*1 study for a new than commission rather view this decision was IN 24. In our ALLIANCE FOR OPEN SOCIETY
Hangar unreasonable, especially given the TERNATIONAL, INC., Pathfinder In on the FAA’s based prediction, agency’s ternational, Council, Global Health airport projects, other with experience Interaction, Plaintiffs-Appellees, project unlikely was Hangar at all on noise levels. We any impact have Society Open Institute, Plaintiff, hold, therefore, im- that the FAA’s noise impervious pe- calculations pact v. challenge. titioners’ IN UNITED STATES AGENCY FOR course, Massport if and when Of DEVELOPMENT, TERNATIONAL develop with additional proceed chooses to Shah,* Rajiv capacity in his official as Hanscom, may require that work ment Agency Administrator of the for U.S. But NEPA approvals. FAA additional Development, International and his analysis only requires a cumulative “to successors, United States Centers project is assessed as a ensure that Prevention, Disease Control component not sliced into ‘small whole and ” Frieden, R. Thomas in his official ca FAA, v. parts.’ Town of Marshfield Cir.2008) (1st pacity (quoting 40 as Director of the U.S. Centers F.3d C.F.R. 1508.27(b)(7)). purposes, For NEPA Prevention, for Disease Control and speculate possi about the agency need successors, and his De United States future actions that ble effects of partment of Health and Human Ser Coal, See, e.g., on Sensible may not ensue. vices, Sebelius, Kathleen in her offi Dole, 826 F.2d Transp., Inc. capacity Secretary cial (D.C.Cir.1987). Department of Health and Human Services, successors, and her Defend III. CONCLUSION ants-Appellants.** go need no further. A careful read- We ing of the administrative record shows Docket No. 08-4917-CV. FAA conspicuous clarity with was of, with, complied respon- cognizant Appeals, United States Court of applicable under the sibilities statutes Second Circuit. regulations. The conclusions that Argued: Dec. 2010.
reached, inevitable, though not are ade- quately grounded and in accordance with July Decided: Accordingly, deny petition law. we judicial review.
So Ordered. ** showing special dence a need for noise level The Clerk of Court is directed to amend the protection any place vicinity. in the caption official to read as shown above. * Named officials have been substituted for their predecessors pursuant R.App. to Fed. P. 43(c)(2). *5 Diller, for
Rebekah Brennan Center Law, York, School of New Justice NYU (Laura Abel, Bannon, junctions K. Alicia L. entered NY the United States Udell, Jus- S. Brennan Center for District for David the Southern District of York, Law, /.). (Marrero, tice NYU School New New York The district Ahn, Bowker, NY; David W. Sue-Yun enjoined Agencies court from enforc- Wilmer Pickering Hale Dorr 7631(f), § Cutler provision U.S.C. LLP, D.C.; Hirseh, Washington, Jason D. United Leadership Against States HIV/ Wilmer Pickering Hale Dorr Cutler AIDS, Tuberculosis, and Malaria Act of LLP, York, NY, brief), for New on the Act”), (“Leadership 22 U.S.C. Plaintiffs-Appellees. seq., against Plaintiffs-Appellees et Alli- Open International, ance Society Inc. Torrance, Benjamin H. Assistant United (“Path- (“AOSI”), Pathfinder International Attorney States for the Southern District finder”), (“GHC”), Global Health Council (David Jones, York of New S. Assistant and InterAetion. are non-govern- These Attorney, counsel; United States Preet (“NGOs”) mental organizations engaged in Bharara, Attorney, United on the States the international fight against HIV/AIDS brief), Defendants-Appellants. receive under the Act. Lapidus, Rights Lenora M. Women’s 7631(f) Section of the Leadership Act Union, Project, American Liberties Civil provides that “[n]o funds made available to York, (Mie Lewis, New NY Women’s carry out this Act be used to Project, Rights American Civil Liberties provide any group assistance to or organi- Union, NY; York, New Arthur N. Eisen- zation does not have a explicitly Karterton, Alexis New Civil berg, York opposing prostitution.” provision, This Union, York, NY; Liberties New James *6 implemented by and Agen- construed the Esseks, Saxe, Rose LGBT and Pro- AIDS cies, NGOs, requires as a condition of re- ject, Union, American Civil Liberties New ceiving funds, Leadership Act to adopt a York, NY, brief), on the for Amici Curiae policy explicitly opposing prostitution, and American Humanist Association and prohibits recipients engaging from any in Public Health and Human Rights Other activities are “inconsistent” with an Organizations and Experts. anti-prostitution stance. Certain other re- (Eileen Lustberg Lawrence S. M. Con- funds, cipients Leadership Act such as nor, brief), P.C., Newark, on the Gibbons Organization, the Health World are not NJ, Independent for Amicus Curiae Sec- by bound this restriction. tor. below, As explained we conclude that STRAUB, POOLER, Before: and B.D. 7631(f), § as implemented by Agencies, the PARKER, Judges. Circuit beyond falls well what the upheld permissible and this Court have Judge in a separate STRAUB dissents on receipt conditions opinion. 7631(f) funds. merely Section does not PARKER, JR., Judge: B.D. Circuit recipients require Leadership Act funds Defendants-Appellants conduct, from Agency to refrain certain but goes (“USAID”), Development substantially compels for International recipi- further and Department espouse the U.S. of Health Hu- ents government’s and to view- (“HHS”), See point. § man Services and the Consequent- U.S. Cen- C.F.R. 89.1. ly, ters for agree Disease Control and Prevention we with the court district (“CDC”) (collectively, “Agencies” or Plaintiffs have demonstrated a likelihood “Defendants”) in- appeal preliminary Finding success merits. no 7631(e). Second, court, imposed § by the district of discretion
abuse specifies that: Requirement, which affirm. we carry out No funds made available BACKGROUND provide Act be used to this any group organization assistance Leadership Act explicitly a policy that does not have traffick- prostitution and sex opposing the Leader- 2003, Congress passed subsection shall not ing, except enhance Unit- that this strengthen and “to ship Act AIDS, Fight apply the effectiveness to the Global Fund leadership and ed States Malaria, the World response to and States Tuberculosis of the United HIV/ tuberculosis, pandem- malaria International AIDS, Organization, and Health 2009).1 Ill Unit- (Supp. § 7603 Initiative or AIDS Vaccine ics.” U.S.C. several avenues designates agency. ed Nations The Act campaign international through which this 7631(f). only the litigation § This involves run, “5-year, global including to be do not Poliсy Requirement. Plaintiffs development of vaccines strategies”; Requirement’s “sex traffick- challenge the treatments; part- “public-private” and component. ing” agencies and federal nerships between recognized “have NGOs, Congress which Implementation Initial Defendants’ combating effective proven HIV/ 7601(18), §§ pandemic.” AIDS implement the Agencies The defendant concern Congress’s The Act reflects by, part, U.S.- cultural, social, behavioral with the NGOs involved the international based 7601(15). See causes HIV/AIDS. Path- AOSI and fight against HIV/AIDS. 7601(23), forty-one congres- one of Section organizations. two such AOSI finder are §in ad- “findings” set forth sional Asia that aims program runs a Central “Prostitution prostitution: dresses prevent spread HIV/AIDS *7 degrading are to other sexual victimization use, injection drug while Pathfin- reducing it the and children and should be women spread to stem the der works HIV/ to eradicate States policy of United by providing family planning and AIDS industry, the traf- practices. such The sex in more than reproductive health services industry, into such ficking of individuals Both twenty countries. receive causes violence are additional and sexual Agencies than the and from sources other spread of the factors in the of and HIV/ But their supports prostitution. neither epidemic.” AIDS engaging, educating, involve work does assisting groups, prostitutes, such as prostitution-re- two and Congress imposed HIV/AIDS, as well Act fund- that are vulnerable Leadership lated conditions discussing and First, advocating approaches made as specified it no funds ing. among fighting for strategies Act be used carry available to out the HIV/AIDS at, among places, other legalization prostitutes or promote or advocate and forums. trafficking. sex conferences practice prostitution 2008, Pub.L. No. 110— Leadership and Reauthorization Act of 1. Act was reauthorized 2918; Henry and J. 22 U.S.C. 7671. amended in 2008. Tom Lantos Stat. see 122 Leadership Hyde Global United States the Act. version of We cite to the current HIV/AIDS, Tuberculosis, Against and Malaria
