Printer Friendly

Agency for International Development v. Alliance for Open Society International, Inc.: balancing Congress's spending power against First Amendment liberties.

I. INTRODUCTION
II. FACTS AND HOLDING
III. LEGAL BACKGROUND
     A. THE UNCONSTITUTIONAL CONDITIONS DOCTRINE
        1. THE COURT'S TRADITIONAL APPLICATION
        2. THE RUST FRAMEWORK
    B. THE SPLIT IN THE CIRCUIT COURTS
IV. THE COURT'S DECISION
    A. THE MAJORITY OPINION
    B. THE DISSENT
V. ANALYSIS.
    A. THE DECISION'S EFFECT ON PREVIOUS LAW
    B. THE DECISION'S WEAKNESSES.
    C. THE DECISION'S EFFECT ON THE FIGHT AGAINST
       HIV/AIDS.
VI. CONCLUSION


I. INTRODUCTION

In Agency for International Development v. Alliance for Open Society International, Inc., the Supreme Court of the United States addressed whether Congress could require domestic nongovernmental organizations (NGOs) involved in the fight against AIDS to adopt a policy opposing prostitution in order to receive federal funds. (1) The Court cautiously operated within the existing legal framework governing congressional funding conditions to hold that this policy requirement violates the First Amendment. (2)

Section II of this Note describes the factual background that led to the Supreme Court's decision. Section III describes the conflicting lines of precedent that arise when the government conditions federal funds on the forfeiture of First Amendment rights. Section III also discusses the split in the circuit courts that preceded the Supreme Court's analysis of this case. Section IV explains the majority and dissenting opinions. Finally, Section V analyzes and critiques the Court's rationale. This Note concludes by praising the effects that the Court's decision will have for humanitarian groups in the fight against HIV/AIDS and by recognizing the case as a First Amendment victory; however, the Note goes on to criticize the majority for not taking a stronger stand to protect First Amendment liberties at stake in conditional funding cases.

II. FACTS AND HOLDING

Alliance for Open Society International (AOSI), Pathfinder International (Pathfinder), InterAction, and Global Health Council (GHC), the respondents, are domestic nongovernmental organizations (NGOs) that operate international programs to fight the HIV/AIDS pandemic. (3) To operate their programs, respondents rely on private funds in addition to federal money provided under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act). (4) A principle objective of the Leadership Act was to develop an international, comprehensive strategy to fight the HIV/AIDS pandemic. (5) In recognition of the role that prostitution plays in the spread of HIV/AIDS, (6) the Act calls for both public education about the dangers of prostitution (7) and eradication of the sex industry. (8)

The Leadership Act stresses the necessity of government-private sector partnerships to carry out the government's anti-HIV/AIDS strategy. (9) To foster these partnerships, Congress allocated billions of dollars to fund programs such as those operated by respondents. (10) Petitioners, United States Agency for International Development (USAID), along with the Department of Health and Human Services (HHS) and one of its operating components, the Center for Disease Control (CDC), were tasked with distributing funds to NGOs in accordance with the Leadership Act. (11)

At the time of its enactment, the Leadership Act placed two related conditions on NGOs that sought funding. (12) First, no funds granted under the Leadership Act could be "used to promote or advocate the legalization or practice of prostitution or sex trafficking" (the Funding Restriction). (13) Second, no funds under the Leadership Act could be granted "to any group or organization that [did] not have a policy explicitly opposing prostitution and sex trafficking" (the Policy Requirement). (14)

The Policy Requirement was the condition at issue in Alliance for Open Society. (15) In 2005, USAID and HHS implemented the Policy Requirement by issuing regulations requiring all recipients of Leadership Act funds to have an active policy opposing prostitution. (16) Respondents reluctantly complied with these regulations to remain eligible for funding. (17) Their reluctance stemmed from a fear that adopting a policy against prostitution would alienate persons involved in the sex trade industry, a high-risk population whose cooperation is crucial to the elimination of HIV/AIDS. (18) Additionally, respondents feared that the Policy Requirement would complicate their work in countries where prostitution is legal. (19) Finally, they feared that the Policy Requirement would require them to censor themselves in the public debate surrounding prostitution's relationship to the spread of HIV/AIDS. (20)

In 2005, AOSI and Pathfinder filed suit in the United States District Court for the Southern District of New York. (21) They sought both a declaratory judgment stating that the Policy Requirement was unconstitutional and a preliminary injunction barring enforcement of the Policy Requirement until the completion of litigation. (22) AOSI and Pathfinder argued that the Policy Requirement violated the First Amendment because it conditioned funding on affirmation of the government's opposition to prostitution and restricted private speech on the topic of prostitution. (23) The district court found that the Policy Requirement violated the First Amendment and granted the preliminary injunction. (24) Petitioners appealed to the United States Court of Appeals for the Second Circuit. (25)

Following the appeal, petitioners created new guidelines clarifying implementation of the Policy Requirement. (26) These new guidelines allowed organizations receiving Leadership Act funds to affiliate with organizations that "engage [d] in activities inconsistent with the recipient's opposition to the practices of prostitution and sex trafficking," provided that the funding recipient remained independent from the affiliate. (27) The court of appeals left the ruling of the district court intact, but remanded the case for determination of whether, in light of the new guidelines, the preliminary injunction was still proper. (28)

On remand, the district court upheld its original preliminary injunction, reasoning that the new guidelines did not negate the likelihood that respondents would succeed on their First Amendment claim. (29) A divided court of appeals affirmed the district court's ruling to grant the preliminary injunction, agreeing with the lower court that the Policy Requirement likely violated the First Amendment by compelling recipients to adopt the government's opposition to prostitution. (30) USAID and HHS petitioned the Supreme Court of the United States for writ of certiorari, which the Court granted in January of 2013. (31)

In their brief, petitioners requested that the Supreme Court reverse the court of appeals' decision and uphold the Policy Requirement as constitutional. (32) In support of their position, petitioners argued that the Policy Requirement was a permissible exercise of Congress's broad power to condition government funding under the Spending Clause. (33) Petitioners further argued that the Policy Requirement was necessary to ensure that the government's negative stance on prostitution would not be undermined or confused. (34) Finally, petitioners argued that the USAID and HHS guidelines, which would have allowed respondents to avoid the effects of the Policy Requirement by forming affiliate organizations to receive government funding, resolved all constitutional concerns. (35)

Conversely, respondents urged the Supreme Court to affirm the court of appeals' decision and find that that the Policy Requirement violated the First Amendment. (36) In support of their position, respondents argued that the Policy Requirement, by compelling funding recipients to espouse the government's opposition to prostitution, placed restrictions on respondents' private speech and thus violated both the First Amendment and the Supreme Court's unconstitutional conditions doctrine. (37) Finally, respondents asserted that the USAID and HHS guidelines permitting a funding recipient to affiliate with an entity not bound by the Policy Requirement failed to remedy the Policy Requirement's unconstitutionality; the new guidelines would still compel recipients to adopt the government's viewpoint and would still restrain them from espousing a contrary viewpoint even through privately funded speech. (38)

The Supreme Court, in a 6-2 decision, held that the Policy Requirement violated the First Amendment because--rather than merely placing a restriction on the content of a recipient's speech paid for with Leadership Act funds--the Policy Requirement reached outside the scope of the Leadership Act to place restrictions on the content of all of a recipient's speech, regardless of how that speech was funded. (39)

III. LEGAL BACKGROUND

The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." (40) Since the "dawn of First Amendment jurisprudence," courts have viewed free speech as essential to a democratic government. (41) Jurisprudence staunchly protects the right to free speech against government regulations that directly suppress the content of speech, irrespective of whether those regulations come in the form of prohibitions or penalties. (42) Similarly, court decisions consistently defend against government attempts to directly compel speech. (43) However, courts have reached varied and discordant conclusions when government regulation on speech is not enforced directly through a penalty or prohibition, but through the imposition of a condition placed on the receipt of government funding. (44) Such an indirect regulation of speech was at the center of the dispute in this case. (45)

