Federal District Court Opinions
ALLIANCE FOR OPEN SOCY. INT’L. v. U.S. AGENCY FOR INT’L DEV,
(S.D.N.Y. 2006) ALLIANCE FOR OPEN SOCIETY INTERNATIONAL,
INC. et al., Plaintiffs, v. UNITED STATES AGENCY FOR
INTERNATIONAL DEVELOPMENT et al., Defendants. 05 Civ.
8209. United States District Court, S.D. New York. May 8,
2006
DECISION AND ORDER
VICTOR MARRERO, District Judge Page 2
I. INTRODUCTION
Plaintiffs, Alliance for Open Society International
(“AOSI”), Open Society Institute (“OSI”) and Pathfinder
International (“Pathfinder”) (collectively “Plaintiffs”)
brought suit against defendants, the United States Agency
for International Development and Andrew S. Natsios in his
official capacity as its administrator (collectively
“USAID”), the United States Department of Health and Human
Services and Michael O. Leavitt in his official capacity as
its Secretary (collectively “HHS”), and the United States
Centers for Disease Control and Prevention and Julie Louise
Gerbeding in her official capacity as its Director
(collectively “CDC”) (and USAID, HHS and CDC collectively
“Defendants,” or the “Agencies,” or the “Government”).
Plaintiffs seek clarification of a provision of the United
States Leadership Against HIV/AIDS, Tuberculosis, and
Malaria Act of 2003 (the “Act”), 22 U.S.C. §§
7601 et seq. Under the Act, AOSI receives funding from
USAID and Pathfinder receives funding from USAID, HHS, and
CDC to administer programs authorized by the Act. OSI does
not receive government funding pursuant to the Act but
fears that AOSI’s funding under the Act my be jeopardized
by OSI’s activities.
The Act forbids the Agencies from awarding funds authorized
for its purposes to “any group or organization that does
not have a policy explicitly opposing prostitution[.]”
Page 3 22 U.S.C. § 7631 (f). Plaintiffs challenge
Defendants’ interpretation of this provision, which
Plaintiffs contend places limits on Plaintiffs’ activities
carried out with their private, non-government funds, and
leaves Plaintiffs with no alternative avenue to express
certain points of view. Plaintiffs argue that this
restriction violates the First Amendment. Thus, they seek a
preliminary injunction enjoining Defendants from penalizing
Plaintiffs, through the withholding of Act-authorized funds
or other methods, on the grounds that Plaintiffs have used
their private funding to engage in activities that
Defendants view as insufficiently opposed to prostitution.
II. BACKGROUND[fn1] Page 4
A. FACTS
1. The Parties[fn2]
a. Plaintiffs
Plaintiffs are United States-based non-profit
organizations actively participating in the worldwide
effort to limit the spread of HIV/AIDS. As part of this
effort, they work closely with populations that have a high
risk of contracting HIV/AIDS, including persons engaged in
prostitution.[fn3]
OSI is the principal United States-based foundation
established and financed by George Soros, organized under
New Page 5 York law, supporting a network of more than
thirty “Soros Foundations” that operate worldwide (the
“Open Society Network”). Each of these Soros foundations is
independently established under local laws and governed by
a local board of directors. OSI does not currently receive
funding from Defendants under the Act.
AOSI, although closely affiliated to OSI as a member of
the Open Society Network, is a legally independent
non-profit organization incorporated in Delaware with
offices in New York, New York and Almaty, Kazakhstan. AOSI
was created in 2003 with a mission to “promote democratic
governance, human rights, public health and economic, legal
and social reform” in Central Asia. (Kushen Decl. at 2.)
AOSI administers a program, known as the Drug Demand
Reduction Program (“DDRP”), aimed at limiting the spread of
injection drug use in Uzbekistan, Tajikistan, and
Kyrgyzstan. It has done so with the financial support of
USAID, but also with a substantial private grant of nearly
$2.2 million from OSI. The DDRP is directed towards three
populations: drug users, high-risk groups (e.g., young
people, prisoners, prostitutes, and rural-urban migrants),
and the general public.
Pathfinder provides family planning and reproductive
health services in twenty countries. It administers a
number of programs that benefit from the financial
assistance of Page 6 USAID, HHS, and the CDC, including a
health services project in Peru, a program to prevent
mother-to-child HIV transmission in Kenya, and other global
reproductive health services programs. Pathfinder also uses
funding from private sources to engage in the following
activities: organizing of prostitutes in India to
collectively agree to engage in HIV prevention methods,
like using condoms; as well as additional outreach to
promote safer sex practices, including cooperation with
brothel owners and pimps.
b. Defendants
i. In General
Created by executive order in 1961, USAID is an
independent agency that provides economic, development, and
humanitarian assistance around the world in support of the
foreign policy goals of the United States. HHS is charged
with protecting the health of all Americans and providing
essential human services, to those ends managing programs
encompassing health and social science research, food and
drug safety, Medicare and Medicaid, faith-based and
community initiatives, and financial assistance for
low-income families. CDC, one of the operating components
of HHS, works to prevent and control infectious and
chronic diseases, injuries, workplace hazards,
disabilities, and environmental health threats. Page 7
ii. In Relation to the Act
Pursuant to Congress’s policy initiative, see 22 U.S.C.
7603(1), the President in his State of the Union Address on
January 28, 2003, announced a comprehensive, five-year
global strategy to fight HIV/AIDS.[fn4] USAID and HHS are
two of the seven primary implementing agencies of the
President’s Emergency Plan for AIDS Relief (“Emergency
Plan”).[fn5]
Under the Emergency Plan, both USAID and HHS implement
prevention, care, and treatment programs for HIV/AIDS.
USAID supports implementation through direct in-country
presence and seven regional programs. HHS operates in
developing countries and conducts HIV/AIDS research. As an
operating component of HHS, CDC coordinates its Global AIDS
Program, which assists with surveillance, training,
monitoring, evaluation, and implementation of HIV/AIDS
prevention, treatment, and care programs, by partnering
with governments, non-governmental organizations (“NGOs”),
international organizations, U.S. — based
universities and the private sector. See Emergency Plan at
149-50.
2. HIV/AIDS Page 8
a. Internationally
In passing the Act, Congress made a number of findings as
to the global status of HIV/AIDS. The Court pauses to take
note of some of these findings in order to establish the
larger context in which the present dispute takes place. To
begin, Congress found that “HIV/AIDS has assumed pandemic
proportions, spreading . . . to all corners of the world,
and leaving an unprecedented path of death and
devastation.” 22 U.S.C. § 7601(1). At the time of
enactment, approximately 65 million people worldwide had
been infected with the disease, of which more than 25
million had died. See id. § 7601 (2). The effects of
HIV/AIDS have permeated every conceivable level of social,
cultural, political, economic and geographic organization,
affecting individuals, families, communities, countries,
economies and continents. See id. §§
7601(3)-(12). Although these statistics have undoubtedly
changed since the legislation’s enactment, they establish
the grievous situation that Congress sought to address
through the provisions of the Act.
b. In Central Asia
Plaintiff AOSI contends that, as a result of spillover from
the drug trafficking routes that run from Afghanistan
through Tajikistan, Uzbekistan, and Kyrgyzstan, Central
Asia has experienced dramatic increases in HIV/AIDS rates,
with Page 9 public health experts fearing “the outbreak of
a full-scale HIV/AIDS epidemic fueled by the exploding use
of injection drugs.” (Kushen Decl. ¶ 8.) Already,
Central Asia “is experiencing one of the world’s fastest
growing rates of HIV.” (Beyrer Decl. ¶ 55.)
c. Among High-Risk Populations
HIV/AIDS often begins its assault on a community in small,
high-risk populations, such as prostitutes and injection
drug users. (See Beyrer Decl. ¶ 2.) In enacting the
statute, Congress made clear its finding that prostitution
and sex trafficking are “causes and factors in the spread
of the HIV/AIDS epidemic.” 22 U.S.C. § 7601(23).
