no. in the supreme court of the united...
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No.
In the Supreme Court of the United States
UNITED STATES AGENCY FOR INTERNATIONALDEVELOPMENT, ET AL., PETITIONERS
v.
ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DONALD B. VERRILLI, JR.Solicitor General
Counsel of RecordSTUART F. DELERY
Acting Assistant Attorney General
EDWIN S. KNEEDLERDeputy Solicitor General
JEFFREY B. WALLAssistant to the Solicitor
GeneralMICHAEL S. RAABSHARON SWINGLE
AttorneysDepartment of JusticeWashington, D.C. [email protected](202) 514-2217
QUESTION PRESENTED
Whether the United States Leadership AgainstHIV/AIDS, Tuberculosis, and Malaria Act of 2003,22 U.S.C. 7631(f), which requires an organization to havea policy explicitly opposing prostitution and sex traffick-ing in order to receive federal funding to provide HIVand AIDS programs overseas, violates the First Amend-ment.
(I)
PARTIES TO THE PROCEEDINGS
Petitioners are the United States Agency for Inter-national Development; Rajiv Shah, Administrator of theUnited States Agency for International Development;the United States Department of Health and HumanServices; Kathleen Sebelius, Secretary of the UnitedStates Department of Health and Human Services; theUnited States Centers for Disease Control and Preven-tion; and Thomas R. Frieden, the Director of the UnitedStates Centers for Disease Control and Prevention.
Respondents are Alliance for Open Society Interna-tional, Inc., Pathfinder International, Global HealthCouncil, and InterAction.
(II)
TABLE OF CONTENTS Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Constitutional, statutory, and regulatory
provisions involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 11
A. The court of appeals invalidated a significantprovision of an Act of Congress and of animportant federal program . . . . . . . . . . . . . . . . . . . . . . 12
B. The decision below creates a square circuitconflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. This case is a good vehicle for addressing issuesof recurring importance . . . . . . . . . . . . . . . . . . . . . . . . . 28
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
TABLE OF AUTHORITIES
Cases:
American Commc’ns Ass’n v. Douds, 339 U.S. 382(1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
DKT Int’l, Inc. v. USAID, 477 F.3d 758 (D.C. Cir.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
DKT Mem’l Fund Ltd. v. Agency for Int’l Dev.,887 F.2d 275 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . 24
FCC v. League of Women Voters, 468 U.S. 364 (1984) . . . 27
Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . . . . . . . . . . 15
Grove City Coll. v. Bell, 465 U.S. 555 (1984) . . . . . . . . . . . . 16
Legal Aid Soc’y v. Legal Servs. Corp., 145 F.3d 1017(9th Cir.), cert. denied, 525 U.S. 1015 (1998) . . . . . . . . . 27
Legal Servs. Corp. v. Velazquez, 531 U.S. 533(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23
(III)
IV
Cases—Continued: Page
McGinnis v. Royster, 410 U.S. 263 (1973) . . . . . . . . . . . . . 19
Planned Parenthood of Mid-Mo. and E. Kan., Inc. v.Dempsey, 167 F.3d 458 (8th Cir. 1999) . . . . . . . . . . . . . . 27
Regan v. Taxation With Representation, 461 U.S. 540(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 26
Riley v. National Fed’n of the Blind of N.C., Inc.,487 U.S. 781 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rosenberger v. Rector & Visitors of Univ. of Va.,515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 23
Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir.),cert. denied, 540 U.S. 813 (2003) . . . . . . . . . . . . . . . . . . . 20
Rust v. Sullivan, 500 U.S. 173 (1991) . . . . . . . . . . . . passim
South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . 15
Speiser v. Randall, 357 U.S. 513 (1958) . . . . . . . . . . . . 14, 21
United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 12
Velazquez v. Legal Servs. Corp., 164 F.3d 757(2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Village of Arlington Heights v. Metropolitan Hous.Dev. Corp., 429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . 18
West Va. Bd. of Educ. v. Barnette, 319 U.S. 624(1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Wooley v. Maynard, 430 U.S. 705 (1977) . . . . . . . . . . . . . . 21
Constitution, statutes and regulations:
U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Trafficking Victims Protection Act, 22 U.S.C. 7101et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 7101(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 7101(b)(1)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . 6
V
Statutes and regulations—Continued: Page
22 U.S.C. 7101(b)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 7110(g)(1)-(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States Leadership Against HIV/AIDS,Tuberculosis, and Malaria Act of 2003, 22 U.S.C.7601 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
22 U.S.C. 7601(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
22 U.S.C. 7601(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
22 U.S.C. 7601(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7601(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7601(3)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7601(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
22 U.S.C. 7601(20)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
22 U.S.C. 7601(22)(E) . . . . . . . . . . . . . . . . . . . . . . . . . 23
22 U.S.C. 7601(23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22 U.S.C. 7603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 23
22 U.S.C. 7611(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7611(a)(12) . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
22 U.S.C. 7611(a)(12)(A) . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7611(a)(12)(B) . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7611(a)(12)(E) . . . . . . . . . . . . . . . . . . . . . . . . 4
22 U.S.C. 7611(a)(12)(F) . . . . . . . . . . . . . . . . . . . . . 5, 13
22 U.S.C. 7611(a)(12)(H) . . . . . . . . . . . . . . . . . . . . . 5, 13
VI
Statutes and regulations—Continued: Page
22 U.S.C. 7611(a)(12)(J) . . . . . . . . . . . . . . . . . . . . . . 5, 13
22 U.S.C. 7611(a)(25) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7631(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 7631(f) . . . . . . . . . . . . . . . . . . . . . . . . . passim
22 U.S.C. 7671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 7671(a) (2006) . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 7671(a) (2010) . . . . . . . . . . . . . . . . . . . . . . . . 3
22 U.S.C. 288, note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22 U.S.C. 2151b-2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 U.S.C. 2151b-2(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
22 U.S.C. 2222(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Exec. Order No. 13,395, 3 C.F.R. 209 (2007) . . . . . . . . . . . 20
45 C.F.R.:
Section 89.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 89.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 89.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Miscellaneous:
Global Health Council, GLOBAL HEALTHCOUNCIL TO CLOSE OPERATIONS(Apr. 20, 2012), http://www. globalhealth.org . . . . . . . . 25
Remarks on Signing the United States LeadershipAgainst HIV/AIDS, Tuberculosis, and Malaria Actof 2003, 39 Weekly Comp. Pres. Docs. 663 (May 27,2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
VII
Miscellaneous—Continued: Page
Trafficking in Women & Children in East Asia &Beyond: A Review of U.S. Policy, Hearing BeforeSubcomm. on East Asian & Pacific Affairs of Sen.Comm. on Foreign Relations, 108th Cong., 1stSess. (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
In the Supreme Court of the United States
No.
UNITED STATES AGENCY FOR INTERNATIONALDEVELOPMENT, ET AL., PETITIONERS
v.
ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United StatesAgency for International Development, the UnitedStates Department of Health and Human Services, theUnited States Centers for Disease Control and Preven-tion, and officials of those agencies, respectfully peti-tions for a writ of certiorari to review the judgment ofthe United States Court of Appeals for the Second Cir-cuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-96a) is reported at 651 F.3d 218. The order of the courtof appeals denying rehearing en banc over the dissent ofthree judges (App., infra, 97a-111a) is reported at 678F.3d 127. The relevant orders of the district court
(1)
2
(App., infra, 112a-252a) are reported at 430 F. Supp. 2d222 and 570 F. Supp. 2d 533.
JURISDICTION
The judgment of the court of appeals was entered onJuly 6, 2011. A petition for rehearing was denied onFebruary 2, 2012 (App., infra, 98a). On April 20, 2012,Justice Ginsburg extended the time within which to filea petition for a writ of certiorari to and including July 2,2012. The jurisdiction of this Court is invoked under 28U.S.C. 1254(1).
CONSTITUTIONAL, STATUTORY, AND REGULATORYPROVISIONS INVOLVED
The First Amendment to the United States Constitu-tion provides in pertinent part that “Congress shallmake no law * * * abridging the freedom of speech.”Relevant statutory and regulatory provisions are repro-duced in the appendix to this petition. App., infra, 253a-336a.
STATEMENT
1. a. This case presents a constitutional challenge tothe United States Leadership Against HIV/AIDS, Tu-berculosis, and Malaria Act of 2003 (Leadership Act orAct), 22 U.S.C. 7601 et seq. That Act responded to Con-gress’s finding that the global spread of HIV/AIDS hadinfected more than 65 million people worldwide, killing25 million and leaving more than 14 million orphanedchildren. See 22 U.S.C. 7601(2). Congress found thatthe spread of HIV/AIDS had assumed “pandemic pro-portions, * * * leaving an unprecedented path of deathand devastation.” 22 U.S.C. 7601(1). As of 2003,HIV/AIDS was the fourth-highest cause of death acrossthe globe, and the President termed addressing it “one
3
of the most urgent needs of the modern world.” Re-marks on Signing the United States Leadership AgainstHIV/AIDS, Tuberculosis, and Malaria Act of 2003, 39Weekly Comp. Pres. Docs. 663, 664 (May 27, 2003).
The Leadership Act is the primary component of theUnited States’ effort to fight HIV/AIDS abroad. Underthat Act, Congress has authorized the appropriation ofbillions of dollars for the President to establish “a com-prehensive, integrated, [five]-year strategy to expandand improve efforts to combat global HIV/AIDS.”22 U.S.C. 7611(a) (2006 & Supp. IV 2010).1 That com-prehensive strategy must be designed to attackHIV/AIDS in multiple ways. Among other things, thestrategy must include plans for providing care to thoseinfected with HIV/AIDS; preventing further transmis-sion of HIV infections, particularly among “families withchildren (including the prevention of mother-to-childtransmission), women, young people, orphans and vul-nerable children”; expanding efforts with other publicand private entities to improve HIV/AIDS preventionand treatment programs; and accelerating research onprevention methods. 22 U.S.C. 7611(a)(4), (5), (7), (9),(10) and (25) (2006 & Supp. IV 2010); see 22 U.S.C. 7603(describing Congress’s goals in the Leadership Act).
b. As part of the Act’s multi-pronged approach tofighting HIV/AIDS, Congress paid close attention to theunderlying social conditions that foster its spread. Forinstance, Congress found that “[w]omen are four timesmore vulnerable to infection than are men and are be-
1 Congress authorized $15 billion for the effort to combat HIV/AIDS,malaria, and tuberculosis for the period from 2004 to 2008, see22 U.S.C. 7671(a) (2006), and it has since authorized an additional$48 billion for the period from 2008 to 2013, see 22 U.S.C. 7671(a)(2010).
4
coming infected at increasingly high rates, in part be-cause many societies do not provide poor women andyoung girls with the social, legal, and cultural protect-ions against high risk activities that expose them toHIV/AIDS.” 22 U.S.C. 7601(3)(B). Congress noted that“[w]omen and children who are refugees or are inter-nally displaced persons are especially vulnerable to sex-ual exploitation and violence, thereby increasing thepossibility of HIV infection.” 22 U.S.C. 7601(3)(C); see22 U.S.C. 7601(3)(A) (“At the end of 2002, * * * morethan 3,200,000 [of those individuals infected withHIV/AIDS worldwide] were children under the age of 15and more than 19,200,000 were women.”).
To prevent the transmission of HIV/AIDS amongthose high-risk groups, Congress addressed the condi-tions and behaviors that were responsible for placingthem at risk. See 22 U.S.C. 2151b-2(d)(1)(A) (2006 &Supp. IV 2010) (directing that HIV/AIDS funding beused to “help[] individuals avoid behaviors that placethem at risk of HIV infection”). Specifically, the Lead-ership Act “make[s] the reduction of HIV/AIDS behav-ioral risks a priority of all prevention efforts,” includingby promoting abstinence and monogamy, encouragingthe proper use of condoms, and supporting drug preven-tion and treatment programs. 22 U.S.C. 7611(a)(12)(A),(B) and (E) (2006 & Supp. IV 2010). As especially rele-vant here, the Act requires “educating men and boysabout the risks of procuring sex commercially and aboutthe need to end violent behavior toward women andgirls”; “promot[ing] alternative livelihoods, safety, andsocial reintegration strategies for commercial sex work-ers”; and “working to eliminate rape, gender-based vio-lence, sexual assault, and the sexual exploitation of
5
women and children.” 22 U.S.C. 7611(a)(12)(F), (H) and(J) (2006 & Supp. IV 2010).2
As part of its emphasis on addressing behaviors thatcreate a particular risk of HIV infection, Congress madea considered decision to pursue the reduction of prosti-tution and sex trafficking, particularly in developingcountries where most of the federally-funded programsat issue are provided. In enacting the Leadership Act,Congress found that “[t]he sex industry, the traffickingof individuals into such industry, and sexual violence areadditional causes of and factors in the spread of theHIV/AIDS epidemic.” 22 U.S.C. 7601(23). In Cambo-dia, for example, “as many as 40 percent of prostitutesare infected with HIV and the country has the highestrate of increase of HIV infection in all of SoutheastAsia.” Ibid. Among female prostitutes in certain areasof Thailand and India, the rates of HIV/AIDS infectionwere even higher. See Trafficking in Women & Chil-dren in East Asia & Beyond: A Review of U.S. Policy,Hearing Before Subcomm. on East Asian & Pacific Af-fairs of Sen. Comm. on Foreign Relations, 108th Cong.,1st Sess. 18 (2003) (statement of Sen. Brownback, Chair-man, Subcomm. on East Asian and Pacific Affairs).Moreover, prostitution fuels the demand for interna-
2 In prioritizing the reduction of behavioral risks for HIV/AIDS,Congress invoked the success of the HIV/AIDS programs implementedby Uganda between 1991 and 2000. See 22 U.S.C. 7601(20). Ugandahad urged citizens to abstain from premarital sex, to be faithful to sex-ual partners, and to use condoms. See 22 U.S.C. 7601(20)(C). Congressdirected that similar messages be promoted to combat HIV/AIDSworldwide. See 22 U.S.C. 2151b-2(d)(1)(A), 7611(a)(12) (2006 & Supp.IV 2010).
