C onstitutional L aw Does the First Amendment Prohibit the Government from Requiring Organizations Receiving Federal Funding to Possess

Policies Opposing Human Trafficking? CASE AT A GLANCE

Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. Among other provisions, the act compels government-funded private organizations to possess or adopt policies explicitly opposing prostitution and sex trafficking. The Alliance for Open Society and other private organizations receiving funding under the act sued, arguing the policy mandate provision was a violation of their First Amendment rights. The district court struck down the provision as unconstitutional, and a divided panel of the Second Circuit affirmed. The judges of the Second Circuit declined to rehear the case en banc, over a vigorous dissent. The circuits are split 1-1 on the issue.

U.S. Agency for Intl Dev. et al. v. Alliance for Open Society Intl, Inc., et al. Docket No. 12-10 Argument Date: April 22, 2013 From: The Second Circuit
by Rachel K. Paulose Miami, FL

ISSUE
Does the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. 7601 et seq., which compels policies opposing prostitution and sex trafficking in any organizations receiving funding under the act, violate the First Amendment?

and sexual violence are additional causes of and factors in the spread of the HIV/AIDS epidemic. 22 U.S.C. 7601(23). Accordingly, the act provides in relevant parts as follows: No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. 22 U.S.C. 7631(e). No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking. 22 U.S.C. 7631(f). By its own terms, the act exempts from 7631(f)s policy mandate one entity devoted solely to vaccine research, the International AIDS Vaccine Initiative, as well as three international public organizations: the United Nations, the World Health Organization, and the Global Fund to Fight AIDS, Tuberculosis, and Malaria. Initially, the United States Department of Justice (DOJ) issued tentative advice warning application of the policy mandate to entities based in the United States might be unconstitutional. By 2004, however, DOJ concluded there existed reasonable arguments to support enforcing the policy mandate as to both domestic and
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FACTS
In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act to strengthen and enhance United States leadership and the effectiveness of the United States response to the HIV/AIDS, tuberculosis, and malaria pandemics. Congress passed the act using its authority under the Spending Clause of the United States Constitution, which states: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. U.S. Const. art. I, 8, cl. 1. The act provides over $60 billion to government agencies and nongovernmental organizations to establish a comprehensive strategy to fight AIDS. In authorizing the act, Congress found: Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices. The sex industry, the trafficking of individuals into such industry,