225 enacted, activity Leadership expression Act was tution-related and After were, fact, restricted. Legal Office of Department Justice’s (“OLC”) applying warned that Counsel granted The district court AOSI organi- Policy Requirement to U.S.-based preliminary injunctive Pathfinder relief. would be unconstitutional. Heed- Int’l, zations Open Soc’y Alliance Inc. v. U.S. for initially Dev., re- warning, Defendants ing Agency 222 F.Supp.2d Int’l (“Alliance I”). (S.D.N.Y.2006) against from it enforcing frained U.S.- The court thorough engaged analysis changed NGOs. subsequently based OLC Supreme Court’s “unconstitutional condi- and withdrew what it characterized course jurisprudence focusing, tions” in particu- advice,” asserting “tentative prior as its — lar, on Regan v. Taxation Repre- With arguments that “there reasonable sentation, S.Ct. constitutionality” applying support the[ ] (1983), FCC v. League of Policy Requirement U.S.-based or- California, Women Voters and, mid-2005, ganizations, starting L.Ed.2d began Requirement Agencies applying the (1984), Sullivan, and Rust v. grantees. Specifically, to U.S.-based L.Ed.2d 233 requiring issued a USAID directive (1991). that, The cоurt first concluded organizations, as condition of U.S.-based because the substan- Act, receiving funding under “must tially impaired protect- First Amendment policy explicitly prostitu- opposing have a activity by private ed conducted entities tion.” Defendants also construed the Poli- private with funds as a condition of re- grantees cy Requirement prohibiting as benefit, ceiving heightened engaging were in- activities I, scrutiny was warranted. Alliance prostitu- with a policy opposing consistent F.Supp.2d at The court then con- eligible tion. In an effort to remain Policy Requirement, cluded that funding, AOSI both Pathfinder, applied to AOSI and violated adopted policy Pathfinder statements. the First Amendment because it was Pathfinder’s, for stated example, tailored, narrowly imposed a viewpoint- prostitution “opposes trafficking and sex based restriction on their use of private cause primarily because the harm allowing funds without for adequate alter- to women.” communication, native channels of “compelled] affirmatively re- The District Court’s First Decision adopt a quiring policy espous- [them] government’s preferred message.” AOSI and Pathfinder sued the *8 Accordingly, Id. 268-76. the court Agencies, contending conditioning held that Pathfinder AOSI and had dem- Leadership Act the on affirmative onstrated likelihood success on the adoption prostitution of a opposing merits, and their had met burden by compel- violated First Amendment showing irreparable harm. Id. at ling grantees adopt gov- voice the and preliminarily 278. The district thus court viewpoint prostitution, ernment’s and enjoined from enforcing Defendants by restricting grantees in engaging from Requirement against AOSI privately expression Agen- funded Pathfinder, appealed. and Defendants insufficiently opposed cies deem might Appeal The First prostitution. They also asserted unconstitutionally was During appeal, the first course vague respect prosti- Agencies with to what sorts of informed us that and HHS i.e., developing guidelines adequate separation were USAID dence”-— —from (1) grantees legally to establish or work an affiliate if the two entities are
would allow (2) affiliates that would not be separate separate; Leadership no Act funds are with Policy Requirement. The subject to the transferred to the affiliate or used to sub- guide- activities; of the view that the Agencies were sidize its restricted and satisfactorily address the rele- lines would physically financially sepa- entities are and concerns in accordance 41,076. vant constitutional Fed.Reg. rate. 72 The 2007 Brooklyn Legal Ser- with our decision Guidelines elaborated that “whether suffi- Legal Corp. Corp., vices Services physical separation cient and financial ex- (2d Cir.2006) (“[I]n ap- F.3d 223-24 “case-by-case,” ists” would be determined circumstances, Congress may propriate five, and set forth non-exclusive factors rights burden the First Amendment (i) to that relevant determination: the ex- recipients benefits if the separate personnel, manage- istence of recipients adequate are left with alterna- (ii) ment, governance; and the existence of protected expression.”). tive channels for (iii) records; separate accounts and effective, guidelines After the became we degree separation recipi- between the remanded the case to the district court to and ent’s facilities facilities used in the determine first instance whether activities; affiliate to conduct restricted interlocutory appro- relief continued to be (iv) the signs extent which and other Int’l, Soc’y Alliance Inc. priate. Open distinguish forms of identification the two Dev., Agency v. U.S. Int’l 254 Fed. (v) entities; and the extent to which the (2d Cir.2007) (“Alliance Appx. Leadership pro- and the Act II”). gram “protected from associa- with organization tion the affiliated and its The Guidelines 41,077. restricted activities.” permit recipients The Guidelines The District Court’s Second Decision Leadership partner Act funds to with affil- organizations iate that do not with comply remand, On AOSI Pathfinder moved Policy Requirement, provided complaint to amend the to add Global and affiliate maintain recipient “adequate (together, Health Council and InterAction in- separation” so as not to “threaten the “Associations”) plaintiffs, as and to tegrity programs of the Government’s preliminary injunction extend the cover message opposing prostitution.” HHS the Associations. GHC is an alliance of Guidance, 41,076 72 Fed.Reg. (July organizations dedicated to international 2007); Acquisition USAID & Assistance public health. InterAction is an alliance of (“AAPD”) Policy Directive 05-04 Amend- development international and humanitari- 2007). (July ment 1 The Guidelines Many NGOs. of the Associations’ U.S.- (which, infra, slightly discussed were based Pathfin- members —which include 2010), require recipients revised to have der, a member of both GHC and InterAc- “objective integrity independence” participate fight the international tion— “engages affiliate that activi- HIV/AIDS, against receive *9 ties opposition inconsistent with to the [an] funding, subject Policy are therefore (‘restricted practice[ prostitution ] Requirement, and desire relief from it. activities’).” (2010). § 45 C.F.R. 89.3 organizations’ These member HIV/AIDS- Guidelines, initially
The promulgated, prevention administering work includes provided that a recipient programs would be deemed health services and other “objective to have integrity indepen- expressly target groups prosti- and at-risk like
227 2010). They engage advocacy (Apr. tutes. and Amendment 3 The also new concerning global guidance discussion controversial that in specifies comply order to example, practices best Policy health issues—for Requirement, with the Leadership reducing among prosti- for must grantee affirmatively HIV/AIDS state policy tutes —at forums and conferences. “opposed document that it is practices prostitution and sex traf- August per- In the district court ficking psychological because and join mitted InterAction to GHC and physical women, men, they pose risks for injunc- litigation, prеliminary extended children,” 89.1; § AAPD C.F.R. them, tion to and went on to consider 05-04 3 at Amend. and reaffirms that a interlocutory whether relief continued to recipient engage “cannot in activities that light be warranted in of the Guidelines. opposition with inconsistent [its] Soc’y Alliance Inc. v. U.S. Open Int% 18,760. prostitution,” 75 Fed.Reg. at Nei- Dev., Agency F.Supp.2d Int’l ther the 2010 nor the guidance offers (S.D.N.Y.2008) (‘Alliance III”). recipients insight as to what activities was, concluding court held that it be deemed “inconsistent” an “opposi- with de- previous Guidelines did not affect its prostitution.” tion to the Policy Requirement termination that compelled impermissibly speech. The guidance The new also modified the “[wjhile court reasoned that Guidelines for partnering Guidelines an with affiliate may may alter- provide adequate Policy that does not with comply Re- express nate channel for Plaintiffs to their quirement. § See 45 C.F.R. For ex- 89.3. views regarding prostitution,” the clause Guidelines, ample, the revised under which requiring espouse govern- them to profess flexibility “allow more for fund- viewpoint ment’s “remains intact.” Id. It 18,762, ing recipients,” Fed.Reg. at le- heightened scrutiny also concluded that gal required is no separation longer but applicable remained because the considered, factor to be sepa- one Requirement view- discriminates based on management longer expressly rate is no point, and that the Guidelines were too factor, identified as a relevant in determin- Requirement’s burdensome to cure the “objective a recipient whether has in- constitutional Id. at Ac- defects. 546-49. tegrity independence” from an affili- cordingly, the court declined disturb ate, 89.3. C.F.R. preliminary injunction. ap- Defendants pealed pre- from both 2006 and 2008 DISCUSSION liminary injunction orders. Standing I. Promulgated
Additional Guidance
Defendants
Agencies
argue
initially
April
while
appeal
standing.
this
was
lack
Plaintiffs
Plaintiffs bear
pending,
promulgated
establishing standing.
HHS and USAID
the burden
Lu
guidance
Policy jan
further
pertaining
Wildlife,
Defenders of
Requirement
regula-
a formal
—HHS
tion,
(1992).
HHS,
USAID in a
standing
challenged
directive.
“Because
Integrity
Organizational
That
pleadings,
Entities
on the basis of the
we
[here]
Implementing Programs
Are
and Activi-
all
accept
allegations
as true
material
Act,
ties Under the
Fed.
complaint,
and must
the com
construe
2010) (codified
18,760
Reg.
(Apr.
plaint
favor
W.R.
[Plaintiffs].”
Huff
89);
Co.,
pt.
C.F.R.
USAID AAPD 05-04
Mgmt.
Asset
LLC v. Deloitte &
*10
(2d
Pathfinder,
LLP,
AOSI,
compelled
Cir. has
and
549 F.3d
Touche
omitted).