6
tional sex trafficking of women and children. See id. at18-19.3
2. Pursuant to the Leadership Act, the UnitedStates has provided billions of dollars to nongovern-mental organizations so that they can assist in the fightagainst the HIV/AIDS epidemic overseas. See 22 U.S.C.2151b-2(c), 7671 (2006 & Supp. IV 2010). In order toensure that those funds are spent consistently with theAct’s objectives, Congress has placed two limitations onthe use of those funds. First, 22 U.S.C. 7631(e) providesthat no funds made available under the Act “may beused to promote or advocate the legalization or practiceof prostitution or sex trafficking.” Second, 22 U.S.C.7631(f)—the provision at issue in this case—providesthat no funds made available under the Act “may beused to provide assistance to any group or organizationthat does not have a policy explicitly opposing prostitu-tion and sex trafficking.” That statutory restrictiondoes not apply to the Global Fund to Fight AIDS, Tu-berculosis and Malaria; the World Health Organization;the International AIDS Vaccine Initiative; or to anyUnited Nations agency. See ibid.
The Department of Health and Human Services(HHS) and the United States Agency for International
3 In enacting the Trafficking Victims Protection Act of 2000 (TVPA),22 U.S.C. 7101, Congress sought to eliminate the global criminaltrade in persons, in which 700,000 individuals are trafficked each yearinto forced prostitution and other forms of modern-day slavery. See 22U.S.C. 7101(a), (b)(1)-(3) and (8). Like the Leadership Act, the TVPA(as amended in 2003) prohibits the use of federal funding “to promote,support, or advocate the legalization or practice of prostitution,” andfurther provides that federal funding to rescue and assist the victims ofsevere forms of trafficking will be provided only to organizations thatstate that they do not “promote, support, or advocate the legalizationor practice of prostitution.” 22 U.S.C. 7110(g)(1)-(2).
7
Development (USAID) are the federal agencies primar-ily responsible for funding programs and services underthe Leadership Act. They have implemented Section7631(f)’s funding eligibility condition in similar ways.HHS has promulgated a regulation that, in its currentform, requires the recipient of any grant, cooperativeagreement, or other funding arrangement to agree inthe award document that the recipient is “opposed to thepractices of prostitution and sex trafficking because ofthe psychological and physical risks they pose forwomen, men, and children.” 45 C.F.R. 89.1. Likewise,USAID has issued an Acquisition & Assistance PolicyDirective that requires the recipient of any contract,grant, or cooperative agreement under the LeadershipAct to agree in the award document that the recipient isopposed to prostitution and sex trafficking because ofthe psychological and physical harms they cause towomen, men, and children. See App., infra, 299a-336a.
3. Respondents Alliance for Open Society Interna-tional, Inc. (AOSI) and Pathfinder International (Path-finder) are nongovernmental organizations that receivefunding for overseas HIV/AIDS prevention programsunder the Leadership Act. In 2005, they brought suitagainst HHS, USAID, and other federal agencies andofficials, alleging that Section 7631(f) violates the FirstAmendment by conditioning their receipt of LeadershipAct funds on the affirmative adoption of a policy oppos-ing prostitution. In 2006, the district court granted re-spondents AOSI and Pathfinder preliminary injunctiverelief. App., infra, 112a-219a. Applying heightenedscrutiny, id. at 164a, 196a, the court held that Section7631(f) is not narrowly tailored to Congress’s interest ineradicating prostitution as part of its strategy to combatHIV/AIDS, imposes a viewpoint-based restriction on
8
respondents’ use of funds, and impermissibly compelsprivate speech. Id. at 198a-214a.
While the government’s appeal of that decision waspending, HHS and USAID developed guidelines thatallow recipients to establish and work with separate af-filiates that are not funded under the Act and thus arenot subject to Section 7631(f). Those guidelines permitan organization to remain eligible for funding and yet beaffiliated with a group that “engages in activities incon-sistent with the recipient’s opposition to the practices ofprostitution and sex trafficking,” so long as the organi-zation that receives funding has “objective integrityand independence from any affiliated organization.” 45C.F.R. 89.3; see App., infra, 297a, 309a. Whether a re-cipient is independent from affiliated organizations de-pends on the totality of the circumstances, includingsuch factors as whether the groups are legally distinctand maintain separate personnel, records, facilities, andforms of identification. See 45 C.F.R. 89.3(b); App., in-fra, 298a, 309a-310a.
In light of the new guidelines, the court of appealsremanded for the district court to determine whetherpreliminary injunctive relief continued to be appropri-ate. App., infra, 224a. On remand, the district courtheld that the newly-issued guidelines did not affect itsprevious decision. Id. at 241a-250a. The district courtalso extended injunctive relief to two new plaintiffsnamed in an amended complaint, respondents GlobalHealth Council (GHC) and InterAction, which are asso-ciations of nongovernmental organizations that collec-tively include most of the groups based in the UnitedStates that receive funding under the Leadership Act.Id. at 251a-252a. The government again appealed, andwhile that second appeal was pending, HHS and USAID
9
promulgated further guidance that allows funding recip-ients additional flexibility in partnering with affiliatesnot subject to Section 7631(f).
4. a. A divided panel of the court of appeals af-firmed. App., infra, 1a-96a. The court held that Section7631(f) “likely violates the First Amendment by imper-missibly compelling [respondents] to espouse the govern-ment’s viewpoint on prostitution.” Id. at 17a. Accordingto the court, Section 7631(f) “falls well beyond * * *permissible funding conditions,” because “[it] does notmerely restrict recipients from engaging in certain ex-pression * * * but pushes considerably further andmandates that recipients affirmatively say something.”Id. at 25a. The panel also observed that Section 7631(f)is “viewpoint-based, because it requires recipients totake the government’s side on a particular issue.” Id. at27a. The panel recognized that the government mayrequire “affirmative, viewpoint-specific speech as a con-dition of participating in a federal program,” but onlywhere “the government’s program is, in effect, its mes-sage.” Id. at 32a. Here, the panel concluded, the pur-pose of the Leadership Act is to fight HIV/AIDS, and inits view advocacy against prostitution is not central tothat mission. Id. at 32a-34a. The panel rejected the gov-ernment’s argument that, “because any entity unwillingto state its opposition to prostitution can form an affili-ate that does so,” “any compelled-speech type problems”are alleviated by the HHS and USAID guidelines. Id. at35a-36a.
