Federal Court Again Finds Content-Based Restrictions on HIV Prevention Funding Unconstitutional

U.S. District Judge Victor Marrero issued a new ruling on August 8 in the long-pending case of Alliance for an Open Society v. U.S. Agency for International Development, 2008 Westlaw 3361379 (S.D.N.Y.), holding that certain associations of organizations doing HIV prevention work overseas could be added to the lawsuit as co-plaintiffs, and that a preliminary injunction should be continued in effect against a provision requiring private sector recipients of HIV prevention funding from the federal government to maintain policies "explicitly opposing prostitution and sex trafficking."

On May 9, 2006, Judge Marrero had issued his initial ruling authorizing injunctive relief against the ideological requirement that Congress sought to impose on some funding recipients under what was popularly known as the U.S. Leadership Against HIV/AIDS Act of 2003.  The statutory requirement specifically exempted the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative, and any U.N. agency that might receive federal funding under the Act.  Thus, Congress would not impose this ideological requirement on quasi-governmental international organizations, but sought to impose it on private charitable organizations doing AIDS prevention work overseas.

The original plaintiffs, Alliance for an Open Society International, Inc., and Pathfinder International, succeeded in persuading Judge Marrerro that it was a violation of their First Amendment rights to require them to adopt such overt policies in order to receive federal funding in the fight against AIDS, thus the original preliminary injunction, but the government's response was that it would deem the injunction to be valid only as to the plaintiffs, and not as to all potentially affected funding recipients doing this kind of work.  The recipients saw this as burdensome and counterproductive because in many countries an important part of their work is engaging prostitutes and other sex-workers in HIV prevention and education efforts, and an overtly anti-prostitute policy would undermine those efforts in countries where prostitution is a major vector of HIV transmission.  The government's interest in avoiding presenting the impression that it tolerated prostitution if funding recipients were working openly with prostitutes in a non-judgmental way was seen as being logically undermined by the express exemption of so many quasi-governmental international organizations, leaving the provision vulnerable to a serious First Amendment challenge when strict scrutiny was applied to this content based speech-related provision.

One of the things that plaintiffs were trying to do, as this case was pending on appeal to the 2nd Circuit by the government, was to get the complaint amended to add additional plaintiff organizations, essentially confederations of many organizational membership associations whose members are doing the actual work, and who would then benefit from the preliminary injunction.  The government refused to consent to such addition, arguing that the additional organizations lacked standing, or that they could not be added as association plaintiffs because each of their member organizations would present individualized fact questions about the degree of burden imposed by the restrictions.  Judge Marrero cut through these arguments and ruled that the additional plaintiffs should be added, although for technical reasons he found that one of them could not benefit from the preliminary injunction.

More seriously at issue, however, was the potential impact of new guidelines that the government has issued on the implementation of the statutory requirement.  Under the guidelines, recipients of the federal money would be required to spin off as totally separate organizations any entity that wanted to work with prostitutes or sex-traffickers and refrain from adopting overt policies against such activities, in order to keep getting the money.  In other words, organizations that are struggling to confront a huge pandemic with insufficient funds are supposed to divert some portion of their resources to setting up duplicative organizations in order to preserve the "ideological purity" of the direct funding recipients.  Based on this new position by the government, the 2nd Circuit decided to defer ruling on the appeal and send the case back to Judge Marrero for further consideration. 

Marrero saw this for the nonsense that it is, and reiterated his earlier finding that the government is seeking to impose an unconstitutional condition in this case. 

He found the case to be distinguishable from Rust v. Sullivan, the U.S. Supreme Court decision that had upheld a federal provision requiring that organizational recipients of federal funding for family planning activities could not use abortion as a method of such planning or provide information or services related to abortion to their clients, and also distinguishable from a provision of the Legal Services Corporation Act that bans recipients of federal funding to run legal services organizations from engaging in class action law suits against government agencies. Rust was distinguished because it did not require funding recipients to articulate the government's position on abortion, but merely not to use government money to advocate for or provide abortion-related services.  Thus, Rust was about controlling what services will be financed with government money, not compelled speech as such.  As to the Legal Service case, Marrero pointed out that this was a content-neutral ban on class actions, not a content-based ban dependent on the subject matter of the lawsuits.  By contrast, the Leadership Act seeks to compel private organizations to take a political viewpoint in order to be eligible for funding, which Marrero ruled in the early case was an infringement of their First Amendment rights.

"Plaintiffs argue that the Guidelines do not remedy this constitutional defect, and thus also unconstitutionally compel speech," he wrote.  "The Court agrees.  While the Guidelines may or may not provide an adequate alternate channel for Plaintiffs to express their views regarding prostitution, the clause requiring Plaintiffs to adopt the Government's view regarding the legalization of prostitution remains intact.  Plaintiffs are still not permitted to abstain from taking a view with regard to prostitution, but rather, are required to espouse the Government's position.  Because the Guidelines do not alter the compelled speech provision of the Policy Requirement, the Court finds, for the same reasons as stated in AOSI I, that the provision unconstitutionally compels speech.  Therefore, Plaintiffs have demonstrated a likelihood of success to warrant the extention of the preliminary injunction ordered in AOSI I."

The government will surely seek to return to the 2nd Circuit for a substantive review of this ruling, but for now the government continues to be enjoined from compelling funding recipients under the Leadership Act to adopt a specific position against prostitution in order to continue receiving funds, and the new preliminary injunction also forestalls the need for them to expend scarce resources on setting up parallel organizations in order to insulate them from the compelled speech requirements of the statute.