Alliance for Open Society International, Inc. v. United States Agency for International Development
651 F.3d 218
| 2d Cir. | 2011Background
- This case involves the Leadership Act funding condition that no funds may be used to assist groups that do not have a policy explicitly opposing prostitution, applied to NGOs receiving Leadership Act funds.
- AOSI and Pathfinder challenged the Policy Requirement as unconstitutional compelled speech restricting private, privately funded activities
- The Agencies implemented the Policy Requirement and later issued Guidelines allowing affiliates to form to maintain separation from opposing-stance activities
- District Court issued preliminary injunctions prohibiting enforcement of the Policy Requirement against AOSI and Pathfinder
- On appeal, the Second Circuit addressed standing, the likelihood of success on the merits, and the validity of the Guideline structure under the un constitutional conditions framework
- Defendants later issued additional guidance (2010) extending and revising the Guidelines to allow more Affiliate flexibility
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Policy Requirement violates the First Amendment | AOSI/Pathfinder contend it compels speech | Agencies argue it advances HIV/AIDS policy through funding conditions | Likely unconstitutional as a compelled, viewpoint-based requirement |
| Whether the Guidelines provide an adequate alternative channel | Guidelines suffice to cure burdens on speech | Guidelines inadequate to cure affirmative speech requirement | Guidelines do not cure the compelled speech issue; district court's view upheld by majority in part |
| Standing and associational standing of GHC/InterAction | Associational standing shown for members | Standing contested | District court correctly found standing for associations and members |
| Appropriate level of scrutiny for subsidy conditions | Subsidy conditions can be unconstitutional when coercive or viewpoint-discriminatory | Unconstitutional conditions doctrine allows spending conditions to restrict speech | Policy Requirement subject to heightened scrutiny due to viewpoint and government messaging concerns (majority view) or, per dissent, not subjected to heightened scrutiny; see individual opinions |
Key Cases Cited
- Regan v. Taxation With Representation, 461 U.S. 540 (U.S. 1983) (highlights adequate alternative channels for expression under subsidy conditions)
- FCC v. League of Women Voters of California, 468 U.S. 364 (U.S. 1984) (upheld editorials ban; discussed limits of funding conditions)
- Rust v. Sullivan, 500 U.S. 173 (U.S. 1991) (upheld funding rules requiring separation of abortion-related activity from government-funded program)
- Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir. 1999) (developed framework for subsidy restrictions; associate standing and adequate alternative channels)
- Velazquez v. Legal Servs. Corp., 531 U.S. 533 (U.S. 2001) (Supreme Court on government speech and private speech in subsidy context; affirming limits on viewpoint restrictions when no government message is advanced)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995) (affirmative programs to encourage private speech; limits on viewpoint discrimination in subsidies)