b. Judge Straub dissented on the ground that Sec-tion 7631(f) “neither imposes a coercive penalty on pro-tected First Amendment rights nor discriminates in away aimed at the suppression of any ideas.” App., infra,37a. A funding condition “cabined to the federal subsidy
10
program to which it is attached” has no “coercive force”even if it “limit[s] or affect[s] speech,” Judge Straub rea-soned, because potential recipients “can simply choosenot to accept the funds.” Id. at 55a-56a. After surveyingthis Court’s decisions addressing conditions on govern-ment subsidies, Judge Straub reasoned that those casesallow the government to “insist[] that public funds bespent for the purposes for which they were authorized.”Id. at 73a (quoting Rust v. Sullivan, 500 U.S. 173, 196(1991)). In Judge Straub’s view, Section 7631(f) “doesprecisely that” because Congress “only authorized fed-eral funds for organizations that shared its desire toaffirmatively reduce HIV/AIDS behavioral risks, includ-ing its policy of eradicating prostitution.” Id. at 74a.Finally, Judge Straub observed, the agencies’ guidelinesleave funding recipients able “to remain silent or to es-pouse a pro-prostitution message with non-LeadershipAct funds.” Id. at 77a.
5. The court of appeals denied rehearing en banc,over the dissent of three judges and with the concur-rence of one other judge. App., infra, 97a-111a.
a. Judge Cabranes (joined by Judges Raggi andLivingston) concluded that en banc review was appropri-ate because “[t]he question presented is indisputablyone of exceptional importance,” App., infra, 98a; “thepanel decision ‘splits’ from the District of Columbia Cir-cuit, which rejected a nearly identical challenge,” id. at103a (citing DKT Int’l, Inc. v. USAID, 477 F.3d 758(D.C. Cir. 2007)); and “[t]he decision of the panel major-ity * * * is based on a newly uncovered constitutionaldistinction between ‘affirmative’ and ‘negative’ speechrestrictions,” id. at 99a. According to Judge Cabranes,“it is clear that the disposition of this case turns not onthe existing jurisprudential framework, but on an
11
affirmative-negative paradigm of the panel’s own inven-tion.” Id. at 103a.
b. Judge Pooler concurred in the denial of rehearingen banc. App., infra, 106a-111a. In her view, “[t]he un-constitutional conditions doctrine is messy and unset-tled,” and she deemed it unsurprising that the paneldecision had “created a circuit split.” Id. at 107a-108a.Judge Pooler suggested that en banc review would have“precious little prospect of resolving any of the currentdoctrinal disarray,” because the en banc court’s resolu-tion of the question “simply could not substitute for theSupreme Court’s attention.” Id. at 108a, 110a; cf. id. at100a n.2 (Cabranes, J., dissenting from the denial of re-hearing en banc) (“Judge Pooler would prefer the Su-preme Court’s attention. So be it.”) (internal quotationmarks omitted).
REASONS FOR GRANTING THE PETITION
Over a three-judge dissent from the denial of rehear-ing en banc, the Second Circuit enjoined on constitu-tional grounds a provision in an Act of Congress. Thatprovision imposes a condition on the receipt of billions ofdollars in federal aid, to ensure that those funds arespent to combat the HIV/AIDS epidemic in the mannerCongress intended. Congress provides those funds tonongovernmental organizations for foreign programs aspart of a strategy that seeks not only to treat HIV/AIDSbut to reduce the behavioral risks that foster its spread.As part of that strategy, Congress requires funding re-cipients to “have a policy explicitly opposing prostitutionand sex trafficking.” 22 U.S.C. 7631(f). It does so toensure that its partners in the fight against HIV/AIDSfurther Congress’s chosen program and comport withCongress’s determination that participating in the sex
12
trade or sex trafficking carries serious risks for women,men, and children across the globe.
By invalidating that condition on the acceptance offederal funds, the Second Circuit has undermined thegovernment’s ability to implement the comprehensiveapproach chosen by Congress. Two of the respondentsare associations of nongovernmental organizations thatcollectively include most of the groups based in theUnited States that receive the HIV/AIDS funding atissue. As a consequence, the decision below effectivelyenjoins the operation of Section 7631(f) with respect todomestic organizations, and further proceedings in thedistrict court cannot alter the Second Circuit’s decisionholding that provision unconstitutional. The SecondCircuit has thus exercised “the grave power of annullingan Act of Congress,” United States v. Gainey, 380 U.S.63, 65 (1965), and the decision below warrants plenaryreview on that ground alone. But in addition, as thejudges who dissented from the panel decision and thedenial of rehearing en banc recognized, the decision be-low is inconsistent with this Court’s precedents and insquare conflict with the decision of the District of Co-lumbia Circuit in DKT Int’l, Inc. v. USAID, 477 F.3d758 (2007) (DKT ). This Court’s review is warranted.
A. The Court Of Appeals Invalidated A Significant Provi-sion Of An Act Of Congress And Of An Important Fed-eral Program
1. The Leadership Act directs the President to es-tablish a comprehensive international strategy to fightthe transmission of HIV/AIDS, with “the reduction ofHIV/AIDS behavioral risks a priority of all preventionefforts.” 22 U.S.C. 7611(a)(12) (2006 & Supp. IV 2010).Among other things, the Act seeks to reduce behavioral
13
risks by “educating men and boys about the risks of pro-curing sex commercially and about the need to end vio-lent behavior toward women and girls”; “promot[ing]alternative livelihoods, safety, and social reintegrationstrategies for commercial sex workers”; and “working toeliminate rape, gender-based violence, sexual assault,and the sexual exploitation of women and children.”22 U.S.C. 7611(a)(12)(F), (H) and (J) (2006 & Supp. IV2010). Congress thus directed that all prevention effortsfunded under the Act should have as a priority the pro-motion of the government’s goal that the underlyingcauses of HIV/AIDS, including prostitution and sex traf-ficking, should be reduced or eliminated.
In furthering and communicating that goal throughthe programs and services that the Leadership Act sub-sidizes, the government is entitled to “use criteria toensure that its message is conveyed in an efficient andeffective fashion.” DKT, 477 F.3d at 762. It would makelittle sense for the government to provide billions of dol-lars for the treatment and prevention of HIV/AIDS,including for the reduction of behavioral risks like pros-titution and sex trafficking, and yet to engage as part-ners in that effort organizations that are neutral towardor that even affirmatively disagree with efforts to op-pose those types of behavior. Simply put, the effective-ness of the government’s message would be substan-tially undermined if the same organizations hired to fur-ther the program’s goals (including the reduction ofprostitution and sex trafficking because of their role inthe spread of HIV/AIDS) and to communicate that mes-sage through their provision of HIV/AIDS programsand services, could advance an opposite viewpoint intheir privately-funded operations. Section 7631(f) doesno more than to ensure that if respondents wish to re-
14
ceive funds under the Leadership Act, “[they] must com-municate the message the government chooses to fund.This does not violate the First Amendment.” Id. at 764.