2008) (internal quotation
many
marks
of the Associations’ members to
standing
they
de novo.
questions
adopt policy
statements that
other-
review
We
York,
621 F.3d
that
City
adopted,
New
would not have
and
v.
wise
Carver
Cir.2010).
(2d
engaging
privately
them from
restricts
that is essen-
funded activities and
“irre
comprise the
Three elements
Agencies
them work
that
tial to
but
minimum” of stand
constitutional
ducible
an
might
opposition
deem inconsistent with
(1)
must have suffered an
plaintiff
ing:
Pathfinder,
example,
prostitution.2
to
legally pro
invasion of
injury-in-fact—an
to remain neutral” on the issue
“wishe[s]
(a) concrete and
interest
that
tected
prostitution,
adopted
anti-рrosti-
but
an
(b)
imminent,
and
actual or
particularized,
policy
tution
statement
in order
avoid
(2)
hypothetical;
there
conjectural
alleges
losing Leadership
funding,
between
a causal connection
must be
would,
injunc-
that it
the absence of the
(3)
conduct; and
challenged
injury and
tions,
prostitution-related
self-censor its
merely
likely,
opposed
it must be
conferences,
publications, and
injury will be re
speculative,
on its website.
Lujan,
by a favorable decision.
dressed
560-61,112
S.Ct.
504 U.S.
alleged
Defendants
that the
in-
contend
juries
merely conjectural
are
because no
and InterAction are
Because GHC
plaintiff
“attempted
has
to form
affili-
members,
of their
each
suing on behalf
ate” and “avail
alternative
[itself]
th[at]
standing by
associational
must establish
Appellants’
for communication.”
avenue[ ]
(a)
one of
demonstrating
at least
standing jurisprudence
Br. 22-23. But
would otherwise
members
association’s
go
clear that
need not
makes
Plaintiffs
standing
right
i.e.,
in its own
have
sue
—
potentially
pro-
burdensome
(b)
through
the inter
standing;
constitutional
has
up
setting
organization
cess of
an affiliate
protect
the association seeks
ests
(c)
they can
a First Amendment
bring
before
neither
purpose;
to its
germane
Am.
challenge.
Virginia
See
v.
Booksel-
requested
relief
the claim asserted nor the
Ass’n,
383, 392-93, 108
lers
S.Ct.
of individual
requires
participation
(finding
2. Plaintiffs wish to make. did not twenty-eight bers and of InterAction’s mem- statements
229
remedy, if granted,
the
will inure to the
Standing
B. Associational
of
benefit
those members of the association
contend that
Defendants
GHC
injured”). However,
actually
Agen-
as the
standing
lack associational
and InterAction
assert,
correctly
cies
the
prong
third
of the
prong
fail
third
of the
they
because
the
test is not “automatically
Hunt
satisfie[d]”
test,
which
must estab
Hunt
under
an
“request[s] equi-
whenever
association
nor
lish that
the claim asserted
“neither
table relief rather than damages.” Bano
requested requires
partic
the relief
Corp.,
v. Union Carbide
361
714
F.3d
in
ipation of individual members
the law
(2d Cir.2004). Courts “also must examine
suit.”
230 L.Ed.2d 690 664, 124 159 Press, S.Ct. F.Supp. 990 Cambridge Univ. v. (2004)). (“The a (S.D.N.Y.1997) fact that 245, 250 may- proof individuated of
limited amount challenge the dis- Defendants appeal, On preclude in itself necessary does be Plaintiffs court’s determination trict reasoning This standing.”)- associational They on the merits. likely to succeed itself, held which in Hunt support finds finding court’s the district not contest do had apple growers of that an association harm. conclude We irreparable of statutе, notwith- a challenge standing a likelihood demonstrated Plaintiffs have of and extent nature the varied standing merits because on the of success by the association’s suffered the burdens the First likely violates Requirement the statute. complying with members compelling by impermissibly Amendment , 343-44, 2434. See 432 U.S. espouse government’s Plaintiffs to that GHC and conclude Accordingly, we prostitution. on viewpoint alleged asso- adequately have InterAction Likely standing. ciational A. the First Amendment Violates Preliminary Injunctions II. Spending and Unconstitu- 1. Clause Jurisprudence tional Conditions grant pre review
We
of the
Spending
Clause
of discretion.
injunction for abuse
liminary
“lay
Congress to
empowers
Dep’t, 516 Constitution
N.Y. State Educ.
Alleyne v.
Cir.2008).
Taxes, Duties,
Ex
(2d
Imposts and
and collect
“A district
100
F.3d
(1)
cises,
provide for the
pay
the Debts and
its
its discretion when
court abuses
general
Defence and
Welfare
common
an error of law
or
rests on
decision
Const,
I,
(2)
art.
the United States.” U.S.
finding,
factual
or
its
clearly erroneous
Congress
allows
provision
cl. 1. This
necessarily
prod
though not
decision—
receipt of federal
clearly
“condition[ ] [the]
erroneous
legal
uct of a
error or
recipient
moneys upon compliance
located within
finding
factual
be
—cannot
and administrative
statutory
federal
Mul with
range
permissible
decisions.”
Dole, 483
York,
Dakota v.
51 directives.” South
New
626 F.Sd
City
lins v.
(internal
203, 206,
97 L.Ed.2d
(2d Cir.2010)
107
marks
S.Ct.
quotation
Klutznick,
(1987)
v.
omitted).
here,
(quoting Fullilove
Where,
moving par
448, 474,
action tak
“stay[ government
]
ties seek to
(1980)).
It is well settled
to a L.Ed.2d 902
pursuant
interest
en
scheme,”
policy goals
to further
they Congress is entitled
statutory
regulatory
(1)
spending power
indirectly through its
a likelihood of success
must establish
by direct
to achieve
merits,
might
harm in it
not be able
irreparable
on the
207, 107
id. at
S.Ct.
injunction. Alleyne,
regulation.
See
the absence of
Ar
(“[Objectives
thought to be within
quotation marks
F.3d at 100
may
fields
omitted);
legislative
enumerated
Lynch
City
v.
New ticle I’s
accord
(2d Cir.2009).
through
attained
the use
York,
nevertheless be
Ulti
589 F.3d
and the conditional
spending power
underlying
constitutional
mately, “[i]f
(internal quotation
close,
grant
of federal funds.”
uphold
... we should
question omitted)). Congress’s
Berlin,
citation
v. Town marks and
injunction.” VIP
LLC
broad,
Cir.2010)
(2d
Berlin,
Spending
under the
Clause
power
593 F.3d
(alteration
limitations on Con
as “the constitutional
(quoting
original)
Ashcroft
power
Union,
exercising
spending
gress when
Am. Civil Liberties
receipt
on
exacting
than those
its authori-
of federal funds
not infringe
are less
upon
Id. at
regulate directly.”
recipient’s
First
ty to
Amendment
rights
given
the other has
rise to
three
*13
Supreme
seminal
Court decisions and sev-
that
Defendants contend
because
related
from our
eral
cases
Circuit. The
Spending
a
Clause
Supreme
are Regan
Court cases
v. Taxa-
enactment, and
are free to de
Plaintiffs
540,
Representation,
tion With
461 U.S.
if
wish to
funding
comply
cline
do not
1997,
(1983),
FCC
conditions,
Policy Require
its
with
League
California,
v.
Women Voters
subjected
ment should be
minimal
468 U.S.
104
82
S.Ct.
L.Ed.2d
scrutiny
Congress’s
under
But
Dole.
(1984),
Sullivan,
278
v.
and Rust
500 U.S.
broad,
spending power, while
is not unlim
111
114
S.Ct.
L.Ed.2d 233
ited,
provisions
and other constitutional
(1991). Our cases include a
series
deci-
provide
independent
an
bar to the
may
concerning
imposed
sions
conditions
upon
grant
funds.
conditional
of federal
Pursu
recipients of
from
Legal
Ser-
ant
to this “unconstitutional conditions”
(“LSC”):
Corporation
Velazquez
vices
v.
doctrine,
known,
as it has come to be
(2d
Legal
Corp.,
Services
This tension
regulated any
between the breadth of
activity,”
First Amendment
Congress’s spending power
“simply
pay
one hand
not to
but
chosen
for TWR’s
principle
and the
condition
lobbying.”
on the
Id. at
We
decisions
Court affirmed our invali-
arising
Legal
under the
dation of that viewpoint-based
Serviсes
restriction
Corporation
pursuant
540-41,
Act of
to which in
II.
Velazquez
531 U.S. at
local
grants
organiza-
interpreted
the LSC makes
S.Ct. 1043. The Court
Rust as
provide
legal
having
tions that
free
assistance to
implicitly
on the rationale
“reli[ed]
*15
I,
indigent
Velazquez
clients.