As exemplified by the controversy in Alliance for Open Society, Congress's power under the Spending Clause is in tension with the rights guaranteed by the First Amendment. (46) Under the Spending Clause, Congress has the power to place conditions on federal funding that it would not be able to enact through direct regulations. (47) For example, in South Dakota v. Dole, the Supreme Court held that, although it would have been unconstitutional for Congress to directly mandate that all states adopt the same minimum age for the consumption of alcohol, it was constitutional for Congress to condition a state's receipt of federal funds for highway maintenance upon its raising the drinking age to twenty-one. (48)

While some congressional funding conditions are permissible, not all are deemed constitutional. (49) The question of whether a funding condition is constitutional is scarcely an easy one for courts to answer. (50) Courts' struggle with the constitutionality of funding conditions that implicate First Amendment rights has resulted in a muddled field of jurisprudence in which two lines of contradicting precedent prevail. (51)

Subsection A traces the development of these two conflicting lines of precedent through several key cases in which the Supreme Court applied the "unconstitutional conditions" doctrine to government funding conditions that affect private speech. Part 1 of this Subsection discusses cases forming the earlier line of precedent, where the Court employed a traditional application of the unconstitutional conditions doctrine. (52) Traditionally, the doctrine has been applied to vindicate First Amendment rights. (53) Part 2 of this Subsection explores the second line of precedent, in which the Court broke from the traditional application of the unconstitutional conditions doctrine and applied rules extrapolated from Rust v. Sullivan. (54) These rules give Congress more power to regulate speech through funding conditions. (55) Subsection B demonstrates how the lack of clarity in this area of law led to a split in the Courts of Appeals for the D.C. and Second Circuit over the constitutionality of the Policy Requirement's mandate that recipients adopt the government's opposition to prostitution. (56)

A. THE UNCONSTITUTIONAL CONDITIONS DOCTRINE

1. THE COURT'S TRADITIONAL APPLICATION

The unconstitutional conditions doctrine prohibits the government from denying a benefit to a person because that person exercises a constitutionally protected right. (57) The doctrine was first employed in the early twentieth century to protect the rights of economic entities. (58) The doctrine subsequently evolved "to protect personal liberties of speech, association, religion, and privacy." (59) Since its evolution, the Supreme Court has employed the doctrine to strike down a statute conditioning the receipt of tax benefits upon a recipient's promise not to advocate for the overthrow of the United States government. (60) The doctrine has also been employed to prohibit the government from denying unemployment benefits to a person because that person exercises freedom of religion. (61) The following cases, relied upon by the majority in Alliance for Open Society, illustrate the Court's pre-Rust application of the unconstitutional conditions doctrine in the context of free speech. (62)

In Regan v. Taxation With Representation of Washington, the Supreme Court considered the doctrine in its analysis of the constitutionality of 26 U.S.C. [section] 501(c)(3), which prevented [section] 501(c)(3) tax-exempt nonprofits from engaging in substantial lobbying. (63) Taxation With Representation, a [section] 501(c)(3) nonprofit, argued that the statute's prohibition on lobbying was an infringement of its right to free speech. (64) The Supreme Court reasoned that the statute did not violate the unconstitutional conditions doctrine because [section] 501(c)(3) organizations were not denied a tax exempt status because they engaged in lobbying; under the Tax Code, [section] 501(c)(3) organizations were permitted to form a [section] 501(c)(4) affiliate that could lobby without government regulation. (65) The holding was also based on the rationale that, while the First Amendment protects the right to lobby, the requirement that [section] 501(c)(3) organizations refrain from lobbying was not unconstitutional because "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." (66) This aspect of the holding represented a variation on traditional unconstitutional conditions analysis. (67)

Justice Blackmun's concurrence, however, reaffirmed the strength of the traditional application of the doctrine by stating that he only agreed with the Court because [section] 501(c)(3) organizations could still lobby through their [section] 501(c)(4) affiliates. (68) This outlet for expression, he reasoned, saved [section] 501(c)(3)'s prohibition on lobbying from unconstitutionality. (69) Without it, the statute would violate the unconstitutional conditions doctrine by "denying] a benefit to a person because he exercise[d] a constitutional right." (70)

A year later, the Supreme Court faced another First Amendment conditional funding issue. (71) In FCC u. League of Women Voters, the Court applied the unconstitutional conditions doctrine to invalidate a regulation that prohibited public broadcasting stations that received Corporation for Public Broadcasting (CPB) grants from engaging in editorializing. (72) Relying on Justice Blackmun's concurrence in Regan, the Court explained its decision:

   In this case, however, unlike the situation faced by the charitable
   organization in Taxation With Representation, a noncommercial
   educational station that receives only 1% of its overall income
   from CPB grants is barred absolutely from all editorializing.
   Therefore, in contrast to the appellee in Taxation With
   Representation, such a station is not able to segregate its
   activities according to the source of its funding. (73)


The Court explained that if Congress had instead chosen to restrict the use of federal funds to non-editorializing activities and allow public broadcasting stations to conduct editorializing activities with nonfederal monies, then the condition in question would have been constitutional. (74)

2. THE RUST FRAMEWORK

Operating under the framework established in Regan and League of Women Voters, the Supreme Court addressed yet another First Amendment issue created by a funding condition. (75) In Rust u. Sullivan, the Court upheld regulations prohibiting recipients of Title X grants from abortion advocacy within the confines of Title X projects. (76) Title X grant recipients brought suit alleging that the regulations violated the First Amendment by discriminating against viewpoints that were not anti-abortion and by penalizing Title X recipients' privately funded speech. (77) The Rust Court explained the doctrine of unconstitutional conditions as follows: "[O]ur 'unconstitutional conditions' cases involve situations in which the government has placed a condition on the recipient of the subsidy rather than on a particular program or service." (78)

The Court applied this rule to find that, unlike the regulation in League of Women Voters which placed a restriction on the recipient of CPB grants by prohibiting the recipient from all editorializing, the Rust regulation did not require the recipient of funds to refrain from abortion related speech entirely. (79) Rather, it merely controlled the content of speech within Title X projects. (80) The Court likened the Rust regulation to the regulation in Regan because, just as the regulation in Regan allowed [section] 501(c)(3) organizations to lobby through a [section] 501(c)(4) affiliate, the Rust regulation allowed Title X grantees to exercise their right to abortion advocacy outside the confines of the federally funded program. (81)

The Rust Court also based its holding on the principle that Congress does not infringe on a right by refusing to fund its exercise. (82) The Rust Court employed this principle along with its interpretation of the unconstitutional conditions doctrine to find that through the Title X regulation, Congress had not infringed on any constitutional rights to speech; it had merely made a value judgment to create a program that would fund one form of family planning to the exclusion of another. (83) Congress was thus entitled to restrict speech in accordance with that value judgment so long as Title X recipients were free to engage in abortion-related speech outside the confines of Title X projects. (84)

While the Rust Court applied the unconstitutional conditions doctrine in its analysis of the Title X regulation, its recognition of Congress's power to regulate the content of speech in accordance with the goals of federal spending programs was unprecedented. (85) The Court has subsequently interpreted this unprecedented aspect of Rust's holding in ways that are detrimental to First Amendment liberties. (86)

Courts applying Rust have ultimately given more power to Congress to regulate speech. (87) One rule that a subsequent opinion took from Rust is that Congress can restrict the content of speech through funding conditions to ensure that government money is spent in agreement with the purpose for which it was allocated. (88) This rule threatens free speech liberties because, as demonstrated by the following cases, Congress can easily defend funding programs that entice private entities to refrain from expressing certain viewpoints that would be inconsistent with the goals of those programs. (89)

In United States u. American Library Association, the plurality applied this rule to address the constitutionality of the Children's Internet Protection Act (CIPA), which required obscenity filters in public libraries that received federal funding for Internet access. (90) The American Library Association plurality employed the Rust rule to uphold CIPA against First Amendment claims. (91) The Supreme Court explained that, through funding Internet access, Congress's intention was to assist libraries in their goal of disseminating educational information to the public. (92) The Court compared this statute to the regulation in Rust, which served to ensure that government funds were only used for the narrow purpose of providing preventative family planning methods to the exclusion of abortion. (93) The Court reasoned that CIPA similarly helped to ensure that federal funds would be used for the purpose for which they were allocated and therefore upheld it as constitutional. (94) This rule from Rust has been used by other decisions to give Congress broader spending power than it had under the pre-Rust application of the unconstitutional conditions doctrine. (95)