2. This Court has recognized that although the gov-ernment may speak through its own representatives,officers, or employees, it may also enlist the assistanceof private entities or organizations to convey its chosenmessage. See, e.g., Rust v. Sullivan, 500 U.S. 173, 193(1991). When the government “is the speaker or whenit enlists private entities to convey its own message,” thegovernment may “regulate the content of what is or isnot expressed.” Rosenberger v. Rector & Visitors ofUniv. of Va., 515 U.S. 819, 833 (1995); see ibid. (“[W]henthe government appropriates public funds to promote aparticular policy of its own it is entitled to say what itwishes.”). For that reason, “[w]hen the government dis-burses public funds to private entities to convey a gov-ernmental message, it may take legitimate and appro-priate steps to ensure that its message is neither gar-bled nor distorted by the grantee.” Ibid.; see LegalServs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001)(“[V]iewpoint-based funding decisions can be sustainedin instances * * * in which the government use[s] pri-vate speakers to transmit specific information pertain-ing to its own program.”) (internal quotation marksomitted).4
4 A viewpoint-based funding condition is subject to heightened scru-tiny when it is “aimed at the suppression of dangerous ideas,” Speiserv. Randall, 357 U.S. 513, 519 (1958) (quoting American Commc’nsAss’n v. Douds, 339 U.S. 382, 402 (1950)), but in this case respondentshave not argued, and the panel majority did not conclude, that Section7631(f)’s policy requirement is aimed at such suppression. As JudgeStraub explained in dissent, “[t]here is simply no evidence that Con-gress’s purpose in enacting the Leadership Act and attaching the Policy
15
Here, Congress found in enacting the Leadership Actthat “[t]he sex industry, the trafficking of individualsinto such industry, and sexual violence are additionalcauses of and factors in the spread of the HIV/AIDSepidemic.” 22 U.S.C. 7601(23); see p. 5, supra. Con-gress therefore concluded that a comprehensive strat-egy to address HIV/AIDS should attempt to reduceprostitution and sex trafficking in countries where thefederally-funded programs at issue are provided.“Spending money to convince people at risk of HIV/AIDS to change their behavior is necessarily a mes-sage,” DKT, 477 F.3d at 761, and Congress has requiredprivate organizations to adhere to that message byadopting a policy that explicitly opposes prostitution andsex trafficking. See, e.g., South Dakota v. Dole, 483 U.S.203, 206 (1987) (Under the Spending Clause, Congresshas the power to “attach conditions on the receipt offederal funds, and has repeatedly employed the power‘to further broad policy objectives by conditioning re-ceipt of federal moneys upon compliance by the recipientwith federal statutory and administrative directives.’ ”)(quoting Fullilove v. Klutznick, 448 U.S. 448, 474(1980)).
In light of Congress’s findings, Section 7631(f)’s pol-icy requirement is plainly a “legitimate and appropriate”means to ensure that the government’s goals are ad-vanced and its message communicated wherever theAct’s funds are spent. Rosenberger, 515 U.S. at 833.That is especially true in light of the acute difficulties ofmonitoring the way in which private organizations pro-
Requirement was to suppress pro-prostitution views,” and “[t]he PolicyRequirement and Guidelines therefore in no way silence governmentcriticism or contrary views on prostitution and HIV/AIDS.” App.,infra, 83a-84a.
16
vide HIV/AIDS programs and services throughout theworld. The policy requirement helps to guarantee thatthe organizations receiving Leadership Act funds actconsistently with Congress’s goals in their overseas op-erations. In addition, the affiliation guidelines issued byHHS and USAID cabin the effects of Section 7631(f)’sfunding condition to the scope of Leadership Act pro-grams and services and thus minimize any burden onrespondents’ First Amendment rights. See pp. 26-28,infra.
3. The panel majority reasoned that the Act’s policyrequirement is impermissible because it affirmativelycompels speech by the recipients of the Act’s funds. SeeApp., infra, 25a. This Court has never held, however,that it matters whether conditions on the receipt of fed-eral funding compel speech or silence. Indeed, theCourt has held that the distinction is without constitu-tional significance in the context of the direct regulationof speech. See Riley v. National Fed’n of the Blind ofN.C., Inc., 487 U.S. 781, 796 (1988) (“There is certainlysome difference between compelled speech and com-pelled silence, but in the context of protected speech, thedifference is without constitutional significance.”).There is no reason, then, that the distinction should as-sume constitutional significance in the context of fund-ing conditions, where recipients may avoid the condi-tions altogether simply by declining to accept the fed-eral funds at issue. See, e.g., Rust, 500 U.S. at 199 n.5(“[T]o avoid the force of the regulations, [the recipient]can simply decline the subsidy.”); Grove City Coll. v.Bell, 465 U.S. 555, 575 (1984) (“[The recipient] may ter-minate its participation in the [federal] program andthus avoid the requirements.”).
17
The reasoning of this Court’s decisions on fundingconditions likewise lends no support to the panel major-ity’s novel affirmative-negative dichotomy. In Rust, forinstance, the Court upheld against a First Amendmentchallenge restrictions that barred federally-funded fam-ily-planning programs from providing abortion counsel-ing or encouraging abortion as a method of family plan-ning. See 500 U.S. at 179-181, 192-193. The Court rec-ognized that “[t]he [g]overnment can, without violatingthe Constitution, selectively fund a program to encour-age certain activities it believes to be in the public inter-est.” Id. at 193. Similarly, in Regan v. Taxation WithRepresentation, 461 U.S. 540 (1983), this Court uphelda restriction on lobbying by nonprofit organizations thatwere allowed to receive tax-deductible contributions.See id. at 550. The Court held that Congress did notviolate the First Amendment by choosing “not to subsi-dize lobbying as extensively as it chose to subsidizeother activities that nonprofit organizations undertaketo promote the public welfare.” Id. at 544.
Those cases do not suggest that the constitutionalityof a federal funding condition under the First Amend-ment turns on whether the recipient must espouse amessage that the government funding is intended topromote or refrain from espousing a message that iscontrary to the funding program. In either case, whatmatters is that the government has elected to selectivelyfund a program aimed at encouraging or discouragingcertain activities of public interest: abortion counselingin Rust, certain types of lobbying in Regan, and foreignprostitution and sex trafficking in this case. See App.,infra, 99a (Cabranes, J., dissenting from the denial ofrehearing en banc) (“The decision of the panel majority* * * is based on a newly uncovered constitutional dis-
18
tinction between ‘affirmative’ and ‘negative’ speech re-strictions.”); id. at 103a (“[I]t is clear that the disposi-tion of this case turns not on the existing jurisprudentialframework, but on an affirmative-negative paradigm ofthe panel’s own invention.”).
4. The panel majority did not rest its decision solelyon its distinction between affirmative and negative re-strictions on speech. Indeed, the panel majority ac-knowledged that in some circumstances the governmentmay require “affirmative, viewpoint-specific speech as acondition of participating in a federal program.” App.,infra, 32a; see ibid. (“[I]f the government were to funda campaign urging children to ‘Just Say No’ to drugs, wedo not doubt that it could require grantees to state thatthey oppose drug use by children.”). But that is so, thepanel majority reasoned, when “the government’s pro-gram is, in effect, its message.” Ibid. In the panel ma-jority’s view, that is not the case here because “[t]hestated purpose of the Leadership Act is to fightHIV/AIDS” rather than to fight prostitution and sextrafficking. Ibid. (emphasis omitted); see id. at 32a-33a(“[Petitioners] cannot now recast the LeadershipAct’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.”).
That approach cannot be correct. In cases involvingrestrictions challenged on First Amendment grounds, itwould require courts to decide, on a case-by-case basis,which of Congress’s funding conditions are truly criticalto the federal programs to which they are attached.Courts would have to decide whether, in their view, Con-gress’s chosen message is “central” rather than “subsid-iary” to a given federal funding program. App., infra,33a (internal quotation marks omitted). See, e.g., Vil-lage of Arlington Heights v. Metropolitan Hous. Dev.
19
Corp., 429 U.S. 252, 265 n.11 (1977) (“Legislation is fre-quently multipurposed: the removal of even a ‘subordi-nate’ purpose may shift altogether the consensus of leg-islative judgment supporting the statute.”) (quotingMcGinnis v. Royster, 410 U.S. 263, 276-277 (1973));McGinnis, 410 U.S. at 276 (“[O]ur decisions do not au-thorize courts to pick and choose among legitimate legis-lative aims to determine which is primary and which sub-ordinate.”).
Even taking the court of appeals’ test on its ownterms, however, the panel majority erred in holding thatSection 7631(f)’s policy requirement is not central to thepurposes of the Leadership Act. App., infra, 32a-34a.As explained above, Congress did not want to addressonly the effects of HIV/AIDS; it also wanted to addressthe causes of its transmission, including types of behav-ior, like prostitution and sex trafficking, that place cer-tain groups at high risk of contracting HIV/AIDS. Seepp. 3-5, supra. Congress determined when it enactedthe Leadership Act that reducing and eradicating pros-titution and sex trafficking are of great importance inpreventing the spread of HIV/AIDS. The panel major-ity suggested no appropriate basis for disagreeing withthat legislative judgment. The government’s messageregarding prostitution and sex trafficking is an integralfeature of the funding program. In this critical respect,in the panel’s words, “the government’s program is, ineffect, its message.” App., infra, 32a.
The panel majority reasoned that advocating againstprostitution is not central to the Leadership Act becauseSection 7631(f) exempts certain entities. See 22 U.S.C.7631(f) (“[T]his subsection shall not apply to the GlobalFund to Fight AIDS, Tuberculosis and Malaria, theWorld Health Organization, the International AIDS
20
Vaccine Initiative or to any United Nations agency.”).As a threshold matter, “the relevance of a statute’sunderinclusiveness is that it may reveal discriminationon the basis of viewpoint or content, or may undercutthe statute’s purported non-discriminatory purpose.”Ruggiero v. FCC, 317 F.3d 239, 250-251 (D.C. Cir.), cert.denied, 540 U.S. 813 (2003). Here, “[b]ecause viewpointdiscrimination raises no First Amendment concernswhen the government is speaking, the underinclusive-ness of the certification requirement is immaterial.”DKT, 477 F.3d at 763 n.5; see Regan, 461 U.S. at 547-548(upholding lobbying restrictions that applied to non-profit organizations but exempted veterans’ organiza-tions).
In any event, the exempt entities are not similarlysituated to the private nongovernmental organizationssubject to Section 7631(f). One of the exempt entities,the International AIDS Vaccine Initiative (IAVI), is anongovernmental organization that focuses on develop-ing a vaccine for HIV/AIDS. See App., infra, 91a;22 U.S.C. 2222(l) (2006 & Supp. IV 2010). Congress rea-sonably could have concluded that there is little riskIAVI will undermine the Leadership Act’s opposition toprostitution and sex trafficking. The remaining exemptentities—the Global Fund to Fight AIDS, Tuberculosisand Malaria; the World Health Organization; and UnitedNations agencies—are public international organiza-tions composed primarily or exclusively of sovereignstates. See App., infra, 91a-92a. The terms of the Uni-ted States’ participation in those organizations are gov-erned by treaties or international agreements. See 22U.S.C. 288, note (2006 & Supp. IV 2010); Exec. OrderNo. 13,395, 3 C.F.R. 209 (2007). Congress could not uni-laterally require those organizations to adopt policies
21
opposing prostitution or sex trafficking, and their inter-national nature makes it unlikely that their views or ac-tions will be specially attributed to the United States(particularly in light of Congress’s clear message in theLeadership Act itself).
5. Finally, the panel majority sought to draw sup-port for its decision from this Court’s cases on compelledspeech. See App., infra, 25a-26a; see also Wooley v.Maynard, 430 U.S. 705 (1977); Speiser v. Randall, 357U.S. 513 (1958); West Va. Bd. of Educ. v. Barnette, 319U.S. 624 (1943). Those cases, however, did not involveCongress’s spending power. Rather, “[i]n each of thosecases, the penalty for refusing to propagate the messagewas denial of an already-existing public benefit. Noneinvolved the government’s selective funding of organiza-tions best equipped to communicate its message.” DKT,477 F.3d at 762 n.2. As the District of Columbia Circuithas recognized, that distinction is critical. “Offering tofund organizations who agree with the government’sviewpoint and will promote the government’s programis far removed from cases in which the government co-erced its citizens into promoting its message on pain oflosing their public education, Barnette, 319 U.S. at 629,or access to public roads, Wooley, 430 U.S. at 715.” Ibid.(parallel citations omitted).
By ignoring that critical distinction, the panel major-ity held unconstitutional a statutory condition on thereceipt of federal funds that, in Congress’s view, servesa valuable purpose: to ensure that a particular mes-sage—i.e., that high-risk behaviors, including prostitu-tion and sex trafficking, should be reduced as part of thefight against HIV/AIDS—is communicated effectivelyby private partners under the Leadership Act. Thatinvalidation of an Act of Congress in itself warrants this
22
Court’s review. Moreover, the decision below allowsvirtually all of the private entities that receive manybillions of dollars in federal aid to advance the govern-ment’s program to ignore a condition that Congressdeemed important to their participation. If that decisionis left unreviewed, the government will have to standidly by while its private partners advance views that areinconsistent with or even directly contrary to, and thatthus substantially undermine, the comprehensive strat-egy against HIV/AIDS outlined by Congress in the Act.That consequence alone warrants the grant of certiorari.
