Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc.

Citation186 L.Ed.2d 398,570 U.S. 205,133 S.Ct. 2321
Decision Date20 June 2013
Docket NumberNo. 12–10.,12–10.
Parties AGENCY FOR INTERNATIONAL DEVELOPMENT, et al., Petitioners v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., et al.
CourtUnited States Supreme Court

Sri Srinivasan, Washington, DC, for Petitioners.

David W. Bowker, Washington, DC, for Respondents.

Donald B. Verrilli, Jr., Solicitor General, Stuart F. Delery, Principal Deputy Assistant Attorney General, Sri Srinivasan, Counsel of Record, Edwin S. Kneedler, Deputy Solicitors General, Jeffrey B. Wall, Assistant to the Solicitor General, Michael S. Raab, Sharon Swingle, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Jason D. Hirsch, Michael D. Gottesman, Shalev Roisman, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, David W. Bowker, Counsel of Record, Catherine M.A. Carroll, Weili J. Shaw, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Rebekah Diller, Laura Abel, New York, NY, for Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

The United States Leadership Against HIV/AIDS, Tuberculosis

, and Malaria Act of 2003 (Leadership Act), 117 Stat. 711, as amended, 22 U.S.C. § 7601 et seq., outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world. As part of that strategy, Congress authorized the appropriation of billions of dollars to fund efforts by nongovernmental organizations to assist in the fight. The Act imposes two related conditions on that funding: First, no funds made available by the Act "may be used to promote or advocate the legalization or practice of prostitution or sex trafficking." § 7631(e). And second, no funds may be used by an organization "that does not have a policy explicitly opposing prostitution and sex trafficking."

§ 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." 22 U.S.C. § 7601(1). According to congressional findings, more than 65 million people had been infected by HIV and more than 25 million had lost their lives, making HIV/AIDS the fourth highest cause of death worldwide. In sub-Saharan Africa alone, AIDS had claimed the lives of more than 19 million individuals and was projected to kill a full quarter of the population of that area over the next decade. The disease not only directly endangered those infected, but also increased the potential for social and political instability and economic devastation, posing a security issue for the entire international community. § 7601(2)(10).

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 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.

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." 45 CFR § 89.1(b) (2012) ; USAID, Acquisition & Assistance Policy Directive 12–04, p. 6 (AAPD 12–04).

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 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." 45 CFR § 89.3 ; see also AAPD 12–04, at 6–7. Whether sufficient separation exists is determined by the totality of the circumstances, including "but not ... limited to" (1) whether the organizations are legally separate; (2) whether they have separate personnel; (3) whether they keep separate accounting records; (4) the degree of separation in the organizations' facilities; and (5) the extent to which signs and other forms of identification distinguish the organizations. 45 CFR § 89.3(b) (1)(5) ; see also AAPD 12–04, at 6–7.

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. 651 F.3d 218 (C.A.2 2011). Under this doctrine, the court reasoned, "the government may not place a condition on the receipt of a benefit or subsidy that...

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