Indeed, in one congressional hearing Senator Sam Brownback
set forth statistics from various countries demonstrating
this connection, including that “50 to 70 percent of the
Burmese prostitutes in Thailand are HIV positive . . . 40
to 50 percent of the prostitutes in Cambodia are HIV
positive, [and] 60 percent of women prostitutes in Bombay’s
red light district are infected with STDs or AIDS.”[fn6]
Considerable debate persists as to how to appropriately and
effectively engage members of these groups. It has been
argued that preventing the spread of infection among such
high-risk individuals is an Page 10 important way to
combat the spread of HIV/AIDS in the general population.
(See, e.g., Beyrer Decl. ¶ 19) (“Stigma and
discrimination push people in high risk groups . . .
underground, making them difficult to reach through
prevention programs and thus creating more opportunities
for HIV/AIDS to spread to the general population.”); see
also USAID, Leading the Way: USAID Responds to HIV/AIDS
1997-2000 (2001), attached to Diller Decl. as Exhibit 18
(“[I]nvolving individuals from the particular target
community — sex workers, for example — in
delivering the message gives credibility, reduces fear and
stigma, and makes it more likely that people hearing the
message will follow through with specific behaviors.”).)
Advocates for these populations and programs believe that
the imposition of harsh criminal penalties for prostitution
runs contrary to accepted best principles and practices of
public health. (See, e.g., AIDS Action Mem. at 13-21.) One
country, Brazil, as one part of its comprehensive HIV/AIDS
program, has adopted an approach treating prostitutes as
“essential partners” in the fight against HIV/AIDS.
(Chequer Decl. ¶ 6.)
3. The Act
a. In General
In response to this dire situation, Congress promulgated
the Act with the single overriding purpose of
“strengthen[ing] United States leadership and the
effectiveness of the Page 11 United States response to”
HIV/AIDS, tuberculosis, and malaria. 22 U.S.C. §
7603. Congress designated several avenues through which
this international campaign was to run: a comprehensive,
five-year strategy designed by the President; bilateral and
multilateral efforts; private sector efforts;
public-private partnerships; and vaccine and treatment
development. See id. § 7603(1)-(5).
To effectuate these ends, the Act, among other strategies,
establishes an HIV/AIDS Response Coordinator, see id.
§ 7612; authorizes an HIV/AIDS Working Capital Fund,
see id. § 7612a; authorizes U.S. participation in
the Global Fund to Fight AIDS, Tuberculosis, and Malaria,
see id. § 7622; authorizes the use of funds to
assist organizations in fighting HIV/AIDS, see id. §
7631, tuberculosis, see id. § 7632, and malaria, see
id. § 7633; provides assistance for children and
families, see id. §§ 7651-7655; and provides
for consideration of expanding debt relief, see id.
§ 7681.
b. Role of Private Partners in Combating HIV/AIDS
Recognizing that “[n]on-governmental organizations . . .
have proven effective in combating the HIV/AIDS pandemic,”
id. § 7601(18), Congress voiced its sense that “the
sustainment and promotion of public-private partnerships
should be a priority element of the strategy pursued by the
United States Page 12 to combat the HIV/AIDS pandemic and
other global health crises,” id. § 7621(b) (1).
c. Findings and Policies Regarding the Social and
Behavioral Causes of HIV/AIDS, Particularly Prostitution
In the Act, Congress expressed its concern with the
social, cultural, and behavioral antecedents of the
HIV/AIDS pandemic, determining that “[s]uccessful
strategies to stem the HIV/AIDS pandemic will require . . .
measures to address the social and behavioral causes of the
problem.” § 7601(15); see also § 7601(21)
(C).
Congress considered prostitution to be among the
behavioral causes of HIV/AIDS. See § 7611(a) (4)
(“[T]he reduction of HIV/AIDS behavioral risks shall be a
priority of all prevention efforts in terms of funding,
educational messages, and activities by . . . [among other
things,] eradicating prostitution, the sex trade, rape,
sexual assault and sexual exploitation of women and
children.”).
In addition, Congress expressly found that the eradication
of prostitution should be a policy of the United States:
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. The 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. Page 13
§ 7601(23).
d. The Government Funds Restriction
The provision of the Act referred to by Plaintiffs as the
“the restriction on government funds” and by Defendants as
the “government funding restriction” states:
No funds made available to carry out this Act, or any
amendment made by this Act, may be used to promote or
advocate the legalization or practice of prostitution or
sex trafficking. Nothing in the preceding sentence shall
be construed to preclude the provision to individuals of
palliative care, treatment, or post-exposure
pharmaceutical prophylaxis, and necessary pharmaceuticals
and commodities, including test kits, condoms, and, when
proven effective, microbicides.
§ 7631(e) (“§ 7631(e)”).
Plaintiffs do not challenge the restriction placed on
government funds.
e. The Policy Requirement
In addition to the government funds restriction, the Act
provides:
No funds made available to carry out this Act, or any
amendment made by this Act, may be used to provide
assistance to any group or organization that does not have
a policy explicitly opposing prostitution and sex
trafficking, except that this subsection shall not apply
to the Global Fund to Fight AIDS, Tuberculosis and
Malaria, the World Health Organization, the International
AIDS Vaccine Initiative or to any United Nations agency.
§ 7631(f) (“§ 7631(f)” or the “Policy
Requirement”). Page 14
It is the interpretation and implementation of this
provision that is the point of contention in this case.
The final clause of this provision exempts certain
recipients from the Policy Requirement. See §
7631(f). Some of these exempted recipients have recognized
that advocacy for the reduction or removal of criminal
penalties for prostitution is among the best practices in
HIV prevention. (See Beyrer Decl. ¶ 25.)
4. Defendants’ Implementation of the Act
a. USAID
i. Acquisition and Assistance Policy Directives
USAID initially refrained from applying the Policy
Requirement to U.S.-based organizations because the
Department of Justice (“DOJ”) warned that such an
application would be unconstitutional.[fn7] Specifically,
USAID issued guidance stating that the government funds
restriction applied to both U.S. and foreign recipients,
but that the Policy Requirement required only “non-U.S.
non-governmental organizations and certain Public
International Organizations . . . to agree that they have a
policy explicitly opposing . . . prostitution and sex
trafficking.” Id. USAID followed the DOJ’s advice, issuing
a Page 15 policy directive omitting any requirement that
U.S.-based organizations receiving funds under the Act have
a policy explicitly opposing prostitution.[fn8]
Subsequently, the DOJ withdrew what it characterized as
its prior “tentative advice.”[fn9] The DOJ asserted that
there are “reasonable arguments to support” the
constitutionality of applying the restrictions to
U.S.-based recipients. Id.
