United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2007 Decided February 27, 2007
No. 06-5225
DKT INTERNATIONAL, INC.,
APPELLEE
v.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
AND
RANDALL L. TOBIAS, ADMINISTRATOR, UNITED STATES
AGENCY FOR INTERNATIONAL DEVELOPMENT, IN HIS OFFICIAL
CAPACITY,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01604)
Gregory G. Katsas, Principal Deputy Associate Attorney
General, U.S. Department of Justice, argued the cause for
appellants. With him on the briefs were Peter D. Keisler,
Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney,
and Mark B. Stern, Michael S. Raab, and Sharon Swingle,
Attorneys. Vincent M. Garvey, Attorney, entered an appearance.
2
Julie M. Carpenter argued the cause for appellee. With her
on the brief were Martina E. Vandenberg, Laura K. Abel, and
David S. Udell.
Caroline M. Brown was on the brief for amici curiae
Population Council, Inc., et al. in support of appellee.
Before: HENDERSON, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The official position of the
United States is that eradicating prostitution and sex trafficking
is an integral part of the worldwide fight against HIV/AIDS. In
awarding grants to private organizations for HIV/AIDS relief
efforts, the government – through the U.S. Agency for
International Development – only funds organizations that share
this view. DKT International refused to certify that it has a
policy opposing prostitution and sex trafficking, and therefore
did not qualify for a grant. The district court struck down the
funding condition on the ground that it violated DKT’s freedom
of speech under the First Amendment. We reverse.
In 2003 Congress enacted the United States Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Act, Pub. L. No.
108-25, 117 Stat 711, and the President proposed $15 billion for
fighting the worldwide spread of HIV/AIDS, see 22 U.S.C.
§ 7601(28). The Act directs the President to establish programs
“to treat individuals infected with HIV/AIDS,” id. § 7611(a)(1),
to “prevent the further spread of HIV infections,” id., and to
“maximize United States capabilities in the areas of technical
assistance and training and research, including vaccine
research,” id. § 7611(a)(8). The Act states that “the reduction of
HIV/AIDS behavioral risks shall be a priority of all prevention
3
efforts in terms of funding, educational messages, and activities
by promoting abstinence from sexual activity and substance
abuse, encouraging monogamy and faithfulness, promoting the
effective use of condoms, and eradicating prostitution, the sex
trade, rape, sexual assault and sexual exploitation of women and
children.” Id. § 7611(a)(4).
Congress found that funding the relief efforts of private
organizations was “critical to the success” of the international
fight against HIV/AIDS. Id. § 7621(a)(4). Congress thus
authorized the President to “furnish assistance, on such terms
and conditions as the President may determine,” to
nongovermental organizations. Id. § 2151b-2(c)(1); see id.
§ 7631(b)(1). The Act requires, however, that funds go only to
organizations that share the Act’s disapproval of prostitution and
sex trafficking. Organizations may not use funds granted under
the Act to “promote or advocate the legalization or practice of
prostitution or sex trafficking.” Id. § 7631(e). And under
§ 7631(f), funds are unavailable “to any group or organization
that does not have a policy explicitly opposing prostitution and
sex trafficking,” with the exception of four organizations, three
of which are public organizations, and one of which deals only
with vaccine research. It is the § 7631(f) condition – that an
organization have a policy opposing prostitution and sex
trafficking to be eligible for funding – that DKT challenges.
Congress authorized the U.S. Agency for International
Development to administer grants, cooperative agreements, and
contracts pursuant to the Act. Id. § 7602(6); see 22 C.F.R. part
226. The Agency implemented § 7631(f) by requiring a
boilerplate provision in grant contracts and cooperative
agreements, and a certification that applicants are in compliance
with the provision. See OFFICE OF ACQUISITION & ASSISTANCE,
U.S. AGENCY FOR INT’L DEV., AAPD 05-04, IMPLEMENTATION
OF THE U.S. LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS
4
AND MALARIA ACT OF 2003 – ELIGIBILITY LIMITATION ON THE
USE OF FUNDS AND OPPOSITION TO PROSTITUTION AND SEX
TRAFFICKING 5-6 (2005). The contractual provision states that
recipient organizations and any subrecipients “must have a
policy explicitly opposing prostitution and sex trafficking,” id.
at 5, but does not specify any particular language or format. The
certification requirement applies only to the prime recipient, id.
at 6, which must include the boilerplate provision in all
subagreements, id. at 5. Violation of the provision may be used
as a ground for terminating the underlying agreement between
the Agency and the prime recipient. Id.
DKT International provides family planning and HIV/AIDS
prevention programming in foreign countries, and receives about
16 percent of its total budget from Agency grants. DKT
operates as a subgrantee under Family Health International
(FHI) in Vietnam, where it distributes condoms and condom
lubricant. In June 2005, FHI provided DKT with a
subagreement to run an Agency-funded lubricant distribution
program. Included in the subagreement was a certification that
DKT “has a policy explicitly opposing prostitution and sex
trafficking.” The subagreement stated that the certification
requirement “is an express term and condition of the agreement
and any violation of it shall be grounds for unilateral termination
of the agreement by FHI or [the Agency] prior to the end of its
term.” DKT did not, and does not, have a policy for or against
prostitution and sex trafficking. It therefore refused to sign the
subagreement with the certification requirement. FHI then
cancelled the grant and informed DKT that FHI was “unable to
provide additional funding to DKT.”