Some decisions have extrapolated a second, similar rule from Rust that gives Congress even more authority to condition funds on the forfeiture of protected speech. (96) The Rosenberger Court explained that in Rust, when the government elected to fund Title X programs, the recipients of those funds became conveyers of government speech, specifically the government's message of opposition to abortion as a method of family planning. (97) Accordingly, the Rosenberger Court held that it is permissible for the government to regulate the content of its own message through funding restrictions that ensure the purity of that message. (98) Although this rule was never explicitly stated in the Rust decision, the Supreme Court in Rosenberger v. Rector and Visitors of the University of Virginia nonetheless interpreted Rust as vesting Congress with the power to impose content-based funding conditions when the restricted speech is "government speech." (99)

In Velazquez, the Supreme Court applied the Rosenberger Court's extrapolation of the government speech rule from Rust to strike down a regulation that prevented law firms that received federal funds from providing services to indigent clients where the client challenged the validity of welfare laws. (100) The Velazquez Court distinguished its case from Rust, explaining that unlike Title X projects, the regulation in the case at bar did not protect a "programmatic message." (101) The Velazquez Court held that a regulation stifling the ability of attorneys to advocate on behalf of clients who challenged federal statutes did not protect the purity of government speech, but instead infringed upon the private speech of indigent clients and was therefore unconstitutional. (102)

Finally, some justices rely on Rust to advance the Lack of Coercion argument. (103) This argument, which essentially removes the teeth from the unconstitutional conditions doctrine, supported the plurality's decision in American Library Association. (104) Resting on the principle from Rust and Regan that the government's refusal to subsidize the exercise of a right cannot be equated to an infringement of that right, the American Library Association plurality admonished that if libraries did not want to be bound by the restriction imposed by CIPA, they had the choice to refuse federal funding for Internet access. (105) This argument (the "Lack of Coercion" argument) supports Justice Scalia's consistently-held opinion that the First Amendment has no place in funding restriction cases because funding recipients make the choice to relinquish rights in exchange for federal funding. (106)

Justice Stevens' dissent in the American Library Association decision directly addressed the Lack of Coercion argument and the plurality's failure to apply a coercion analysis. (107) The dissent responded to the plurality's argument that the funding restrictions in CIPA did not burden First Amendment rights by noting that if CIPA were to directly penalize libraries for failing to install obscenity filters on computers, it would "unquestionably" violate the First Amendment. (108) The dissent then argued that "[a]n abridgement of speech by means of a threatened denial of benefits can be just as pernicious as an abridgment by means of a threatened penalty." (109) In support of its argument, the dissent cited Sherbert v. Verner, a freedom of religion case in which the Supreme Court held:

   Governmental imposition of such a choice puts the same kind of
   burden upon the free exercise of religion as would a fine .... It
   is too late in the day to doubt that the liberties of religion and
   expression may be infringed by the denial of or placing of
   conditions upon a benefit or privilege. (110)


The thrust of the dissent's argument was that the threat of losing funding can coerce an entity to forgo freedom of speech, and thus such a condition can have the same effect as a direct penalty or prohibition on speech. (111) The argument concluded by proposing that because the Supreme Court staunchly defends free speech from direct government regulation, coercive funding conditions that have the same effect as direct prohibitions or penalties merit the same disapproval. (112)

B. The Split in the Circuit Courts

It was under these precedents that the Courts of Appeals for the D.C. and Second Circuit examined First Amendment claims that challenged the Policy Requirement. In DKT International, Inc. v. United States Agency for International Development, the Court of Appeals for the D.C. Circuit upheld the Policy Requirement as constitutional. (113) The court based its decision largely on the more permissive Rust government speech rule as interpreted by the Supreme Court in Rosenberger and Velazquez. (114) The Court of Appeals for the D.C. Circuit likened the Policy Requirement to the prohibition of Title X grant recipients from abortion related activity in Rust. (115) Just as Congress enlisted Title X recipients to carry out its preferred family planning program, Congress had enlisted Leadership Act recipients as conveyers of the government's message against prostitution. (116) Thus, the DKT court held that the Policy Requirement was within the limits of Congress's spending power. (117)

The Court of Appeals for the D.C. Circuit also employed pre-Rust jurisprudence to support its holding. (118) The DKT court explained that the Policy Requirement in DKT stood in contrast to regulations involved in the Supreme Court's unconstitutional conditions cases, where the government-imposed condition prohibited protected speech entirely. (119) Using rationale from Regan, the court noted that: "Nothing prevents DKT from itself remaining neutral and setting up a subsidiary organization that certifies it has a policy opposing prostitution." (120)

Reaching the opposite conclusion, the Court of Appeals for the Second Circuit held that the Policy Requirement likely violated the First Amendment. (121) The Second Circuit premised its analysis on the unconstitutional conditions doctrine, holding 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." (122) The court deemed the Policy Requirement a "bold combination ... of a speech-targeted restriction that is both affirmative and quintessentially viewpoint-based." (123) The Second Circuit rejected the government's argument that the Policy Requirement constituted government speech under Rust, reasoning that the message behind the Leadership Act was one of eradicating HIV/AIDS and could not be recast as eradicating prostitution. (124) Furthermore, the court held that the amended guidelines that permitted an affiliate structure to support an opposing policy did not cure the Policy Requirement's constitutional malady. (125) Distinguishing the situation in the instant case from that in Regan, the court reasoned that under the affiliate structure, the funding recipient was still compelled to adopt an active stance against prostitution and thus had no outlet for engaging in the protected speech. (126)

In summary, even taking into account the variation from the traditional application of the doctrine in Regan, the pre-Rust Supreme Court applied the unconstitutional conditions doctrine to protect free speech liberties from government infringement in the form of congressional funding conditions. (127) Rust, however, was far less protective of First Amendment rights than previous decisions. (128) Rust represented a break from the traditional application of the doctrine, but did not overrule it. (129) Thus, subsequent courts faced with funding conditions issues have been faced with the dilemma of applying the more protective pre-Rust unconstitutional conditions doctrine or the more permissive principles from Rust. (130) The conflict between these two lines of cases is evidenced by the incongruent decisions reached by the Courts of Appeals for the D.C. and Second Circuit regarding the constitutionality of the Policy Requirement. (131)

IV. THE COURT'S DECISION

A. THE MAJORITY OPINION

With this circuit split in its sights, the Supreme Court granted writ to clarify the law surrounding funding conditions. (132) As a preliminary matter, the majority found that if the Policy Requirement was a direct regulation on speech, it would clearly violate the First Amendment as compelled speech. (133) The issue before the Court was whether the Policy Requirement violated the Constitution as a funding condition. (134)

To set the stage for its analysis, the majority called attention to the conflicting lines of precedent in funding conditions jurisprudence. (135) Citing the same Rust rule employed in American Library Association, the majority recognized that Congress has the power under the Spending Clause to create a federal program to disseminate funds and condition the receipt of funding to ensure that those funds are used in accordance with the mission of that federal program. (136) The majority also acknowledged that funding recipients who do not want to be bound by restrictive conditions are free to forgo federal funding. (137)

Then the majority juxtaposed these post-Rust ideas against the unconstitutional conditions doctrine, stating that: "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.'" (138) Having presented the clear tension between these conflicting precedents, the Court acknowledged that the line between constitutional and unconstitutional funding conditions in the context of the First Amendment was "hardly clear." (139) Therefore, the majority undertook the task of developing a more definite line between funding conditions that are constitutional and those that are not. (140)

To accomplish this task, the Court examined the decisions from Regan, League of Women Voters, and Rust. (141) The condition in Regan was constitutional because, by allowing a "dual structure" in which [section] 501(c)(3) nonprofits could lobby through [section] 501(c)(4) affiliates, the government was not denying a benefit to the nonprofits "on account of [their] intention to lobby." (142) By contrast, the condition in League of Women Voters, under which even a station that received only a small percentage of federal assistance was barred altogether from editorializing, was unconstitutional because it sought to "regulate the stations' speech outside the scope of the [CPB] program." (143) To amplify the distinction between constitutional and unconstitutional conditions, the majority discussed the regulation in Rust, which was constitutional because it placed restrictions on speech within the scope of Title X projects, but not on the Title X grantee. (144) The majority highlighted the pattern that arose from these cases: Conditions that define the parameters of the federal program are constitutional, while conditions that use funding as a means to control speech outside the scope of the program are not. (145)