Following suit with the revised DOJ position, USAID
changed course in June 2005, issuing a directive applying
the Policy Requirement to U.S.-based recipients.[fn10]
Under AAPD 05-04, USAID required, as a prerequisite for
private organizations to receive funding under the Act, (1)
a policy explicitly opposing prostitution and sex
trafficking (see id. at 5), and (2) certification of
compliance with the Page 16 “Prohibition on the Promotion
and Advocacy of the Legalization or Practice of
Prostitution or Sex Trafficking” (id. at 7). This shift in
position coincided with pressure exerted upon USAID and the
President by members of Congress concerning the allocation
of funds under the Act.[fn11]
ii. Plaintiffs Seek Clarification of Requirements
Under USAID’s initial interpretation of the Act, as
reflected in AAPD 04-04, AOSI was not itself subject to the
Policy Requirement. See supra Section I.A.4.a.i. However,
because AOSI partnered with non-U.S.-based organizations in
administering the DDRP, it adopted the following policy:
AOSI and the Soros Foundations in Tajikistan and
Kyrgyzstan believe that trafficking and sex work do harm
both to the individuals directly involved and to others in
various ways. AOSI and the Soros Foundations in Tajikistan
and Kyrgyzstan do not promote or advocate such activities.
Rather, our approach is to try to reduce the harms caused
by disseminating credible information on questions such
as the prevention of disease, and by providing direct
public health assistance to vulnerable populations . . .
(Kushen Decl. ¶ 23). Page 17
In a memorandum dated May 26, 2004, AOSI asked Kerry
Pelzman, Regional HIV/AIDS Adviser for USAID/Central Asia,
for guidance concerning its compliance with AAPD
04-04.[fn12] The memo stated that AOSI believed itself to
be exempt from the Policy Requirement as a U.S-based
organization, but sought clarification regarding funds
given to non-U.S.-based subgrantees. (Id.) It further
explained that internal principles of governance prevented
AOSI from accepting funding that would restrict its speech
“in a manner contrary to the values of an open society.”
(Id.) The memo recited AOSI’s policy statement and
requested, in writing, confirmation that it complied with
AAPD 04-04.
On June 13, 2004, AOSI received a response from Pelzman
via e-mail. (See Kushen Decl., Exhibit B, at 2-3.) The June
13 e-mail neither certified AOSI’s compliance nor provided
any substantive advice. (See id.) Accordingly, AOSI again
solicited guidance from USAID. By a second e-mail to Pelzman
on June 15, 2004, AOSI clarified that it was seeking
advice specifically relating to the question of whether
AOSI’s policy satisfied the requirements of AAPD 04-04.
(See Kushen Decl., Exhibit B, at 2 (“Our goal in sending
you our policy was for AID to provide an interpretation of
the AAPD and related Page 18 provisions and determine if
our policy complied with the law and AID’s policies.”).)
In response, Belinda K. Barrington, in her capacity as
Acting Regional Legal Advisor, USAID/Central Asia sent AOSI
an e-mail on June 18, 2004. (See Kushen Decl., Exhibit B,
at 1.) Barrington apparently interpreted the past
correspondence between AOSI and the agency as raising a
question of AOSI’s ability to certify its compliance
consistently with its internal governance principles. (See
id. (“The issue was not, as your June 15th e-mail seems to
suggest, whether your policy complies with the law or USAID
policies, but whether AOSI is able to sign or is comfortable
with signing the certification required.”).) As to whether
its policy was in compliance, AOSI was told that “[o]nly
future actions can determine whether recipients have
complied with the certification.” (Id.)
Still uncertain as to whether AOSI’s policy was in
compliance, Robert Kushen, Chairperson of AOSI, arranged a
meeting with USAID officials. Present at a meeting held on
April 11, 2005 were Kent Hill, Acting Assistant
Administrator for Global Health at USAID; Susan Pascocello,
Acting Assistant General Counsel to Global Health; and
various other USAID officials and AOSI staff. Plaintiffs
allege that, in the course of this meeting, Hill cautioned
that he could not Page 19 proffer official guidance, but
divulged his belief that (1) organizations that promoted
the legalization of prostitution would violate the
requirement and (2) organizations that limited their
activities to providing health services to prostitutes
would be in compliance. Plaintiffs allege that questions
about the status of the universe of activities between
these two poles were unanswered.
On June 9, 2005, USAID issued AAPD 05-04, shifting its
prior stance and applying the Policy Requirement to both
U.S.-based and non-U.S.-based organizations receiving
funding under the Act. See supra Section II.A.4.a.i. AOSI
then contacted USAID on June 13, 2005 again to reaffirm its
belief that its policy complied with the requirement,
emphasizing the distinction between OSI and AOSI, and
highlighting the problems with an overly broad
interpretation of the Act.[fn13]
While waiting for USAID’s response, a question arose over
the allocation of interim funds for the DDRP. On August 2,
2005, AOSI received a response via facsimile. (See Neier
Decl., attached as Exhibit D.) USAID reiterated its
position that “prospective determinations for private
organizations about whether or not their policy statements
comply with the statutory requirement reflected in AAPD
05-04” were Page 20 inappropriate. (See id. at 1.) It
outlined the contours of what a future inquiry of
compliance might look like, including verification that (1)
the certification had been signed, (2) certification
clauses were incorporated into sub-awards, and (3) policies
explicitly opposing prostitution were in place.
On August 3, 2005, AOSI received a Modification of
Assistance from USAID to restart funding. (See Kushen
Decl., attached as Exhibit C.) The Acting Executive
Director of AOSI, Oksana Korneo, decided to sign the
modification agreement to ensure the survival of the DDRP.
(See id.) Once funding had been allocated, according to the
complaint in this action, AOSI felt comfortable proceeding
with the present litigation. (Compl. ¶ 67.)
Subsequent to filing suit for a preliminary injunction,
AOSI received a letter from USAID in October 2005
indicating that “advocating for the legalization of
prostitution” or “organizing or unionizing prostitutes for
the purpose of advocating for the legalization of
prostitution” will result in a finding of
noncompliance.[fn14]
b. HHS and the CDC
The factual record concerning the implementation of the Act
by the HHS and the CDC is considerably less complete. Page
21 Plaintiff Pathfinder alleges that “in all relevant
respects Defendant CDC is implementing the pledge
requirement in the same manner as Defendant USAID.” (Path.
Mem. at 3.) Following the DOJ’s change of course, see supra
Section II.A.4.a.i, the CDC allegedly began applying the
Policy Requirement to U.S.-based recipients “on or about”
May 2005. (Id.) This shift is reflected in the cooperative
agreements between Pathfinder and HHS and the CDC. Whereas
earlier agreements lack the new standard provisions, which
include the Policy Requirement (see Suppl. Pellegrom Decl.,
attached as Exhibits 3-5); later agreements do in fact
subject Pathfinder to the Policy Requirement (see Pellegrom
Decl., attached as Exhibits 6-9).[fn15]
In July 2005, Pathfinder adopted the following policy to
comply with the requirement:
In order to be eligible for federal funding for HIV/AIDS,
Pathfinder opposes prostitution and sex trafficking
because of the harm they cause primarily to women.
Pathfinder’s HIV/AIDS programs seek to promote effective
ways to prevent the transmission of HIV/AIDS and to reduce
the suffering caused by HIV/AIDS. In order to achieve
these goals, Pathfinder works with, and provides
assistance and support to and for, many vulnerable groups,
including women who are commercial sex workers, who, if
not effectively reached by HIV/AIDS programs, will suffer
and can become drivers of the HIV/AIDS epidemic. Page 22
(Pellegrom Decl. ¶ 17.)