164 F.3d at
that the counseling activities of the doctors
1996, Congress passed
X
legislation
governmental
759.
under Title
amounted to
that
barring
grants
engage
speech,”
LSC
to entities
explaining
“viewpoint-based
that
activities,
lobbying
in certain
such as
or
funding decisions can be
in
sustained
in-
actions, thereby “restricting]
class
grant-
stances in which the government is itself
use of
speaker,
instances,
Rust,
ees’
non-federal
federal funds
like
in
alike.”
at 760. In
government
order
cure the which the
private
use[s]
speakers
“constitutional infirmities” of the 1996 re-
pertain-
transmit information
strictions,
“program integrity”
LSC issued
to its
program.”
own
Id. at
121
regulations,
upheld
modeled after those
S.Ct.
quotation
marks and
Rust,
omitted).
allowing grantees to affiliate with citation
Velazquez
II Court
held, however,
organizations
engage
prohibited
that did
program,
LSC
un-
activities,
long
X,
as
as the entities main-
like Title
“designed
was not
adequate physical
sep- promote
tained
and financial
a governmental message,”
an
as
lawyer
aration.
Id. at 761-62.
LSC-funded
“is not the govern-
speaker,”
“speaks
ment’s
but rather
on the
I,
In Velazquez we considered a facial
private,
behalf of his or her
indigent
challenge to the 1996 statute and LSC
client.” Id. at
forcible overthrow of
W. Va.
Barnette,
State Bd.
Educ. v.
Warrants
Scrutiny
624, 633, 642,
Heightened
Although viewpoint-based funding condi- concluding that
justify
Rust could not
target
tions that
speech
necessarily
are not
although,
restriction because
as Rust had
unconstitutional,
Rust,
see
established,
500 U.S.
implicitly
“viewpoint-based
such
funding
conditions are consti-
decisions can be
in
sustained
in-
tutionally
In Regan,
troublesome.
for ex-
in
stances
which ...
the government
ample,
applied
scrutiny
the Court
minimal
private speakers
use[s]
to transmit
infor-
was,
in reviewing a condition that
unlike mation pertaining to its
program,”
own
Policy Requirement,
decidedly view-
grantees
LSC
were not speaking on behalf
alleged speech
cases turned on
pushes beyond
whether the
upheld
the restrictions
in Re-
negative,”
restriction was affirmative or
Rust,
Dis-
cases,
gan,
and the LSC
and that we
easy
say
sent at
but that is
when none
likely
conclude Plaintiffs are
to succeed in
of those
cases involved an affirmative
demonstrating that it is an unconstitutional
partly
Policy
restriction.
Requirement
It is
because the
condition.
just
is
such a restriction that it
II,
(“UNAIDS”)
Velazquez
recognized
have
government.
HIV/AIDS
(internal
540-42,
quota-
advocating
penalties
for the reduction of
omitted).
BLS,
in
Finally,
prostitution
prevent
tion marks
such penalties
—to
court to
for the district
interfering
while we remanded
with outreach efforts —as
“adequate alternative channels”
apply the
among
practices
the best
for HIV/AIDS
viewpoint-neutral pro-
test
to the LSC’s
prevention.4
claim that being
Plaintiffs
regulations,
expressly
we
gram integrity
opposition
prosti-
forced to declare their
I,
Velazquez
that “sub-
citing
recognized,
credibility
integ-
tution “harms
[their]
that are directed to-
restrictions
stantive
NGOs,
rity
generally
taking
which
avoid
might require “clos-
speech as such”
ward
policy positions likely
controversial
to of-
“[went]
issue
er attention” —an
partner organiza-
fend host nations [and]
statutory
challenged
restrictions
tions,”
“offending
and risks
all of the[]
BLS,
F.3d at
cases.” See
[the LSC]
groups
whose
approach HIV/AIDS
substan-
differ from that
the government,”
not to
tive,
and “directed toward
viewpoint-based,
very
mention some of the
people, prosti-
affirmatively requires recipi-
as it
speech,”
tutes,
stop
“whose trust
must earn to
It is this bold combination
speak.
ents to
spread
Appellees’
Br.
HIV/AIDS.”
speech-targeted
of a
funding
in a
condition
11-12.
is both affirmative and
restriction
viewpoint-based that war-
quintessential^
3. Rust and the Government-
scrutiny.
heightened
rants
Speech Doctrine
Furthermore,
targeted speech,
con-
Policy
In defending
Require
in the context of the
cerning prostitution
mandate,
viewpoint-based
effort,
ment’s
HIV/AIDS-prevention
international
Rust,
Agencies
upheld
turn to
which
subject
international debate. The
is a
viewpoint-based prohibition on abortion
freely on such mat-
right to communicate
Rust,
counseling.
Since
lies at the heart of
public
ters of
concern
“explained”
Court has
that decision as hav
Amendment. See NAACP v.
the First
Co.,
ing implicitly
upon
“government
relied
Claiborne Hardware
principle, stating
“viewpoint-
that:
speech”
(“[E]xpression
always
issues
based
decisions can be sustained
has
highest rung
rested on the
of the hierar-
instances
which
Rust,
instances,
speaker,
itself the
like
chy of First Amendment values.”
omitted)).
private
quotation
use[s]
marks
which
*18
Requirement
principle,
speakers
pertain
offends that
man-
to transmit
information
II,
dating
affirmatively espouse
ing
program.” Velazquez
that Plaintiffs
to its own
government’s position
the
on a contested
S.Ct. 1043
omitted).
quotation
marks and citation
public issue where the differences
both
example,
government ap
the This is because “when the
real and substantive. For
(“WHO”)
par
a
propriates public
promote
Health
funds to
Organization
World
say
to
Programme
the Joint
Nations
on ticular
of its own it is entitled
United
validity
position
prop-
type
on the
4. The dissent declines to comment on the
the
of Plaintiffs’
issue,
relevant;
and asserts that “the sub-
approach
prostitution
rath-
er
to
is
validity”
position
stantive
of Plaintiffs’
er,
targeted speech
it is the fact that
the
prostitution is "not determinative of whether
public
a controversial
issue that is
concerns
is constitutional.”
constitutionally significant.
suggest
Dissent at 266. But we
not
do
Rosenberger,
regard
abortion,” and,
it wishes.”
515 U.S. at with
what
to
if asked
(“[W]e
permitted
abortion,
fendants
advocacy
if
cen-
HJV/AIDS-prevention pro-
anti-prostitution
But
were
global
Act’s
could,
messaging
government’s program,
tral to the
it
anti-prostitution
an
gram as
II,
course,
Velazquez
simply
choose not to fund these
U.S.
campaign. Cf
short,
(“Congress
organizations.
Agencies’
cannot re-
the
suggestion
requiring
a mere
to
on
as
Plaintiffs
cast a condition
case,
every
adopt
anti-prostitution policy
lest
an
statement
of its program
definition
integral
Leadership
program
to
to the
Act
be reduced
the First Amendment
exercise.”).
by
If
gov-
govern-
the
is undermined
the fact that the
semantic
simple
principle
high-profile,
allowed Con- ment has chosen to fund
ernment-speech
funding recipients
global organizations
to affir-
remain free to
gress
compel
to
viewpoint
every
express
openly express
indeed
matively espouse
—and
—a
contrary
within a
or
at all.7
subsidiary
policy,
issue subsumed
federal
no
exception
the
would
program,
spending
Nor are we
persuaded
the rule.
swallow
argument
Agencies’
Policy
Re
“leeway”
that advocating quirement
Defendants assert
is entitled to
because
“central” to it
against prostitution
implicates “foreign
Appellants’
is indeed
affairs.”
Act
Br.
Leadership
program, Appellants’
govern
34-35. While mindful of the
strong
managing
Br.
but it is difficult to reconcile
ment’s
interest
inter
relations,
agree
with what the Act does. As we national
we
with the
assertion
dis
seen,
interest,
Policy Requirement
case,
ex
trict court that
have
this
this
exempts
organizations
three
and does not
pressly
warrant
deference that the
I,
agencies
having
comply Agencies request.
all
to
See Alliance
U.N.
7631(f) (“[T]his
§
F.Supp.2d
Agencies’
with it. 22
sub
U.S.C.
265-67.
reli
apply
section
to the Global Fund
ance on DKT
shall
Memorial Fund Ltd. v.
