Dkt Intern. v. U.S. Agency for Intern. Development

• Decision Date: 27 February 2007
• Docket Number: No. 06-5225.,06-5225.
• Citation: 477 F.3d 758
• Parties: DKT INTERNATIONAL, INC., Appellee v. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT and Randall L. Tobias, Administrator, United States Agency for International Development, in his official capacity, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

477 F.3d 758

DKT INTERNATIONAL, INC., Appellee v. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT and Randall L. Tobias, Administrator, United States Agency for International Development, in his official capacity, Appellants.

No. 06-5225.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 2007.

Decided February 27, 2007.

Appeal from the United States District Court for the District of Columbia (No. 05cv01604).

Gregory G. Katsas, Principal Deputy Associate Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern, Michael S. Raab, and Sharon Swingle, Attorneys. Vincent M. Garvey, Attorney, entered an appearance.

Julie M. Carpenter argued the cause for appellee. With her on the brief were Martina E. Vandenberg, Laura K. Abel, and David S. Udell.

Caroline M. Brown was on the brief for amici curiae Population Council, Inc., et al. in support of appellee.

Before: HENDERSON, RANDOLPH and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge.

The official position of the United States is that eradicating prostitution and sex trafficking is an integral part of the worldwide fight against HIV/AIDS. In awarding grants to private organizations for HIV/AIDS relief efforts, the government—through the U.S. Agency for International Development-only funds organizations that share this view. DKT International refused to certify that it has a policy opposing prostitution and sex trafficking, and therefore did not qualify for a grant. The district court struck down the funding condition on the ground that it violated DKT's freedom of speech under the First Amendment. We reverse.

In 2003 Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, Pub.L. No. 108-25, 117 Stat 711, and the President proposed $15 billion for fighting the worldwide spread of HIV/AIDS, see 22 U.S.C. § 7601(28). The Act directs the President to establish programs "to treat individuals infected with HIV/AIDS," id. § 7611(a)(1), to "prevent the further spread of HIV infections," id., and to "maximize United States capabilities in the areas of technical assistance and training and research, including vaccine research," id. § 7611(a)(8). The Act states that "the reduction of HIV/ AIDS behavioral risks shall be a priority of all prevention efforts in terms of funding, educational messages, and activities by promoting abstinence from sexual activity and substance abuse, encouraging monogamy and faithfulness, promoting the effective use of condoms, and eradicating prostitution, the sex trade, rape, sexual assault and sexual exploitation of women and children." Id. § 7611(a)(4).

Congress found that funding the relief efforts of private organizations was "critical to the success" of the international fight against HIV/AIDS. Id. § 7621(a)(4). Congress thus authorized the President to "furnish assistance, on such terms and conditions as the President may determine," to nongovernmental organizations. Id. § 2151b-2(c)(1); see id. § 7631(b)(1). The Act requires, however, that funds go only to organizations that share the Act's disapproval of prostitution and sex trafficking. Organizations may not use funds granted under the Act to "promote or advocate the legalization or practice of prostitution or sex trafficking." Id. § 7631(e). And under § 7631(f), funds are unavailable "to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking," with the exception of four organizations, three of which are public organizations, and one of which deals only with vaccine research. It is the § 7631(f) condition—that an organization have a policy opposing prostitution and sex trafficking to be eligible for funding—that DKT challenges.

Congress authorized the U.S. Agency for International Development to administer grants, cooperative agreements, and contracts pursuant to the Act. Id. § 7602(6); see 22 C.F.R. part 226. The Agency implemented § 7631(f) by requiring a boilerplate provision in grant contracts and cooperative agreements, and a certification that applicants are in compliance with the provision. See OFFICE OF ACQUISITION & ASSISTANCE, U.S. AGENCY FOR INT'L DEV., AAPD 05-04, IMPLEMENTATION OF THE U.S. LEADERSHIP AGAINST HIV/ AIDS, TUBERCULOSIS AND MALARIA ACT OF 2003—ELIGIBILITY LIMITATION ON THE USE OF FUNDS AND OPPOSITION TO PROSTITUTION AND SEX TRAFFICKING 5-6 (2005). The contractual provision states that recipient organizations and any subrecipients "must have a policy explicitly opposing prostitution and sex trafficking," id. at 5, but does not specify any particular language or format. The certification requirement applies only to the prime recipient, id. at 6, which must include the boilerplate provision in all subagreements, id. at 5. Violation of the provision may be used as a ground for terminating the underlying agreement between the Agency and the prime recipient. Id.

