIDS
On April 22, 2013, the Supreme Court will hear argument in Agency for International Development v. Alliance for Open Society International, Inc.,  a case that involves the question of whether certain conditions imposed by the federal government on recipients of federal funding to combat HIV/AIDS violate the First Amendment. The case implicates the Court’s sometimes confusing, and frequently litigated, doctrine of “unconstitutional conditions” and raises important free speech questions in an area of great public health concern.
Disclosure: The Brennan Center, assisted by Mr. Rosdeitcher, represented Respondents in the lower courts, but they do not currently represent Respondents and are not involved in the Supreme Court case. The views expressed here are entirely those of the authors and are not attributable to Respondents.
The United States Leadership Act Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 (the “Act”) was enacted as the primary program for the United States’ effort to combat HIV/AIDS abroad. The Act, among other things, authorizes billions of dollars in grants to non-governmental organizations, like the Respondents in this case, to undertake a wide variety of programs to assist in the fight against the HIV/AIDS epidemic abroad. Among the numerous government policies to combat HIV/AIDS included in the Act is a policy to oppose, and ultimately eradicate, prostitution. At issue here is a provision of the Act requiring any recipient of the government’s funding to “have a policy explicitly opposing prostitution” and in addition to refrain from any speech “ inconsistent with” that policy (the “Policy Requirement”).
All parties recognize that Respondents do not support prostitution, and Respondents do not challenge a separate provision of the Act barring use of federal funds to support prostitution. Respondents maintain, however, that the Policy Requirement, by compelling them to affirmatively oppose prostitution, undermines their efforts to enlist the cooperation of sex workers in the fight against HIV/AIDS and persuade them to accept safe-sex practices, such as the use of condoms, that would protect their health and prevent the transmission of HIV/AIDS. Respondents also maintain that the Policy Requirement, by applying to the fund recipient’s entire organization, rather than just the federally funded program, restricts the organizations privately funded speech activities.
Respondents therefore maintain that the Policy Requirement imposes an “unconstitutional condition” that both compels them to espouse as their own the government’s viewpoint on a highly controversial issue within the international public health community — how best to deal with prostitution in the fight against this epidemic — and restricts or chills their privately funded speech that the government deems “inconsistent with” the government’s viewpoint, in violation of the First Amendment. In a 2-1 decision, the Second Circuit agreed with Respondents and affirmed a preliminary injunction enjoining enforcement of the Policy Requirement. The government appeals that decision.
The government argues that the Second Circuit misread the “unconstitutional conditions” doctrine. They maintain that the Policy Requirement is consistent with Supreme Court decisions upholding conditions designed to protect and preserve the integrity of government funding programs undertaken pursuant to the Spending Clause of the Constitution; that no compelled speech is involved as the Respondents have the choice of forgoing the federal funds and their acceptance of the Policy Requirement therefore would be entirely voluntary; that Respondents also have the option of creating a separate, privately-funded affiliate that could operate free of the Policy Requirement; that the Policy Requirement merely carries out a lawful policy to enlist grant recipients as “government speakers,” to communicate the government’s anti-prostitution message; and that, in any event, the government can employ the Policy Requirement to restrict or compel even Respondents’ privately funded activities to ensure that they do not undermine the anti-prostitution message that the government maintains is an integral part of the Leadership Act program.
Respondents contest each of these points. They argue that the Court’s unconstitutional conditions doctrine rejects the notion that a choice to forgo government funding obviates the government’s use of the Spending Power to impose conditions on the grant recipient that compel speech and that the restriction of privately funded speech deemed “inconsistent with” the government’s policy is viewpoint discriminatory; that as a practical matter separate affiliates are not available as a means to solve the First Amendment problem in this case; and that Respondents are not government speakers, for as the government itself acknowledges, Respondents’ responsibilities in combating HIV/AIDS under the funded program do not include communicating the government’s anti-prostitution message. Under the circumstances, Respondents argue, the Policy Requirement violates the First Amendment because it enables the government to use the funding program to eliminate the views of the most knowledgeable non-governmental organizations from the “market place of ideas” in the ongoing international discussion of how best to deal with the problem of prostitution in combating HIV/AIDS.