AIDS,
Malaria,
Fight
Agency
Tuberculosis and
Development,
International
(D.C.Cir.1989),
Organization,
the World Health
the Inter
suprа simply highlight Congress's exempt the invasive- tion with decision to these requires recipient ness of a condition that organizations. simply Dissent at 266. We it, affirmatively represent to the world that 7631(f)’s exemption note that clause under- independent, non-governmental entity, Agencies' adoption cuts the assertion that the opinion government's opin- holds an —the anti-prostitution policy of an is central to the may ion—that in fact hold. program. Contrary suggestion, we dissent's do any "policy judgment” not make in connec- *20 501(c)(4) § Policy Requirement compels affiliate freed it to in engage finder. adopt to a state- and, domestic NGOs privately lobbying, League funded in issue, prohibits particular Voters, ment on a Women the restriction in engaging expression certain them recipient would have been saved if the at, example, conferences and forums stations had been to form allowed affiliates These fac- throughout the United States. engage privately to in funded editorializ- speech tors convince us that the is far ing. simply It does not make sense to foreign more of a domestic than a concern. conceive of the here Guidelines as some- addressing Policy Requirement’s how the 4. The Guidelines by affirmative speech requirement afford- Finally, Agencies the contend ing an engage privately outlet to funded any compelled-speech type problems silence; words, by providing other an Policy Requirement successfully in the are nothing may outlet to do at all. It very by any addressed Guidelines because well be that the afford Guidelines Plaintiffs entity unwilling opposition to state its to adequate an outlet for expressing their prostitution can form an affiliate that does opinions prostitution, on but there re- consequence, Agencies As a as so. mains, that, additional, top on affir- sert, parent organization is not com requirement recipient mative that the enti- speak any message to at all. But pelled ty pledge opposition prostitution. As this assertion fails to confront the fact that stated, aptly the district court “[w]hile the a or an recipient parent whether the is may may provide Guidelines an affiliate, required affirmatively adequate alternate channel for Plaintiffs to speak government’s viewpoint pros express regarding prostitution, their views “adequate titution. chan alternative requiring the clause to adopt Plaintiffs test, which protected expression” nels regarding prostitu- Government’s view predicated on the rationale that limita III, tion remains intact.” Alliance speech permissible grantees tions on are if Guidelines, F.Supp.2d by at 545. The elsewhere, express opinions can their does nature, very their do not account for that provide proper framework for eval requirement. uating Policy Requirement’s speech above, For the reasons set forth we mandate. The curative function of an “ad conclude Plaintiffs have demonstrated equate alternаtive channel” is to alleviate a likelihood of success on the merits of speech by the burden of a constraint on their challenge. First Amendment Be- providing an an organi outlet allows cause the engage through compels zation to use of — grantees espouse privately government’s posi- affiliate—in the expres funded issue, im tion on a controversial the district sion otherwise would have been permissibly court did not abuse its prohibited pro prelim- the federal discretion gram. inarily For example, Regan, enjoining pending its enforcement 501(c)(3) organization’s ability § form trial on the merits.8 we, ground, 8. Because we affirm on this like tion.” 45 C.F.R. 89.3. Plaintiffs contend court, Agencies the district do not reach promul- Plaintiffs' ar- that because the have not gument Policy Requirement, gated guidance regarding as im- the kinds of plemented by Agencies, is unconstitution- and activities that will be deemed in- ally vague respect sufficiently opposed prostitution, with to what sorts of it is un- prohibited prostitution-related expression as "inconsistent with clear in what not, opposition practice[] prostitu- grantees may, engage. [an] Plain- *21 I CONCLUSION A further of the explanation Leadership grant preliminary of district court’s The Act in helpful understanding be is AFFIRMED. injunctive relief purpose restriction issue 2003, Congress here. enacted the Leadership Against United States STRAUB, Judge, dissenting: Circuit HIV/ AIDS, Tuberculosis, Act, and Malaria today Policy holds that the majority The (codified 108-25, Pub.L. No. 117 Stat. 711 beyond what the “falls well Requirement seq.). 7601 et § at 22 as amended U.S.C. up- have and this Court Supreme Court in reauthorized and amended was re- on the permissible held as conditions 7671; 2008. See U.S.C. § Tom Lantos Maj. Op. funds.” ceipt Henry Hyde and J. Global United States contrary, Policy Require- 223. On the HIV/AIDS, Leadership Against Tubercu- ment, imple- together losis, with the Guidelines and Malaria Reauthorization Act of 110-293, Defendants, No. precisely is line Pub.L. Stat. 2918 mented (codified seq.). 7601 et § at U.S.C. conditions” doc- with the “unconstitutional current version of the Act directs the applied it has been the context trine as comprehensive, President to “establish a alleged to violate the subsidy conditions integrated, 5-year strategy expand and Policy Require- Amendment. The First improve global efforts to combat HIV/ penalty a coercive imposes ment neither AIDS,” 7611(a), § provides U.S.C. rights nor protected First Amendment taxpayer fight billion of funds to $48 way in a at the sup- discriminates aimed 7671(a). id. epidemic years, over five Furthermore, pression of ideas. provides strategy The Act that this shall Policy nature Re- viewpoint-based “make the reduction of behav- HIV/AIDS quirement entirely proper is because the priority ioral risks a of all ef- prevention implicate public- Act does not means, by,” forts other among “promoting principles, forum but rather allows the activity abstinence from sexual and en- government to subsidize the transmittal faithfulness,” couraging monogamy and message part it has concluded is of its “educating boys men and about the risks fighting method of preferred HIV/AIDS. procuring commercially sex and about Therefore, heightened scrutiny is not violent the need end behavior toward Re- proper this case. Because girls,” “supporting partner women and entirely rational quirement is exercise country community identify efforts to Congress’s powers pursuant social, economic, and address or cultural Spending Clause because Plaintiffs factors, gender-based such as ... violence likely have not shown that empowerment lack of for women [and] succeed on the merits of their claim that ..., directly which contribute to the trans- unconstitutional, Policy Requirement HIV,” “promoting cooperation mission of grant I would vacate the District Court’s prosecute with law enforcement offend- preliminary injunction. Accordingly, of a trafficking, rape, ers of and sexual assault respectfully goal eliminating I crimes with the such dissent. Indeed, point argument
tiffs oral left us with the distinct out that restrictions on cases, impression have a at issue in the LSC the cases on which that not even Defendants grasp engage expres- Agencies attempted have on what it means to to model opposition regime, substantially spe- ''inconsistent” with an instant were more sion prostitution. cific than the is here. *22 crimes,” “working rape, go only organizations and to eliminate “funds that share violence, assault, sexual and gender-based disapproval prostitution the Act’s and chil- exploitation Int’l, the sexual women and trafficking.” sex DKT Inc. v. U.S. (I)- 7611(a)(12)(A), (F)-(G), § Id. Dev., dren.” Agency Int’l 477 F.3d for (J). Congress explicitly found that (D.C.Cir.2007). [prostitution and other sexual victim- Defendants the United Depart- States degrading to women chil- ization and ment of Health and Human Services dren and it should be the (“HHS”) and the United Agency States for prac- United States to eradicate such (“USAID”) Development International industry, trafficking tices. The sex (“Agencies”) implemented the Policy Re- industry, of individuals into such and quirement by promulgating regula- certain sexual violence are additional causes of tions and directives. The current rules spread and factors in the of the HIV/ require that Leadership recipients Act epidemic. AIDS agree public announcements of the re- 7601(23). §Id. funds, ceipt of in funding and award docu- light provide In goal its for ments, they “that are opposed prac- “private expanding pub- sector efforts and prostitution tices of and sex trafficking lic-private partnerships sector to combat because of the psychological physical and HIV/AIDS,” 7603(4), § strategy id. and its women, men, risks pose chil- and so, doing part, by “encouraging mono- dren.” Organizational HHS Integrity of faithfulness,” gamy “educating and men Implementing Entities Programs & Activi- boys and about procuring the risks of sex Act, ties Under the Leadership 45 C.F.R. commercially,” “working and to eliminate (2010); § 89.1 see Agency also U.S. exploitation the sexual of women and Dev., Int’l AAPD 05-04 Amendment children,” 7611(a)(12)(A), (F), (J), § id. Implementation of the [Leadership Act]— Congress imposed two conditions on Lead- Eligibility Limitation on the Use of Funds ership Act funds that are relevant to this Opposition & to Prostitution & Traf- Sex First, Congress provided сase. that no ¶ 2(A)(1), ficking Attachment A “may be to promote funds used or advo- USAID The Agencies [hereinafter APPD]. legalization practice prostitu- cate the or promulgated organizational also integrity 7631(e). § trafficking.” tion or sex Id. guidelines guidance (“Guidelines”), Second, Congress provided that recipient which allow a Leadership ... may provide funds be used to
[n]o funds to maintain an affiliation with an any group organization assistance to organization that anti-prostitu- lacks the policy explicitly that does not have a 7631(f). policy required by § tion 22 U.S.C. opposing prostitution and sex traffick- require The Guidelines the recipient ing, except that this subsection shall not objective “have integrity indepen- AIDS, apply Fight to the Global Fund to any dence” from that “engages affiliate Malaria, Tuberculosis and the World activities inconsistent with recipient’s Organization, Health the International opposition prostitution.” to ... 45 C.F.R. AIDS Initiative or to Vaccine Unit- 89.3; § see APPD also USAID ¶4®. agency. ed Nations “Objective integrity independence” 7631(f) § (“Policy Requirement”). will be found if the affiliate receives no way, Congress this ensured not Leadership transfer of Act funds from the “is, no Act funds recipient recipient would be used to and the to the ex- promote prostitution, circumstances, but practicable sepa- also tent in the organization.” thought protected by the affiliated 45 freedom of the First
rate from
89.3(a)-(b);
against
C.F.R.
see also USAID Amendment
state action includes
¶ 4(B).
separation”
right
speak freely
right
APPD
both the
and the
“[Sufficient
*23
case-by-case
“on a
speaking
Wooley
will be determined
basis
refrain from
at all.”
v.
facts,”
totality
705, 714,
1428,
of
Maynard,
...
on the
the
430 U.S.
97
based
S.Ct.