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foreign entities. Other federal agencies charged with implementing the act followed DOJs lead. By June of 2005, the United States Department of Health and Human Services (HHS), the United States Agency for International Development (AID), and the United States Centers for Disease Control and Prevention (CDC) had issued guidance enforcing the policy mandate. On September 23, 2005, plaintiffs-respondents, Alliance for Open Society International, Open Society Institute, and Pathfinders International, filed a complaint in the U.S. District Court for the Southern District of New York against AID, HHS, and CDC and their respective leadership. But for the Open Society Institute, respondents are nonprofit organizations receiving funding under the act. Respondents argued 7631(f), the policy mandate, violated their First Amendment rights, and they sought a preliminary injunction from the district court. The government responded by urging the district court to review the case under the rational basis standard and uphold the policy mandate as a valid exercise of congressional power under the Spending Clause. The district court found: Congress considered prostitution to be among the behavioral causes of HIV/AIDS. See 7611(a)(4) (The reduction of HIV/AIDS behavioral risks shall be a priority of all prevention efforts in terms of funding, educational messages, and activities by among other things, eradicating prostitution, the sex trade, rape, sexual assault and sexual exploitation of women and children.). Even so, applying heightened scrutiny, the district court found the policy mandate was not narrowly tailored to achieve Congresss goals. The district court also held the policy mandate unconstitutionally compelled speech by affirmatively requiring Plaintiffs to adopt a policy espousing the governments preferred message. Finally, the district court held respondents loss of First Amendment freedoms unquestionably constitutes irreparable injury. While respondents challenged the policy mandate as to prostitution, not sex trafficking, the district court enjoined 7631(f) in its entirety. The district court issued its opinion on May 8, 2006, and granted a preliminary injunction against the government on June 26, 2006. The government appealed the decision to the Second Circuit. On November 8, 2007, the Second Circuit remanded the case back to the district court in light of the governments July 23, 2007, promulgation of new guidelines allowing respondents to work with separate affiliates that would be free from the strictures of the policy mandate. The Second Circuit allowed the district courts injunction to remain intact pending its review. Under the new guidelines: Contractors, grantees and recipients of cooperative agreements under the Leadership Act must have objective integrity and independence from any affiliated organization that engages in activities inconsistent with a policy opposing prostitution and sex trafficking. The district court found that while the new guidelines may have provided adequate alternative channels for respondents to express their views, the policy mandate remained intact. The court repeated its assessment that the policy mandate unconstitutionally compelled
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speech. On August 8, 2008, the district court issued an opinion holding the injunction was properly granted and allowing two additional plaintiffs to join the lawsuit. The government once again appealed to the Second Circuit. On July 6, 2011, a divided panel affirmed the district court. The Second Circuit held the policy mandate constituted an impermissible condition on the receipt of government funds and compelled respondents to espouse the governments viewpoint. The court analyzed the case under the Spending Clause, which it acknowledged allowed Congress to further policy goals indirectly through its spending power that it might not be able to achieve by direct regulation. Still, the court found: Congresss spending power, while broad, is not unlimited, and other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Pursuant to this unconstitutional conditions doctrine, as it has come to be known, the government may not place a condition on the receipt of a benefit or subsidy that infringes upon the recipients constitutionally protected rights, even if the government has no obligation to offer the benefit in the first instance. The court held the policy requirement did not merely restrict certain speech, but affirmatively compelled speech, namely opposition to prostitution and sex trafficking. Although the court acknowledged that the government might require affirmative, viewpoint-specific speech as a condition of federal funding, it held the government could only do so when the governments program is, in effect, its message. In this case, however, the Second Circuit determined the act was not an anti-prostitution messaging campaign. Applying heightened scrutiny to this bold combination in a funding condition of a speech-targeted restriction that is both affirmative and quintessentially viewpoint-based, the court found the policy mandate a violation of the First Amendment. Judge Straub dissented from the panels decision, arguing the application of heightened scrutiny was improper and the policy mandate was a rational exercise of Congresss Spending Clause power. On February 2, 2012, the full court denied rehearing en banc. Writing for the dissenters from the denial of rehearing en banc, Judge Cabranes noted the panel decision diverged from the D.C. Circuits opinion in DKT Intl, Inc. v. U.S. Agency for Intl Dev. et al., 477 F.3d 758 (D.C. Cir. 2007), a similar case challenging the policy mandate. Judge Cabranes also criticized the panels analysis as based on a newly uncovered constitutional distinction between affirmative and negative speech restrictions, rather than on traditional unconstitutional conditions jurisprudence. Judge Cabranes protested: But no unconstitutional conditions case has ever turned on such a distinction. Indeed, in the context of protected speech, the Supreme Court has held that the difference between compelled speech and compelled silence is without constitutional significance. [I]t is clear that the disposition of this case turns not on the existing jurisprudential framework, but on an affirmative-negative paradigm of the panels own invention.

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The government filed a petition for certiorari on July 2, 2012. The Supreme Court granted certiorari on January 11, 2013.

CASE ANALYSIS
The government characterizes the policy mandate as a valid exercise of congressional authority to attach conditions to funding provisions under the Spending Clause. Pursuant to Spending Clause jurisprudence, Congress has great power to attach conditions to any provision of federal funds to further particular causes. The government contends any private entity that disagrees with those causes is free to decline federal funds specifically allocated for such causes. This choice is the private entitys to make. Since the government is not obligated to provide the funds in the first place, private entities can hardly complain if the government only provides the funds to entities that advance its message. The government insists a private entitys choice of whether or not to participate in a funding program is not a First Amendment violation. The government does acknowledge the policy mandate necessarily implicates an entire entity. The government argues, however, restricting the policy mandate to those programs funded by federal dollars would simply free up other funds to violate the policy mandate. That is, an entity could use unrestricted private dollars to undermine the governments message as stated in the act, while simultaneously obtaining government subsidies to promote strategies endorsed by the act. The government states this result should not be countenanced under the act. Respondents frame the case as a matter implicating a private organizations First Amendment rights rather than the governments Spending Clause authority. Respondents also portray the governments Spending Clause argument as overly broad. Respondents protest that the policy mandate imposes a condition on whole entities, untethered to the actual act funds. The mandate and enforcing regulations contain a blanket restriction on activities inconsistent with opposition to the practices of prostitution and sex trafficking, whether or not said activities are carried out with government funds. Respondents argue the policy mandate is a restriction on any entity even partially funded with federal money. This, say respondents, is unconstitutional and unprecedented. Respondents also claim the policy mandate implementing regulations are onerous, requiring its prohibitions to be reflected in an entitys subagreements and further requiring the entity to make its books and records available for inspection to enforce compliance. Respondents claim the choice the government advocates forces them to relinquish their constitutional rights or waive funding benefits. This, say respondents, is no choice at all. The government asserts the policy mandate is not a direct speech regulation, but a condition on the receipt of federal funds. Therefore, the government argues, it may attach conditions in dispensing funds under its Spending Clause authority in ways that would not be permissible in direct regulation of speech. Respondents ignore this distinction and the relevant case law distinguishing between the two bodies of jurisprudence, according to the government. Respondents fundamentally disagree with the government on the proper interpretation of Spending Clause precedent. Respondents admit the policy mandate is not a direct speech regulation. However,