Please read on for a more detailed discussion.
In 2003, Congress passed the Leadership Act “to strengthen and enhance United States leadership and the effectiveness of the United States response to the HIV/AIDS, tuberculosis, and malaria pandemics.” 22 U.S.C. §7603. To achieve these goals, Congress appropriated billions of dollars to support the work of NGOs engaged in HIV/AIDS treatment and prevention overseas. The Act seeks to combat HIV/AIDS in a wide variety of ways, including providing care to infected persons and preventing further transmissions of the disease, expanding prevention and treatment programs, and accelerating research on prevention methods. Among other things, the Act considers women especially vulnerable to the disease and addresses behaviors that Congress believed puts them at risk. One of the policies enunciated by the Act to protect them is to oppose prostitution, which is a major source of HIV/AIDS and its transmission.
Leadership Act funding is provided through petitioner United States Agency for International Development (USAID) to a select group of NGOs able to meet certain statutory and regulatory requirements. Organizations must, among other things, have a proven history of meaningful work combating HIV/AIDS through programs that have technical merits and are cost-effective, have been incorporated for at least 18 months, and receive at least 20 percent of their funding from sources other than the U.S. government. Respondents are four leading international aid organizations committed to combating the spread of the HIV/AIDS epidemic worldwide. They each easily meet the foregoing requirements to receive Leadership Act Funds, and have in fact received billions of dollars of funding through the Leadership Act since its implementation.
Recipients of Leadership Act funds are also subject to certain restrictions, including a prohibition on the use of Leadership Act funds to promote or advocate the legalization or practice of prostitution or sex trafficking. Respondents do not challenge that provision. They do, however, challenge the requirement that any organization receiving Leadership Act funding must have “a policy explicitly opposing prostitution and sex trafficking”. The policy as implemented by petitioners USAID and the U.S. Department of Health and Human Services, further prohibits recipients from “engag[ing] in activities inconsistent with…opposition to the practices of prostitution and sex trafficking,” whether using Leadership Act funding or private funding. Respondents challenge this Policy Requirement only insofar as it relates to prostitution; they do not challenge the provision as it relates to sex-trafficking. Hereafter references to the Policy Requirement apply only insofar as it relates to prostitution.
The statute exempts four organizations from this Policy Requirement: Three international organizations whose membership is at least in part composed of other sovereign nations — the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organizations, and all United Nations agencies — and the International AIDS Vaccine Initiative, a U.S.-based NGO.
For the first year the legislation was implemented, this additional Policy Requirement was not imposed on any U.S.-based organization, based on the Department of Justice’s Office of Legal Counsel’s initial determination that its application to U.S.-based organizations would violate the constitution. In 2005, the Office of Legal Counsel changed its view and began enforcing the Policy Requirement against U.S.-based NGOs not specifically exempt from the Policy Requirement.
Respondents immediately filed this action in September 2005 in the federal district court for the Southern District of New York, seeking an injunction against enforcement of the Policy Requirement as applied to Respondents on the ground that it violated their First Amendment rights. In May 2006, the district court entered a preliminary injunction that remains in force today. In ruling in favor of Respondents, the district court agreed with the government’s interpretation of the Policy Requirement that recipients must both adopt a policy explicitly opposing prostitution and abstain from engaging in activities “inconsistent” with that policy, even when not using Leadership Act funds. The court then found that Respondents were likely to succeed on the merits of their First Amendment claim and that enforcement of the Policy Requirement would irreparably harm Respondents by chilling their speech and undermining their work with sex workers in vulnerable communities.
The government appealed. At oral argument before the Second Circuit, the government announced its intention to issue new implementing regulations. These regulations were issued in July 2007. They allowed recipients to affiliate with separate organizations that could engage in otherwise prohibited activities “inconsistent” with a policy opposing prostitution provided the recipients maintain “objective independence” from those affiliates. The Second Circuit left the injunction in place but remanded the case to the district court for further consideration in light of the 2007 regulations.