(1977);
including by examining five non-exclusive
ed
on even more immediate and ur-
II
silence.”).
gent grounds than
The Su-
preme
government
Court has struck down
challenges
Policy
Plaintiffs’
to the
Re-
attempts
directly compel
school children
quirement
grounded
case are
in two
this
Pledge
to recite the
Allegiance
of
on pain
government
substantive restrictions on
expulsion
public school,
from
see id. at
by the
imposed
conduct
First Amendment:
63 S.Ct.
or to compel drivers to
prohibition against compelled
bear a state’s motto on
plates
their license
рrohibition against
and the
viewpoint dis-
fine,
on pain
monetary
of a
Wooley,
see
crimination. Because the
Require-
714-17,
U.S.
The First Amendment
expression, government
United
regulation may
States Constitution provides that
speaker
“Con not favor one
over another.” Id.
gress shall make no
... abridging
law
against speech
“Discrimination
because of
Const,
speech.”
freedom of
message
amend. I.
presumed
to be unconstitu-
question
There is no
right
that “the
Viewpoint-based
tional.” Id.
restrictions
specter
regulation
were direct
or a crimi
“raise[]
ideas or view-
may effectively
penalty
drive certain
nal
at stake.” Nat’l Endowment
&
marketplace.”
from the
Simon
points
Finley,
the Arts v.
587-
Schuster,
N.Y.
(1998).
Inc. v. Members
State
BdL,
Crime Victims
conditions,
Subsidy
absent
circum
special
(1991).
“The
116 L.Ed.2d
stances,
subject
“cannot be
to the least- or
presumptively places
First Amendment
analysis—
less-restrictive means mode of
beyond
pow-
this sort
discrimination
which,
...,
like the undue burden test
government.”
er of the
appropriate
assessing
govern
more
ment’s direct
of a
regulation
fundamental
*24
B
right
government
creates a fed
—when
directly
does not
When
spending program.” Brooklyn Legal
eral
only implicates First
regulate speech, but
219,
Legal
Corp.,
Sens. v.
Sens.
462 F.3d
through
Amendment
interests
conditions
(2d Cir.2006),
denied,
229
cert.
552 U.S.
spending,
on federal
a different framework
810,
(2007).
44,
128 S.Ct.
would arise
cf.
Sullivan,
M.
Unconstitutional
denial
infringe speech.”
Kathleen
“its
Id.
Conditions,
Harv.
L.Rev.
explained
expanded
ways
SpeiseVs
in two
on
initial
decision,
Representation
the Supreme
discussion of the “unconstitutional condi-
League
decided
Court
FCC v.
Women
as it applies
tions” doctrine
to conditions
of
Voters,
on government benefits or subsidies that
(1984),
L.Ed.2d 278
which underlined the
First,
affect
rights.
First Amendment
of
importance
structure
a
affiliate
avail-
noted that
would
condition
able in Taxation
Representation.
be unconstitutional if it
a
With
operated as
coer-
Voters,
League
cive
on
Women
penalty
exercise
First
rights.
Congress’s prohibition
Amendment
Court ruled that
suggested
The Court
ways
editorializing by any
two
that
condition
noncommercial broad-
could
if
do this:
that
a federal
recipi-
grant
restricted
cast station
received
ent’s First
“sufficiently
Amendment
outside of was not
limited
to justify
the scope
recipient’s
of the
in
participation
abridgment
important
the substantial
regulations preventing federally
First
freedoms which the
funded
journalistic
jealously protects.”
projects
providing
Amendment
from
abortion counsel-
By denying federal
248 (some in order
erally
project
to ensure
funded]
internal quotation marks omit-
ted).
federally
integrity
pro-
plurality
funded
expressly
also
distin-
guished cases that
gram.
penalties,
“involved true
such as
promotion
denial of a
outright
or
198,
1759;
Id. at
see also Ve
discharge
employment,”
from “non-
Legal
Corp.,
Sews.
lazquez v.
F.3d
subsidies,” like the one at
in
issue Ameri-
Cir.1999)
(2d
[hereinafter
Ve
Library
can
Ass’n. Id. at 212 n.
lazquez
(explaining
restriction
I]
S.Ct. 2297.
limited to
Rust “was
at odds
way,
this
American Library Ass’n
Congress
seeking
with the values
was
precisely
was
Speiser,
line with
Taxa-
grant program”),
through
affd,
advance
tion
Representation,
With
League 149 L.Ed.2d
Voters,
Women
acting
Rust. When
(2001).
pursuant
Spending
to its
powers,
Clause
Finally,
United States v. American Congress may attach conditions to federal
Ass’n,
Library
subsidies that have the effect of limiting
(2003),
L.Ed.2d 221
recipients’ First Amendment rights, as
upheld a law that
denied
li-
long as the conditions do not limit free
provide
braries
Internet access
speech outside of
scope
govern-
unless the libraries installed software to
program
ment
deny
and do not
indepen-
obscenity
block access to
and child pornog- dent
recipients
benefits to which
are other-
raphy
prevent
and to
children from access- wise
entitled
an attempt
penalize
ing inappropriate material.1 The plurality First Amendment activity. Even when
oрinion rejected
argument
that the law funding conditions limit or affect speech,
imposed an unconstitutional condition on such limits are generally permissible if
receipt
of federal funding because it
they
are meant
govern-
to ensure that
“penalized]
library
failing
to install ment funds are used for
purposes
filtering software on every one of its Inter-
they
which
were authorized. This is be-
computers.”
net-accessible
Id. at
123 cause,
special circumstances,
absent
there
(quoting
S.Ct. 2297
id.
is no coercive force behind a funding con-
(Stevens, J., dissenting)).
plurali-
truly
dition that is
cabined to the federal
ty explained that the law
subsidy program to which it is attached.
“penalize”
does not
libraries that
If potential recipients
choose
do not wish to abide
software,
not to install
deny
condition,
such
by the
they
simply
can
choose
right
them the
to provide
patrons
their
not to accept the funds.
Library
See Am.
Rather, Ass’n,
(“To
with unfiltered Internet
access.
249
(“[Subsidies
that,
available,
just
1759
sub-
alternative channels are
re-
S.Ct.
in
recipient
way
The
no
com-
protected
sidies.
strictions on
First Amendment
[federally
operate
pro-
pelled
activity
funded]
within
imposed
scope
of the
simply
subsidy.”);
it
decline the
ject;
can
only
program
apply
federal
to that federal-
Bell,
555,
College
City
v.
U.S.
Grove
ly
program
funded
and therefore are not
(1984)
1211,
575, 104
Granting certiorari
533,
121
message.”
S.Ct.
Id. at
121
Velazquez,
governmental
531 U.S.
Gorp.
[hereinafter
mer than the latter.
rejected
II
also
Velazquez
Court
“did
that while the Rust Court
explained
the restric-
government’s argument
rationale
reliance on the
place explicit
challenging
tion
suits
welfare laws was
doctors un-
counseling services of the
con-
“necessary
scope
to define the
governmental
Title X amounted to
der
program”
“help[ ]
tours of the federal
on this
explained
... we have
Rust
in a
system
current welfare
function
II,
understanding.” Velazquez
by remov-
more efficient and fair manner
The Court therefore
49, 121
(citing Regan
S.Ct. 1043
v. Taxa-
Ill
Representation,
tion
With
case,
majority
this
(1983),
concludes that
*34
Randall,
Policy
513, 519,
Requirement
Speiser
height-
and
357 U.S.
“warrants
(1958)).
1332, 2
scrutiny”
ened
L.Ed.2d 1460
because it is a “bold combi-
nation in
a
speech-
condition of a
Finally, in United States v. American
,
targeted restriction that is both affirmative
Ass’n,
Library
194,
539 U.S.
123 S.Ct.
and
quintessentially
viewpoint-based.”
2297,
(2003),
156
221
plurality
L.Ed.2d
a
Maj. Op.
However,
at 236.
Policy
explicitly rejected
argument
the Court
Requirement
permissible
is a
funding con-
Velazquez
II limited Rust
to eases
dition under the “unconstitutional condi-
government
“‘in which the
seeks to com-
”
tions” doctrine as it has
applied
been
in
municate a specific message.’