Using this distinction, the Court analyzed the constitutionality of the Policy Requirement. (146) To provide a point of reference, the majority noted that the Policy Requirement's counterpart, the Funding Restriction, placed limits on the use of Leadership Act funds. (147) According to the Court's distinction, the Funding Restriction could be considered constitutional because it defined the parameters of the federal program. (148) The Policy Requirement, on the other hand, required the recipient of Leadership Act funds to adopt the government's opposition to prostitution. (149) This mandate pushed beyond defining the limits of the federal spending program to defining the ideology of the recipient itself, placing the Policy Requirement in the category of conditions that seek to regulate speech outside the confines of the federally funded program. (150) Thus, the requirement was struck down as unconstitutional. (151)

The Court rejected petitioners' argument that the affiliate guidelines cured the constitutional infirmities of the Policy Requirement. (152) Under the guidelines, the recipient had the option to continue to engage in activities inconsistent with the government's opposition to prostitution while affiliating with an organization that adhered to the Policy Requirement or vice versa. (153) The majority analyzed the merits of the petitioners' argument by differentiating this situation from situations like those in Regan and Rust, where under the affiliate structure, the organization bound by the funding condition could still engage in the protected speech outside of the government program. (154) Under the guidelines in the instant case, respondents were still required to affirm the government's stance on prostitution as their own and could only express contrary viewpoints through an affiliate "at the price of evident hypocrisy." (155)

Finally, the Court addressed petitioners' argument that the Policy Requirement was necessary to ensure that the purpose of the Leadership Act would not be undermined and its message concerning prostitution would not be confused. (156) The Court evaluated petitioners' claim by weighing the government's interest in protecting the integrity of its program against a funding recipient's right to be free from government force to "pledge allegiance to the Government's policy of eradicating prostitution." (157) The Court held that by requiring such a pledge, the Policy Requirement placed too high a price on First Amendment rights and thus rejected petitioners' claim. (158)

B. The Dissent

The dissent focused on the idea that the Constitution permits the government to spend money in ways that discriminate against certain points of view to achieve government objectives. (159) The dissent provided a hypothetical to illustrate its point: if Hamas were a group of American citizens entitled to First Amendment guarantees, no one would object if the government refused to enlist Hamas as a distributor of U.S. foreign aid. (160) No one would object because Hamas engages in the spread of anti-American propaganda, which would undermine the government's attempt to foster amity with foreign countries, an ancillary purpose of the distribution of U.S. foreign aid. (161)

The dissent addressed concerns that this principle could allow the government to discourage certain viewpoints by refusing to fund those to which it is opposed. (162) The dissent proposed that a tight nexus between the restrictive condition and purpose of the statute ensures that the government cannot discriminate against certain viewpoints arbitrarily. (163) Under this logic, for example, the government would not be permitted to "exclude from bidding on defense contracts anyone who refuses to abjure prostitution." (164)

According to the dissent, this logic applied to the instant case because the elimination of prostitution was integral to the government's anti-HIV/AIDS plan. (165) The dissent argued that the Court's decision threatened the effectiveness of that plan. (166) Now NGOs that support prostitution can receive Leadership Act Funds yet allocate private funds to further pro-prostitution causes, thus undermining a crucial piece of the Leadership Act. (167)

The dissent criticized the majority's "head-fake at the unconstitutional conditions doctrine," stating that a "condition that is relevant to a statute's valid purpose and that is not in itself unconstitutional" has never been held to violate the doctrine. (168) The Policy Requirement was clearly relevant to the statute's purpose and was not unconstitutional. (169) Calling the reasoning that the Policy Requirement compels speech "implausible," the dissent explained that organizations that did not want to be bound by the Policy Requirement could simply reject federal funds. (170)

The dissent concluded by reiterating its basic argument that the government is permitted to require "an ideological commitment relevant to the Government task at hand." (171) Providing a clever illustration, the dissent referenced language in the United States Constitution. (172) While the U.S. citizens may identify with radical political philosophies, '"Senators and Representatives ... and the Members of the several State Legislatures, and all executive and judicial Officers ... shall be bound by Oath or Affirmation, to support [the] Constitution.'" (173)

V. ANALYSIS

This Section provides an analysis of the Supreme Court's decision. Subsection A discusses the decision's effect on previous law. In particular, Subsection A discuses how the decision failed to reconcile the inconsistencies in precedent governing funding conditions cases but did resolve the split between the Courts of Appeal for the D.C. and Second Circuit. Subsection B discusses two main weaknesses of the decision. First, Subsection B discusses how the decision failed to adequately address the role of the "Lack of Coercion" argument in subsidized speech cases. Second, Subsection B discusses how the decision did not address the danger to free speech posed by viewpoint-based funding restrictions that rules from Rust seem to permit. Finally, Subsection C praises the decision for the positive effects it will have on the international fight against HIV/AIDS.

A. The Decision's Effect on Previous Law

First, the Supreme Court's decision did not settle the controversy between the conflicting sets of precedent governing subsidized speech cases. The majority opinion and the dissent were each grounded in valid precedent, demonstrating the "haphazard inconsistency" of the Supreme Court's decisions regarding funding conditions. (174) As the majority pointed out, there are conflicting principles that have evolved from the Court's analysis of conditional funding cases. (175) Under the rules arising out of Rust, the Court has upheld conditions that discriminate against certain viewpoints to support the objectives of government programs. (176) Conversely, under the unconstitutional conditions doctrine, the Court has held that "the government may not deny a benefit to a person because he exercises a constitutional right." (177) Rather than clarify the law and say definitively which approach is favored, the Supreme Court in Agency for International Development v. Alliance for Open Society disposed of the issue under the existing framework. (178) Thus, the decision offered little guidance on how to resolve the diverging lines of jurisprudence that balance congressional authority to condition funds against free speech.

In its decision, the Supreme Court developed an analysis for government funding conditions under which characteristics of the condition determine its constitutionality. (179) If the condition merely defines the limits of the federal program, then it is constitutional. (180) This criterion for constitutionality rests on the Rust principle that the government can condition funds in accordance with the goals of federal programs. (181) Conversely, if the condition "seek[s] to leverage funding to regulate speech outside the contours of the program," then it is unconstitutional. (182) This trigger for unconstitutionality is consistent with the concurring opinion's interpretation of the unconstitutional conditions doctrine in Regan that was applied by League of Women Voters, where the constitutionality of a condition depended on whether it prohibited protected speech entirely. (183) By promulgating this analysis, the Alliance for Open Society Court both gave legitimacy to and placed limits on the conflicting lines of precedent; Congress can still create viewpoint-based funding restrictions to further its objectives, but it must do so within the confines of the federal funding program. (184)

Second, while the Supreme Court's decision did not settle the controversy between the conflicting sets of precedent at work in funding conditions cases, it did clarify the rule set forth in Rust that caused the split in the circuit courts over the Policy Requirement. As interpreted by the Supreme Court in Rosenberger and Velazquez, Rust supported congressional authority to control the content of government speech. (185) The Court of Appeals for the D.C. Circuit relied on the government speech principle to hold that the Policy Requirement was a permissible means for Congress to control its message regarding prostitution. (186) The Supreme Court did not overrule the government speech principle, but it did place limits on its application. Specifically, the Court limited Congress from controlling the content of its own message if that control reaches beyond the contours of the federal program. (187) As a result, the government speech principle no longer applies to conditions like the Policy Requirement, which, by requiring recipients to adopt and communicate government ideology, push beyond the scope of the federal spending program.

The analysis promulgated by the decision left unresolved whether the Supreme Court prefers application of the more protective pre-Rust unconstitutional conditions doctrine or the more permissive rules from Rust and its progeny. However, the decision did make clear that funding conditions requiring ideological commitments are unconstitutional, thus resolving the split between the Second and D.C. Circuits over the constitutionality of the Policy Requirement.

