American Journal of Law & Medicine

"Well Beyond" Permissible: How Severing the Leadership Act's Policy Requirement Affirms Our Commitment to First Amendment Values

CONTENTS

I. INTRODUCTION

II. BACKGROUND OF THE LEADERSHIP ACT AND THE CIRCUIT CASES

   A. The Leadership Act
   B. DKT International, Inc. v. United States Agency for
      International Development
   C. Alliance for Open Society International, Inc. v. United States
      Agency for International Development

III. THE UNCONSTITUTIONAL CONDITIONS DOCTRINE AND
   RELEVANT PRINCIPLES OF FIRST AMENDMENT JURISPRUDENCE

   A. The Unconstitutional Conditions Doctrine
   B. Relevant Principles of First Amendment Jurisprudence
      1. Laws Abridging Free Speech Are Subject to Heightened
        Scrutiny
      2. Permissible Restrictions on Free Speech

IV. RESOLUTION OF THE CIRCUIT SPLIT

   A. The D.C. Circuit's Decision in DKT International
   B. The Second Circuit's Decision in Alliance for Open Society
   C. The Policy Requirement Is Unconstitutional
      1. The Policy Requirement Violates the First Amendment as a
        Matter of Precedent
      2. The Policy Requirement Is Unconstitutionally Vague
   D. The Policy Requirement Is Unwise as a Matter of Public Policy

V. IMPACT OF FINDING THE POLICY REQUIREMENT UNCONSTITUTIONAL
   A. The Policy Requirement Can Be Severed from the
      Leadership Act
   B. Legal Impact
   C. Policy Impact
VI. CONCLUSION

I. INTRODUCTION

Imagine an American physician working with Pathfinder International's Mukta Project to combat the prevalence and spread of Sexually Transmitted Infections (STIs) and HIV in Maharashtra, India. (1) The physician provides HIV/AIDS prevention and treatment services at a health clinic as well as coordinates educational programs about STIs for local residents. A young woman approaches the physician's clinic. The woman tentatively informs the physician that she has recently entered the local sex trade (2) and may have contracted HIV. The physician wishes she could speak freely about the realities of prostitution in India. The physician wishes she could empower her new patient to adopt behaviors that would reduce her vulnerability to HIV/AIDS. In spite of any professional or personal opinions the physician might hold on the subject of prostitution, however, she must choose her words carefully. In order to receive program funding from the United States government, Pathfinder International has reluctantly endorsed a strict anti-prostitution policy, and the physician is prohibited from engaging in any activities that are inconsistent with that policy. The physician hopes that her organization's policy will not stigmatize or alienate her new patient, but she is obliged to comply. If she does not, the physician risks losing the ability to help her new patient entirely.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act) generally authorizes federal agencies to distribute monetary funds to nongovernmental organizations (NGOs) to combat global pandemics (3) NGOs, however, may only receive federal funds if they comply with certain funding provisions. One particular provision, section 7631(0, of the Leadership Act ("Policy Requirement") stipulates that every group or organization, in order to receive Leadership Act funds, must have a "policy explicitly opposing prostitution." (4) In 2006, U.S.-based NGOs filed suit in federal court to challenge the constitutionality of the Policy Requirement. (5)

On July 6, 2011, the U.S. Court of Appeals for the Second Circuit found the Policy Requirement unconstitutional in Alliance for Open Society International, Inc. v. United States Agency for International Development (Alliance for Open Society). (6) The Second Circuit's decision created a divisive and confusing circuit split after the U.S. Court of Appeals of the District of Columbia Circuit affirmed the constitutionality of the Policy Requirement in DKT International, Inc. v. United States Agency for International Development (DKT International) on February 27, 2007. (7) Both circuit courts considered whether the Policy Requirement violated the free speech guarantee of the First Amendment and thus amounted to an unconstitutional condition on the receipt of government funds. In agreement with the Second Circuit, this Note argues that the Policy Requirement is an unconstitutional condition because it impermissibly compels grantees to affirmatively endorse the government's viewpoint on a controversial matter of public importance, as a condition of receiving federal funding. (8)

Part II of this Note sets forth the background of the Leadership Act and the circuit cases. Part III presents the unconstitutional conditions doctrine and relevant principles of First Amendment jurisprudence. Part IV analyzes the circuit cases and argues for a finding that the Policy Requirement is an unconstitutional condition. Finally, Part V concludes that severing the Policy Requirement from the Leadership Act is proper and will result in legal uniformity and doctrinal clarity, guidance for Congress when drafting grant legislation in the future, continued public discussion on prostitution, better public policy, and a reaffirmation of the commitment to the fundamental free speech values embodied in the First Amendment.