Id. at 213
government
subsidy context because it
n.
tice Stevens
the American Li-
brary
plurality’s
Ass’n
assertion that Rust
A
Congress
allowed
to restrict
the scope of
obvious,
Although it is
it must be noted
subsidy
its own
programs by arguing that
at
the outset that the
Requirement
involved,
only
only
to,
“Rust
applies
does not actually compel anyone
speak
governmental
is,
instances of
speech —that
government’s
favored viewpoint. The
situations in which
government
seeks
is a condition on the
specific
to communicate a
message.” Id.
voluntary receipt
plurality
that Velazquez
(1977);
reasoned
II did
see also Tax-
not,
special
cir-
government
except
Representation,
With
ation
cumstances,
may simply be
(“Although TWR does
coercive and
wants,
recipient.
money
potential
much
declined
See
have as
“[S]ilence,
its freedom
supra
cannot exercise
cited
at 248^19.
thus
cases
like, the Constitution
is,
fact,
as it would
Plain-
neutrality”
option
as much
“an
to such
confer an entitlement
does not
Maj. Op. at 234.
tiffs.” See
necessary to realize all
may be
funds as
course,
progeny teach
Speiser
Of
and its
of that freedom.”
advantages
instances,
that,
the denial of a
in some
omitted));
549, 103
id. at
marks
quotation
government benefit can have
same
(“[A]
decision not
legislature’s
as the
“deterrent effect” on free
the exercise of
fundamental
to subsidize
Speiser,
regulation
speech.
direct
See
right,
and thus
infringe
does not
right
The “un-
the majority’s assertion that “there proper question re- is whether mains, Guidelines], top plaintiffs [the the addi- burdens on the organiza- under tional, requirement affirmative tional integrity guidelines “in pre- effect entity recipient pledge opposition clude the plaintiffs establishing an Virginia While it true that funding is dicta West actually when a condition com- Barnette, State pels speech. Board Education v. govern- The level of interest the 624, 633-34, L.Ed. 1628 ment must demonstrate is relevant once (1943), suggests that infringement once the rights of First Amendment compelled speech, may found to question have be demonstrated. in this case is required to offer "even more actually immediate and whether the condition in- urgent grounds” fringes rights than when it restricts First Amendment in the first instance; speech, speak that case does not to determin- would I hold that it does not. *40 so, private funding speech tends to demon- If alternative channels affiliate. any viewpoint-based attached inadequate, plaintiffs may pre- strate that and are challenge.” at condition to influence primarily is intended as-applied on their vail prelimi- suppress I behavior or ideas rath- vacate to certain Because would legitimate objective this than to a or injunction remand case to er achieve nary and Court, would How- promote government message. Plaintiffs be free a the District ever, challenge spending a is not program to the “when as-applied to raise limited, Brooklyn proper providing under the Le- universal but benefits Guidelines (as time. of recipients” at that a restricted number is gal Services standard Rust), that the case here and and when forum, C a program public “does not create proving virtually impossible, coercion is na- concluding that the affirmative After denying subsidy because a does not simply ser- ture of “raises belief, coerce because of the criterion concerns,” the ma- ious First Amendment unconstitutionality is whether denial of the ultimately heightened jority asserts subsidy threatens to drive certain ideas or scrutiny applies in this case because of the viewpoints from the marketplace.” Ve- combination” of an affirmative- “bold II, 552, lazquez at 531 U.S. requirement viewpoint- is also (internal (Scalia, J., dissenting) quotation 234-35, Maj. Op. 235-36. For at based. omitted). marks and citation above, nothing explained reasons about Policy of the Re- the affirmative nature First, do not and the urge, Plaintiffs requires scrutiny to quirement heightened conclude, majority correctly does not Likewise, majori- contrary аpply. Policy at Requirement aimed viewpoint-based funding ty’s suggestion, suppression any dangerous ideas. inherently are not “constitution- conditions There is no that Con- simply evidence troublesome,” at Maj. Op. and the ally enacting gress’s purpose of the con- viewpoint-based nature Policy attaching Requirement Act and issue in case does not war- this dition (or pro-prostitution was to views suppress heightened scrutiny. rant issue). neutrality Congress even on the thought way to Funding hardly that discriminate on could have the best conditions prostitution in the only subject suppress support are viewpoint the basis (1) would be federal scrutiny they when are discourse to offer heightened range groups funds to narrow dangerous at the a suppression “aimed Randall, HIV/AIDS, ideas,” if Speiser v. wished combat but U.S. (1958) they espoused anti-prostitution position. (2) omitted), Both the quotation purpose marks effects far Requirement cry in the a are a from those imposed when context of designed encourage diversity cases where the condition was program clearly suppression in a at the or com- private of views or to facilitate aimed See, context, pulsion qua speech. e.g., of speech forum see Rosenber- quasi-public Co., Grosjean Am. Press Ve- ger, II, S.Ct. 1043. L.Ed. 660 lazquez (“[The because, light of are not in the tax] These classes cases unrelated. bad history present setting, of its it is viewpoint discrimination its presence seen to and calculated de- government program in the context be deliberate of a tax to limit the policy objective guise has no other than vice *41 262 information.”); see sages, government may of also Min- the not discrimi-
circulation
Co. v.
Star & Tribune
Minn.
nate
neapolis
“against
otherwise within the
Revenue,
575, 579-80,
830,
Comm’r
forum’s limitations.” Id. at
115 S.Ct.
(1983) (dis-
1365,
295
75 L.Ed.2d
103 S.Ct.
example
subsidy
2510. One
of a
program
Speiser, 357
Grosjean);
U.S. at
cussing
pays private speakers
does
but
Rather,
518,
1332.
the
78 S.Ct.
public
program
create a limited
forum is a
“
achieving
at
Requirement
is aimed
Con-
government
in which
private
‘use[s]
legitimate goal
eradicating pros-
gress’s
speakers
specific
transmit
information
”
reducing behavioral risks
a
titution and
pertaining to its own program,’ Ve-
technique
fighting
More-
HIV/AIDS.
II,
541,
lazquez
at
263
in ernment has chosen to fund a method of
subsidy
from the
at issue
“apart
gram
comparably ob-
Rosenberger
combating
pri-
... and from
includes its
HIV/AIDS
allocating public bene-
partners taking
anti-prostitution,
on
jective decisions
vate
the Arts v.
fits,”
Endowment
position
Nat’l
to the exclu-
anti-sex-trafficking
2168,
569, 586, 118 S.Ct.
Finley, 524 U.S.
program
sion of an alternative
that would
(1998), at issue in cases
grantees
allow
to remain silent on the
found
discrimination was
viewpoint
where
speak
pro-prostitution
issue or to
mes-
words, public forum
invalid.
In other
cases,
in the
sage.
Velazquez
Unlike
in this case because
apply
do not
principles
strategy
of values”
government’s “set
Act
Leadership
not authorize
Congress did
combating
would be weak-
HIV/AIDS
public
“in
to create a
forum
funds
order
distorted,”
I,
ened,
Velazquez
“diluted or
themselves,” Am.
express
for [Plaintiffs]
partners
164 F.3d at
if its
were al-
Ass’n,
at
Library
539 U.S.
speak
pro-prostitution, pro-sex-
lowed to
principles
forum
(ruling
public
stay
trafficking message or to
silent on the
public library
apply
not
because “[a]
do
vehemently
issue. No matter how
Plain-
acquire
not
Internet
terminals
or-
does
may disagree
government’s
tiffs
with the
public
pub-
create a
forum for Web
der to
HIV/AIDS,
prostitution
towards
themselves”),
express
but rather
lishers to
anti-
Congress
part
decided
of its
particular policy goals.
to achieve
strategy was to “eradicate
HIV/AIDS
Likewise,
Leadership
of the
purposе
7601(23).
prostitution,”
U.S.C.
“facilitate
generally
private
Act is not to
Rust,
case,
government
this
like
purpose
as
of the LSC
speech,”
was
specify
grantees’ position
allowed to
cases.
In those
Velazquez
program
necessary
“deemed
prostitution
for its le-
cases, “Congress
grantees
funded LSC
],”
II,
objective[
gitimate
Velazquez
attorneys
represent
the inter-
provide
reducing
U.S. at
S.Ct.
II,
indigent
Velazquez
clients.”
ests of
HIV/AIDS.
542, 121
1043. The
U.S. at
S.Ct.
LSC
rejects
majority
application
Rust’s
advancing any particu-
“not
program was
Re-
here because
believes the
might
be diluted or
lar set of values
quirement “compels Plaintiffs to voice the
I,
distorted,” Velazquez
164 F.3d at
if it were
government’s viewpoint
speech or decision not
grantee-lawyers’
own,”
First,
Maj. Op. at 237.
it must
their
Indeed,
lawyer’s
role
speak.