On remand, the district court concluded that the new regulations did not cure the Policy Requirement’s constitutional defects, because, inter alia, the Policy Requirement remained unchanged and the affiliate-separation requirements were excessively burdensome. The government again appealed. While the appeal was pending, HHS and USAID again revised the implementing regulations (the “2010 Guidelines”). The 2010 Guidelines, which remain in effect today, require that recipients of Leadership Act funding affirmatively state in their funding documents that the recipient is opposed to prostitution and sex trafficking because of the “psychological and physical risks they pose for women, men and children” and again mandate that a recipient “cannot engage in activities that are inconsistent with [its] opposition to prostitution.”
The 2010 Guidelines identify five non-exclusive factors that will be considered when deciding if a recipient has “objective integrity and independence” from affiliates engaged in prohibited activities. These factors include whether the affiliate is a legally separate entity, whether it has separate personnel, whether the affiliate has separate accounting and timekeeping records, the degree of separation between the recipient’s facilities and facilities where “restricted activities” occur, and the extent to which signs and other forms of identification distinguish the recipient from the affiliate.
In July 2011, the Second Circuit, in a 2-1 ruling, affirmed the lower court’s grant of a preliminary injunction. The Second Circuit found that the Policy Requirement violated the First Amendment because it is “view-point based and compels recipients, as a condition of funding, to espouse the Government’s position.” The Second Circuit also rejected the government’s reliance on the government-speech doctrine, based in part on its determination that the anti-prostitution message is peripheral to the Act’s goal of combating HIV/AIDS. The Court additionally held that the 2010 Guidelines failed to cure the constitutional violation. On February 2, 2012, the court denied the government’s petition for a rehearing en banc. The Supreme Court then granted Petitioner’s request for review.
Petitioners’ Arguments Before the Supreme Court
Petitioners argue that the Leadership Act’s Policy Requirement is a valid exercise of Congress’ authority under the Spending Clause. They argue that Congress has broad authority under the Spending Clause to attach conditions to the receipt of federal funds to further its policy objectives. Petitioners rely heavily on Rust v. Sullivan, in which the court upheld conditions on a government funding program for family planning that provided that “none of the funds appropriated under [the law] shall be used in programs where abortion is a method of family planning.” Petitioners maintain that the condition here is no different than the condition upheld in Rust. As in Rust, they argue, the condition is merely designed to ensure that its chosen partners in the fight against HIV/AIDS further Congress’ goal — in this case, to eradicate prostitution as a source of HIV/AIDS and the risks that prostitution carries for spreading the pandemic to people around the globe. Petitioners maintain that, in any event, the Policy Requirement does not compel speech, since recipients are free to forgo the funds, and the condition applies only if the private organization chooses to voluntarily participate in the government program.
Petitioners also argue that the government may enlist private parties to communicate the government’s message and that when it does so, it may regulate the content of that message. It relies on language in Rosenberger v. Rectors & Visitors of Univ. of Va. that “when the Government disburses public funds to private entities to convey a Governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.”
The government asserts that the Leadership Act represents a situation in which the government is speaking its message through private speakers. Accordingly, the government has the right to make sure that its message is conveyed correctly and effectively.
Petitioners emphasize that in a separate challenge to the Leadership Act made in the D.C. Circuit, the D.C. Circuit ruled in favor of the government, finding that the Leadership Act was subject to the government-speech doctrine and therefore posed no constitutional difficulties.
The Policy Requirement provision of the Leadership Act, in Petitioners’ view, is a vital part of the legislative scheme envisioned by Congress. Congress concluded that wiping out prostitution and sex trafficking was an effective way to fight the spread of HIV/AIDS. The government is entitled to require affirmative adoption of an anti-prostitution and anti-sex-trafficking policy as a condition of receipt of Leadership Act funding because one of the goals of the Leadership Act is to spread that message through private speakers. It points to the District of Columbia Circuit decision upholding the Policy Requirement on this very ground.
Notably, however, Petitioners acknowledge that recipients are required only “to have such a policy” of opposing prostitution; they are not required to “actively disseminate [the] policy to foreign nationals.” Only some recipients (not the Respondents here) will actively convey the government’s message. Yet, Petitioners argue, even if recipients have no role in conveying it, their adoption of the policy keeps them from ignoring it. Because Respondents represent most of the U.S. groups receiving funding, their adoption of the policy, even if they do not communicate it, would further the policy.