II. BACKGROUND OF THE LEADERSHIP ACT AND THE CIRCUIT CASES

A. THE LEADERSHIP ACT

The Leadership Act was enacted by Congress in 2003 with the overall purpose of strengthening and enhancing "United States leadership and the effectiveness of the United States response to the HIV/AIDS, tuberculosis, and malaria pandemics and other related and preventable infectious diseases." (9) Among other things, the Leadership Act specifies various objectives such as improving harmonization with partner governments, enhancing prevention and treatment programs, addressing the vulnerabilities of girls and women, and expanding public-private sector partnerships. (10) The Leadership Act also makes the reduction of behavioral risks a goal of all prevention efforts in terms of funding, educational messages, and activities. (11) Recognizing that funding partnerships with private organizations are critical, (12) the Leadership Act authorizes federal agencies such as the Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) to distribute federal funds to NGOs fighting pandemics around the world. (13) In order to ensure the reduction of HIV/AIDS behavioral risks, Congress incorporated the Policy Requirement, which states that "[n]o funds made available to carry out this chapter ... may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution." (14) The provision also contains an exception clause declaring that the Policy Requirement "shall not apply 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." (15) In 2004, the Office of Legal Counsel (OLC) of the Department of Justice issued an opinion ("OLC Opinion") warning HHS and USAID that applying the Policy Requirement to U.S.-based organizations would be unconstitutional. (16) Heeding the OLC's warning, HHS and USAID initially refrained from enforcing the Policy Requirement against U.S.-based grantees. (17) The Bush administration's OLC, however, subsequently withdrew its prior "tentative advice," asserting "reasonable arguments" to support the Policy Requirement's constitutionality. (18) In 2005, HHS and USAID began applying the Policy Requirement to U.S.-based organizations. (19)

As the federal agencies in charge of disbursing Leadership Act funds, USAID and HHS implemented the Policy Requirement by requiring funding recipients to sign boilerplate contract provisions and certification statements confirming that the recipients are in compliance with the Policy Requirement. (20) In 2007, USAID issued agency guidelines ("2007 Guidelines") allowing Leadership Act grantees to partner with privately funded affiliate organizations that would not be bound by the Policy Requirement. (21) The 2007 Guidelines require the grantee NGO and any affiliate organizations to maintain "adequate separation" so as not to "threaten the integrity of the Government's program and its message opposing prostitution." (22) In 2010, the agencies issued additional guidelines ("2010 Guidance") requiring that a Leadership Act grantee affirmatively declare in its funding contract that it is "opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children." (23) The 2010 Guidance also mandated that a Leadership Act recipient must not "engage[] in activities inconsistent with [its] opposition to prostitution." (24)

B. DKT INTERNATIONAL, INC. V. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

DKT International, Inc. (DKT), the plaintiff in DKT International, is a nonprofit organization that provides family planning services and HIV/AIDS prevention programs around the world. (25) In 2005, Family Health International (FHI), a U.S.-based nonprofit global development organization, (26) offered DKT a subgrant to administer a reproductive health program in Vietnam. (27) In accordance with the Policy Requirement and agency guidelines, the subgrant contained a contract provision and certification statement declaring that DKT maintained a "policy explicitly opposing prostitution." (28) At the time, DKT did not have a policy for or against prostitution, and the organization declined to adopt an anti-prostitution policy. (29) In response, FHI revoked the subgrant for DKT's reproductive health program. (30)

In 2006, DKT filed suit against USAID in the U.S. District Court for the District of Columbia, alleging that the Policy Requirement violated DKT's First Amendment rights. (31) The district court granted DKT's motion for summary judgment and enjoined USAID from requiring DKT to comply with the Policy Requirement. (32) In 2007, USAID appealed to the D.C. Circuit, which reversed the district court's decision and granted judgment in favor of USAID. (33) Finding that the Policy Requirement "d[id] not compel DKT to advocate the government's position on prostitution," but merely required that DKT "communicate the message the government cho[se] to fund," the D.C. Circuit held that the Policy Requirement did not violate the First Amendment. (34)

C. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC. V. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT

A lead plaintiff in Alliance for Open Society, Alliance for Open Society International (AOSI) administers HIV/AIDS treatment and prevention programs in Central Asia. (35) Another lead plaintiff, Pathfinder International (Pathfinder) works to combat the incidence and spread of HIV/AIDS through family planning and reproductive health services in more than twenty countries around the world. (36) Both NGOs receive Leadership Act funds for their programs, and neither NGO actively supports prostitution. (37) The NGOs' programs, however, involve assisting and treating sex workers who are vulnerable to HIV/AIDS, in addition to discussing strategies to help sex workers avoid the risk of contracting STIs. (38) Although AOSI and Pathfinder wished to remain neutral on the issue of prostitution, both NGOs regularly endorsed anti-prostitution statements simply to remain eligible for Leadership Act funding. (39)

In 2005, AOSI and Pathfinder filed suit against USAID in the U.S. District Court for the Southern District of New York, asserting a First Amendment violation and requesting preliminary injunctive relief. (40) The district court granted the NGOs' request for preliminary injunctive relief, and USAID appealed to the Second Circuit in 2007. (41) After the 2007 Guidelines became effective, however, the Second Circuit remanded the case to the district court to determine if these guidelines sufficiently resolved the Policy Requirement's constitutional concerns. (42)

On remand in 2008, the district court again granted the NGOs' request for a preliminary injunction, reasoning that the clause requiring the NGOs to espouse the government's viewpoint "remain[ed] intact." (43) In 2010, USAID appealed for a second time to the Second Circuit, which again affirmed the district court's preliminary injunction. (44) Finding the Policy Requirement to be a violation of the First Amendment and an unconstitutional condition, the Second Circuit held that the provision "falls well beyond ... permissible conditions on the receipt of government funds" in that it "compels recipients to espouse the government's viewpoint." (45)

III. THE UNCONSTITUTIONAL CONDITIONS DOCTRINE AND RELEVANT PRINCIPLES OF FIRST AMENDMENT JURISPRUDENCE

A. THE UNCONSTITUTIONAL CONDITIONS DOCTRINE

The Spending Clause in Article I, Section 8 of the U.S. Constitution empowers Congress to "provide for the common Defence and general Welfare of the United States." (46) Incident to this broad spending power, Congress may attach conditions on the receipt of federal funds. (47) Congress has repeatedly used the Spending Clause power to further comprehensive policy objectives by conditioning federal funding upon compliance with its statutory and administrative directives. (48) The Supreme Court has acknowledged that Congress may utilize its spending power to indirectly further policy goals that it might not be able to achieve directly through a constitutionally enumerated power. (49) Although the Spending Clause power is admittedly broad, it is not unlimited, and other constitutional concerns can constrain Congress's authority. (50)

Embodying the idea that constitutional concerns can constrain Congress' spending authority, the unconstitutional conditions doctrine prohibits the government from imposing a condition on the receipt of a government benefit that violates the recipient's constitutionally protected rights. (51) The Supreme Court has clarified that the doctrine is applicable even though a person might have no right to a valuable governmental benefit and even though the government may deny the benefit for other permissible reasons. (52) The Court has also acknowledged that an individual's constitutionally protected interest in free speech is especially safeguarded from infringement by unconstitutional conditions. (53)

At first glance, a legal doctrine that prohibits the government from violating the constitutional rights of citizens receiving public benefits seems fairly basic and superfluous. Over the years, however, the Supreme Court and lower federal courts have invoked or declined to invoke the doctrine when considering the constitutional validity of a variety of legislation. Such inconsistent application has created substantial judicial confusion and "doctrinal disarray." (54) The chaotic state of the doctrine explains why lower courts frequently disagree about how to resolve unconstitutional conditions issues. Thus, it is not surprising that the Second Circuit and the D.C. Circuit arrived at opposite conclusions when presented with identical unconstitutional conditions challenges to the Policy Requirement.

B. RELEVANT PRINCIPLES OF FIRST AMENDMENT JURISPRUDENCE

An analysis of relevant First Amendment theories, principles and precedent shows how and in what contexts courts have analyzed similar First Amendment challenges in the past. (55)

1. Laws Abridging Free Speech Are Subject to Heightened Scrutiny

The First Amendment declares that "Congress shall make no law ... abridging the freedom of speech." (56) Because of the First Amendment's clear mandate and the fundamental nature of the right to free expression, courts review laws abridging free speech with an elevated level of scrutiny. The Supreme Court has said that "[s]tatutes are subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech. …

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