Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.
Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.
Opinion
*208
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act),
*2325 § 7631(f). This case concerns the second of these conditions, referred to as the Policy Requirement. The question is whether that funding condition violates a recipient's First Amendment rights.
I
Congress passed the Leadership Act in 2003 after finding that HIV/AIDS had "assumed pandemic proportions, spreading from the most severely affected regions, sub-Saharan Africa and the Caribbean, to all corners of the world, and leaving an unprecedented path of death and devastation."
*209 In the Leadership Act, Congress directed the President to establish a "comprehensive, integrated" strategy to combat HIV/AIDS around the world. § 7611(a). The Act sets out 29 different objectives the President's strategy should seek to fulfill, reflecting a multitude of approaches to the problem. The strategy must include, among other things, plans to increase the availability of treatment for infected individuals, prevent new infections, support the care of those affected by the disease, promote training for physicians and other health care workers, and accelerate research on HIV/AIDS prevention methods, all while providing a framework for cooperation with international organizations and partner countries to further the goals of the program. §§ 7611(a)(1)-(29).
The Act "make[s] the reduction of HIV/AIDS behavioral risks a priority of all prevention efforts." § 7611(a)(12); see also § 7601(15) ("Successful strategies to stem the spread of the HIV/AIDS pandemic will require ... measures to address the social and behavioral causes of the problem"). The Act's approach to reducing behavioral risks is multifaceted. The President's strategy for addressing such risks must, for example, promote abstinence, encourage monogamy, increase the availability of condoms, promote voluntary counseling and treatment for drug users, and, as relevant here, "educat[e] men and boys about the risks of procuring sex commercially" as well as "promote alternative livelihoods, safety, and social reintegration strategies for commercial sex workers." § 7611(a)(12). Congress found that the "sex industry, the trafficking of individuals into such industry, and sexual violence" were factors in the spread of the HIV/AIDS epidemic, and determined that "it should be the policy of the United States to eradicate" prostitution and "other sexual victimization." § 7601(23).
The United States has enlisted the assistance of nongovernmental organizations to help achieve the many goals of the program. Such organizations "with experience in health *210 care and HIV/AIDS counseling," Congress found, "have proven effective in combating the HIV/AIDS pandemic and can be a resource in ... provid[ing] treatment and care for individuals infected with HIV/AIDS." § 7601(18). Since 2003, Congress has authorized the appropriation of billions of dollars for funding these organizations' fight against HIV/AIDS around the world. § 2151b-2(c); § 7671. *2326 Those funds, however, come with two conditions: First, no funds made available to carry out the Leadership Act "may be used to promote or advocate the legalization or practice of prostitution or sex trafficking." § 7631(e). Second, no funds made available may "provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except ... to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency." § 7631(f). It is this second condition-the Policy Requirement-that is at issue here.
The Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) are the federal agencies primarily responsible for overseeing implementation of the Leadership Act. To enforce the Policy Requirement, the agencies have directed that the recipient of any funding under the Act agree in the award document that it is opposed to "prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children."
II
Respondents are a group of domestic organizations engaged in combating HIV/AIDS overseas. In addition to substantial private funding, they receive billions annually in financial assistance from the United States, including under *211 the Leadership Act. Their work includes programs aimed at limiting injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HIV transmission in Kenya, and promoting safer sex practices in India. Respondents fear that adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS. They are also concerned that the Policy Requirement may require them to censor their privately funded discussions in publications, at conferences, and in other forums about how best to prevent the spread of HIV/AIDS among prostitutes.
In 2005, respondents Alliance for Open Society International and Pathfinder International commenced this litigation, seeking a declaratory judgment that the Government's implementation of the Policy Requirement violated their First Amendment rights. Respondents sought a preliminary injunction barring the Government from cutting off their funding under the Act for the duration of the litigation, from unilaterally terminating their cooperative agreements with the United States, or from otherwise taking action solely on the basis of respondents' own privately funded speech. The District Court granted such a preliminary injunction, and the Government appealed.
While the appeal was pending, HHS and USAID issued guidelines on how recipients of Leadership Act funds could retain funding while working with affiliated organizations not bound by the Policy Requirement. The guidelines permit funding recipients to work with affiliated organizations that "engage [ ] in activities inconsistent with the recipient's opposition to the practices of prostitution and sex trafficking" as long as the recipients retain "objective integrity and independence from any affiliated organization."
The Court of Appeals summarily remanded the case to the District Court to consider whether the preliminary injunction was still appropriate in light of the new guidelines. On remand, the District Court issued a new preliminary injunction along the same lines as the first, and the Government renewed its appeal.
The Court of Appeals affirmed, concluding that respondents had demonstrated a likelihood of success on the merits of their First Amendment challenge under this Court's "unconstitutional conditions" doctrine.
Judge Straub dissented, expressing his view that the Policy Requirement was an "entirely rational exercise of Congress's powers pursuant to the Spending Clause."
