Can Congress constitutionally condition federal funding on a recipients willingness to promote a particular message? Given the “messy and unsettled” constitutional issues raised by this seemingly simple question, it’s no surprise that the Second Circuit declined the chance to consider it en banc earlier this month. Alliance for Open Soc'y Int'l, Inc. v. United States Agency for Int'l Dev., No. 08-4917-cv (2d Cir. Feb. 2, 2012) (Pooler, J. concurring in the denial of rehearing en banc).
The answer to this question turns on a relatively obscure doctrine known as the “unconstitutional conditions doctrine.” Harvard Law Professor Cass Sunstein once summarized this doctrine as “hold[ing] that although government may choose not to provide certain benefits altogether, it may not condition the conferral of a benefit, once provided, on a beneficiary's waiver of a constitutional right.” Speech, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U.L. Rev. 593, 621 n.2 (1990). Some twenty years earlier, another law professor had a simpler take: “[W]hatever an express constitutional provision forbids government to do directly it equally forbids government to do indirectly.” William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-46 (1968) (available here).
While scholars have noted that courts try to avoid it like the plague, the doctrine was quietly working behind the scenes in several high-profile stories. Take, for example, Justice Kagan’s decision as Dean of Harvard Law School to ban military recruiters from campus because she did not support their “don’t ask, don’t tell” policy. In 2006 the Supreme Court upheld the constitutionality of the Solomon Amendment permitting the Pentagon to cut off federal funding to schools like Harvard for refusing to give military recruiters equal access to students. Rumsfeld v. FAIR, 547 U.S. 47 (2006). In an op-ed. published last September in the New York Times called “Happy Illegal Holiday!”, another law professor challenged Congress’s right to condition school funding on a school’s observance of “Constitution Day.” "Ironically," professor Greenfield notes, "Constitution Day is probably unconstitutional."
More recently, the doctrine has become the focus of a new circuit split. In dissenting to the Second Circuit’s denial of rehearing en banc, Judge Cabranes describes the split and explains why its resolution "is indisputably one of exceptional importance." But first, Judge Cabranes offers a little context:
In appropriating billions of dollars to combat the global HIV/AIDS epidemic, Congress found that "[p]rostitution 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." 22 U.S.C. § 7601(23). It thus required, among other things, that in order to receive funds under this law, organizations must have "a policy explicitly opposing prostitution and sex trafficking." Id. § 7631(f). This is an uncomplicated and commonsensical condition of federal funding—but a divided panel of our Court has affirmed an injunction forbidding its enforcement.
Despite Congress's broad powers under the Spending Clause, the panel majority in this case held that requiring organizations that accept federal program funds to have a policy consistent with a clearly-stated purpose of that funding program "infringes" the freedom of speech guaranteed by the First Amendment. The decision of the panel majority, which diverges from that of our sister circuit in the District of Columbia, is based on a newly uncovered constitutional distinction between "affirmative" and "negative" speech restrictions. See Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 239 (2d Cir. 2011). Presented with the opportunity to restore uniformity in the enforcement of a federal statute by rehearing the case en banc, a majority of this Court voted to avoid doing so. I dissent from that decision.
The statute at issue is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (the "Leadership Act"), 22 U.S.C. § 7601 et seq., which provides $48 billion in taxpayer funds to combat the global HIV/AIDS epidemic, id. § 7671(a), and includes an explicit congressional finding that "[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices," id. § 7601(23). In keeping with that finding, Congress imposed two relevant conditions on the use of Leadership Act funds: that (1) "no funds . . . may be used to promote or advocate the legalization or practice of prostitution or sex trafficking," id. § 7631(e); and (2) with specified exceptions, "[n]o funds . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking," id. § 7631(f). The latter provision, known as the "policy requirement," forms the subject of this appeal.
Having provided the reader with a general overview of the Leadership Act and associated First Amendment concerns, Judge Cabranes turns his focus to the majority's decision:
The panel decision in this case characterized the policy requirement as "impermissibly compelling Plaintiffs to espouse the government's viewpoint on prostitution." Alliance for Open Soc'y, 651 F.3d at 230. Based substantially on the "affirmative" nature of the policy requirement, the panel declared that "[i]t is this bold combination in a funding condition of a speech-targeted restriction that is both affirmative and quintessentially viewpoint-based that warrants heightened scrutiny." Id. at 236. Having applied "heightened scrutiny," the panel of course concluded that the plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment challenge and therefore affirmed the preliminary injunction. Id. at 239.