DKT alleged that it refuses to adopt a policy opposing
prostitution because this might result in “stigmatizing and
alienating many of the people most vulnerable to HIV/AIDS –
the sex workers . . ..” It claims that the certification requirement
5
in § 7631(f) violates the First Amendment because it constrains
DKT’s speech in other programs for which it does not receive
federal funds and because it forces DKT to convey a message
with which it does not necessarily agree.
The government may speak through elected representatives
as well as other government officers and employees. Or it may
hire private agents to speak for it, as in Rust v. Sullivan, 500
U.S. 173 (1991). When it communicates its message, either
through public officials or private entities, the government can –
and often must – discriminate on the basis of viewpoint.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
833 (1995); see also DKT Mem’l Fund Ltd. v. Agency for Int’l
Dev., 887 F.2d 275, 289 (D.C. Cir. 1989). In sponsoring Nancy
Reagan’s “Just Say No” anti-drug campaign, the First
Amendment did not require the government to sponsor
simultaneously a “Just Say Yes” campaign. Or to repeat the
example in Rust: “When Congress established a National
Endowment for Democracy to encourage other countries to
adopt democratic principles . . . it was not constitutionally
required to fund a program to encourage competing lines of
political philosophy such as communism and fascism.” 500
U.S. at 194; see also DKT Mem’l, 887 F.2d at 290.
In this case the government’s objective is to eradicate
HIV/AIDS. One of the means of accomplishing this objective
is for the United States to speak out against legalizing
prostitution in other countries. The Act’s strategy in combating
HIV/AIDS is not merely to ship condoms and medicine to
regions where the disease is rampant. Repeatedly the Act
speaks of fostering behavioral change, see, e.g., 22 U.S.C.
§ 7601(22)(E), and spreading “educational messages,” id.
§ 7611(a)(4). The Act’s stated source of inspiration is the
success in Uganda, where President Yoweri Museveni “spoke
out early, breaking long-standing cultural taboos, and changed
6
widespread perceptions about the disease.” Id. § 7601(20)(B).
The Act details the program Museveni instituted, which
primarily involved a “message” about “a fundamental change in
sexual behavior.” Id. § 7601(20)(C). “Uganda’s success shows
that behavior change . . . is a very successful way to prevent the
spread of HIV.” Id. § 7601(20)(D). Spending money to
convince people at risk of HIV/AIDS to change their behavior
is necessarily a message.
Everyone, including DKT, agrees that the government may
bar grantees from using grant money to promote legalizing
prostitution. But DKT complains that § 7631(f) constrains its
speech in other programs, for which it does not receive federal
funds.1 That effect, DKT argues, makes the case like FCC v.
League of Women Voters of California, 468 U.S. 364 (1984),
and unlike Rust v. Sullivan. We think the opposite. The
restriction struck down in League of Women Voters prohibited
public broadcasting stations from editorializing. The Court
pointed out that a public broadcasting station could not
editorialize with its nonfederal funds even if its federal grants
amounted to only a small fraction of its income. 468 U.S. at
400. Therefore the restriction did not simply govern the use of
federal funds. Id. Rust, on the other hand, upheld regulations
prohibiting federally funded family planning services from
engaging in abortion counseling or in any way advocating
abortion as a method of family planning. 500 U.S. at 178.
The difference between the two decisions, as the Court later
explained, is that in Rust “the government did not create a
1
DKT assumes, as does the government, that if an
organization signs a pledge in accordance with § 7631(f) and then
goes out and advocates legalizing prostitution it will have violated the
condition on its grant. Although neither the statute nor the regulations
expressly say as much, we will accept the position of the parties.
7
program to encourage private speech but instead used private
speakers to transmit specific information pertaining to its own
program. We recognized that when the government
appropriates public funds to promote a particular policy of its
own it is entitled to say what it wishes.” Rosenberger, 515 U.S.
at 833. Here too the government has not created “a program to
encourage private speech,” as it did in funding public
broadcasting in League of Women Voters, 468 U.S. at 367-68,
and as it did in Rosenberger in funding student publications, 515
U.S. at 823-25. In this case, as in Rust, “the government’s own
message is being delivered,” Legal Servs. Corp. v. Velazquez,
531 U.S. 533, 541 (2001).2
Under Rust, as interpreted in Rosenberger and Velazquez,
the government may thus constitutionally communicate a
particular viewpoint through its agents and require those agents
not convey contrary messages. We think it follows that in
choosing its agents, the government may use criteria to ensure
that its message is conveyed in an efficient and effective
fashion. Our decision in DKT Memorial Fund, 887 F.2d at 290-
91, so held. The Supreme Court has also recognized that the
government may take “appropriate steps” to ensure that its
2
Citing Wooley v. Maynard, 430 U.S. 705 (1977), Speiser v.