DKT International provides family planning and HIV/AIDS prevention programming in foreign countries, and receives about 16 percent of its total budget from Agency grants. DKT operates as a subgrantee under Family Health International (FHI) in Vietnam, where it distributes condoms and condom lubricant. In June 2005, FHI provided DKT with a subagreement to run an Agency-funded lubricant distribution program. Included in the subagreement was a certification that DKT "has a policy explicitly opposing prostitution and sex trafficking." The subagreement stated that the certification requirement "is an express term and condition of the agreement and any violation of it shall be grounds for unilateral termination of the agreement by FHI or [the Agency] prior to the end of its term." DKT did not, and does not, have a policy for or against prostitution and sex trafficking. It therefore refused to sign the subagreement with the certification requirement. FHI then cancelled the grant and informed DKT that FHI was "unable to provide additional funding to DKT."

DKT alleged that it refuses to adopt a policy opposing prostitution because this might result in "stigmatizing and alienating many of the people most vulnerable to HIV/AIDS — the sex workers . . . ." It claims that the certification requirement in § 7631(f) violates the First Amendment because it constrains DKT's speech in other programs for which it does not receive federal funds and because it forces DKT to convey a message with which it does not necessarily agree.

The government may speak through elected representatives as well as other government officers and employees. Or it may hire private agents to speak for it, as in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). When it communicates its message, either through public officials or private entities, the government can — and often must — discriminate on the basis of viewpoint. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 289 (D.C.Cir.1989). In sponsoring Nancy Reagan's "Just Say No" anti-drug campaign, the First Amendment did not require the government to sponsor simultaneously a "Just Say Yes" campaign. Or to repeat the example in Rust: "When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles . . . it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism." 500 U.S. at 194, 111 S.Ct. 1759; see also DKT Mem'l, 887 F.2d at 290.

In this case the government's objective is to eradicate HIV/AIDS. One of the means of accomplishing this objective is for the United States to speak out against legalizing prostitution in other countries. The Act's strategy in combating HIV/AIDS is not merely to ship condoms and medicine to regions where the disease is rampant. Repeatedly the Act speaks of fostering behavioral change, see, e.g., 22 U.S.C. § 7601(22)(E), and spreading "educational messages," id. § 7611(a)(4). The Act's stated source of inspiration is the success in Uganda, where President Yoweri Museveni "spoke out early, breaking long-standing cultural taboos, and changed widespread perceptions about the disease." Id. § 7601(20)(B). The Act details the program Museveni instituted, which primarily involved a "message" about "a fundamental change in sexual behavior." Id. § 7601(20)(C). "Uganda's success shows that behavior change . . . is a very successful way to prevent the spread of HIV." Id. § 7601(20)(D). Spending money to convince people at risk of HIV/AIDS to change their behavior is necessarily a message.

Everyone, including DKT, agrees that the government may bar grantees from using grant money to promote legalizing prostitution. But DKT complains that § 7631(f) constrains its speech in other programs, for which it does not receive federal funds.¹ That effect, DKT argues, makes the case like FCC v. League of Women Voters of California, 468 U.S. 364 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984), and unlike Rust v. Sullivan. We think the opposite. The restriction struck down in League of Women Voters prohibited public broadcasting stations from editorializing. The Court pointed out that a public broadcasting station could not editorialize with its nonfederal funds even if its federal grants amounted to only a small fraction of its income. 468 U.S. at 400, 104 S.Ct. 3106. Therefore the restriction did not simply govern the use of federal funds. Id. Rust, on the other hand, upheld regulations prohibiting federally funded family planning services from engaging in abortion counseling or in any way advocating abortion as a method of family planning. 500 U.S. at 178, 111 S.Ct. 1759.

The...