5. Plaintiffs’ Complaint and Motions for a Preliminary
Injunction
On September 23, 2005, OSI and AOSI filed the complaint
commencing this action against USAID, and moved for a
preliminary injunction on September 28, 2005. The Court
held a conference on October 7, 2005 at which the parties
resolved to undertake to agree upon a briefing schedule and
enter into a temporary “standstill” agreement, with the
Government to agree that AOSI and OSI[fn16] could continue
their activities pending the outcome of the preliminary
injunction motion. Because the parties were initially
unable to come to an agreement, AOSI and OSI moved for a
Temporary Restraining Order on October 12, 2005. Following
a phone conference, the parties continued to negotiate, and
entered into a stipulated agreement on October 14, 2005.
The agreement provided that pending the decision on the
motions for a preliminary injunction and temporary
retraining order, AOSI would continue to comply with its
understanding of the Policy Requirement in good faith, and
USAID agreed to provide at least two weeks notice prior to
taking any action to redress any perceived violation of the
Act. On December 5, an amended complaint was filed adding
Pathfinder as a plaintiff and HHS, Leavitt, the Page 23
CDC, and Gerberding as defendants. Pathfinder thereafter
filed a motion for a preliminary injunction. Its supporting
brief set forth the relevant facts with regard to
Pathfinder and incorporated all of the legal arguments from
AOSI’s and OSI’s memorandum of law in support of a
preliminary injunction.[fn17]
Plaintiffs seek a declaratory judgment that the Policy
Requirement requires only that U.S-based recipients state
that prostitution causes harm to women, but does not in any
way restrict the activities that recipients may engage in
with their private funds. In the alternative, they seek a
declaratory judgment that Defendants’ application of the
Policy Requirement is unconstitutional.
Plaintiffs also seek a preliminary injunction barring
Defendants from (1) discontinuing funding until a ruling on
the merits of this litigation, (2) unilaterally terminating
the cooperative agreements, and (3) otherwise taking action
solely on the ground that Plaintiffs engaged in
privately-funded speech. To this end, they allege that
there is a likelihood they will succeed on the merits and
that they will suffer irreparable harm if the injunction is
denied.
OSI claims that it will be irreparably harmed due to the
Page 24 uncertainty as to whether the Policy Requirement
will be applied to its activities by its association with
AOSI, even though it is not technically a partner in the
DDRP or a recipient of federal funds pursuant to the Act.
OSI emphasizes that it has already been subjected to
scrutiny by some members of Congress. Accordingly, OSI
claims that, absent assurances that its speech will not be
imputed to AOSI, it must monitor its own speech for fear of
endangering AOSI.
Section 6(e) of the cooperative agreement between AOSI and
USAID provides that “any violation . . . shall be grounds
for unilateral termination of the agreement by USAID prior
to the end of its term.” (Suppl. Kushen Decl., attached as
Exhibit 1.) AOSI claims that USAID’s implementation of the
Policy Requirement (1) compels the organization to engage
in speech against its own will, (2) forces it to monitor
its own speech and refrain from engaging in certain
activities, even with its private funds, for fear of
unilateral termination of government funding, and (3)
violates AOSI’s internal rules of governance. As an example,
AOSI claims it will be chilled from fully participating in
a conference in June 2006 entitled “Sexual Rights, Sexual
Health: Countering the Conservative Sexual Agenda,” which
will include a discussion of the legal status of
prostitution. (Suppl. Kushen Decl. ¶ 3.)
Pathfinder alleges that it must refrain from using its
Page 25 private funding in such a manner as to run afoul of
a broad interpretation of the Policy Requirement. For
example, Pathfinder wishes to continue using its private
funds to “organize sex workers in India,” to collaborate
“with community organizations in Brazil that . . . have
sought to change the legal regime surrounding sex work,”
and, more generally, to engage in a thoughtful policy
debate on the appropriate legal regime for prostitution.
(Path. Mem. at 5-6.) Pathfinder fears that Defendants may
penalize it for such activities. See 45 C.F.R.
§§ 74.13, 74.6, 74.62 (2006) (permitting the
HHS to unilaterally terminate the award and disqualify the
grantee from receiving future funding as a penalty for
violating the Policy Requirement); Expanding and Support of
HIV/AIDS/STI/TB Information, Education, and Communication
and Behavior Change Communication Activities in Ethiopia
— Amendment, Centers for Disease Control and
Prevention, 70 Fed. Reg. 29760, (May 24, 2005), attached to
Rosberger Decl. as Exhibit E (“Any violation of the
provisions shall be grounds for unilateral termination of
the agreement prior to the end of its term.”).
III. APPLICABLE STANDARD FOR PRELIMINARY INJUNCTION
The Court notes at the outset that it will address only
Plaintiffs’ as applied challenges to Defendants’
construction of the Policy Requirement. Plaintiffs state
that they are Page 26 bringing an as applied challenge to
Defendants’ statutory construction of the statute, as well
as challenging the constitutionality of the agency’s
interpretation both facially and as applied. The Court is
not persuaded of the necessity to address a facial
challenge to Defendants’ interpretation of the statute at
this early stage in the litigation and before the Agencies
have undergone a review process or issued any formal
guidance or regulations on the implementation of the Act and
the meaning of the phrase “policy opposing prostitution.”
At this juncture, the Court views it as premature to look
beyond the facts presented by these parties, particularly,
as noted, prior to any formal statutory construction or
regulatory action on the part of the Agencies. Thus the
Court confines its analysis to the question of whether a
preliminary injunction preventing Defendant’s from
penalizing Plaintiffs for engaging in protected speech with
their private funds a should be issued pending the final
outcome of this litigation.
For the Court to issue a preliminary injunction against
the government, Plaintiffs must demonstrate both a
likelihood of success on the merits and a threat of
irreparable harm. See, e.g., Velazquez v. Legal Servs.
Corp., 164 F.3d 757, 763 (2d Cir. 1999) (“Velazquez I”).
The Court will first address the requirement that
Plaintiffs demonstrate a likelihood of Page 27 success on
the merits. In considering this question, the Court must
first analyze the parties’ statutory construction
arguments, to determine whether or not Plaintiffs can
prevail on their claims that Defendants’ reading of
§ 7631(f), to the limited extent an interpretation
or application has been articulated, is incorrect, and
should be supplanted by Plaintiffs’ construction pursuant
to the canon of constitutional avoidance. Because the Court
concludes that Plaintiffs have not demonstrated that
Defendants’ statutory construction regarding certain issues
central to this action is erroneous, it then turns to the
question of whether Plaintiffs are likely to show that the
Policy Requirement, as construed by Defendants, violates
the First Amendment by restricting Plaintiffs’ privately
funded speech, leaving Plaintiffs with no alternative means
of communicating countering viewpoints, and compelling
Plaintiffs to adopt an organization-wide policy consistent
with the Government’s position.
IV. DISCUSSION
A. Likelihood of Success on the Merits
1. Statutory Interpretation
According to Plaintiffs, § 7631(f)’s Policy
Requirement demands only a declaration that the applicant
for funding under the Act generally opposes the harms
caused by Page 28 prostitution and that if it has complied
with this condition, the organization should not lose its
contract for engaging in specific activities, such as
advocating for changes in the legal status of prostitution,
or providing funding or technical assistance to entities
that so advocate, as long as no Act funds are used for
these purposes. Plaintiffs make several arguments in
support of this proposition. First, they assert that the
plain text compels that interpretation of the statute.