they contend what the government could not do directly by regulation, it may not do indirectly by conditional funding. Respondents claim there is no difference in the constitutional analysis of direct speech prohibitions as compared to restrictions under the Spending Clause. Respondents insist the Spending Clause does not empower Congress to impose conditions that prohibit the recipients of federal funding from speaking or compel them to speak in ways that could not be accomplished through direct regulation. The government contends it may disburse funds under the Spending Clause to advance a particular message or enlist private entities to advance that message. The government casts the policy mandate as a means to insure the acts messages opposing sex trafficking and prostitution are effectively implemented by its private partners. The policy mandate ensures the message is not misrepresented by funded recipients. Here, the government argues, Congress determined that prostitution and sex trafficking fueled the rise of HIV/ AIDS, and Congress conditioned billions of dollars of funding to only those entities that opposed those acts Congress deemed harmful to the cause. The government declares, It thereby prevents recipients from undermining the very program they receive federal funds to advance. According to the government, funding organizations that either maintain their silence or support prostitution and human trafficking would undermine the purpose of the act. In this sense, the government argues, the policy mandate is no different from governmental funding policies requiring opposition to other odious acts, such as racial discrimination. The government proffers an example in the field of racial segregation. The government contends Congress could adopt a policy calling for an end to apartheid internationally, finding apartheid a basis for racial violence, and authorizing foreign assistance to address racial violence. The government could make funding under the program available only to those private organizations that adopt a policy explicitly opposing apartheid. In this hypothetical program, Congress could insist its private partners stand against apartheid as a condition of funding, without violating the Constitution. Respondents argue the policy mandate is not government speech, and they further insist they are not government speakers. Respondents argue the government cannot control their private speech, as it is not made on behalf of the government. Respondents also claim the government characterizes the purpose of the act too broadly. The purpose of the act, say respondents, is not to send a particular message via speech. Instead, say respondents, the purpose of the act is to promote public health acts to suppress HIV/AIDS. Respondents insist these acts are completely divorced from the policy mandates speech requirement, and they cannot be conscripted further into delivering the governments message opposing sex trafficking and prostitution. More generally, respondents assert they cannot be conscripted into the fight against sex trafficking and prostitution. In any event, respondents assert the policy mandates requirements are so sweeping as to run afoul of the First Amendment. Respondents answer the governments anti-apartheid analogy by agreeing the government could adopt a policy calling for an end to apartheid. Further, they agree the government could insist any private partners avoid using federal funds to support apartheid. The government could even enlist private partners to broadcast its anti-apartheid message. However, respondents claim the government could not place a restriction on a whole entity, rather than a
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particular program, barring any anti-apartheid actions. The government has ample tools to evaluate an organizations effectiveness in carrying out the goals of a federal program without demanding an expression of orthodoxy, conclude respondents. The parties next turn to the policy mandates exemption of four specific entities, which the respondents see as contradictory to the governments unpolluted message theory. The government acknowledges the act has carved out this exception; however, the government differentiates three of these organizations by noting all are international organizations in which the United States is but one of many sovereign state members. The government urges the Court to be particularly deferential to Congress in matters of foreign affairs. The fourth organization is solely focused on vaccine development and therefore not a risk for undermining the acts message. Respondents claim the governments insistence the communicative message is integral to the act is belied by the policy mandates specific exemption for four international organizations. These four entities together have received more than 20 percent of the acts funding, respondents maintain. Respondents allege Congress would not have granted any exemptions had it deemed the policy mandate a critical communication component of the act. The government next argues the policy mandate does not compel speech. Adopting Judge