LSC
be reiterated that the
speak against
gov-
was to
specifically
compel any speech.
discus-
does
See
in court in a claim for welfare
ernment
Second, just
supra
sion
at 254-58.
as with
“on the behalf of
benefits —the
was
addressing
subsidy
the cases
whether
con-
client”
lawyer’s] private, indigent
[the
coercive,
none of the
ad-
ditions
cases
inherently
govern-
not on behalf of the
dressing allegedly viewpoint-discriminato-
II,
531 U.S. at
Velazquez
ment.
ry subsidy conditions have turned on
Therefore the case was distin-
S.Ct. 1043.
negative speech
whether an affirmative or
because, with
guishable
regard
from Rust
Rather,
requirement was at issue.
program,
pro-
“there
no
[was]
to the LSC
point”
viewpoint-discrimination
“salient
recognized
grammatic message of the kind
Here,
analysis
is whether the
has
and sex
trafficking,
support
lawyers’
but said
did
order
that would
restricting
case,
public-forum principles
termine whether
this
rights.
Amendment
First
attempting
Maj. Op.
to recast a
to this case. See
at 236-
apply
is not
37(“The
merely provide
that was meant
program
purpose
Leadership
stated
speakers
speak
private
HTV/AIDS,
to allow
funds
fight
Act is to
as well as tuber-
program
into a
messages
omitted)).
own
(footnote
their
culosis, and malaria.”
Policy Requirement.
support
could
why
There is no reason
Rather,
obvious-
subsidy program
actually
must
be a mes-
policy goals of the
ly related to substantive
campaign
message
or even have a
saging
beyond,
differ-
goals
Act—
component
sup-
as a “central”
order to
*44
from,
private
simply subsidizing
ent
discriminatory
port
viewpoint
condition
sake. See
U.S.C.
speech for its own
germane
legitimate
that is
to
substantive
7601(23) (“Prostitution
§
and other sexual
Rust,
program.
goals
Rosenberger,
degrading
victimization are
to women and
Velazquez
II did not address the size
of the
children and it should be the
of,
of,
purposes
any
or
potential
number
prac-
States to eradicate such
United
issue[s],”
Maj.
“subsidiary
Op.
(a)(12)(J) (di-
tices.”);
7611(a)(12),
§
id.
government programs
in which those
strategy
that
President’s
to
recting
suggested
viewpoint
cases
discrimina-
shall “make
reduction
fight HIV/AIDS
tory
permissible.
conditions would be
priority
behavioral risks a
of HIV/AIDS
eliminating]
...
prevention
all
efforts
majority
questions
also
the Leader-
exploitation
the sexual
of women and ship
partnering
Act’s commitment to
with
children”).
This is not
case where
groups
oppose prostitution
as a means
from the
funding condition is so attenuated
combating
because the Poli-
HIV/AIDS
were
for which the
funds
purpose
cy
specifically exempts four
Requirement
as to invalidate the condition.
appropriated
groups
compliance:
the Global Fund
Dole,
Dakota v.
Compare South
AIDS,
Malaria;
Fight
to
Tuberculosis and
203, 207-08, 107
97 L.Ed.2d
Organization;
Health
the Inter-
World
(1987) (concluding that while “conditions
Initiative;
national AIDS Vaccine
if
grants might
illegitimate
be
on federal
agencies,
United Nations
see
U.S.C.
are unrelated to the federal interest
7631(f).
organizations,
§
One of these
projects
pro
national
or
particular
Initiative,
International AIDS Vaccine
imposed by
“the condition
Con
grams,”
of an
development
focused on the
AIDS
directly related to one of the main
gress is
Congress
vaccine. The fact that
deter-
purposes
highway
for which
funds are ex
only
generally
mined that while it
wished
pended
interstate travel”
—safe
groups
opposed pros-
with
partner
omitted))
at 213-
quotation marks
with id.
titution,
it
fund
nevertheless wanted to
(O’Connor, J., dissent
determined above, For all of explained the reasons I Requirement outweighed by were sensitive Policy Requirement’s conclude that majority diplomatic considerations. viewpoint-based nature is permissible Congress suggests truly that if wished to subject this case and that it is not support “anti-prostitution advocacy ... heightened judicial scrutiny. could, course, simply choose not to fund *45 organizations.” Maj. Op. these at 238.
But the whether to decision withhold IV Act funds from Leadership organiza- these “A plaintiff seeking preliminary in- provide exemption tions or instead to junction likely must establish that is to [it] Policy Requirement precisely from the merits, succeed on likely the to [it] policy judgment Congress, the kind of suffer harm in irreparable the absence of courts, not the is entitled to make. Cf relief, preliminary equi- that the balance of Regan Representation, v. Taxation With favor, tips ties that an injunc- [its] (1983) public tion is in the interest.” Winter v. (“Congressional L.Ed.2d 129 selec- Council, Inc., particular persons tion of entities or for Natural Res. Def. 7, 20, 365, 374, of largesse entitlement to this sort is obvi- (2008). ously a matter of and discretion not review a grant We district court’s open judicial to review unless circum- of a preliminary injunction for abuse of stances which here we are not able to Alleyne discretion. v. N.Y. State Educ. omitted)). quotation find.” marks (2d Cir.2008). Dep’t, 516 F.3d “A district court abuses its discretion when Finally, majority the relies on the fact its decision rests on an error of law....” “prostitution in the context of the York, City Mullins v. New 626 F.3d HIV/AIDS-prevention international ef- Cir.2010) (internal (2d quotation marks subject is a of international fort[ ] debate” omitted). The District Court this case that it and notes concerns a “controversial granted request Plaintiffs’ a prelimi- issue,” argue that Plaintiffs’ injunction nary because it concluded speech rights important. Maj. Op. at Policy Requirement “would not survive majority rejects 236-37 & n. 4. The also heightened scrutiny, impermissi- and also argument Defendants’ scrutiny strict bly compel[s] speech” and therefore it “vi- apply Policy Require- should to the AOSI, implicates olate[s] ment because it the First Amendment.” foreign affairs. (S.D.N.Y.2008). validity But the 570 F.Supp.2d substantive or controver- above, position prosti- explained sial nature of Plaintiffs’ For the reasons I con- any foreign tution and repercus- affairs clude that the District Court erred because sions for Policy Requirement subject both are not is not decided, scrutiny, compel does not when DKT International was heightened rejected plaintiffs violate the First also speech, argu- and does not Court Rust, Furthermore, that, pursuant ment funding Amendment. because Con- re- may only gress’s apply particular pro- decision to enact Re- strictions entirely jects recipients general. is an rational exercise and not to quirement powers pursuant Spending explained to the Court that there was no consti- Clause, Leadership I would cоnclude that Plaintiffs tutional violation in the “[njothing prevents a likelihood of suc- plaintiff] have not established because [the remaining claim that from itself ceeding setting on the merits of their neutral and subsidiary up organization is unconstitutional. that certifies I Accordingly, prelimi- policy opposing prostitution.... would vacate the it has a nary injunction parent organization adopt and remand the case for The need not proceedings policy.” Finally, further consistent with the Court my rejected views.7 also the plaintiffs compelled Barnette,
speech challenge, distinguishing
Speiser,
Wooley
from the case before
decision,
today’s
majority un
With
it:
necessarily splits
Ap
cases,
In each of those
penalty
peals for the District of Columbia Circuit
refusing
propagate
the message was
very
on this
issue.
the D.C.
already-existing
denial of an
public ben-
Appeals rejected
an al
Circuit Court
government’s
efit. None involved the
challenge
most identical
organizations
selective
best
*46
potential grantee
that refused to
equipped to
message.
communicate its
adopt
policy opposing prostitution.
See
Offering
organizations
to fund
who
Int’l,
Agency
DKT
Inc. v.
Int’l
U.S.
with
agree
government’s viewpoint
(D.C.Cir.2007).
Dev.,
I conclude that those cases demonstrate is constitu- Nevertheless,
tional. it has been said that
the “unconstitutional conditions” doctrine [Supreme
is a “troubled area of Court] Rust,
jurisprudence,” 500 U.S. at Supreme and that the Court’s
unconstitutional conditions cases “seem a gingerly,”
minefield to be traversed Kath- Sullivan, Unconstitutional Condi- M.
leen
tions, 102 Harv. L.Rev. 1415-16
(1989). majority today, Because the how-
ever, complicate does more to further it, clarify
doctrine than to grant wish to certiorari to set straight.
us respectfully
I dissent. COMPANY,
MLSMK INVESTMENT
Plaintiff-Appellant, *47 CO.,
JP MORGAN CHASE & JP
Morgan Bank, NA, Chase
Defendants-Appellees.
Docket No. 10-3040-cv.
United Appeals, States Court of
Second Circuit.
Argued: May 2011.
Final Submission: June 2011. Kleinhendler, Howard Wachtel & Ma- July 7, Decided: (Julian Schreibman, syr, LLP D. Sara G. counsel), York, NY, Spiegelman, of New Plaintiff-Appellant. Hynes, Overy Patricia M. Allen & LLP (Andrew Davies, Hall, Rhys Laura R.