Notwithstanding the language of compulsion that riddles the majority opinion, it bears noting that the policy requirement does not actually "mandate," "compel," or "require" the plaintiffs to say anything at all. Id. at 223, 228, 230, 234-39. Rather, the policy requirement is simply "a condition on the voluntary receipt of Leadership Act funds," id. at 254 (Straub, J., dissenting), and the plaintiffs remain at liberty "to avoid the force of the regulations" by "simply declin[ing] the subsidy," Rust v. Sullivan, 500 U.S. 173, 199 n.5, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991). As Judge Straub observed in a lengthy and careful dissent, "[t]here is a basic difference between the denial of government funding and a direct compulsion to speak." Alliance for Open Soc'y, 651 F.3d at 258 (Straub, J., dissenting).
Alliance for Open Soc'y Int'l, Inc., No. 08-4917-cv (Cabranes, J., dissenting by opinion from the denial of rehearing en banc). With that said, what should the majority have done? Judge Cabranes has an idea:
It is well established that the unconstitutional conditions doctrine provides the jurisprudential framework for analyzing government subsidy conditions. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Although the majority engaged in a detailed discussion of the unconstitutional conditions cases, the panel decision does not rest on the unconstitutional conditions jurisprudence. Professing that the doctrine does not "neatly" capture this case, Alliance for Open Soc'y, 651 F.3d at 234 n.3, the majority instead relied on a purported distinction between affirmative and negative speech restrictions, id. at 234 ("[W]here, as here, the government seeks to affirmatively require government-preferred speech, its efforts raise serious First Amendment concerns."). But no unconstitutional conditions case has ever turned on such a distinction.n4 Indeed, in the context of protected speech, the Supreme Court has held that the "difference between compelled speech and compelled silence" is "without constitutional significance." Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988).
n4 The majority implicitly acknowledges the novelty of this constitutional question by noting that "none of those [unconstitutional conditions] cases involved an affirmative speech restriction." Alliance for Open Soc'y, 651 F.3d at 235 n.3 (emphasis omitted).
The panel decision thus presents the exceptionally important question of whether, despite Congress's broad powers under the Spending Clause, a funding condition that imposes an affirmative speech requirement "infringes" constitutionally protected speech. See Forum for Academic & Institutional Rights, 547 U.S. at 59 (internal citation and quotation marks omitted). Although the majority has vigorously denied "put[ting] . . . aside" the unconstitutional conditions doctrine in answering that question with respect to the policy requirement, id. at 234 n.3, it is clear that the disposition of this case turns not on the existing jurisprudential framework, but on an affirmative-negative paradigm of the panel's own invention.
Id. Finally, the dissent identifies the following circuit split:
In so holding, the panel decision "splits" from the District of Columbia Circuit, which rejected a nearly identical challenge to the Leadership Act by another grantee that refused to adopt a policy opposing prostitution. DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 375 U.S. App. D.C. 123 (D.C. Cir. 2007). That circuit, writing prior to the amendment of the Agency Guidelines, explained that the funding condition was permissible because "the government has not created a program to encourage private speech"— rather, "the government's own message is being delivered." Id. at 762 (internal citations and quotation marks omitted). Our sister circuit concluded that the Leadership Act "does not compel [the plaintiff] to advocate the government's position on prostitution and sex trafficking; it requires only that if [the plaintiff] wishes to receive funds it must communicate the message the government chooses to fund. This does not violate the First Amendment." Id. at 764.
By reaching the opposite conclusion with respect to the constitutionality of the funding condition, the divided Second Circuit panel has created a "circuit split," so that, as the government's petition for rehearing en banc observes, the statute is enforceable in some jurisdictions but not in others. See Pet. for Rehearing 1. This is another reason why the panel decision indisputably raises a "question of exceptional importance." Fed. R. App. P. 35(b)(1)(B) ("[A] petition [for rehearing en banc] may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of the other United States Courts of Appeals that have addressed the issue.").