Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.
133 S. Ct. 2321
| SCOTUS | 2013Background
- Congress enacted the Leadership Act (2003) to fund global HIV/AIDS programs and required recipients to (1) not use funds to promote prostitution (§7631(e)) and (2) have a policy explicitly opposing prostitution and sex trafficking (§7631(f)) — the "Policy Requirement."
- HHS and USAID implemented §7631(f) by requiring award recipients to affirm opposition to prostitution in funding documents; agencies later issued affiliate-guidance permitting separate affiliates to engage in inconsistent activities if sufficiently independent.
- Domestic NGOs (respondents) receiving Leadership Act funds challenged the Policy Requirement as a compelled‑speech violation of the First Amendment and obtained a preliminary injunction blocking funding termination based on their privately funded speech.
- The Second Circuit affirmed the injunction, finding respondents likely to succeed under the unconstitutional‑conditions doctrine because the Policy Requirement compelled endorsement of the Government’s viewpoint outside the federal program’s scope.
- The Supreme Court granted certiorari to decide whether conditioning funds on affirming opposition to prostitution violates the First Amendment and affirmed the Second Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7631(f)’s Policy Requirement (requirement to affirm opposition to prostitution) violates the First Amendment by compelling speech | Requirement forces recipients to affirm a government viewpoint and cannot be confined to funded program — unconstitutional compelled speech | Spending power lets Congress select and fund agents who share its goals; recipients can decline funds or use affiliates per guidance | Held: Violates the First Amendment — cannot compel recipients to adopt the Government’s belief as a funding condition |
| Whether the Policy Requirement is a permissible definition of the federal program (like Rust) or an unconstitutional attempt to regulate speech outside the program | Plaintiff: §7631(e) already bars use of federal funds to promote prostitution; §7631(f) goes further by dictating recipients’ beliefs and speech outside the program | Defendant: The requirement furthers program goals (eradication of prostitution); affiliate rules permit expression through separate entities, avoiding outside regulation | Held: The Requirement reaches beyond defining program scope and regulates protected speech outside the federally funded program; affiliate rules insufficient to cure compelled‑speech problem |
| Whether the unconstitutional‑conditions doctrine permits conditioning funds on viewpoint when relevant to program objectives | Plaintiff: Even if related, conditioning that compels belief endorsement is unconstitutional when it affects private speech outside program | Defendant: Doctrine does not bar conditioning eligibility on relevant ideological commitments; offer is not coercive because recipients may decline funds | Held: The doctrine limits Congress’s ability to impose conditions that compel recipients to affirm beliefs that cannot be confined to the program; condition is invalid |
| Whether concerns about fungibility or undermining program goals justify the Policy Requirement | Plaintiff: Government offered no record evidence that private funds would supplant federal funds or that the condition is necessary; safeguarding program via §7631(e) suffices | Defendant: Money is fungible; allowing recipients to promote prostitution privately would undermine program and confuse government message | Held: Government’s fungibility argument insufficient absent record support; potential program harm does not justify compelling recipients to espouse a belief |
Key Cases Cited
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (government may not compel speech as a regulation; context for unconstitutional conditions analysis)
- Rust v. Sullivan, 500 U.S. 173 (1991) (permissible funding conditions that limit the scope of a funded program but leave recipients free to speak outside it)
- Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) (government may refuse to subsidize lobbying; selection of subsidized activities permissible)
- FCC v. League of Women Voters of California, 468 U.S. 364 (1984) (invalidated a funding condition that barred speech outside the federally funded program)
- Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) (unconstitutional conditions doctrine prevents recasting restrictions as program definitions when they regulate outside protected speech)
- West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (compelled affirmation of beliefs violates the First Amendment)
- United States v. American Library Assn., Inc., 539 U.S. 194 (2003) (recipients may decline funds to preserve speech; spending power not a guarantee of subsidy)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (context on material‑support restrictions; distinguishes different statutory contexts)