concurring in the denial of rehearing en banc:
I respectfully concur in the denial of the rehearing embanc. I write in response to the dissent from the denial of rehearing en banc, which adds little to Judge Straub’s dissent from the panel’s opinion. Compare Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 255 (2d Cir.2011) (‘Alliance ”) (Straub, J., dissenting) (declaring that “the majority puts [the unconstitutional conditions] doctrine aside and appears to conclude that when a funding condition imposes an affirmative rather than negative speech requirement, it always raises serious First Amendment concerns”) (quotation marks and alteration omitted), with Cabranes, /., Op. Dissenting from Denial of Reh’g En Banc at 5489 (announcing that 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”).
The en banc dissent oversimplifies a complicated and contentious body of law. *132See Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L.Rev. 1413, 1415-17 (1989) (describing the unconstitutional conditions doctrine as “riven with inconsistencies,” “a minefield to be traversed gingerly,” and in a state of “doctrinal disarray”); Robert C. Post, Subsidized Speech, 106 Yale L.J. 151, 175 (1996) (“[T]here is at present no well-developed doctrine setting forth the exact test to be used to evaluate viewpoint discriminatory regulations [like those at issue in Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)]”). What can be gleaned from a careful parsing of the case law is that the level of scrutiny applied to Government subsidies under the unconstitutional conditions doctrine turns on the type and scope of speech required or restricted, the speaker, whether the condition is viewpoint-discriminatory, its relationship to the Government program at issue, and other fact-specific inquiries. See, e.g., United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (“Velazquez //”); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); FCC v. League of Women Voters of Cal., 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984); Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir.2006) (“BLS ”); Velazquez v. Legal Servs. Corp., 164 F.3d 757 (2d Cir.1999) (“Velazquez I”).
According to the dissent, plaintiffs’ First Amendment claims may swiftly be rejected because they “remain at liberty ‘to avoid the force of the regulations’ by ‘simply declin[ing] the subsidy.’ ” En banc dissent at 5487 (quoting Rust, 500 U.S. at 199 n. 5, 111 S.Ct. 1759). Respectfully, and as detailed in the panel opinion, such an assertion is refuted by a careful reading of Velazquez II, Rust, League of Women Voters, Regan, BLS, and Velazquez I. The unconstitutional conditions doctrine is messy and unsettled — so much so that the Government itself has changed its position on the question of whether the funding condition at issue is constitutional.
Nor is it surprising that our decision created a circuit split. The dissent argues that split is reason to rehear this case en banc. See En banc dissent at 5490. To the contrary, such an exercise would occasion a monumental expenditure of the time and resources of our Court, on an incomplete record, with precious little prospect of resolving any of the current doctrinal disarray. An en banc court would force us to wade into and inevitably clash over doctrines frequently in tension, including those for categorizing speakers;1 testing the fit between a viewpoint-discriminatory regulation in the context of a “government *133program” against the scope of, and message advanced by, that program;2 determining when regulations penalizing the use of private funds must permit alternative channels for constitutionally-protected expression;3 and assessing whether program integrity guidelines purportedly designed to provide such channels are, on them face, inadequate.4 Even if we were willing and able to tackle these questions, our resolution simply could not substitute for the Supreme Court’s attention. In any event, implying that this case is easy and involves a straightforward application of clear Supreme Court precedent does a disservice to the long list of judges from this and other courts who have wrestled to reconcile and correctly apply a complicated body of law.
The fact-specific nature of the inquiry makes this case particularly ill-suited to en banc consideration at this juncture, because our review here is from the grant of a preliminary injunction. Especially where, as here, the constitutional questions are both difficult and novel, they are better-resolved, in more concrete terms, after a resolution on the merits. See Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664-65, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (instructing that “[i]f the underlying constitutional question is close, ... we should uphold the injunction and remand for trial on the merits.”). The dissent suggests that because the panel opinion fails explicitly to “remand for a trial on the merits,” the district court will simply allow the preliminary injunction to stand without *134further action. En banc dissent at 5490. This is simply untrue. A preliminary injunction is just that — preliminary. See, e.g., University of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”). The significant delays in prosecuting this case reflect nothing more than its complicated procedural history, including the defendants’ decision mid-appeal to revise the guidelines at issue. See Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 254 Fed.Appx. 843, 845-46 (2d Cir.2007). Once the mandate issues, it is incumbent upon the district court to revive the litigation See Alliance, 651 F.3d at 239 (noting that “[bjecause the Policy Requirement compels grantees to espouse the government’s position on a controversial issue, the district court did not abuse its discretion in preliminarily enjoining its enforcement pending a trial on the merits ”) (emphasis added).
Plainly, I think the panel opinion correctly concluded that heightened scrutiny applies, and that for the reasons set forth in the panel opinion, that the Policy Requirement will likely be found to violate the First Amendment. For these reasons, I concur in the denial of rehearing en banc.
. See Post at 169 ("The doctrine of unconstitutional conditions ... lacks any mechanism for determining the domain to which speech should be allocated and hence for adequately describing the nature of the ‘rights' that are to be protected."); compare Velazquez II, 531 U.S. at 542-43, 121 S.Ct. 1043 ("The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept.”), with id. at 554, 121 S.Ct. 1043 (Scalia, dissenting) ("If the private doctors’ confidential advice to their patients at issue in Rust constituted ‘government speech,’ it is hard to imagine what subsidized speech would not be government speech.... Even respondents agree that the true speaker in Rust was not the government, but a doctor.") (internal quotation marks omitted) (emphasis in original).
. Compare Rust, 500 U.S. at 194, 195 n. 4, 111 S.Ct. 1759 (describing prohibition on abortion counseling as condition of funding for family planning services as “a prohibition on a project grantee or its employees from engaging in activities outside of the project's scope ” that was "narrowly tailored to fit Congress' intent in Title X that federal funds not be used to 'promote or advocate' abortion as a 'method of family planning' ") (emphasis added), and Velazquez I, 164 F.3d at 766 ("Without diminishing its potential importance to some grantees, the speech restriction in Rust was nonetheless very narrow.”), with Velazquez II, 531 U.S. at 548, 121 S.Ct. 1043 ("[I]n the context of [the Legal Services Corporation Act] there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives.") (emphasis added), and id. at 547, 121 S.Ct. 1043 ("Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.”).
. Compare League of Women Voters, 468 U.S. at 400, 104 S.Ct. 3106 (striking down restriction on editorializing, but noting that restriction "would plainly be valid” if "Congress were to adopt a revised version of [the statute] that permitted [public radio] stations to establish 'affiliate' organizations which could then use the station's facilities to editorialize with non federal funds”), with American Library Ass’n, 539 U.S. at 212, 123 S.Ct. 2297 (holding that requiring libraries to install filtering software on every computer with Internet access if the library receives any discount or funds from specified federal programs "does not 'penalize' libraries that choose not to install such software” because libraries that "wish to offer unfiltered access ... are free to do so without federal assistance”), and Rust, 500 U.S. at 199 n. 5, 111 S.Ct. 1759 (rejecting argument that prohibition on abortion counseling penalized speech funded with non-federal money by requiring that recipients of grants help finance federally-funded projects by using matching non-federal funds).
.See, e.g., Velazquez II, 531 U.S. at 546-47, 121 S.Ct. 1043 (striking down restriction on scope of legal aid attorneys' advocacy as condition of funding because "with respect to the litigation services Congress has funded, there is no alternative channel for expression of the advocacy Congress seeks to restrict,” even though the regulations at issue permitted funding recipients to establish affiliate organizations to conduct litigation and other activities outside the scope of the LSC program).