We granted certiorari. 568 U.S. ----,
III
*213
The Policy Requirement mandates that recipients of Leadership Act funds explicitly agree with the Government's policy to oppose prostitution and sex trafficking. It is, however, a basic First Amendment principle that "freedom of speech prohibits the government from telling people what they must say."
Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
A
The Spending Clause of the Federal Constitution grants Congress the power "[t]o 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." Art. I, § 8, cl. 1. The Clause provides Congress broad
*2328
discretion to tax and spend for the "general Welfare," including by funding particular state or private programs or activities. That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends.
Rust v. Sullivan,
At the same time, however, we have held that the Government " 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.' "
Forum for Academic and Institutional Rights,
The dissent thinks that can only be true when the condition is not relevant to the objectives of the program (although it has its doubts about that), or when the condition is actually coercive, in the sense of an offer that cannot be refused. See
post,
at 2325 - 2326 (opinion of SCALIA, J.). Our precedents, however, are not so limited. In the present context, the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program-those that specify the activities Congress wants to subsidize-and conditions that seek to leverage
*215
funding to regulate speech outside the contours of the program itself. The line is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition. We have held, however, that "Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."
Legal Services Corporation v. Velazquez,
A comparison of two cases helps illustrate the distinction: In
Regan v. Taxation With Representation of Washington,
the Court upheld a requirement that nonprofit organizations seeking tax-exempt status under
In
FCC v. League of Women Voters of California,
by contrast, the Court struck down a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private
*216
funds.
Our decision in
Rust v. Sullivan
elaborated on the approach reflected in
Regan
and
League of Women Voters
. In
Rust,
we considered Title X of the Public Health Service Act, a Spending Clause program that issued grants to nonprofit health-care organizations "to assist in the establishment and operation of voluntary family planning projects [to] offer a broad range of acceptable and effective family planning methods and services."
*217
We explained that Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem. In Title X, Congress had defined the federal program to encourage only particular family planning methods. The challenged regulations were simply "designed to ensure that the limits of the federal program are observed," and "that public funds [are] spent for the purposes for which they were
*2330
authorized."
Rust,
In making this determination, the Court stressed that "Title X expressly distinguishes between a Title X
grantee
and a Title X
project
."
B
As noted, the distinction drawn in these cases-between conditions that define the federal program and those that reach outside it-is not always self-evident. As Justice Cardozo put it in a related context, "Definition more precise must abide the wisdom of the future."
Steward Machine Co. v. Davis,
To begin, it is important to recall that the Leadership Act has two conditions relevant here. The first-unchallenged in this litigation-prohibits Leadership Act funds from being used "to promote or advocate the legalization or practice of
*218
prostitution or sex trafficking."
The Policy Requirement therefore must be doing something more-and it is. The dissent views the Requirement as simply a selection criterion by which the Government identifies organizations "who believe in its ideas to carry them to fruition."
Post,
at 2332. As an initial matter, whatever purpose the Policy Requirement serves in selecting funding recipients, its effects go beyond selection. The Policy Requirement is an ongoing condition on recipients' speech and activities, a ground for terminating a grant after selection is complete. See AAPD 12-04, at 12. In any event, as the Government acknowledges, it is not simply seeking organizations that oppose prostitution. Reply Brief 5. Rather, it explains, "Congress has expressed its purpose 'to eradicate' prostitution and sex trafficking,
By demanding that funding recipients adopt-as their own-the Government's view on an issue of public concern, the condition by its very nature affects "protected conduct outside the scope of the federally funded program."
Rust,
The Government contends that the affiliate guidelines, established while this litigation was pending, save the program. Under those guidelines, funding recipients are permitted to work with affiliated organizations that do not abide by the condition, as long as the recipients retain "objective integrity and independence" from the unfettered affiliates.
Neither approach is sufficient. When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. See
Rust,
The Government suggests that the Policy Requirement is necessary because, without it, the grant of federal funds could free a recipient's private funds "to be used to promote prostitution or sex trafficking." Brief for Petitioners 27 (citing
Holder v. Humanitarian Law Project,
The Government cites but one case to support that argument,
Holder v. Humanitarian Law Project
. That case concerned the quite different context of a ban on providing material support to terrorist organizations, where the record indicated that support for those organizations' nonviolent operations was funneled to support their violent activities. 561 U.S., at ----,
Pressing its argument further, the Government contends that "if organizations awarded federal funds to implement Leadership Act programs could at the same time promote or affirmatively condone prostitution or sex trafficking, whether using public
or private
funds, it would
*2332
undermine the government's program and confuse its message opposing prostitution and sex trafficking." Brief for Petitioners 37 (emphasis added). But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government's policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: "If there is any fixed star in our constitutional constellation, it is that no
*221
official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Barnette,
* * *
The Policy Requirement compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. In so doing, it violates the First Amendment and cannot be sustained. The judgment of the Court of Appeals is affirmed.