Petitioners also reject the Second Circuit’s distinction based on the fact that the Act’s Policy Requirement compels speech as opposed to silence as irrelevant for the purposes of the First Amendment. When presented with the question in the context of direct regulation of speech, the Supreme Court, they argue, previously determined that the distinction between compelled speech and compelled silence is meaningless for purposes of its First Amendment analysis.
Petitioners next assert that the restrictions on Congress’ authority under the Spending Clause as defined by prior Supreme Court precedent are irrelevant here, because Respondents do not argue, nor did the lower courts find, that the Policy Requirement was in any way aimed at suppressing dangerous ideas or disfavored viewpoints. Accordingly, Respondents should not properly be viewed as being “coerced” into refraining from expression on an unpopular subject. Respondents need only affirmatively state their anti-prostitution policy in their funding documents. At no other point are they compelled to speak regarding their policy on prostitution or sex-trafficking; they must simply refrain from making statements inconsistent with that policy.
Relying on Rust, Petitioners also assert that any potential constitutional problems have been cured by the addition of the guidelines for creating separate affiliates. Those guidelines, Petitioners maintain, ensure that recipient organizations have an avenue to voice their opinions without use of Leadership Act funding.
The government concludes by asserting that Respondents’ claim that the Policy Requirement is unconstitutionally vague is both untimely and meritless. The government argues that if Respondents wish to advance their argument that the Policy Requirement is unconstitutionally vague, they must do so by raising and fully briefing the argument in the first instance before the lower courts.
Respondents’ Arguments Before the Supreme Court
Respondents maintain that the First Amendment prohibits the government from imposing conditions that compel private parties to adopt the government’s chosen viewpoint as their own or from regulating their privately funded speech. Respondents emphasize that the Policy Requirement is not limited to the use of government funding but instead applies to the recipient itself, thereby restricting and compelling privately funded speech. Respondents assert that the Court has never upheld such a restriction.
Respondents emphasize that the government’s argument that the Policy Requirement is necessary to ensure that the government’s message is effectively communicated and not undermined is belied by the fact that, as the government acknowledges, Respondents have no role in communicating the government’s message and that task is left to others. Moreover, Respondents’ note, the Policy Requirement has been enjoined since 2006, but the government makes no claim that Respondents are unreliable partners in the fight against HIV/AIDS. To the contrary, for nearly a decade Respondents have been successfully implementing Leadership Act programs without the condition the government seeks to impose.
Respondents also emphasize that aside from the Policy Requirement, the Leadership Act refers to prostitution only twice: n one provision — repealed in 2008 — it says that it should be the policy of the United States to eradicate prostitution, and in a separate provision, one of the 29 listed strategies for combating HIV/AIDS refers to the education of men and boys about the risks of commercial sex. Meanwhile, requiring Respondents to espouse an anti-prostitution policy would diminish the effectiveness of some programs by making it more difficult to obtain the trust and confidence of sex workers and to enlist them in the fight against HIV/AIDS, as well as Respondents’ ability to persuade them to adopt safe-sex policies. Maintaining the option of neutrality also allows Respondents to work effectively in countries with different policies toward prostitution. Finally, the Policy Requirement chills Respondents’ participation in even privately funded debate on the subject of prostitution for fear of losing federal funding.
Respondents reject the argument that the Spending Clause allows the imposition of the Policy Requirement’s conditions. They cite two prior Supreme Court rulings finding that the unconstitutional-conditions doctrine applies when the government acts pursuant to its Spending Clause power.
Respondents argue that the primary case the government relies on, Rust v. Sullivan, stands solely for the proposition that the government may impose guidelines to ensure that the federal funds are used solely for their intended purpose. Rust does not, however, support the argument that the government may place a condition on the recipient of the federal funding as opposed to the program for which the funds are used. In Rust, the Court emphasized that the organization and the physicians were left free to speak outside of the funding programs subsidized by the government.