Second, they argue that their construction is also
supported by the purpose of the Act, as well as by
legislative history. Third, they maintain that Defendants’
interpretation saps other statutory provisions of meaning,
including rendering § 7631(e) — the government
funds restriction — superfluous. Finally, they argue
that Defendants’ interpretation necessarily implicates
constitutional issues and thus acceptance of that reading
would violate the doctrine of constitutional avoidance,
under which courts are to narrowly construe statutes so as
to avoid conflicts with constitutional provisions. The
Court will address each of these arguments in turn.
a. Plain Meaning of the Statutory Text
As discussed above, § 7631(f) requires organizations
receiving funds under the Act to have a “policy explicitly
Page 29 opposing prostitution.”[fn18] According to
Plaintiffs, the word “policy,” by its plain meaning,
indicates that the statute requires nothing more than a
general statement — a declaration of “general
orientation only,” regardless of the specific program
activities the organization actually undertakes. (Pl. Br. at
16.) In support of this argument they proffer definitions
from Black’s Law Dictionary, the American Heritage
Dictionary of the English Language, and Congress’s use of
the word “policy” elsewhere in the Act.
This argument fails, even under the definitions set forth
in the dictionaries that Plaintiffs cite. As Plaintiffs
themselves point out, Black’s Law Dictionary defines
“policies” as “general principles by which a government is
guided.” (Pl. Br. at 16 (citing Black’s Law Dictionary 1157
(6th ed. 1990).)[fn19] Although Plaintiffs emphasize the
words “general principles” in this definition, the second
half of the definition — “by which a government is
guided” — indicates that the words “general
principles” are used in context: that a policy could
encompass a statement of principle, but that such statement
indicates and is intended to guide an organization’s
actions. Otherwise, any policy an entity Page 30 adopts
— whether voluntarily or compelled, whether
informally or pursuant to stated procedure — and
then in practice ignores, would amount to nothing more than
lofty ornamentation, an empty ceremony of words. Similarly,
the definition in the American Heritage dictionary —
a “plan or course of action” or “guiding principle”
— by its terms suggests more than the lip service of
a written statement. American Heritage Dictionary of the
English Language 1401 (3d ed. 1996) (emphasis added).
Conduct inconsistent with the principle would mean that the
policy no longer served as a guiding principle.[fn20] The
more reasonable conclusion to draw from these definitions is
that a policy is not just a set of abstract disembodied
words that have no bearing on or connection to an
organization’s conduct. Rather, the term constitutes an
expression of principle that sets forth, mirrors and guides
an organization’s conduct along the paths of its mission
and purposes. If anything, the plain text of the statute
demonstrates that conforming conduct is not only
necessarily interwoven with words but expected when issued
as an organization’s “policy.” Page 31
Plaintiffs’ argument that Congress’s use of the word
“policy” elsewhere in the Act reinforces their reading of
the statute is unpersuasive. According to Plaintiffs,
throughout the Act the term “policy” refers consistently to
generalized goals, not to means used to achieve those
goals, while other words, such as “project” or “program”
refer to activities. Yet § 7652, to which Plaintiffs
point, is not properly read this way. That section of the
statute, entitled “Policy and Requirements,” states, under
the subsection entitled “Policy”:
The United States Government’s response to the global
HIV/AIDS pandemic should place high priority on the
prevention of mother-to-child transmission, the care and
treatment of family members and caregivers, and the care
of children orphaned by AIDS. To the maximum extent
possible, the United States Government should seek to
leverage its funds by seeking matching contributions from
the private sector, other national governments, and
international organizations.
22 U.S.C. § 7652(a). The “policy” itself contains
suggested conduct to which some follow-up commitment is
made — such as “seek[ing] to leverage” funds and
“seeking matching contributions.” Section 7652(b), entitled
and containing the “Requirements,” simply enumerates
certain mandated activities (such as “expand[ing] programs
designed to care for children orphaned by AIDS”) and
benchmarks (“provid[ing] for meeting or exceeding the goal
to reduce the rate of mother-to-child transmission of HIV
by 20 percent by 2005 and by 50 percent by 2010”) in
conformity with the policy, but does not mean that the
policy does not encompass those or other activities. Page
32
At oral argument, Plaintiffs argued that it was not their
contention that they should be permitted to adopt a policy
and then flout it by engaging in conduct contrary to that
policy. Rather, Plaintiffs asserted that different courses
of conduct (i.e., different approaches to the problem)
could be consistent with having a “policy opposing
prostitution,” and as such they vigorously contest
Defendants’ position that only a narrow set of actions is
consistent with having a policy opposing prostitution.
Thus, Plaintiffs argue, they are not seeking an
interpretation of the term “policy” that is disembodied
from conduct or action; instead they seek recognition that
a wide array of conduct, including possibly advocating for
a reduction in criminal penalties for prostitution, is
consistent with having a “policy opposing
prostitution.”[fn21] The Court is not persuaded by this
argument. Problematically, it leaves no room for agency
interpretation of the term “policy opposing prostitution,”
as it would allow Plaintiffs to unilaterally designate
which among various courses of conduct they view as
fulfilling the provision’s meaning. While Plaintiffs are
correct that different courses Page 33 of action can be
consistent with a stated policy, and that in §
7631(f) Congress did not specify which courses of action it
would view as manifesting a policy opposing prostitution,
this does not mean that Congress meant that any conduct
Plaintiffs pronounce to be consistent with such a policy is
necessarily so. Again, if this were the case, the provision
would be barren of meaning.
b. Purpose of the Statute
Plaintiffs argue that their interpretation of §
7631(f) supports the purpose of the statute. According to
Plaintiffs, the overarching purpose of the Act is “to fight
the spread of HIV/AIDS and other diseases.” (Pl. Reply Br.
at 27.) Moreover, under that view, because organizations,
after issuing a statement opposing the harms caused by
prostitution, remain free to choose the strategies that
they deem most effective in responding to the HIV/AIDS
epidemic, such a reading furthers the purpose of the Act.
Plaintiffs’ theory further suggests that “eradicating
prostitution” is a “secondary” objective whereas the primary
goal of the Act is to address HIV/AIDS. Since Plaintiffs’
work seeks to combat the spread of HIV/AIDS, impeding that
mission is inconsistent with the primary purpose of the
Act. (See also AIDS Action Mem. at 5 (“[T]he pledge
requirement undermines, rather than supports, the public
health objectives of the AIDS Leadership Act. . . .”)).
Page 34
In contrast, Defendants argue that Plaintiffs’
interpretation would in fact “frustrate the Act’s
strategies and goals, and create an environment for risky
behavior that the Act aims to prevent as part of its
comprehensive approach to fighting the spread of HIV/AIDS.”
(Def. Mem. at 22.)
It is clear that combating the spread of HIV/AIDS and
other diseases — and making the United States a
leader in this effort — is the primary goal of the
Act. Indeed, as noted above, the Act expressly declares so
in stating that its purpose is “to strengthen United States
leadership and the effectiveness of the United States
response to certain global infectious diseases [HIV/AIDS,
tuberculosis and malaria],” and designating several means
through which to achieve this end. 22 U.S.C. § 7603.