Randall, 357 U.S. 513 (1958), and West Virginia Board of Education
v. Barnette, 319 U.S. 624 (1943), DKT argues that the government
may not “compel a private organization to adopt government policy
or speech as its own.” In each of those cases, the penalty for refusing
to propagate the message was denial of an already-existing public
benefit. None involved the government’s selective funding of
organizations best equipped to communicate its message. Offering to
fund organizations who agree with the government’s viewpoint and
will promote the government’s program is far removed from cases in
which the government coerced its citizens into promoting its message
on pain of losing their public education, Barnette, 319 U.S. at 629, or
access to public roads, Wooley, 430 U.S. at 715.
8
message is “neither garbled nor distorted.” Rosenberger, 515
U.S. at 833. This is particularly true where the government is
speaking on matters with foreign policy implications, as it is
here. See DKT Mem’l, 887 F.2d at 289-91. The government’s
brief summarizes these points: “It would make little sense for
the government to provide billions of dollars to encourage the
reduction of HIV/AIDS behavioral risks, including prostitution
and sex trafficking, and yet to engage as partners in this effort
organizations that are neutral toward or even actively promote
the same practices sought to be eradicated. The effectiveness of
the government’s viewpoint-based program would be
substantially undermined, and the government’s message
confused, if the organizations hired to implement that program
by providing HIV/AIDS programs and services to the public
could advance an opposite viewpoint in their privately-funded
operations.”
Rust is different, DKT argues, because it involved funding
restrictions only on projects, not on grantees. It is true that only
project restrictions were before the Court in Rust, a point the
Court stressed. See Rust, 500 U.S. at 196. The Court said the
clinic in Rust could advocate abortion if it conducted that
activity “through programs that are separate and independent
from the project that receives Title X funds.” Id. at 196 (citation
omitted). Rust likened this to Regan v. Taxation with
Representation of Washington, 461 U.S. 540 (1983), in which
the Court upheld a tax exemption for non-profit groups, see 26
U.S.C. § 501(c)(3), that excluded lobbying activities. Rust, 500
U.S. at 197-98; see Regan, 461 U.S. at 544. Regan found that
although the organization at issue did not qualify for a tax
exemption under § 501(c)(3) for its lobbying activities, it could
reorganize to a “dual structure” with a “§ 501(c)(3) organization
for nonlobbying activities and a § 501(c)(4) organization for
lobbying.” Regan, 461 U.S. at 544. This, the Court held in
Rust, stood in contrast to the “unconstitutional conditions” cases
9
in which the government “effectively prohibit[ed] the recipient
from engaging in the protected conduct outside the scope of the
federally funded program.” Rust, 500 U.S. at 197.3 We see no
difference here. Nothing prevents DKT from itself remaining
neutral and setting up a subsidiary organization that certifies it
has a policy opposing prostitution. As the government stated at
oral argument,4 the subsidiary would qualify for government
funds as long as the two organizations’ activities were kept
3
In League of Women Voters, the Court made the same point:
“Of course, if Congress were to adopt a revised version of § 399 that
permitted noncommercial educational broadcasting stations to
establish ‘affiliate’ organizations which could then use the station’s
facilities to editorialize with nonfederal funds, such a statutory
mechanism would plainly be valid under the reasoning of [Regan].
Under such a statute, public broadcasting stations would be free, in the
same way that the charitable organization in [Regan] was free, to make
known its views on matters of public importance through its
nonfederally funded, editorializing affiliate without losing federal
grants for its noneditorializing broadcast activities.” 468 U.S. at 400
(citation omitted).
4
Note the following exchange at oral argument:
COURT: Suppose that DKT just spins off a subsidiary
corporation, and the subsidiary takes the pledge, but the
parent organization does not. Is that okay? There’s nothing
in the regulations that would prohibit that, is there?
GOVERNMENT COUNSEL: There’s absolutely nothing in
the regulations that could prohibit it. . .. There’s nothing
preventing them from doing that.
COURT: All their complaints could be solved by a corporate
reorganization?
GOVERNMENT COUNSEL: That’s right.
Oral Argument, 8:10.
10
sufficiently separate. The parent organization need not adopt the
policy.5
The Act does not compel DKT to advocate the
government’s position on prostitution and sex trafficking; it
requires only that if DKT wishes to receive funds it must
communicate the message the government chooses to fund.
This does not violate the First Amendment. We therefore
reverse the district court.
So ordered.
5
DKT also points to the four organizations exempted from
the certification requirement as evidence that the government is not
actually concerned with private organizations’ policies being imputed
to the government. But the Act’s underinclusiveness does not violate
the First Amendment. See Ruggiero v. FCC, 317 F.3d 239, 250-51
(D.C. Cir. 2003) (Randolph, J., concurring). “[T]he relevance of a
statute’s underinclusiveness is that it may reveal discrimination on the
basis of viewpoint or content, or may undercut the statute’s purported
non-discriminatory purpose.” Id. Because viewpoint discrimination
raises no First Amendment concerns when the government is
speaking, the underinclusiveness of the certification requirement is
immaterial.