Respondent’s emphasize the Court’s statement in Rust that the cases holding conditions unconstitutional are cases in which “the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the federally funded program.” By imposing the Policy Requirement on the recipient, Respondents maintain, the restrictions are imposed on privately funded speech outside the funded programs.
Respondents also reject Petitioners’ argument that the choice to forgo funding obviates the First Amendment violation, citing the Court’s decisions that the government-imposed “choice” between relinquishing freedom of speech and forgoing benefits can violate the First Amendment.
Respondents argue that the Policy Requirement unconstitutionally compels recipients to adopt the government’s viewpoint as their own, citing the Court’s statement in Rust that “nothing in the [regulation] requires a doctor to represent as his own any opinion he does not in fact hold.”
Respondents also argue that that the Policy Requirement unconstitutionally suppresses privately funded speech based on a viewpoint it disfavors. It thereby silences those organizations with the most experience in the fight against HIV/AIDS from the market place of idea on these public-health issues.
Respondents next reject Petitioner’s government-speaker argument. They note that the government itself admits that Respondents do not have any role in communicating the government’s anti-prostitution message and are not required to express any affirmative opinion about prostitution, beyond a statement in the award documents. Respondents therefore receive no funds for acting as a government speaker. Respondents have been enlisted to fight HIV/AIDS, not to play any role in government messaging. Respondents highlight the danger to free speech and robust debate if Congress were permitted to require recipients of government funding to pledge their agreement with the government’s viewpoint in their activities outside the scope of the program for which they are receiving federal funds.
Respondents also reject Petitioner’s argument that the affiliation guidelines obviate any constitutional difficulty. First, the creation of an affiliate does not cure the compelled-speech problem created by the Policy Requirement. It notes that the Court has upheld funding restrictions on speech where affiliates can provide an alternative channel of communication for the restricted speech. But such an alternative channel or outlet of communication cannot be a remedy when the funding condition compels the recipient to adopt a view that it does not hold or wish to express. As the Second Circuit held, it makes no sense to conceive of affiliates as an outlet to engage in privately funded silence.
Moreover, the creation of an affiliate does not cure the entity-wide restriction on privately funded speech, Respondents argue, because the recipient of federal funding may not do so even when using private funds outside of the government-subsidized program. Further, Respondents maintain, the affiliate must remain so separate from the Leadership Act grantee that the grantee could not control the affiliate’s speech, and that accordingly it does not solve the restriction on the grantee’s speech to assert that someone outside its control can speak for it. Respondents again point to language in Rust in which the Court distinguished between the “Title X[subsidized family planning project] grantee” and the “Title X project” and emphasized that the grantee remained free to speak its views through “programs that we[re] independent and separate from the project that receives Title X funds.”
Finally, Respondents detail reasons why creation of an affiliate is impractical and unworkable here. First, a newly created affiliate would have difficulty meeting the government’s requirements for Leadership Act funding, as it would have no experience, expertise, or track record, meaning that it might not qualify for funding under the government’s criteria, which would also make it difficult for the newly formed affiliate to compete for such funding or operate effectively. Second, Respondents show it would be too burdensome to create affiliates to meet the Guidelines: The affiliates would have to meet requirements in all of the many countries in which they operate and overcome barriers to entry that governments have created in some foreign countries. Moreover, the Guidelines require separate personnel and facilities that would be costly and duplicative. In addition, Petitioner’s maintain that the Guidelines are too vague to enable Respondents to form an affiliate that would provide an adequate alternative channel for speech.
Petitioners’ Reply challenges Respondents’ characterization of the unconstitutional conditions doctrine, rehearsing many of the arguments and cases it cited in its opening brief concerning the broad scope of the powers Congress has to impose conditions where it is exercising its Spending Clause powers and the importance of the anti-prostitution policy to the Leadership Act programs. But one additional argument in the Reply seems novel and worth noting.