B. THE DECISION'S WEAKNESSES

The decision exhibits two main weaknesses. First, the Supreme Court neglected to address the Lack of Coercion argument. As the majority acknowledged, post-Rust Courts have employed the Lack of Coercion argument to uphold funding conditions. (188) The argument states that if a recipient objects to a funding condition, the recipient has the option to refuse funding. (189) The dissent in the instant case relied on this argument to make its point that the Policy Requirement could not possibly compel speech if the recipients had the option to refuse funding. (190) The dissent criticized the majority's handling of the Lack of Coercion argument, saying it "pussyfoot[ed]" around the issue. (191)

The dissent was correct in its criticism. The majority mentioned that funding recipients have the option to refuse funding if they do want to be restricted by a condition, but never addressed this argument again in terms of the Policy Requirement. (192) The Lack of Coercion argument removes the teeth from the unconstitutional conditions doctrine and poses a threat to First Amendment rights. The majority should have made an effort to refute this argument.

In American Library Association, Justice Stevens' dissent to the plurality opinion argued that the threat of losing financial support can compel an entity to relinquish protected freedoms that it would not otherwise wish to forgo. (193) Thus, a funding condition that requires relinquishment of free speech liberties can have the same effect as a direct penalty or prohibition on speech. (194) Direct prohibitions on the content of speech are consistently struck down as unconstitutional; therefore, a funding condition that has the same effect should be treated with the same disapproval. (195)

In this case, the respondents recounted in their brief that they reluctantly complied with the Policy Requirement out of fear of losing funding for important HIV/AIDS prevention projects. (196) The Policy Requirement had the effect of coercing the respondents into forfeiting First Amendment rights. (197) The majority could have countered the Lack of Coercion argument in a similar manner as the American Library Association dissent. (198) But, the majority neglected to address the Lack of Coercion argument at all. Therefore, its decision left unanswered the question of what role the Lack of Coercion argument plays in subsidized speech cases.

Second, the majority chose not to address the danger posed to the marketplace of ideas when the government discourages viewpoints through funding conditions. In a pre-Rust article published by the Harvard Law Review, a legal scholar argued that free speech would be undermined if Congress "could freely use benefits to shift viewpoints." (199) As of 1989, the Supreme Court consistently held that Congress could not discourage viewpoints it disfavored by "buying them out" through funding conditions any more than it could by directly punishing them. (200) The article argued that conditions designed to favor one viewpoint over another would "pose a danger" to the ideal of self-governance protected by the First Amendment. (201)

The Rust decision increased Congress's power to influence the marketplace of ideas through the imposition of viewpoint-based funding conditions. (202) In Rust, under the conservative leadership of the Reagan Administration, the Secretary of the Department of Health and Human Services clarified the law governing Title X projects to include the challenged regulations barring abortion related advocacy. (203) By providing monetary assistance to health clinics agreeing to relinquish the ability to discuss abortion with patients, the government essentially bought pro-choice viewpoints out of the marketplace of ideas.

In this respect, Rust was unprecedented. (204) As a dissent to that opinion pointed out: "Until today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds." (205) Prior to Rust, the Court expressed strong disapproval of government attempts to skew the marketplace of ideas in its favor, even in the context of funding conditions, calling regulations attempting to do so the "purest example of a law[s] ... abridging the freedom of speech." (206)

The Rust decision represented a divergence from the doctrine of unconstitutional conditions, a doctrine that is protective of First Amendment liberties. (207) The Supreme Court has since used Rust principles to give Congress more leeway to impose viewpoint-based restrictions through funding conditions. (208) The Alliance for Open Society case provided the Court with an opportunity to revoke some of the power bestowed on Congress by Rust, but the Court did not take advantage of that opportunity.

Through its demand that Leadership Act recipients affirm the government's opposition to prostitution, the Policy Requirement would have reduced the presence of contrary viewpoints in the debate surrounding the legalization of prostitution and its effect on the spread of HIV/AIDS. The Alliance for Open Society Court could have recaptured some of the First Amendment's pre-Rust protection by condemning the Policy Requirement as threatening free exchange of ideas on this controversial issue. Instead, the Court cautiously found a middle ground between the unconstitutional conditions doctrine and Rust and its progeny to dispose of the Policy Requirement. (209)

The Court's decision represents a First Amendment victory in that it placed limits on the scope of viewpoint-based funding conditions allowed under the Rust framework; because of this decision, it is now clear that Congress may not place viewpoint-based restrictions on the receipt of federal funds when those restrictions push beyond the parameters of the federal program through which the funds are allocated. (210) However, this decision is not as strong a First Amendment victory as it could have been for two reasons. First, it left unanswered the role that the Lack of Coercion argument plays in subsidized speech cases. Second, it left Congress with post-Rust power, albeit more limited, to buy favored viewpoints through funding conditions.

C. THE DECISION'S EFFECT ON THE FIGHT AGAINST HIV/AIDS

One of respondents' main policy arguments was that the Policy Requirement made it difficult for NGOs engaged in the fight against HIV/AIDS to encourage the cooperation of prostitutes, and the cooperation of persons involved in the sex-trade industry was crucial to the fight against HIV/AIDS. (211) While the Court did not address this policy argument, nor cite it in support of its decision, the invalidation of the Policy Requirement will likely have positive effects on the fight against HIV/AIDS.

An amicus brief submitted by the Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS) in support of respondents argued that NGOs fighting AIDS need to gain the trust and support of sex workers in order to be effective. (212) At the same time, NGOs also need Leadership Act funds. (213) The Policy Requirement made it impossible for NGOs to have both of these crucial elements and thus undermined the overall effectiveness of the Leadership Act. (214) The Supreme Court's decision makes it possible for all domestic NGOs who fight HIV/AIDS to reach sex workers more effectively and to do so with more financial support. Respondents and other NGOs celebrated the Supreme Court decision as an opportunity to partner with the U.S. Government in the fight to end HIV/AIDS. (215)

A second policy argument set forth by respondents was that adhering to the Policy Requirement would "complicate respondents' efforts to operate in countries with disparate legal regimes relating to prostitution." (216) Indeed, after USAID and HHS issued regulations implementing the Policy Requirement in 2005, Brazil reacted by rejecting U.S. funding for HIV/AIDS prevention. (217) In its fight against HIV, the Brazilian government cooperates with prostitutes, an approach that has proven effective. (218) Pedro Chequier, director of Brazil's AIDS program, called the Policy Requirement harmful to the "Brazilian policy regarding diversity, ethical principles[,] and human rights." (219) Now that the Policy Requirement has been invalidated, countries and foreign NGOs who were once opposed to receiving Leadership Act funds because of the Policy Requirement might be more open to partnerships with U.S. NGOs.

As a result of the Supreme Court's decision, respondents and other NGOs that operate international HIV/AIDS treatment and prevention projects can now more easily treat sex-workers infected with HIV/AIDS and encourage sex-workers to follow AIDS prevention practices, and they can do so without the fear of losing important federal funding. Additionally, these NGOs can work more easily with countries that have different stances on prostitution than the United States. Overall, the Supreme Courts decision is likely to have positive effects on the international fight against HIV/AIDS.

VI. CONCLUSION

While the Court's decision represents a victory for humanitarian groups in the fight against HIV/AIDS, it did not resolve the conflict between the two lines of precedent governing conditional funding cases. On one hand, under the more protective unconstitutional conditions doctrine, the Supreme Court has held that Congress cannot burden free speech through funding conditions. On the other hand, the Supreme Court's decisions in Rust and its progeny indicate Congress does have the power to establish viewpoint-based funding restrictions that perpetuate the goals of government funding programs. Instead of choosing one of these approaches to dispose of the issue at bar, the Court found the common ground between the two approaches and struck down the Policy Requirement. In doing so, the Court missed an opportunity to vindicate some of the First Amendment rights that have been eroded by Rust and its progeny.

(1.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2327 (2013).

(2.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2332 (2013).