B. The Decision Below Creates A Square Circuit Conflict
1. The panel majority’s approach in this case di-rectly conflicts with the District of Columbia Circuit’sdecision in DKT. In DKT, the District of Columbia Cir-cuit considered a First Amendment challenge to Section7631(f) brought by a private organization, DKT Interna-tional, Inc., that provided HIV/AIDS prevention pro-gramming in foreign countries in part with USAIDgrant funds. See 477 F.3d at 760-761. DKT refused toadopt a policy opposing prostitution “because this mightresult in stigmatizing and alienating many of the peoplemost vulnerable to HIV/AIDS—the sex workers.” Id. at761 (internal quotation marks omitted). DKT arguedthat the policy requirement in Section 7631(f) was un-constitutional for the same reason that respondents haveadvanced: “it forces DKT to convey a message withwhich it does not necessarily agree.” Ibid.
The District of Columbia Circuit rejected that argu-ment. The court recognized that the government “mayhire private agents to speak for it,” DKT, 477 F.3d at761 (citing Rust, 500 U.S. 173), and in communicating itsmessage through private entities “the government
23
can—and often must—discriminate on the basis of view-point,” ibid. (citing Rosenberger, 515 U.S. at 833). Thecourt observed that the Leadership Act’s “objective is toeradicate HIV/AIDS,” and “[o]ne of the means of accom-plishing this objective is for the United States to speakout against legalizing prostitution in other countries.”Ibid. As the court explained, “[t]he Act’s strategy incombating HIV/AIDS is not merely to ship condoms andmedicine to regions where the disease is rampant,” butalso to “foster[] behavioral change, see, e.g., 22 U.S.C.§ 7601(22)(E), and spread[] ‘educational messages,’ id.§ 7611(a)(4).” Ibid. The court reasoned that “convinc-[ing] people at risk of HIV/AIDS to change their behav-ior is necessarily a message.” Ibid.
The District of Columbia Circuit thus disagreed withDKT’s contention that the government had created “aprogram to encourage private speech.” DKT, 477 F.3dat 762 (quoting Rosenberger, 515 U.S. at 833). Rather,the court held, the government is “us[ing] private speak-ers to transmit specific information pertaining to its ownprogram,” ibid. (quoting Rosenberger, 515 U.S. at 833),and “as in Rust, ‘the government’s own message is beingdelivered,’ ” ibid. (quoting Velazquez, 531 U.S. at 541).The court also rejected DKT’s reliance on this Court’scompelled-speech decisions, because in those cases “thepenalty for refusing to propagate the message was de-nial of an already-existing public benefit,” like access to“public education” or “public roads.” Id. at 762 n.2.None of those cases, the court noted, “involved the gov-ernment’s selective funding of organizations bestequipped to communicate its message.” Ibid.
Because the government may “communicate a partic-ular viewpoint through its agents and require thoseagents not convey contrary messages,” the District of
24
Columbia Circuit reasoned, “it follows that in choosingits agents, the government may use criteria to ensurethat its message is conveyed in an efficient and effectivefashion.” DKT, 477 F.3d at 762. According to the court,“[t]his is particularly true where the government isspeaking on matters with foreign policy implications,” asit is through the Leadership Act. Ibid. The court cor-rectly concluded that “[t]he effectiveness of the govern-ment’s viewpoint-based program would be substantiallyundermined, and the government’s message confused, ifthe organizations hired to implement that program* * * could advance an opposite viewpoint in their pri-vately-funded operations.” Id. at 762-763 (internal quo-tation marks omitted).
2. The panel majority’s reasoning in this casesquarely conflicts with the District of Columbia Circuit’sreasoning in DKT, which “rejected an almost identicalchallenge to the Leadership Act by a potential granteethat refused to adopt a policy opposing prostitution.”App., infra, 94a (Straub, J., dissenting). Notably, thepanel majority cited DKT once but made no effort todistinguish that case. See id. at 31a.5 All of the judgeswho addressed the question at the rehearing en banc
5 The panel majority did distinguish a different, much earlier case,DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275(D.C. Cir. 1989), on the ground that it “centered around a restriction onthe First Amendment activities of foreign [nongovernmental organiza-tions] receiving U.S. government funds.” App., infra, 34a. That wouldnot distinguish the District of Columbia’s subsequent decision in DKT,which involved a U.S.-based nongovernmental organization. See1:05-cv-1604 Doc. No. 1, at 4 (D.D.C. Aug. 11, 2005) (“Plaintiff DKTInternational is a U.S.-based, charitable organization providing family-planning and HIV/AIDS prevention services in eleven countries aroundthe world.”); see id. at 2 (“Plaintiff DKT International is a not-for-profitcorporation with headquarters [in Washington, D.C.]”).
25
stage therefore agreed that the panel decision and DKTare flatly inconsistent. See id. at 107a-108a (Pooler, J.,concurring in the denial of rehearing en banc) (“Theunconstitutional conditions doctrine is messy and unset-tled,” and thus it is “[not] surprising that our decisioncreated a circuit split.”); id. at 103a (Cabranes, J., dis-senting from the denial of rehearing en banc) (“[T]hepanel decision ‘splits’ from the District of Columbia Cir-cuit, which rejected a nearly identical challenge to theLeadership Act by another grantee that refused toadopt a policy opposing prostitution.”).
Moreover, when this case was remanded for consid-eration of the then-newly issued guidelines, the districtcourt extended injunctive relief to two new plaintiffsnamed in an amended complaint, respondents GHC andInterAction, which are associations of nongovernmentalorganizations that collectively include most of thegroups based in the United States that receive fundingunder the Leadership Act. See App., infra, 251a-252a.6
It is therefore uncertain that there would be future liti-gation on this issue in other courts of appeals, becausethe lower courts’ injunction here prevents the govern-ment from enforcing Section 7631(f) with respect tomost of the U.S.-based organizations that receive funds
6 At the present time, the injunction extends to all members of bothGHC and InterAction. Although GHC recently announced that it isclosing its operations, see Global Health Council, GLOBAL HEALTHCOUNCIL TO CLOSE OPERATIONS (Apr. 20, 2012), http://www.globalhealth.org, the courts below have not yet been asked to rule onthe effect of that association’s dissolution. In any event, as far as thegovernment is aware there is no significant barrier to a GHC member’sjoining InterAction, which would mean that the government will remainunable to enforce Section 7631(f) with respect to most of the U.S.-basedorganizations that receive Leadership Act funds if the decision belowis permitted to stand.
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under the Leadership Act. The direct conflict betweenthe Second and the District of Columbia Circuits war-rants this Court’s review in this case.
3. The decision below is in considerable tension withthe decisions of this Court and several other circuits inanother respect. The panel majority rejected the govern-ment’s argument that, “because any entity unwilling tostate its opposition to prostitution can form an affiliatethat does so,” “any compelled-speech type problems” arealleviated by the HHS and USAID guidelines. App.,infra, 35a-36a. “It may very well be that the Guidelinesafford [respondents] an adequate outlet for expressingtheir opinions on prostitution,” the panel majoritystated, “but there remains, on top of that, the additional,affirmative requirement that the recipient entity pledgeits opposition to prostitution.” Id. at 36a. According tothe panel majority, that requirement—i.e., that the en-tity receiving Leadership Act funds have a policy oppos-ing prostitution and sex trafficking—renders the fund-ing condition unconstitutional, even if an affiliated entityis free to take contrary positions on the sex trade andsex trafficking.