The Reply argues that the Policy Requirement can lawfully be imposed to restrict Respondents’ speech and compel Respondents to espouse the government’s anti-prostitution policy, even with respect to Respondents’ non-federally funded programs. Petitioners seem to have relinquished its earlier government-speaker argument, in light of its admission that Respondents were not enlisted to communicate the government’s message but to perform other programs to combat HIV/AIDS. Instead it argues that Respondents have interactions in foreign countries with numerous foreign officials and individuals, including persons related to the sex trade, which the government cannot adequately monitor in a cost-effective way. Petitioners assert that, as a result, the Policy Requirement is needed to ensure that in those myriad transactions Respondents act consistently in opposition to — rather than in support of or indifference to — prostitution, even in Respondents’ non-federally funded programs. Thus, Petitioners claim that they may “limit any recipient’s privately funded operations, no matter what kind of programs the recipient operates.” Otherwise, Petitioners reason, recipients of federal grants would be able to engage in activities through their non-federally funded programs that would undermine the federally funded program from which they had received funding.
Respondents cite Rust for this proposition, apparently relying on a footnote in Rust  also discussed earlier in the Reply. In that footnote, the Rust Court rejected an argument that because the Title X family planning program involved not only federal funding, but matching grants and income related to the grants, the restriction on speech as applied to the Title X program necessarily restricted privately funded speech and thereby violated the First Amendment. As further support, the Reply posits the following hypothetical: The government funds after-school programs for at-risk youth that include a program to reduce drug use. It maintains that surely the government could insist that the recipients be prohibited from being neutral toward or supportive of drug use in their separate academic or athletic programs. It also hypothesizes that the National Organization to Reform Marijuana Laws could not have a constitutional right to receive a grant simply because it runs separate basketball programs, nor would an organization that supported apartheid have a right to receive funds for a racial justice program.
The parties and the Court will undoubtedly have a lively dialogue about these and other hypotheticals and how they do or do not apply here. Unconstitutional conditions cases invite them. But we would make two observations. First, the Rust footnote cannot be the basis for the government’s broad statement that it can impose conditions like the Policy Requirement on recipients of government funding, regardless of the nature of the recipients other, privately funded programs. The footnote makes clear that the restriction on abortion-related speech could be applied to the Title X program, because notwithstanding the matching grants and income, the Title X program was subsidized by federal funds. The Court makes clear that the recipient was “in no way ‘barred from using even wholly private funds to finance’ its pro-abortion activities outside the Title X program.” (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984)). If there were any doubt the Court added: “[T]he recipient is free to use private, non-Title X funds to finance abortion-related activities.”
Second, the government’s argument raises a disturbing prospect for free speech: It would mean the government could require any entity receiving government grants to use private funds from programs wholly separate from the government-funded program to support government policies, as well as prevent them from using such private funds for speech activities “inconsistent with” those government policies. If this reasoning were accepted a substantial quantity of speech would be lost from the market place of ideas.
We think the Respondents and the First Amendment should prevail. But we cannot predict the outcome.
 22 U.S.C. §§7601 et seq.
 22 U.S.C. §7631(f).
 70 Fed. Reg. 22 U.S.C. §29,759-29, 760 (May 4, 2005).
 Alliance for Open Society Int'l, Inc. v. USAID, 254 F. App'x 843 (2d Cir. 2007).
 651 F.3d 218, 223 (2d Cir. 2011).
 Id. at 239.
 Id. at 236.
 500 U.S. 173 (1991).
 515 U.S. 819,833 (1995)
 DKT Int’l, Inc. v. United States Agency for Int’l Dev., 477 F.3d 758 (D.C. Cir. 2007).
 Id. at 762-63.
 Pet. Br. at 27.
 Id. at 27-28.
 Riley v. National Fed’n of the Blind of N.C., Inc. 487 U.S. 781, 796 (1988); National Endowment for the Arts v. Finley, 524 U.S. 569, 587-88 (1998)
 FCC v. League of Women Voters, of California, 468 U.S. 364 (1984) and Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001).
 Rust, supra, 500 U.S. at 197 (emphasis by the Court).
 Sherbert v. Verner, 374 U.S. 398, 404; Perry v. Sinderman, 408 U.S. 593,597(1972)
 500 U.S. at 200.
 500 U.S. at 198.
 Pet. Reply at 15-16
 500 U.S. at 199, n.5