(3.) Brief for Respondents at 4, Agency for Int'l Dev., 133 S. Ct. 2321 (No. 12-10), 2013 WL 1247770, at *4. Pathfinder International runs programs that encourage safe-sex practices among sex-workers. Id. at 5. AOSI works to decrease injection-drug use by sex workers in Central Asia. Id. Cooperation for Assistance and Relief Everywhere (CARE) is "a member of InterAction" that "provide [s] services to children affected by HIV/AIDS throughout Africa and South Asia." Id. at 5-6. Respondent Global Health Council (GHC) is an international association of public health providers that sponsors conferences and forums for public health professionals to share and debate ideas regarding best practices. Id. at 6.

(4.) 22 U.S.C. [section][section] 7601-7682 (2008). The Leadership Act contains forty-one findings, one of which is that "[t]he United State[s] has the capacity to lead and enhance the effectiveness of the international community's response [to the HIV/AIDS epidemic] by ... encouraging active involvement of the private sector, including ... nongovernmental organizations." Id. [section] 7601 (22)(F); see Brief for Respondents, supra note 3, at 4 ("Respondents are U.S.-based nongovernmental organizations (NGOs) engaged in the global fight against HIV/AIDS. They operate a wide variety of public-health programs. Some programs are privately funded, while others are funded in whole or in part by federal grants under the Leadership Act.").

(5.) 22 U.S.C. [section] 7603(1) ("The purpose of this chapter is to strengthen and enhance 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 ... by--establishing comprehensive, coordinated, and integrated 5-year, global strategies to combat HIV/AIDS, tuberculosis, and malaria....").

(6.) Among the forty-one findings presented in the Leadership Act, Congress noted that "[t]he sex industry, the trafficking of individuals into such industry, and sexual violence are additional causes of and factors in the spread of the HIV/AIDS epidemic." 22 U.S.C. [section] 7601(23).

(7.) A goal of the Leadership Act is to address the spread of HIV/AIDS at the behavioral level by "educating men and boys about the risks of procuring sex commercially." 22 U.S.C. [section] 7611(a)(12)(F).

(8.) 22 U.S.C. [section] 7601(23) ("Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.").

(9.) 22 U.S.C. [section] 7621(a)(4) ("Sustaining existing public-private partnerships and building new ones are critical to the success of the international community's efforts to combat HIV/AIDS and other infectious diseases around the globe.").

(10.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 2324 (2013).

(11.) Brief for the Petitioners at 6, Agency for Int'l Dev., 133 S. Ct. 2321 (No. 12-10), 2013 WL 701226, at *6.

(12.) 22 U.S.C. [section] 7631(e)-(f) (2008), held unconstitutional by Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321 (2013).

(13.) 22 U.S.C. [section] 7631(e) (2008), held unconstitutional by Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321 (2013).

(14.) Id. [section] 7631(f).

(15.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 2326 (2013).

(16.) Alliance for Open Soc'y Int'l v. U.S. Agency for Int'l Dev., 430 F. Supp. 2d 222, 233-35, 237 (S.D.N.Y. 2006).

(17.) See Brief for Respondents, supra note 3, at 11.

(18.) Id. at 11-12.

(19.) See Brief for Respondents, supra note 3, at 12.

(20.) Id.

(21.) Alliance for Open Soc'y Int'l, Inc., 430 F. Supp. 2d 222. At this stage, respondents InterAction and GHC were not yet parties to the litigation.

(22.) Id. at 238.

(23.) Alliance for Open Soc'y Int'l v. U.S. Agency for Int'l Dev., 430 F. Supp. 2d 222, 238, 249 (S.D.N.Y. 2006).

(24.) Id. at 278.

(25.) Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 254 F. App'x 843 (2d Cir. 2007).

(26.) Id. at 846.

(27.) 45 C.F.R. [section] 89.3 (2010); see Brief for the Petitioners, supra note 11, at 8.

(28.) See Alliance for Open Soc'y Int'l, Inc., 254 F. App'x at 846.

(29.) Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 570 F. Supp. 2d 533, 546 (S.D.N.Y. 2008). In this phase of the litigation, the district court also approved the addition of GHC and InterAction as plaintiffs and extended the preliminary injunction to those organizations. Id. at 550.

(30.) Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 239 (2d Cir. 2011).

(31.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 928 (2013) (mem.).

(32.) See Brief for the Petitioners, supra note 11, at 52.

(33.) Id. at 15-19.

(34.) Id. at 19-33.

(35.) See id. at 44-49.

(36.) See Brief for Respondents, supra note 3, at 58.

(37.) See id. at 20-29. Section 111(A), infra, further discusses this doctrine.

(38.) See Brief for Respondents, supra note 3, at 45-52.

(39.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2331-32 (2013). Chief Justice Roberts authored the opinion. Id. at 2324. Chief Justice Scalia authored the dissent and was joined by Justice Thomas. Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2332 (2013). Justice Kagan took no part in the decision. Id.

(40.) U.S. CONST, amend. I.

(41.) See Robert C. Post, Subsidized Speech, 106 YALE L.J. 151, 151 (1996) ("[T]he First Amendment has been interpreted by courts primarily as a guarantor of the ongoing legitimacy of democratic self-governance in the United States.").

(42.) See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012) (holding that the Stolen Valor Act, which prohibited false claims of military honors, was an unconstitutional prohibition of speech); Snyder v. Phelps, 131 S. Ct. 1207 (2011) (holding that the imposition of a monetary judgment against Westhoro Baptist Church for picketing a soldier's funeral with offensive and derogatory messages was an unconstitutional penalty of the church's exercise of free speech).

(43.) See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (striking down a regulation requiring public school students to make a stiff-armed salute and recite the pledge to the flag); see also Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (holding that the First Amendment protects the individual's right to refrain from speaking the government's message).

(44.) See Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1416 (1989) (noting that conditional funding cases are a "minefield to be traversed gingerly").

(45.) See Agency for Int'l Dev., 133 S. Ct. at 2327.

(46.) Id.; see Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 230-31 (2d Cir. 2011); see also Post, supra note 41, at 154. Post remarks that when the government subsidizes speech "it establishes a relationship between itself and private speakers that can sometimes compromise the independence of the latter." Post, supra note 41, at 154.

(47.) U.S. Const, art. I, [section] 8, cl. 1; South Dakota v. Dole, 483 U.S. 203, 206 (1987) (holding that under the powers vested in Congress by the Spending Clause, Congress "may attach conditions on the receipt of federal funds").

(48.) Dole, 483 U.S. 203. In Dole, the Supreme Court applied a four-factor test to analyze the constitutionality of the funding condition at issue. Id. at 207-08. In the instant case, the majority did not apply these factors to its analysis. See Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321, 2328 (2013).

(49.) See, e.g., FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) (striking down a regulation that prohibited public broadcasting stations that received federal funding from editorializing).

(50.) See Agency for Int'l Dev., 133 S. Ct. at 2328 (acknowledging the line between constitutional and unconstitutional conditions as "hardly clear").

(51.) See Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543, 544 (1996) ("Determining the constitutionality of government [subsidization] of expression is one of the most frustrating tasks facing scholars of the First Amendment."); Agency for International Development v. Alliance for Open Society International-Post-Decision SCOTUScast, FEDERALIST SOC'Y (June 26, 2013), http://podbay.fm/show/217840927/e/1372260348 (discussion by Erik Jaffe, appellate litigation specialist in Washington D.C.) (noting that cases dealing with funding conditions "are terribly inconsistent ... and have no cogent theory").

(52.) See Sullivan, supra note 44, at 1416 ("The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether.").

(53.) See id. (noting that the unconstitutional conditions doctrine has been applied "to protect personal liberties of speech, association, religion, and privacy").

(54.) See Rust v. Sullivan, 500 U.S. 173 (1991). First, the Court has applied Rust to hold that Congress can create viewpoint-based funding restrictions that are in line with programmatic goals. See id. at 174-75; Recent Case, 125 HARV. L. Rev. 1506, 1507 (2012) ("Since Rust v. Sullivan, the Supreme Court has affirmed the government's right to fund selected viewpoints and to take appropriate steps to ensure its programmatic aims."). Second, the Court has applied Rust to hold that Congress can regulate the content of speech through funding conditions when that speech is "government speech." See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) (relying on Rust and holding that "[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted"). Third, Rust has been cited to support what this Note refers to as the "Lack of Coercion" argument, which contends that funding conditions do not implicate the First Amendment because a recipient makes the choice to accept funds. See United States v. Am. Library Ass'n, 539 U.S. 194, 212 (2003) (plurality opinion).

