Alliance for Open Society International, Inc. v. United States Agency for
911 F.3d 104
2d Cir.2018Background
- The Leadership Act (22 U.S.C. § 7601 et seq.) contains a Policy Requirement (§ 7631(f)) forbidding funding to organizations that do not have a policy explicitly opposing prostitution and sex trafficking.
- Domestic NGOs that receive Leadership Act funds operate globally often through legally distinct but co‑branded foreign affiliates (shared name, logo, mission); plaintiffs include Alliance for Open Society, Pathfinder, Save the Children affiliates, InterAction, and others.
- The Supreme Court in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013) held that applying the Policy Requirement to U.S. recipients unconstitutionally compelled speech; the Court discussed the role of affiliates and the problem of “evident hypocrisy.”
- After AOSI, the government continued to apply the Policy Requirement to plaintiffs’ foreign affiliates; plaintiffs sought and the district court entered (in 2015) a permanent injunction barring enforcement of the Policy Requirement against plaintiffs and their affiliates.
- The Second Circuit affirms the permanent injunction, holding the Supreme Court’s AOSI decision forecloses applying the Policy Requirement to closely aligned, clearly identified foreign affiliates because doing so unconstitutionally impairs the domestic plaintiffs’ speech; Judge Straub dissents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying the Policy Requirement to plaintiffs’ closely aligned foreign affiliates violates plaintiffs’ First Amendment rights | Forcing foreign affiliates to adopt the government’s policy compels speech that will be attributed to the U.S. organizations or create “evident hypocrisy,” thus burdening plaintiffs’ speech | Foreign affiliates have no First Amendment rights; AOSI did not address foreign affiliates and does not bar applying the Requirement to foreign organizations | Affirmed: AOSI’s reasoning prevents the government from forcing contrasting speech by clearly identified foreign affiliates when that compels or impairs the domestic plaintiffs’ speech |
| Whether the district court abused its discretion issuing a permanent injunction based on letter briefing without a full hearing | Plaintiffs: long record and Supreme Court precedent made further briefing/hearing unnecessary | Govt: required a formal motion and evidentiary proceedings before a permanent injunction | No abuse: courts may issue permanent injunctions without a new hearing; Rule 65 doesn’t require a hearing for permanent injunctions |
| Whether the injunction is impermissibly vague because it covers “affiliates” without precise definition | Plaintiffs: “affiliate” is reasonably clear; they offered clarifying metrics (shared name/logo/branding) and to cooperate to identify affiliates | Govt: the term is indefinite; lacks controlling legal standard; cannot determine which foreign entities are covered | No abuse: term “affiliate” has ordinary legal meaning (Black’s) and parties can confer to specify covered entities |
| Whether prior Second Circuit decisions (Planned Parenthood, CRLP) require a different result | Plaintiffs: AOSI’s “evident hypocrisy” analysis distinguishes this case because affiliates here are co‑branded/indistinguishable | Govt: Planned Parenthood and CRLP uphold funding restrictions on foreign organizations and control here | Majority: those cases differ (involved foreign partners not tightly co‑branded affiliates); AOSI controls the present situation; injunction stands; dissent would follow Planned Parenthood/CRLP and reverse |
Key Cases Cited
- Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205 (2013) (held that the Policy Requirement unconstitutionally compelled domestic recipients to adopt the Government’s viewpoint)
- Planned Parenthood Fed’n of Am. v. U.S. Agency for Int’l Dev., 915 F.2d 59 (2d Cir. 1990) (upheld funding restriction on foreign NGOs and rejected associational claim by domestic NGO)
- Ctr. for Reprod. Law & Pol’y v. Bush, 304 F.3d 183 (2d Cir. 2002) (reaffirmed Planned Parenthood in rejecting First Amendment challenge to foreign‑only funding restriction)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (noting certain constitutional protections do not apply to aliens outside U.S. borders)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (standards for permanent injunctive relief)