Cabraness reasoning, the government argues the Court has never distinguished between compelled speech or silence in Spending Clause cases. The government notes that, in fact, the Court has held the distinction without constitutional significance even in the context of direct regulation of speech. The government urges the Court to reject the Second Circuits affirmative-negative distinction of compelled speech or compelled silence. Respondents reply by asserting the policy mandate compels them to affirmatively adopt and pronounce the governments position on sex trafficking. This demand infringes on their own freedom of thought, say respondents. Endorsing the legal theory articulated in the Second Circuits majority opinion, respondents argue the policy mandates affirmative speech requirement is unprecedented. Respondents argue the First Amendment protects them from this compelled speech. The parties then address whether the policy mandate suppresses differing viewpoints. The government argues the policy mandate simply does not unconstitutionally suppress disfavored viewpoints. While the government agrees it wishes to convey only a particular viewpoint under the act, the government claims such viewpoint discrimination is permissible in this case because the message is integral to the act. The government notes part of the acts comprehensive strategy is to foster behavioral change and spread educational messages. The government cites with approval the D.C. Circuits opinion in DKT, in which that court held the government may hire private agents to speak for it, and in conveying its message through those private agents the government canand often mustdiscriminate on the basis of viewpoint. The government concludes, The First Amendment does not entitle [Respondents] to elect participation in the program, accept program funding, and then disregard an important goal of the program. Respondents claim they are not free to take a differing position, and the policy mandate deprives the marketplace of ideas of their
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differing views. They assert the policy mandate is a pretext for controlling the viewpoints of all recipients of federal funding. Indeed, respondents note, the very purpose of the policy mandate is to preclude respondents from taking a position opposing Congresss views on human trafficking. Respondents argue this is troubling both because it implicates the whole entity, favors only those speakers who parrot the governments preferred message, and suppresses viewpoints expressed in channels funded by private funds. This viewpoint discrimination is unconstitutional, assert respondents. As an added measure of constitutional fortification, the government asserts the policy mandates implementing guidelines allow the policy mandate to be constructed in a manner that withstands constitutional attack. The guidelines allow entities receiving act funds to work with affiliates that may ignore the policy mandate without consequence. The government claims those guidelines were modeled on affiliate protocols the Court upheld in Regan v. Taxation with Representation, 461 U.S. 540 (1983), and Rust v. Sullivan, 500 U.S. 173 (1991), two seminal unconstitutional conditions cases endorsing affiliate protocols. Respondents argue the affiliate guidelines simply shift the constitutional injury but do not cure it. Moreover, respondents argue that in practical terms the affiliate guidelines are vague, unworkable, and burdensome. They claim the guidelines would force them to set up new affiliates in every country in which they operate, decipher complex international bureaucracies, and duplicate everything from staff to equipment. The government concludes: Respondents real objection to Section 7631(f) rests not on First Amendment doctrine but on a policy judgment. They do not want to adopt a policy opposing prostitution because, in their view and as one of respondents acknowledged in DKT, this might result in stigmatizing and aliening many of the people most vulnerable to HIV/AIDS. Respondents answer they do not support prostitution, but they assert they would not have adopted policies disfavoring prostitution but for the policy mandate. Respondents also state that because they operate in countries with disparate laws and social norms, they make every effort to remain neutral on issues of political or cultural conflict. Respondents argue they are harmed by the policy mandate because it chills their speech with prostitutes, could complicate their efforts to work in nations highly tolerant of prostitution, and censors their disagreement on whether legalization of prostitution might lead to lower public health risks. The government agrees private entities are entitled to disagree with Congresss goals of opposing sex trafficking and prostitution. However, the government maintains private entities are not free to accept congressional funds under a specific statute attacking sex trafficking and prostitution as root causes of AIDS/HIV and then undermine congressional policy under that very statute by refusing to repudiate sex trafficking and prostitution.

SIGNIFICANCE
This case will have a significant impact on the governments decadelong fight against human trafficking. U.S. Agency for Intl Dev. et al.

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v. Alliance for Open Society Intl, Inc., et al. is the first substantive challenge to U.S. laws against human trafficking, and sex trafficking in particular, ever heard in the United States Supreme Court. If the Court reverses the Second Circuit, it will enhance the momentum of a growing global movement that has raised social consciousness on a critical womens rights issue in the western democracies as well as the developing world. Forty-six entities active in the fight against human trafficking and prostitution signed an amicus brief urging the Court to reverse the Second Circuit. Among other arguments, these amici noted, from the record, the origin of the D.C. Circuit case: one of the entities fighting the policy mandate is headed by a pornography industry executive. This, amici suggested, was a sign of a conflict engineered by the commercial sex industry and designed to undermine the movement against human trafficking and prostitution. In this and other ways, this case reflects the wide gulf between those organizations potentially using act funds to further an agenda promoting unfettered sexual expression and those using act funds to fight some sexual acts, including pornography, prostitution, and human trafficking, they deem exploitive of women and children. Amici declare they have won the debate as to whether or not prostitution and human trafficking are harmful to women and children, and they cite as support the congressional findings as stated in the act. Respondents retort the argument is not settled, particularly internationally. Should the Court find 22 U.S.C. 7631(f) unconstitutional, it may impact Congresss decision to help fund nongovernmental organizations also fighting human trafficking. Congress could respond by simply withdrawing funding to NGOs over which it has no control, choosing rather to leave unfunded NGOs rather than fund them to see certain of those organizations undermine congressional intent. Defunding, in turn, could disastrously impact the progress governments and NGOs have made in fighting sex trafficking, particularly internationally. More broadly, the Courts decision in this case will determine the extent to which Congress may attach conditions to its funding of nongovernmental entities under its Spending Clause authority. As Judge Cabranes wrote, can it be unconstitutional to require organizations that accept federal program funds to have a policy consistent with a clearly stated purpose of that funding program, particularly where the clearly stated purpose is simply a reiteration of established criminal law? If so, the issue for Congress will be whether it should help subsidize entities that with one hand take subsidies to advance one aspect of a federal statute, but with the other hand use private funds to undermine congressional findings justifying that very federal statute. An adverse decision by the Court could impact Congresss decision to enlist or forgo the assistance of nongovernmental organizations in further future causes. A reversal of the Second Circuit would also force nonprofit organizations to consider the full context of a funding statute before requesting funding under that statute. Some nonprofit organizations may decline to assist the government and forgo funds rather than compromise organizational principles that may conflict with particular federal funding statutes. Weakened partnerships between the government and private entities could dilute the power of social justice movements.

Constitutional scholars may be particularly interested in whether or not the Court endorses the distinction between affirmative and negative speech restrictions, as articulated by the Second Circuit in the decision below. The Second Circuit split bitterly on this particular approach, and the courts decision not to hear the case en banc turned in part on the divide between the judges who endorsed and those who rejected the distinction. A reversal of this theory will be a vindication for the Second Circuit dissenters, while an affirmation will break new ground in First Amendment doctrine.

Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly LLP. She has also served extensively in government, including as a law clerk to Eighth Circuit Court of Appeals Judge James B. Loken; trial attorney in the Voting Section, Civil Rights Division of the U.S. Department of Justice; assistant U.S. Attorney; and a presidentially nominated, Senate-confirmed U.S. Attorney. She can be reached at rkpaulose@ hotmail.com. PREVIEW of United States Supreme Court Cases, pages 286290. 2013 American Bar Association.

ATTORNEYS FOR THE PARTIES

For Petitioners United States Agency for International Development; Rajiv Shah, Administrator of the United States Agency for International Development; United States Department of Health and Human Services; Kathleen Sebelius, Secretary of the United States Department of Health and Human Services; United States Centers for Disease Control and Prevention; and Thomas R. Frieden, Director of the United States Centers for Disease Control and Prevention (Donald B. Verrilli Jr., Solicitor General, 202.514.2217) For Respondents Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, and InterAction (David Bowker, 202.663.6000)

AMICUS BRIEFS
In Support of Petitioners American Center for Law and Justice (Jay A. Sekulow, 202.546.8890) Coalition Against Trafficking in Women, Equality Now, et al. (Alexander A. Yanos, 212.277.4000) In Support of Respondents Becket Fund for Religious Liberty and the Christian Legal Society (Eugene Volokh, 310.206.3926) Deans and Professors of Public Health and Organizations Working in Public Health Policy and Implementation (Jessica Ring Amunson, 202.639.6023) Heartbeat International, Inc. (Brian J. Murray, 312.782.3939) Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS Secretariat) (Igor Victor Timofeyev, 202.551.1792)
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