In its unconstitutional conditions cases, the Supreme Court has often examined the constitutionality of speech restrictions imposed as a condition of government funding. The Court has had less occasion to consider affirmative speech requirements. Last Term in Agency for International Development v. Alliance for Open Society International, Inc. (1) (AID), the Court held that the government could not condition receipt of AIDS-related funding on recipients" adoption of a policy opposing prostitution: the requirement, by its nature, violated the First Amendment by regulating private activity outside the scope of the government's program. (2) While at first glance this holding seems to apply quite broadly to affirmative speech conditions, the Court's opinion relied on several factual considerations that limit the holding and may serve to distinguish other, permissible speech requirements.
In his 2003 State of the Union address, President George W. Bush proposed an "Emergency Plan for AIDS Relief" and asked Congress to provide fifteen billion dollars in funding. (3) Congress responded by passing the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (4) (Leadership Act). The legislation reflected Congress's view that "behavior change (including the promotion of abstinence, faithfulness, the delay of "sexual debut," and the effective use of condoms) [is] the foundation of efforts to fight AIDS." (5) Congress also found that prostitution was a form of "sexual victimization" contributing to the AIDS epidemic and that the United States should seek to eradicate such practices. (6) The Leadership Act therefore required that no funds be used to advocate for the legalization of prostitution. (7) It further required that groups receiving funds adopt a policy explicitly opposed to prostitution (the "policy requirement"). (8)
Many nongovernmental organizations (NGOs) disliked the policy requirement, which they thought would make prostitutes less likely to trust them and have a chilling effect on their work with prostitutes. (9) One NGO, the Alliance for Open Society International, Inc. (AOSI), (10) filed a declaratory judgment suit against the U.S. Agency for International Development (USAID). (11) AOSI argued that the government could not constitutionally require it to adopt a policy opposing prostitution and sought a preliminary injunction against USAID's implementation of the policy requirement. (12) The government justified the policy requirement as a legitimate exercise of Congress's spending power and argued that AOSI was free to decline the funds if it did not want to abide by Congress's conditions. (13) Judge Marrero of the Southern District of New York agreed with AOSI and granted the preliminary injunction. (14) He observed that NGOs play an important role in the untrammeled public discourse protected by the First Amendment. (15) And unlike permissible funding conditions, the policy requirement did not provide private organizations with "alternate channels" for protected speech outside the scope of the government program. (16)
The government responded by attempting to provide such alternate channels: it issued guidelines (17) that exempted organizations affiliated with funding recipients, but remaining separate from them, from the policy requirement. (18) The Second Circuit remanded the case and ordered the district court to reconsider the preliminary injunction in light of the new guidelines. (19) On remand, the government argued that the guidelines satisfied the First Amendment by giving NGOs alternate channels for their expression. (20) Judge Marrero rejected the government's arguments and extended the preliminary injunction. (21)
The Second Circuit affirmed. (22) Writing for the panel, Judge Parker (23) held that the policy requirement warranted heightened scrutiny for two reasons. First, it compelled funding recipients to speak against prostitution; the Supreme Court had applied rational basis review only to statutes conditioning funds on a promise not to speak. …