The focus of this statement of purpose is clearly on
eradicating disease; the language does not mention
eradicating prostitution. Rather, the statement that it
should be the policy of the United States to “eradicate”
prostitution is embedded in the “Findings” section of the
statute. See id. § 7601(23). However, Congress made
several policy and strategic choices as to how it would
meet its primary goal of eradicating HIV/AIDS. One of those
choices, based on the finding that prostitution is a cause
of HIV/AIDS, was to eradicate prostitution. Indeed,
Congress specifically found that the sex industry was one
of the causes of and factors in the spread of HIV/AIDS. See
id. § 7601(23). Page 35
At minimum in light of this finding, the statute indicates
that eradicating prostitution is an integral part of the
comprehensive strategy Congress envisioned in the fight
against HIV/AIDS. In the section setting forth the
“Comprehensive Strategy” — which itself is described
as part of the purpose of the statute, see id. §
7603(1) — Congress stated:
The President shall establish a comprehensive,
integrated, five-year strategy to combat HIV/AIDS . . .
Such strategy . . . shall . . . provide 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 . . . eradicating prostitution
. . .
Id. § 7611(a) (4) (emphasis added).
Congress thus explicitly chose to include eradicating
prostitution in its strategy to fight HIV/AIDS under the
statute. Whether or not other approaches — such as
legalizing prostitution, or reforming the sex industry
through unionizing prostitutes, or other approaches
advocated by Plaintiffs and other organizations —
are more effective programmatic responses to HIV/AIDS, that
choice among strategies was already made by Congress and
unequivocally adopted in the Act. In legislating ways and
means, Congress is free to choose which strategies best
serve the goal to fight HIV/AIDS. In this case, Congress
manifestly chose to prescribe a strategy with which at least
some of Plaintiffs’ program strategies are at odds. Page
36
Although, as Plaintiffs point out, Congress’s finding that
prostitution is “degrading to women and children and it
should be the policy of the United States to eradicate such
practices” is embedded among twenty-seven other
congressional findings regarding a large-scale effort to
prevent, treat, and eradicate HIV/AIDS, those other
findings do not suggest that eradicating prostitution was
not meant to be part of this large-scale effort, or that
Congress was thereby making a deliberate normative choice
to regard the eradication of prostitution as a “secondary”
purpose. Apropos of this issue, the Court notes the
observation proffered by the AIDS Action amici that
reducing the stigma associated with HIV/AIDS is part of how
Congress described an appropriate response to the HIV/AIDS
pandemic, and that forcing organizations to adopt a stance
opposing prostitution could lead to more stigmatization of
the very individuals these organizations are trying to
help. See 22 U.S.C. § 7601(21)(C) (“The magnitude
and scope of the HIV/AIDS crisis demands a comprehensive,
long-term, international response focused upon addressing
the causes, reducing the spread, and ameliorating the
consequences of the HIV/AIDS pandemic, including . . .
development and implementation of national and
community-based multisector strategies that . . . increase
the participation of at-risk populations in programs
designed to . . . reduce the stigma associated with
HIV/AIDS”) (emphasis added). Other amici, Page 37 however,
who also provide HIV/AIDS prevention services to
prostitutes, argue that requiring organizations to oppose
prostitution, including requiring them to oppose the
legalization of prostitution, does not stigmatize
prostitutes and in fact that such opposition is necessary
to work effectively against the harms inflicted by
prostitution, including HIV/AIDS. (See Apne Aap Mem. at
12-13.) Regardless of who has the better of these policy
arguments, it is clear that the question as to whether
opposition to prostitution does or does not necessarily
involve stigmatization is at least arguable, and that
Congress, by including findings addressing the problems of
both HIV/AIDS and prostitution in the same statute did not
view the opposition of prostitution as necessarily
stigmatizing of this population.
c. Legislative History
Plaintiffs’ key, indeed entire, piece of evidence in the
legislative history arsenal is an exchange on the Senate
floor between Senate Majority Leader Bill Frist and Senator
Patrick Leahy. In it Senator Leahy expressed concern about
the potential counterproductive consequence of the Policy
Requirement insofar as it could impair the relationship of
trust necessary between the organizations that help women
involved in the sex industry and the victims they seek to
serve, and thereby impede the effectiveness of these
programs. In response, Senator Frist assured Senator Leahy
that he was Page 38 in agreement that the organizations
who work with and on behalf of these women need to be
supported in their efforts, while at the same time noting
that the legislation should be careful to not condone
prostitution or sex trafficking. See 149 Cong. Rec.
S6451-01, S6457 (daily ed. May 15, 2003). Senator Frist
then stated that the answer to this issue would be “to
include a statement in the contract or grant agreement
between the U.S. Government and such organization that the
organization is opposed to the practices of prostitution
and sex trafficking because of the psychological and
physical risks they pose for women.” Id. He further noted
that “[s]uch a statement . . . would satisfy the intent of
this provision.” Id.[fn22] Page 39
According to Plaintiffs, this exchange demonstrates that
Congress intended § 7631(f) to be satisfied by a
simple statement from an organization that it opposes
prostitution, without otherwise imposing any impediments
upon that organization’s activities. Under this
interpretation, § 7631 (f) “was simply a means for
Congress to express its opposition to prostitution
generally, while funding organizations that work closely
with sex workers to prevent Page 40 the spread of
HIV/AIDS.” (Pl. Reply at 30.)
There are aspects of Plaintiffs’ interpretation of this
exchange that appear compelling. Indeed, Senator Frist’s
words do seem to indicate an intent to have organizations
funded under the Act retain the ability to engage in the
work that they normally do, and such work could include
activities that the Government is now construing as
inconsistent with a policy against prostitution. Yet a
closer look reveals that Senator Frist’s words are not
inconsistent with the Government’s position.
First, neither senator discusses the effect of the
provision on organizations whose work includes advocating
legalization or promotion of prostitution. Instead, Senator
Leahy mentions other types of work organizations perform on
behalf of women involved in prostitution —
“educat[ing]” and “counsel[ing],” “help[ing] them escape,”
and “provid[ing] them with condoms” — and Senator
First agrees that “these organizations” play an important
role in preventing the spread of HIV/AIDS and should be
supported. The passage does not address whether these
organizations could advocate for the legalization of
prostitution or, for example, unionization of prostitutes
and remain consistent with a policy explicitly opposing
prostitution. Second, the exchange simply does not speak to
the issue of public versus private funding, and whether
such organizations could retain the freedom to engage Page
41 in certain activities with their own funds that they
could not with federal funds.[fn23]
d. Draining Other Provisions of Meaning
Plaintiffs point to several other provisions of the statute
and argue that their reading is necessary to prevent those
other provisions from being drained of meaning or becoming
superfluous. The Court finds none of these arguments
persuasive.
i. Superfluous Provisions
Plaintiffs argue that interpreting § 7631(f)’s
Policy Page 42 Requirement to encompass an organization’s
program activities would render § 7631 (e)
superfluous. According to this reasoning, if §
7631(f) barred specific activities deemed to be
inconsistent with a general policy stance opposing
prostitution, this prohibition would necessarily encompass
advocating for the legalization and practice of
prostitution — including using government funds to
so advocate. Thus, § 7631(e)’s ban on using
government funds to promote the legalization and practice
of prostitution would be rendered unnecessary, as such a
ban already would be encompassed by § 7631(f). The
Court rejects this reading of the statute.
Certain canons of construction counsel courts to interpret
statutes in a way that avoids rendering any language
superfluous, and “to give effect, if possible, to every
clause and word of a statute.” Duncan v. Walker, 533 U.S.