That reasoning is not consistent with this Court’sdecisions addressing similar affiliation guidelines. Forinstance, the restriction at issue in Regan preventednonprofit organizations from lobbying with tax-deduct-ible contributions, but a related provision permittedthose organizations to form affiliates that could engagein lobbying activities. See 461 U.S. at 544. The Courtnoted that “dual structure” in upholding the restriction,ibid., observing that an affected organization had notbeen denied “any independent benefit on account of itsintention to lobby,” id. at 545. See id. at 553 (Blackmun,J., concurring) (reasoning that the lobbying restriction
27
was permissible because of the affiliate provision); seealso Rust, 500 U.S. at 198 (“Congress has merely re-fused to fund [abortion-related] activities out of the pub-lic fisc, and the Secretary has simply required a certaindegree of separation from the [federal] project in orderto ensure the integrity of the federally funded pro-gram.”). By contrast, in FCC v. League of Women Vot-ers, 468 U.S. 364 (1984), the Court invalidated a federallaw prohibiting noncommercial television and radio sta-tions that received federal grants from editorializing,but the Court noted that if Congress had permitted sta-tions to “establish ‘affiliate’ organizations which couldthen use the station’s facilities to editorialize withnonfederal funds, such a statutory mechanism wouldplainly be valid.” Id. at 400.
In light of Regan, League of Women Voters, andRust, other circuits have found that affiliation guidelinescure any constitutional difficulty, because they allowfunding recipients to cabin the effects of a restriction onspeech to the scope of the federally funded program atissue. See, e.g., DKT, 477 F.3d at 763 (“Nothing pre-vents DKT from itself remaining neutral and setting upa subsidiary organization that certifies it has a policyopposing prostitution.”); Planned Parenthood of Mid-Mo. and E. Kan., Inc. v. Dempsey, 167 F.3d 458, 463-464(8th Cir. 1999) (upholding a Missouri statute that “requi-re[d] abortion services to be provided through independ-ent affiliates”); Legal Aid Soc’y v. Legal Servs. Corp.,145 F.3d 1017, 1026 (9th Cir.) (upholding, as “consistentwith the decisions in Regan and League of Women Vot-ers,” regulations “requir[ing] that if a recipient wishesto engage in prohibited activities, it must establish anorganization separate from the recipient in order to en-sure that federal funds are not spent on prohibited activ-
28
ities”), cert. denied, 525 U.S. 1015 (1998). As othercourts of appeals have recognized, affiliation guidelineslike those promulgated by HHS and USAID ensure thatrecipients of federal funding are not effectively pre-cluded from exercising their First Amendment rights.
The Second Circuit reasoned that the HHS andUSAID affiliation guidelines do not cure any constitu-tional defect in this case because respondents must es-pouse a particular message rather than refrain fromspeaking. App., infra, 35a-36a. That simply misunder-stands the First Amendment value of affiliate struc-tures. Regardless of whether a funding condition re-quires the recipient to speak or remain silent, the rele-vant question is whether the condition “effectivelyprohibit[s] the recipient from engaging in the protectedconduct outside the scope of the federally funded pro-gram.” Rust, 500 U.S. at 197. Here, the affiliationguidelines—which are modeled on the program integrityrequirements upheld in Rust but which have been mademore flexible to account for the challenges of operatingoverseas—cabin the effects of Section 7631(f)’s fundingcondition to the scope of Leadership Act programs andservices.7
C. This Case Is A Good Vehicle For Addressing Issues OfRecurring Importance
1. In addition to erroneously enjoining an Act ofCongress on constitutional grounds, the panel majority’sdecision, by introducing a novel distinction between af-firmative and negative restrictions on speech, unneces-
7 The affilation guidelines are modeled on the program integrity re-quirements in Velazquez, see Velazquez v. Legal Servs. Corp., 164 F.3d757, 761-762 (2d Cir. 1999), which in turn were modeled on those upheldin Rust.
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sarily complicates the doctrine of unconstitutional condi-tions. See Rust, 500 U.S. at 205 (referring to the doc-trine as “a troubled area of [this Court’s] jurispru-dence”); see also App. infra, 96a (Straub, J., dissenting)(“Because the majority today * * * does more to fur-ther complicate the doctrine [of unconstitutional condi-tions] than to clarify it, the Supreme Court may wish togrant certiorari to set us straight.”); id. at 99a(Cabranes, J., dissenting from the denial of rehearing enbanc) (“The decision of the panel majority * * * isbased on a newly uncovered constitutional distinctionbetween ‘affirmative’ and ‘negative’ speech restric-tions.”). Indeed, although Judge Pooler was a memberof the panel majority, she recognized at the rehearing enbanc stage that “[t]he unconstitutional conditions doc-trine is messy and unsettled”; there is “current doctrinaldisarray”; and in her view the en banc court’s resolutionof the question “simply could not substitute for the Su-preme Court’s attention.” Id. at 107a-108a, 110a (Pool-er, J., concurring in the denial of rehearing en banc); cf.id. at 100a n.2 (Cabranes, J., dissenting from the denialof rehearing en banc) (“Judge Pooler would prefer theSupreme Court’s attention. So be it.”) (internal quota-tion marks omitted). The lower court’s need for guid-ance underscores the importance of this Court’s review.
2. Although the decision below affirmed a prelimi-nary injunction, further proceedings in the district courtwould not bear on the constitutional question presentedhere. The panel majority “conclude[d] that [Section]7631(f), as implemented by the Agencies, falls well be-yond what the Supreme Court and [the Second Circuit]have upheld as permissible conditions on the receipt ofgovernment funds.” App., infra, 3a. Although the panelmajority subsequently stated that Section 7631(f) “likely
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violates the First Amendment by impermissibly compel-ling [respondents] to espouse the government’s view-point on prostitution,” the panel majority’s reasoningwas that Section 7631(f) actually violates the FirstAmendment because it compels such speech. Id. at 17a(emphasis added). Neither the panel majority nor re-spondents have identified how further proceedings be-fore the district court could establish that the fundingcondition does not violate the First Amendment. Id. at104a-105a (Cabranes, J., dissenting from the denial ofrehearing en banc). Accordingly, in the face of an in-junction that bars the enforcement of an Act of Con-gress on constitutional grounds, there is no reason todelay this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
DONALD B. VERRILLI, JR.Solicitor General
STUART F. DELERYActing Assistant Attorney
GeneralEDWIN S. KNEEDLER
Deputy Solicitor GeneralJEFFREY B. WALL
Assistant to the Solicitor General
MICHAEL S. RAABSHARON SWINGLE
Attorneys
JULY 2012