(55.) See Recent Case, supra note 54, at 1507 ("Despite inconsistent guidance, lower courts have read Rust to sustain conditions that burden First Amendment rights if grantees are left with alternative opportunities for expression.").

(56.) Compare Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218 (2d Cir. 2011) (holding that the Policy Requirement was likely an unconstitutional burden on First Amendment speech rights), with DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758 (D.C. Cir. 2007) (upholding the Policy Requirement as a permissible exercise of Congress's spending power).

(57.) Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that the government may not "deny a benefit to a person because of his constitutionally protected speech or associations").

(58.) See Sullivan, supra note 44, at 1416.

(59.) Id.

(60.) Speiser v. Randall, 357 U.S. 513 (1958).

(61.) Sherbert v. Verner, 374 U.S. 398 (1963).

(62.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321, 2328-29 (2013).

(63.) 26 U.S.C. [section] 501(c)(3) (2010); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 542 (1983).

(64.) Regan, 461 U.S. at 541, 544-45.

(65.) Regan v. Taxation With Representation of Wash., 461 U.S. 540, 544 (1983).

(66.) See id. at 549-51. Justice Rehnquist authored the Regan opinion. Id. at 541. He also authored Rust. See Rust v. Sullivan, 500 U.S. 173, 176 (1991). In both cases, Justice Rehnquist cites to abortion cases Maher v. Roe, 432 U.S. 455 (1977) and Harris v. McRae, 448 U.S. 297 (1980) neither of which raised free speech issues, to support his holding that Congress's decision to not subsidize the exercise of a right does not burden that right. See Regan, 461 U.S. at 549-50; Rust, 500 U.S. at 192-93. Rehnquist's reliance on the rationale from these cases, instead of a traditional unconstitutional conditions analysis, is representative of Professor Kathleen Sullivan's contention that Justice Rehnquist would likely argue for rejection of "the doctrine as a mistake." See Sullivan, supra note 44, at 1417.

(67.) See Sullivan, supra note 44, at 1440-41.

(68.) See Regan, 461 U.S. at 551-54 (Blackmun, J., concurring).

(69.) Id. at 552.

(70.) Id. (quoting the majority).

(71.) See FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984).

(72.) Id. at 399-02.

(73.) See FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984); see also Regan v. Taxation With Representation of Wash., 461 U.S. 540, 551-54 (1983) (Blackmun, J., concurring).

(74.) League of Women Voters, 468 U.S. at 400.

(75.) See Rust v. Sullivan, 500 U.S. 173 (1991).

(76.) Id. at 177-78. Title X of the Public Health Service Act gave the Secretary of the Department of Health and Human Services authority to "make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects." Id. at 178 (quoting 42 U.S.C. [section] 300(a) (1970)). The Act also gave the Secretary the authority to issue regulations controlling the receipt of Title X grants. Id. (citing 42 U.S.C. [section] 300a-4(a)). In 1988, the Secretary issued regulations that prohibited Title X grant recipients from engaging in abortion related activities through Title X projects. Id. at 179-81. It was these regulations that sparked litigation in Rust. See Rust v. Sullivan, 500 U.S. 173, 181 (1991).

(77.) Id. at 192.

(78.) Id. at 197.

(79.) Rust v. Sullivan, 500 U.S. 173, 197-99 (1991).

(80.) Id. at 198-99.

(81.) Id. at 197-98.

(82.) Id. at 193 (quoting Maher v. Roe, 432 U.S. 464, 475 (1977)) ("There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.").

(83.) Id. at 193.

(84.) Rust v. Sullivan, 500 U.S. 173, 198-99 (1991). The Rust majority, led by Chief Justice Rehnquist, upheld viewpoint-based funding regulations by borrowing rationale from two abortion-related cases that did not contain free speech claims, Maher v. Roe and Harris v. McRae. Id. at 192-93; see Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977). For criticism of this aspect of the Rust decision, see Phillip B. Cooper, Rusty Pipes: The Rust Decision and the Supreme Court's Free Flow Theory of the First Amendment, 6 NOTRE DAME J.L. ETHICS & PUB. POL'Y 359, 380-81 (1992). For more criticism of Rust, see Post, supra note 41, at 168-69.

(85.) Rust v. Sullivan, 500 U.S. 173, 207-11 (1991) (Blackmun, J., dissenting) ("Until today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.").

(86.) See Paul M. Smith & Daniel Mach, Major Shifts in First Amendment Doctrine Narrowly Averted, 21-Fall COMM. LAW 1, 31-32 (2003) (calling Rust a "low point in modern unconstitutional conditions jurisprudence" and discussing the decision in United States v. American Library Ass'n, 539 U.S. 194 (2003)).

(87.) See id. at 31 (criticizing the Rust approach as "designed essentially to overrule the unconstitutional conditions doctrine" and noting that under this approach the government could "insulate from review almost any restriction on speech funding").

(88.) See United States v. Am. Library Ass'n, 539 U.S. 194, 211-12 (2003) (plurality opinion) (quoting Rust, 500 U.S. at 196 in support of its view that "Congress may certainly insist that ... 'public funds be spent for the purposes for which they were authorized'").

(89.) See Smith & Mach, supra note 86, at 31 (noting that under this Rust rule, the government could successfully defend almost any funding restriction by claiming that the restriction furthered a government purpose).

(90.) Am. Library Ass'n, 539 U.S. at 199, 211-12 (plurality opinion).

(91.) Id. at 211.

(92.) United States v. Am. Library Ass'n, 539 U.S. 194, 211-12 (2003) (plurality opinion).

(93.) Id.

(94.) Id.

(95.) See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 608 (1998) (upholding a statute instructing the National Endowment for the Arts to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public" when selecting grant recipients).

(96.) See Smith & Mach, supra note 86, at 31 (surmising that the Supreme Court attempted to reconcile Rust with the unconstitutional conditions doctrine through the "government speech" doctrine).

(97.) See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995).

(98.) Id.

(99.) See id.; see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (explaining that the concept of government speech was not explicitly relied upon in Rust, but was interpreted from Rust by subsequent decisions).

(100.) See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 542-43 (2001).

(101.) Id. at 548.

(102.) See id. at 542, 548-49.

(103.) See, e.g., United States v. Am. Library Ass'n, 539 U.S. 194, 199, 212 (2003) (plurality opinion).

(104.) See id. (extrapolating the Rust principle that Congress's refusal to subsidize the exercise of protected speech does not violate the First Amendment to mean that, by refusing to accept the government subsidy, libraries remained every bit as capable of providing unfiltered internet access as they would be if the federal funding program did not exist).

(105.) Id. at 211-12.

(106.) See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 595-96 (1998) (Scalia, J., concurring) (recognizing, under the statute in question, that "Avant-garde artistes such as respondents remain entirely free to epater les bourgeois" and that these artists were "merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it"); see also Velazquez. 531 U.S. at 558-59 (Scalia, J., dissenting) ("The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech....").

(107.) See United States v. Am. Library Ass'n, 539 U.S. 194, 199, 226-27 (2003) (Stevens, J., dissenting).

(108.) See id. at 226.

(109.) Id. at 227.

(110.) Id. (alteration in original) (citing and quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963)).

(111.) See United States v. Am. Library Ass'n, 539 U.S. 194, 199, 226-27 (2003) (Stevens, J., dissenting).

(112.) Id. at 226-27, 231.

(113.) See DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 764 (D.C. Cir. 2007).

(114.) Id. at 762; see supra Section 111(A).

(115.) DKT Int'l, 477 F.3d at 761-62.

(116.) Id. at 762-63.

(117.) Id. at 764.

(118.) See id. at 762 (citing DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989)).

(119.) See id. at 763 (quoting Rust v. Sullivan, 500 U.S. 173, 197 (1991)).

(120.) DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 763 (D.C. Cir. 2007) (citing Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983)).

(121.) Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F. 3d 218, 239 (2d Cir. 2011).

(122.) Id. at 231 (internal quotation marks omitted) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59 (2006)).

(123.) Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F. 3d 218, 236 (2d Cir. 2011).