167, 174 (2001) (quoting United States v. Menasche, 348
U.S. 528, 538-39 (1955) (quoting Montclair v. Ramsdell, 107
U.S. 147, 152 (1883))) (internal quotation marks omitted);
Collazos v. United States, 368 F.3d 190, 199 (2d Cir.
2004). At the same time, the Court is mindful that canons
of construction “are not mandatory rules” that trump other
evidence, reasoning and common sense. See Chickasaw Nation
v. United States, 534 U.S. 84, 94 (2001). Particular canons
of statutory construction “`should not take precedence over
more convincing reasons.'” Krause v. Titleserv, Inc., 402
F.3d 119, 128 (2d Cir. 2005) Page 43 (quoting Hakala v.
Deutsche Bank AG, 343 F.3d 111, 116 (2d Cir. 2003)). Even
the preference for avoiding surplusage construction “`is
not absolute.'” Id. (quoting Lamie v. U.S. Tr., 540 U.S.
526, 536 (2004)). For example, adopting the plain meaning
of statutory language with the result that some language is
superfluous is preferable to adopting an ambiguous meaning
where there is no surplusage. See Lamie, 540 U.S. at 536.
Similarly, other evidence of congressional intent can
overcome the force of an interpretive canon. See Chickasaw
Nation, 534 U.S. at 94.
Most relevant to this analysis, the Court notes that when
construing a statute, the general preference against
surplusage is constrained by the requirement that a
construction avoiding surplusage must be a reasonable one.
See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-08
(1961) (“The statute admits a reasonable construction which
gives effect to all of its provisions. In these
circumstances we will not adopt a strained reading which
renders one part a mere redundancy.”) (emphasis added).
Thus, even if the Court’s reading resulted in some
redundancy in the statute, such redundancy — which
may simply reinforce Congress’s message — would not
be a reason to choose a reading that simply was not
plausible. The Court has already determined, for the
reasons discussed above grounded on statutory text and
legislative intent, that Plaintiffs’ construction of the
Page 44 meaning of “policy,” while ostensibly designed to
avoid rendering § 7631(e) superfluous, is simply not
plausible.
Here, however, the Court need not worry about choosing
between an interpretation that strains logic but avoids
surplusage, and one that is more logical but may ostensibly
contain surplusage. Instead, the Court offers two plausible
readings of the statute, each of which gives effect to
every clause. See Duncan, 533 U.S. at 174.
First, Congress could, as a matter of policy, choose to
identify one form of activity that it determines is more
offensive and harmful than others, and therefore more worthy
of an expression of its disapproval highlighted in a
separate provision of the statute, without needing to
enumerate every other activity that may be inconsistent
with the legislative purpose, or foreclosing subsequent
determinations of other such activities pursuant to a more
general delegation of authority to the statute’s
administering agency. Such drafting technique is not
uncommon, and is ordinarily employed in legislation that
lays out either broad terms or particular priorities and
leaves to the implementing agencies the task of filling in
further details and proscriptions by appropriate
regulations. Thus, in § 7631(e) Congress could have
chosen to specify one form of activity (spending government
funds for the legalization of prostitution) it deemed
merited special proscription as an articulation of the
significance Congress Page 45 attached to barring that
activity, without precluding limitations on other
activities (e.g., advocating for the legalization of
prostitution as an organization that is acting in some
capacity as a government partner in the global fight
against HIV/AIDS) imposed by the more general
administrative means provided in § 7631(f).
Second, § 7631(e) and § 7631(f) could be
interpreted as addressing two different points in time in
the grant of funds to organizations under the Act. Section
7631(f) may be viewed as providing an eligibility criterion
defining which organizations qualify to apply for and
receive funds, while § 7631(e) restricts specific
activities for which Act funds could not be used after the
grant is made, a violation of which presumably could
warrant termination of a contract. Thus, viewed temporally,
§ 7631(f) stands as a first cut-off in the
grant-seeking process: only those organizations with a
policy expressly opposing prostitution are eligible to
receive contracts. The prohibition of § 7631(e)
would come into play, if called for, after the organizations
have been selected to receive federal funds. In other
words, the provision imposes a condition on the use of
those funds: that they not be expended to promote or
advocate the legalization or practice of prostitution. This
reading of the statute — an eligibility restriction
and a funding restriction — does not render §
7631(e) superfluous and is better supported by legislative
and Page 46 administrative reasons than the more strained
reading Plaintiffs advance.
Read in either way suggested, each provision of the
statute would be given effect, although this course raises
other problems. As will be discussed below, if the Policy
Requirement of § 7631(f) is read as an eligibility
restriction demanding that organizations adopt a policy
that encompasses speech activities carried out with their
private funds to qualify for receipt of federal funds, such
a condition could infringe on the organizations’ First
Amendment rights. This issue is addressed in Section IV.A.2
of this opinion.
ii. Other Provisions
(a) “Moral Objection”
Plaintiffs also contend that the Government’s reading of
the Policy Requirement would undermine § 7631(d),
under which organizations that are “otherwise eligible to
receive assistance . . . shall not be required, as a
condition of receiving the assistance, . . . to participate
in a prevention method or treatment program to which the
organization has a religious or moral objection.” 22 U.S.C.
§ 7631(d). According to Plaintiffs, since they have
adopted governing principles that require them to “treat
socially marginalized groups in a manner that does not
marginalize them further,” requiring Plaintiffs to
explicitly oppose prostitution would force them to treat
prostitutes in a way contrary to Plaintiffs’ moral Page
47 values. (See Pl. Mem. at 18.)
The Court is not persuaded by this argument. First,
Plaintiffs do not specify how the restriction forces them
to participate in a “prevention or treatment” method or how
this conflicts with a “moral” value. Second, Plaintiffs’
argument suggests that this provision is subject to open
interpretation by all potential grantees, and that the
phrase “moral value” may be given any content that
Plaintiffs propose. Such a framework, however, has the
potential to render the entire restriction meaningless, and
thus cannot be adopted by this Court.
(b) Palliative and Prophylactic Care
Plaintiffs also point to an exclusion for palliative and
prophylactic care in the government funding restriction:
after imposing its restrictions on the use of government
funds, § 7631(e) states:
Nothing in the preceding sentence shall be construed to
preclude the provision to individuals of palliative care,
treatment, or post-exposure pharmaceutical prophylaxis,
and necessary pharmaceuticals and commodities, including
test kits, condoms, and, when proven effective,
microbicides.
22 U.S.C. § 7631(e). According to Plaintiffs,
interpreting § 7631(f)’s Policy Requirement to cover
specific activities of the organization could render this
portion of § 7631(e) meaningless, apparently on the
theory that activities within the scope of the exclusion
could “evince an insufficient Page 48 opposition to
prostitution” and thus be barred by § 7631(f). There
is nothing on the record before the Court to support such a
reading of the § 7631(e) exclusion. Plaintiffs point
to no statement by Defendants indicating that providing the
specific types of care in question would be construed as
not sufficiently opposing prostitution. Indeed, insofar as
legislative history and intent with regard to this issue is
not ambiguous or contradicted, the sponsor of the amendment
in the markup session observed that “[i]t does not state
that prostitutes and trafficked women should not be treated
for AIDS” and that language elsewhere in the bill “points
out that nothing in this act shall be construed to preclude
the provision to individuals of palliative treatment or
postexposure pharmaceuticals, including the distribution of
condoms, and it goes on, in brothels and places of that
sort.” Markup Report at 149 (comments of Rep. Smith,
member, House Committee on International Relations).
(c) Specific Restriction in § 7631(e)
Finally, Plaintiffs argue that when Congress wanted to bar
particular activities in the Act, it did so explicitly.
Plaintiffs point to the language in § 7631(e)
expressly forbidding grant recipients from using federal
money “to promote or advocate the legalization or practice
of prostitution.” The absence of a similarly specified set
of activities in § 7631(f) indicates, according to
Plaintiffs, Page 49 that Congress did not intend the
Policy Requirement to encompass such activities.
The Court disagrees. As discussed above in the Court’s
reconciliation of § 7631(e) and § 7631(f),
that Congress, in § 7631(e), specifically delineated
activities prohibited with government funds, does not
necessarily mean that it intended, through the absence of a
similarly delineated list of activities in §
7631(f), to condone or allow for such activities. The
phrase “policy expressly opposing prostitution” is broad
and general. Why this phrase was left undefined is unclear:
perhaps it was a legislative compromise; perhaps Congress
felt the details of what this term should encompass were
best left to the administering agencies to elaborate in
regulations; perhaps the more general language was designed
to avoid the very constitutional issues now before this
Court. It is difficult to divine the congressional intent
behind the absence of a more precisely contoured definition
of a statutory term. However, the absence of a specifically
listed activity in one section of the statute does not mean
that the broad phrase “policy explicitly opposing
prostitution” does not, or cannot, encompass that activity.
e. Doctrine of Constitutional Avoidance and Deference to
Agency Interpretation
Finally, Plaintiffs argue that, pursuant to the canon of
Page 50 constitutional avoidance, the Court should adopt
their reading of the Policy Requirement and not needlessly
reach the constitutional questions potentially implicated
in the case. Specifically, Plaintiffs argue that
Defendants’ construction of the Policy Requirement, by
allowing the Government to regulate and restrict privately
funded speech and associational activities on a viewpoint
discriminatory basis, impinges upon organizations’ First
Amendment free speech rights. Moreover, requiring
organizations to adopt a policy, according to Plaintiffs,
impermissibly compels speech in violation of the First
Amendment. Plaintiffs urge that their construction, by
allowing organizations to conduct activities as they see
fit, avoids this constitutional quagmire. The Court rejects
Plaintiffs’ argument. To save a statute from
unconstitutionality, “every reasonable construction must be
resorted to.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)
(quoting Hooper v. California, 155 U.S. 648 (1895)); but,
as already discussed, Plaintiffs’ interpretation simply is
not viable or reasonable.[fn24]
For their part, Defendants argue that their construction
Page 51 of the provision should be granted deference,[fn25]
as they are the agencies entrusted to administer the
statutory scheme. With regard to Defendants’ argument, the
Court finds that while their construction of the meaning of
the term “policy” is not an unreasonable reading of the
Act, the Court still cannot defer to the Government’s
interpretation of the Policy Requirement because of the
significant constitutional problems, discussed at length in
Section IV.A.2 of this opinion, to which such a
construction gives rise. Where an agency’s interpretation
of a statute raises significant constitutional issues, a
court need not defer to that reading absent a clear
indication from Congress that such interpretation was
intended. See Solid Waste Agency v. U.S. Army Corps of
Engineers, 531 U.S. 159, 173-74 (2001) (finding that
deference was inappropriate because the agency’s
interpretation “invoke[d] the outer limits of Congress’
power under the Commerce Clause by “permitting federal
encroachment upon a traditional state power,” thus
“rais[ing] significant constitutional questions” without a
“clear statement from Page 52 Congress” that it intended
this result); see also Miller v. Johnson, 515 U.S. 900, 923
(1995) (“[W]e think it inappropriate for a court engaged in
constitutional scrutiny to accord deference to the Justice
Department’s interpretation of the Act. Although we have
deferred to the Department’s interpretation in certain
statutory cases . . . we have rejected agency
interpretations to which we would otherwise defer where
they raise serious constitutional questions.”); DeBartolo,
485 U.S. at 574-75.
Since Defendants’ construction of the statute as it relates
to the Policy Requirement raises significant
constitutional questions — indeed, as discussed
below, it goes beyond the outer limits of what the Supreme
Court has found acceptable in its line of “unconstitutional
conditions” cases — the Court can not defer to this
interpretation. There is no clear evidence that Congress
intended to restrict entirely a recipient organization’s
ability to express certain viewpoints, even through its
privately funded activities, nor is there clear evidence of
what is meant by a “policy expressly opposing
prostitution.” Without a clear indication of Congressional
intent in this regard in the statutory text or in
compelling legislative history, the Court will not conclude
that Congress intended an unconstitutional result. See
Velazquez I, 164 F.3d at 764 (“While the legislative
history may give some support to the view that Congress
Page 53 intended to prevent grantees from creating
affiliates to undertake restricted activity, the statutory
text is silent on the point. We conclude that the LSC
regulations are not inconsistent with or unauthorized by
the terms of the Act.”). The Government’s interpretation of
the Policy Requirement as applied to the private speech of
recipients of funds under the Act, is not a
constitutionally permissible construction of the statute,
and the Court cannot defer to it.
Thus, in order to determine whether Plaintiffs are entitled
to an injunction restraining the Defendants’ interpretation
of the statute, the Court turns to Plaintiffs’
constitutional arguments.
2. First Amendment Claims
a. Applicable Standard of Review
Not surprisingly, since much of the resolution of this
proceeding turns on which standard of review the Court
should apply in reviewing the constitutionality of the
statute, the parties have devoted considerable energy to
their arguments concerning this question. Plaintiffs
contend that the statute unduly burdens their First
Amendment rights by constraining use of their private funds
as a condition of receiving or maintaining federal program
benefits, and thus implicates the unconstitutional
conditions doctrine. Because the statute requires them to
refrain from engaging in certain privately Page 54 funded
speech and further compels them to adopt a policy espousing
a specific government formulated or endorsed viewpoint on
prostitution, Plaintiffs argue that review of the statute
must be subject to heightened scrutiny.
In contrast, the Government argues that the Act is an
enactment pursuant to Congress’s authority deriving from
the Spending Clause of the Constitution, Art. I, §
8, cl. 1.1, under the jurisprudence of which the Policy
Requirement does not impose any unconstitutional conditions
because the Government has no obligation to subsidize the
activities in question, and Plaintiffs are under no
compunction to receive funds under the Act. Plaintiffs may
apply for such financing, but remain at liberty to turn
down any contract awarded at any time they cannot comply
with the Policy Requirement. In that event, if they wish,
Plaintiffs can still speak freely on approaches to
prostitution or any other matter. The Government thus
claims that because the statute was enacted pursuant to
Congress’s spending power, it is subject to only rational
basis review.
In addressing these arguments, the Court is mindful of the
historical context and policy considerations that surround
analysis of First Amendment issues. As the Supreme Court
has observed, “[i]t is fundamental that the First Amendment
was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired
by the Page 55 people.” Legal Services Corp. v. Velazquez,
531 U.S. 533, 548 (2001) (“Velazquez II”) (internal
quotations omitted); c.f. United States v. Associated
Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (noting that
the interest protected by the First Amendment “presupposes
that right conclusions are more likely to be gathered out
of a multitude of tongues, than through any kind of
authoritative selection”).
[…]