It is so ordered.
KAGAN, J., took no part in the consideration or decision of this case.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
The Leadership Act provides that "any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking" may not receive funds appropriated under the Act.
The First Amendment does not mandate a viewpoint-neutral government. Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense. For example:
*222
One of the purposes of America's foreign-aid programs is the fostering of good will towards this country. If the organization Hamas-reputed to have an efficient system for delivering welfare-were excluded from a program for the distribution of U.S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) "without federal assistance,"
United States v. American Library Assn., Inc.,
The argument is that this commonsense principle will enable the government to discriminate against, and injure, points of *2333 view to which it is opposed. Of course the Constitution does not prohibit government spending that discriminates against, and injures, points of view to which the government is opposed; every government program which takes a position on a controversial issue does that. Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates, etc. The constitutional prohibition at issue here is not a prohibition against discriminating against or injuring opposing points of view, but the First Amendment's prohibition against the coercing of speech. I am frankly dubious that a condition for eligibility to participate in a minor federal program such as this one runs afoul of that prohibition even when the condition *223 is irrelevant to the goals of the program. Not every disadvantage is a coercion.
But that is not the issue before us here. Here the views that the Government demands an applicant forswear-or that the Government insists an applicant favor-are relevant to the program in question. The program is valid only if the Government is entitled to disfavor the opposing view (here, advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of those who are to administer the program. There is no risk that this principle will enable the Government to discriminate arbitrarily against positions it disfavors. It would not, for example, permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure prostitution. But here a central part of the Government's HIV/AIDS strategy is the suppression of prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the program only those who believe in that goal.
According to the Court, however, this transgresses a constitutional line between conditions that operate
inside
a spending program and those that control speech
outside
of it. I am at a loss to explain what this central pillar of the Court's opinion-this distinction that the Court itself admits is "hardly clear" and "not always self-evident,"
ante,
at 2328, 2330 -has to do with the First Amendment. The distinction was alluded to, to be sure, in
Rust v. Sullivan,
Of course the most obvious manner in which the admission to a program of an ideological opponent can frustrate the purpose of the program is by freeing up the opponent's funds for use in its ideological opposition. To use the Hamas example again: Subsidizing that organization's provision of social services enables the money that it would otherwise use for that purpose to be used, instead, for anti-American propaganda. Perhaps that problem does not exist in this case since the respondents do not affirmatively promote prostitution.
*2334 But the Court's analysis categorically rejects that justification for ideological requirements in all cases, demanding "record indica[tion]" that "federal funding will simply supplant private funding, rather than pay for new programs." Ante, at 2331. This seems to me quite naive. Money is fungible. The economic reality is that when NGOs can conduct their AIDS work on the Government's dime, they can expend greater resources on policies that undercut the Leadership Act. The Government need not establish by record evidence that this will happen. To make it a valid consideration in determining participation in federal programs, it suffices that this is a real and obvious risk.
None of the cases the Court cites for its holding provide support. I have already discussed
Rust
. As for
Regan v. Taxation With Representation of Wash.,
The Court makes a head-fake at the unconstitutional conditions doctrine,
ante,
at 2330, but that doctrine is of no help. There is no case of ours in which a condition that is relevant to a statute's valid purpose and that is not in itself unconstitutional (
e.g.,
a religious-affiliation condition that violates the Establishment Clause) has been held to violate the doctrine.
*
Moreover, as I suggested earlier, the contention that the condition here "coerces" respondents' speech is on its face implausible. Those organizations that wish to take a different tack with respect to prostitution "are as unconstrained now as they were before the enactment of [the Leadership Act]."
National Endowment for Arts v. Finley,
The majority cannot credibly say that this speech condition is coercive, so it does not. It pussyfoots around the lack of coercion by invalidating the Leadership Act for " requiring recipients to profess a specific *2335 belief" and " demanding that funding recipients adopt-as their own-the Government's view on an issue of public concern." Ante, at 2329 (emphasis mine). But like King Cnut's commanding of the tides, here the Government's "requiring" and "demanding" have no coercive effect. In the end, and in the circumstances of this case, "compell[ing] as a condition of federal funding the affirmation of a belief," ante, at 2332 (emphasis mine), is no compulsion at all. It is the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject. Section 7631(f)"defin [es] the recipient" only to the extent he decides that it is in his interest to be so defined. Ante, at 2330.
* * *
Ideological-commitment requirements such as the one here are quite rare; but making the choice between competing applicants on relevant ideological grounds is undoubtedly quite common. See,
e.g.,
Finley,
The Court's opinion contains stirring quotations from cases like
West Virginia State Bd. of Ed. v. Barnette,
In
Legal Services Corporation v. Velazquez,
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co.,
Reference
- Full Case Name
- AGENCY FOR INTERNATIONAL DEVELOPMENT, Et Al., Petitioners v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., Et Al.
- Cited By
- 201 cases
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- Published