(124.) Id. at 237-38.

(125.) Id. at 239.

(126.) Id.

(127.) See Sullivan, supra note 44, at 1496.

(128.) See Smith & Mach, supra note 86, at 31 (calling Rust a "low point in modern unconstitutional conditions jurisprudence" because the Rust rule essentially permitted the government "to insulate from review almost any restriction on speech funding").

(129.) See Stephen F. Rohde, Rust v. Sullivan: Subverting the Constitution and Abusing Judicial Power?, 25 BEVERLY HILLS B. ASS'N J. 155, 155 (1991).

(130.) See Recent Case, supra note 54, at 1506 (discussing the inconsistency in applications of Rusty, see also Post, supra note 41, at 152.

(131.) See supra Section III(B).

(132.) Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321 (2013).

(133.) Id. at 2327 (Roberts, C.J.).

(134.) Id.

(135.) Id. at 2328.

(136.) Id. at 2327-28.

(137.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013).

(138.) Id. (alteration made in original) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59 (2006)).

(139.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013).

(140.) See id. at 2328-30.

(141.) Id. at 2328-29.

(142.) Id. (citing Regan v. Taxation With Representation of Wash., 461 U.S. 540, 544-45 (1983)).

(143.) Id. at 2329 (citing FCC v. League of Women Voters of Cal., 468 U.S. 364, 399-400 (1984)).

(144.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2329-30 (2013) (citing Rust v. Sullivan, 500 U.S. 173, 178, 196-97 (1991)).

(145.) See id. at 2328.

(146.) Id. at 2330-32.

(147.) Id. at 2330.

(148.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2330 (2013).

(149.) Id.

(150.) Id. at 2330-31.

(151.) Id. at 2332.

(152.) Id. at 2331.

(153.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2331 (2013).

(154.) Id.

(155.) Id.

(156.) Id. at 2331-32.

(157.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2332 (2013).

(158.) Id.

(159.) Id. at 2332 (Scalia, J., dissenting).

(160.) Id.

(161.) Id. at 2332-33 (Scalia, J., dissenting).

(162.) Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2333 (2013).

(163.) Id.

(164.) Id.

(165.) Id.

(166.) Id. (Scalia, J., dissenting).

(167.) Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321, 2333-34 (2013) (Scalia, J., dissenting).

(168.) Id. at 2334.

(169.) See id. at 2332.

(170.) Id. at 2334.

(171.) Id. at 2335 (Scalia, J., dissenting).

(172.) Id.

(173.) Id. (Scalia, J., dissenting) (alteration in original) (quoting U.S. CONST, art. VI, cl. 3).

(174.) See Post, supra note 41, at 152.

(175.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013); see also Post, supra note 41, at 152.

(176.) See Recent Case, supra note 54, at 1506.

(177.) See, e.g., Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983) (citations omitted).

(178.) See Agency for Int'l Dev., 133 S. Ct. at 2328-30 (conducting its analysis by finding the common ground between Regan, League of Women Voters, and Rust).

(179.) See id. at 2328 (holding that unconstitutional and constitutional are distinguished by "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 funding to regulate speech outside the contours of the program itself").

(180.) Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321, 2328 (2013).

(181.) See Rust v. Sullivan, 500 U.S. 173, 178, 198 (1991).

(182.) See Agency for Int'l Dev., 133 S. Ct. at 2328.

(183.) See Regan v. Taxation With Representation of Wash., 461 U.S. 540, 551-54 (1983) (finding [section] 501 (c)(3)'s prohibition against lobbying was only constitutional because nonprofits were not prevented from lobbying altogether) (Blackmun, J., concurring); see also FCC v. League of Women Voters of Cal., 468 U.S. 364, 400 (1984).

(184.) See Agency for Int'l Dev., 133 S. Ct. at 2328-30.

(185.) See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (explaining that the doctrine of government speech was not explicitly relied upon in Rust, but the Supreme Court subsequently explained Rust under this doctrine); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995).

(186.) See DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 762-64 (D.C. Cir. 2007).

(187.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013).

(188.) Id.

(189.) See id.

(190.) Id. at 2334-35 (Scalia, J., dissenting).

(191.) Id.

(192.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013) (Roberts, C.J.).

(193.) See United States v. Am. Library Ass'n, 539 U.S. 194, 199, 226-27 (2003) (Stevens, J., dissenting).

(194.) See id.

(195.) See id. at 226-28.

(196.) See Brief for Respondents, supra note 3, at 11-13; see also Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 430 F. Supp. 2d 222, 238 (S.D.N.Y. 2006).

(197.) See Brief for Respondents, supra note 3, at 26-27; see also Alliance for Open Soc'y Int'l, 430 F. Supp. 2d at 238.

(198.) See Am. Library Ass'n, 539 U.S. at 199, 226-27 (Stevens, J., dissenting).

(199.) Sullivan, supra note 44, at 1496.

(200.) See id.

(201.) Id. at 1497.

(202.) See Smith & Mach, supra note 86, at 31.

(203.) Rust v. Sullivan, 500 U.S. 173, 179-80 (1991); Michael Selmi, Remedying Societal Discrimination Through Spending Power, 80 N.C. L. REV. 1575, 1613-14 (2002).

(204.) Rohde, supra note 129, at 155.

(205.) See Rust, 500 U.S. at 207 (Blackmun, J., dissenting).

(206.) See FCC v. League of Women Voters of Cal., 468 U.S. 364, 383-84 (internal quotation marks and citations omitted).

(207.) See Smith & Mach, supra note 86, at 31.

(208.) See, e.g., United States v. Am. Library Ass'n, 539 U.S. 194, 211-12 (2003) (plurality opinion); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998); see Rust v. Sullivan, 500 U.S. 173, 207-08 (1991) (Blackmun, J., dissenting).

(209.) See Agency for Int'l Dev. v. Alliance for Open Soc'y Intl, Inc., 133 S. Ct. 2321, 2328-30 (2013).

(210.) See id.

(211.) See Brief for Respondents, supra note 3, at 4-7.

(212.) Brief of Amicus Curiae Secretariat of the Joint United Nations Programme on HIV/AIDS (UNAIDS Secretariat) in Support of Respondents at 8-16, Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321 (2013) (No. 12-10), 2013 WL 1367753, at *8-16.

(213.) Id. at 4-5, 17.

(214.) See id. at 8.

(215.) See USAID v. AOSI: Supreme Court Rules in Favor of Free Speech, INTERACTION (June 20, 2013), http://www.interaction.org/document/usaid-v-aosisupreme-court-rules-favor-free-speech (statement by Samuel A. Worthington, President and CEO of Respondent InterAction) ("We are heartened by the decision and ready to continue our partnership with the U.S. government to save lives.").

(216.) Brief for Respondents, supra note 3, at 12.

(217.) Michael M. Phillips & Matt Moffett, Brazil Refuses U.S. AIDS Funds, Rejects Conditions (May 2, 2005, 12:01 AM), http://online.wsj.com/article/ 0,,SB111498611657721646,00.html; see Garima Malhotra, Comment, Good Intentions, Bad Consequences: How Congress's Efforts to Eradicate HIV/AIDS Stifle the Speech of Humanitarian Organizations, 61 CATH. U. L. Rev. 839, 861 (2012).

(218.) Phillips & Moffett, supra note 217; see Alan Berkman et al., A Critical Analysis of the Brazilian Response to HIV/AIDS: Lessons Learned for Controlling and Mitigating the Epidemic in Developing Countries, 95 AM. J. PUB. HEALTH 1162, 1167-68 (2005), available at http://epiville.ccnmtl.columbia.edu/assets/pdfs/ berkman_2005.pdf (examining Brazil's successful efforts in reducing HIV/AIDS through a case study).

(219.) Phillips & Moffett, supra note 217.
COPYRIGHT 2013 Loyola University New Orleans, School of Law
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2013 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:McBride, Annie G.
Publication:Loyola Law Review
Date:Dec 22, 2013
Words:12583
Previous Article:An unnecessary narrowing, New Orleans Depot Services, Inc. v. Director, Office of Workers' Compensation Programs: the United States Fifth Circuit...
Next Article:The dignity of the human person: Catholic social teaching and the practice of criminal punishment.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |