     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development


 1                                                      In the
 2                         United States Court of Appeals
 3                                       For the Second Circuit
 4
 5
 6                                               August Term 2017
 7
 8                                       Nos. 15-974 (L), 17-2126 (Con)
 9
10     ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., OPEN SOCIETY
11      INSTITUTE, PATHFINDER INTERNATIONAL INC., GLOBAL HEALTH
12                      COUNCIL, and INTERACTION,
13
14                                                                                  Plaintiffs-Appellees,
15                                                          v.
16
17    UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, MARK
18       GREEN, in his official capacity as Administrator of the United States Agency for
19   International Development, ROBERT R. REDFIELD, in his official capacity as Director
20      of the United States Centers for Disease Control and Prevention, and his successors,
21   ALEX M. AZAR II, in his official capacity as Secretary of the United States Department
22   of Health and Human Services, and his successors, UNITED STATES CENTERS FOR
23             DISEASE CONTROL AND PREVENTION, and UNITED STATES
24                DEPARTMENT OF HEALTH AND HUMAN SERVICES,
25
26                                                                                  Defendants-Appellants.*
27
28
29                        Appeal from the United States District Court
30                            for the Southern District of New York
31               No. 05 Civ. 8209 (VM), Victor Marrero, District Judge, Presiding.
32                    (Argued: May 17, 2018; Decided: December 20, 2018)
33
34   ____________
35   * The Clerk of Court is respectfully directed to amend the official caption as listed above.


                                                             1
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1           Before:           STRAUB, POOLER, and PARKER, Circuit Judges.
 2
 3          Plaintiffs are several domestic organizations that receive government
 4   funds to assist their efforts to fight HIV/AIDS abroad, often through legally
 5   distinct affiliates. The funds come with the condition that “[n]o funds . . . be used
 6   to provide assistance to any group or organization that does not have a policy
 7   explicitly opposing prostitution and sex trafficking.” 22 U.S.C. § 7631(f). The
 8   Supreme Court concluded that this requirement compels speech in violation of
 9   the First Amendment. Agency for Int’l Dev. v. Alliance for Open Soc. Int’l, Inc., 570
10   U.S. 205 (2013). After the Supreme Court’s decision, when the Government
11   continued to apply this requirement to plaintiffs’ foreign affiliates, plaintiffs
12   sought permanent injunctive relief. The United States District Court for the
13   Southern District of New York (Marrero, J.) granted a permanent injunction. We
14   affirm.
15
16           Judge Straub dissents in a separate opinion.
17
18           AFFIRMED.
19
20                                                       Benjamin H. Torrance, David S. Jones, for
21                                                       Geoffrey S. Berman, U.S. Attorney’s Office,
22                                                       S.D.N.Y., New York, N.Y., for appellants
23                                                       United States Agency for International
24                                                       Development, Mark Green (Administrator of
25                                                       USAID, in his official capacity), United States
26                                                       Centers for Disease Control and Prevention,
27                                                       Robert R. Redfield (Director, U.S.C.D.C., in his
28                                                       official capacity), United States Department of
29                                                       Health and Human Services, Alex M. Azar II,
30                                                       (Acting Secretary, U.S.H.H.S., in his official
31                                                       capacity).
32
33                                                       David W. Bowker, Catherine M.A. Carroll,
34                                                       Ari J. Savitsky, David A. Stoopler, Kevin M.
35                                                       Lamb, Jason D. Hirsch, Jonathan E. Barbee,
36                                                       Wilmer Cutler Pickering Hale and Dorr


                                                             2
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1                                                       LLP, Washington, D.C. and New York,
 2                                                       N.Y., for appellees Alliance for Open Society
 3                                                       International, Inc., Open Society Institute,
 4                                                       Pathfinder International, Global Health
 5                                                       Council, InterAction.
 6
 7   BARRINGTON D. PARKER, Circuit Judge:

 8           In Agency for International Development v. Alliance for Open Society

 9   International, Inc., 570 U.S. 205 (2013) (“AOSI”), the Supreme Court held that a

10   provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and

11   Malaria Act of 2003 (the “Leadership Act”), 22 U.S.C. § 7601 et seq., which

12   required that recipients of funds appropriated under the Act affirmatively adopt

13   a policy explicitly opposing prostitution and sex trafficking violated the First

14   Amendment. The Court determined that this condition, known as the Policy

15   Requirement, could not be applied to plaintiffs because, as Chief Justice Roberts

16   stated, it “compels as a condition of federal funding the affirmation of a belief

17   that by its nature cannot be confined within the scope of the Government

18   program.” AOSI, 570 U.S. at 221.

19           The Government subsequently interpreted the Supreme Court’s opinion as

20   allowing the Policy Requirement to continue to be applied to foreign affiliates.

21   Plaintiffs disagreed and sought and obtained a permanent injunction in the



                                                             3
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   District Court, which concluded that AOSI did not allow the Policy Requirement

 2   to be applied to plaintiffs’ foreign affiliates. The Government appeals and we are

 3   required to determine the narrow issue of whether the Government’s reading of

 4   the Supreme Court’s decision is correct. We agree with the District Court that the

 5   Government’s reading is foreclosed by that opinion and, consequently, we affirm

 6   the order below.

 7                                               BACKGROUND

 8           The background of this litigation is well known and fully described in the

 9   various judicial decisions that have been issued: the Honorable Victor Marrero’s

10   thorough and well reasoned decision in 2006, our 2011 opinion affirming him,

11   and the Supreme Court’s 2013 opinion affirming us. See Alliance for Open Soc’y

12   Int’l v. U.S. Agency for Int’l Dev., 430 F. Supp. 2d 222 (S.D.N.Y. 2006); Alliance for

13   Open Soc. Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218 (2d Cir. 2011); AOSI,

14   570 U.S. 205 (2013). We recount here only the background necessary for

15   understanding this appeal.

16           In 2003, Congress passed the Leadership Act, which authorized the

17   appropriation of billions of dollars to nongovernmental organizations to assist

18   the worldwide fight against HIV/AIDS and other diseases. The Leadership Act



                                                             4
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   contains the Policy Requirement, which states that “[n]o funds . . . may be used

 2   to provide assistance to any group or organization that does not have a policy

 3   explicitly opposing prostitution and sex trafficking.” 22 U.S.C. § 7631(f).

 4           Plaintiffs are several domestic organizations that fight HIV/AIDS abroad.

 5   Many plaintiffs carry out their aid work through legally distinct affiliates that

 6   together constitute global families of closely aligned entities. For example,

 7   plaintiff InterAction is a network of U.S.-based humanitarian organizations and

 8   contains, as a member, the domestic entity Save the Children Federation, Inc.,

 9   which is a part of the global set of entities operating as Save the Children, an

10   international aid organization that focuses on children’s health. Save the

11   Children Federation, Inc., in turn, is part of the Save the Children Association, a

12   non-profit Swiss association that owns the Save the Children logo and maintains

13   criteria for Save the Children members. There are over 30 distinct Save the

14   Children entities incorporated around the world in addition to in the United

15   States, such as in Australia, Brazil, Canada, India, Japan, Norway, South Africa,

16   Spain, and Swaziland. These entities comprise Save the Children, and share the

17   same name, logo, brand, and mission, even though they are distinct legal entities

18   incorporated in various jurisdictions worldwide.



                                                             5
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1           As plaintiffs explain and the record reflects, maintaining a unified global

 2   identity, branding, and approach enhances the ability of an organization like

 3   Save the Children to perform its aid mission. Moreover, various legal and

 4   administrative considerations encourage (and sometimes require) such

 5   international aid organizations to operate as formally legally distinct entities,

 6   despite otherwise being unified. As an example, the president and chief

 7   executive officer of plaintiff Pathfinder International attested that defendant

 8   United States Agency for International Development (“USAID”) gives preference

 9   for Leadership Act contracts to NGOs that are incorporated outside the United

10   States and sought to increase direct partnerships with local organizations in

11   order to enhance the long-term effectiveness of aid delivery. USAID also limits a

12   significant number of potential grants to organizations incorporated outside of

13   the United States. Moreover, some foreign governments require NGOs to be

14   incorporated in their countries in order to be permitted to undertake public

15   health work there. Overall, factors such as these have caused international aid

16   organizations to be organized as formally legally distinct entities while operating

17   with a unified and consistent identity, mission, and work. As a consequence,

18   these organizations appear to the public as unified entities. Throughout this



                                                             6
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   litigation, plaintiffs have emphasized that, while they do not support

 2   prostitution, they would not include in their mission statements a policy

 3   officially expressing an opposition to prostitution because, among other things,

 4   effectively fighting diseases like HIV/AIDS often requires direct involvement

 5   with sex-worker communities.

 6           In 2005, plaintiffs sued to enjoin the Government’s implementation of the

 7   Policy Requirement. As noted, the District Court issued a preliminary injunction,

 8   which we affirmed on appeal.1 The Supreme Court granted certiorari and also

 9   affirmed, holding that “[t]he Policy Requirement compels as a condition of

10   federal funding the affirmation of a belief that by its nature cannot be confined

11   within the scope of the Government program. In so doing, it violates the First

12   Amendment and cannot be sustained.” AOSI, 570 U.S. at 221.

13           After the Supreme Court’s decision, the Government nevertheless

14   continued to apply the Policy Requirement to plaintiffs’ foreign affiliates. In

15   January 2015, after receiving letter briefing, the District Court converted its

16   preliminary injunction to a permanent injunction barring the Government from

17   imposing the Policy Requirement on plaintiffs or their affiliates. The Government

     1
      Judge Straub dissented in 2011 on the basis that the Policy Requirement did not
     violate the First Amendment, a position that the Supreme Court subsequently
     rejected squarely. See 651 F.3d at 240.
                                                             7
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   appealed, and we stayed the permanent injunction pending this appeal.

 2                                         STANDARD OF REVIEW

 3           A district court’s decision to issue a permanent injunction is reviewed for

 4   abuse of discretion, as “[t]he decision to grant or deny permanent injunctive

 5   relief is an act of equitable discretion by the district court.” eBay Inc. v.

 6   MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also, e.g., Knox v. Salinas, 193

 7   F.3d 123, 128-29 (2d Cir. 1999) (per curiam). A district court commits an abuse of

 8   discretion when it “(1) bases its decision on an error of law or uses the wrong

 9   legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3)

10   reaches a conclusion that, though not necessarily the product of a legal error or a

11   clearly erroneous factual finding, cannot be located within the range of

12   permissible decisions.” Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620,

13   627 (2d Cir. 2018) (internal quotation marks omitted). We review questions of law

14   de novo. See ACORN v. United States, 618 F.3d 125, 133 (2d Cir. 2010).

15                                                 DISCUSSION

16                                                           I.

17           The narrow issue before this Court is whether applying the Policy

18   Requirement to plaintiffs’ closely aligned foreign affiliates violates plaintiffs’ own

19   First Amendment rights. The Supreme Court’s decision considered this question

                                                             8
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   and resolved it in plaintiffs’ favor. Consequently, we conclude that the District

 2   Court did not abuse its discretion in issuing its permanent injunction.2

 3           In AOSI, the Supreme Court explained that requiring the recipient of

 4   government funds to adopt the Government’s view on the issue of prostitution

 5   and sex trafficking was a violation of plaintiffs’ First Amendment rights. 570 U.S.

 6   at 219. The Court’s opinion focused on the distinction “between conditions that

 7   define the federal program and those that reach outside it,” id. at 217, and the

 8   Court explicitly considered the role that affiliates of a funded organization can

 9   play in that dichotomy, id. at 219. It noted that where a funded organization’s

10   speech was limited by a federal program, the funded organization could employ

11   affiliates outside the federal program to exercise its First Amendment rights. Id. In

12   so reasoning, the Court explicitly recognized that organizations exercise their

     2
      A plaintiff seeking a permanent injunction against government action taken
     pursuant to a statutory or regulatory scheme must demonstrate an entitlement to
     such equitable relief by showing (1) irreparable injury and (2) actual success on
     the merits. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 546 n.12
     (1987); Ognibene v. Parkes, 671 F.3d 174, 182 (2d Cir. 2011). As an equitable
     remedy, a permanent injunction also requires a showing that remedies at law
     will inadequately compensate for the injury, that an equitable remedy is
     warranted in light of the balance of hardships between the plaintiff and
     defendant, and that the injunction would not disserve the public interest. eBay,
     547 U.S. at 391; Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A
     constitutional violation, or an allegation of a constitutional violation, satisfies the
     irreparable injury requirement. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996);
     see also Ognibene, 671 F.3d at 182.
                                                             9
    15-974 (L)
    Alliance for Open Society International, Inc. v. United States Agency for International Development

1   First Amendment rights through their affiliates. Id.

2           The Court therefore made clear that forcing an entity’s affiliate to speak the

3   Government’s message unconstitutionally impairs that entity’s own ability to

4   speak. As Chief Justice Roberts noted, where, as here, an affiliate is “clearly

5   identified” with the recipient of government funds, the recipient can express

6   beliefs that contradict the speech of its affiliate “only at the price of evident

7   hypocrisy.” Id.3 Applying the Court’s holding in AOSI to the present iteration of

8   this case as we must, we hold that the speech of a recipient who rejects the

9   Government’s message is unconstitutionally restricted when it has an affiliate

    3
     It was immaterial to the Supreme Court that an affiliate may be foreign-
    incorporated. The AOSI opinion speaks only of the harm to plaintiffs due to their
    affiliation, not about the nature of the affiliated entity. The Supreme Court was
    keenly aware of the foreign nature of plaintiffs’ work and of their partnerships
    and affiliations with foreign-incorporated organizations. This awareness was on
    full display at oral argument, where the Government argued that there would be
    no hypocrisy between a plaintiff and an affiliate because the entities would be
    required to be sufficiently separate. Justice Ginsburg, for example, apparently
    rejected this premise, noting that this case differed from those in which forming a
    separate subsidiary to abide by a funding condition was “a simple matter of
    corporate reorganization” that cured any constitutional problems with the
    funding condition. Transcript of Oral Argument at 18. She stated that “getting an
    NGO . . . recognized in dozens of foreign countries is no simple thing to
    accomplish” and using a foreign affiliate to speak the Government’s message and
    collect federal funds is “differen[t] in this international setting.” Id.; J. App. 1787.
    Justice Kennedy explicitly concurred with Justice Ginsburg’s statements
    regarding foreign NGOs. Transcript of Oral Argument at 26 (“I have the same
    concerns that Justice Ginsburg expressed about the difficulty of simply creating
    structures in—in foreign countries.”).
                                                           10
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   who is forced to speak the Government’s contrasting message.4

 2           These principles decide this appeal. Here, the affiliates are clearly

 3   identified with plaintiffs, and to require the affiliates to abide by the Policy

 4   Requirement would require the closely related—and often

 5   indistinguishable—plaintiffs to be seen as simultaneously asserting two

 6   conflicting messages. This is the “evident hypocrisy” to which the Chief Justice

 7   referred: when the Government requires contrasting, hypocritical messages

 8   between domestic and foreign affiliates by making one speak the Government’s

 9   message, this requirement infringes the speech of the domestic affiliate and, in so

10   doing, violates the First Amendment. Id. Indeed, the Government itself

11   acknowledges that forced hypocrisy can impair an entity’s ability to speak: “It

12   may be true that when two organizations are closely linked, in some

13   circumstances the speech of one can be seen as the speech of both.” See Gov’t

     4
      The dissent attempts to characterize this case as one involving freedom of
     association. This approach misunderstands both the nature of the right at issue
     and the Supreme Court’s decision. The right that plaintiffs seek to vindicate is the
     right to free speech: to be able to speak freely without being either compelled to
     speak or allowed to speak only “at the price of evident hypocrisy.” AOSI, 570
     U.S. at 219. The Court made clear that it conceived of the issue as one involving
     freedom of speech, stating several times that its animating concerns were the
     ability of the funding recipient “to express its beliefs.” Id. (emphasis added).
     Contrary to the assertions made in the dissent, the cases involving freedom of
     association are not particularly helpful.
                                                            11
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   Reply at 9.

 2           The Government’s arguments in this appeal are unpersuasive. It mainly

 3   contends that foreign organizations like plaintiffs’ affiliates do not possess First

 4   Amendment rights. But the Government as well as our dissenting colleague

 5   misunderstands the Supreme Court’s decision in AOSI. It is the First

 6   Amendment rights of the domestic plaintiffs that are violated when the Policy

 7   Requirement compels them to “choose between forced speech and paying ‘the

 8   price of evident hypocrisy.’” All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l

 9   Dev., 106 F. Supp. 3d 355, 361 (S.D.N.Y. 2015) (quoting AOSI, 570 U.S. at 219).

10           The Government also contends that the contrasting speech between

11   domestic and foreign affiliates is irrelevant because, following the Supreme

12   Court’s decision, the Policy Requirement may no longer be applied to domestic

13   organizations, and so domestic organizations may now say what they want and

14   still receive government funds. But this argument also misses the point. It is the

15   domestic organization’s speech, not its funding, that is at stake when its affiliate

16   is forced to speak the Government’s message. If the Government is right, then

17   Chief Justice Roberts was wrong. We part ways with our dissenting colleague

18   because we believe that it is the Supreme Court’s decision and not the



                                                            12
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   Government’s brief that controls this appeal.

 2           The Government finally argues that our decisions in Planned Parenthood

 3   Federation of America, Inc. v. Agency for International Development, 915 F.2d 59 (2d

 4   Cir. 1990) and Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir.

 5   2002), which upheld a funding condition requiring foreign organizations to agree

 6   not to promote abortion, require us to vacate the injunction. These cases,

 7   however, are of little help to the Government. In Center for Reproductive Law &

 8   Policy, we identified the “thrust of the claim” as that because of the government’s

 9   funding conditions, “foreign NGOs are chilled from interacting and

10   communicating with domestic abortion rights groups such as plaintiff CRLP,

11   thus depriving plaintiffs of the rights to freedom of speech and association in

12   carrying out the mission of the organization.” Center for Reprod. Law & Policy, 304

13   F.3d at 188. The foreign NGOs at issue were mere potential partners of the

14   plaintiffs; they were not affiliated. In contrast, here the foreign NGOs and

15   plaintiffs are not just affiliates—they are homogenous. Plaintiffs share their

16   names, logos, and brands with their foreign affiliates, and together they present a

17   unified front. This sameness creates the risk of evident hypocrisy that motivated

18   the Supreme Court to find a First Amendment violation. AOSI, 570 U.S. at 219.



                                                            13
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   With the Supreme Court’s articulation of “evident hypocrisy” as our lodestar,

 2   Center for Reproductive Law & Policy did not address the role of closely affiliated

 3   foreign NGOs and cannot decide today’s result.

 4           Nor can Planned Parenthood. In that case, the government refused to fund

 5   foreign NGOs who offered abortion as a family-planning technique. We weighed

 6   allegations “that it is impractical for United States citizens or organizations to

 7   engage in abortion-related activities abroad without the cooperation of foreign

 8   organizations and that the Standard Clause deters many of the most logical and

 9   effective foreign partners.” Id. at 64 (internal quotation marks omitted). But

10   critically, the government did not request that foreign NGOs explicitly adopt a

11   policy of not advocating for abortion. As such, the domestic NGOs and partner

12   foreign NGOs were not compelled to make contradictory statements regarding

13   their core objectives as plaintiffs and their foreign affiliates are in this case.

14           The policies in these cases did not compel speech, did not involve closely

15   identified organizations, and, unlike this case, did not burden the free speech

16   rights of domestic organizations. Planned Parenthood, 915 F.2d at 64. We therefore

17   hold that the District Court did not abuse its discretion in enjoining the

18   Government from imposing the Policy Requirement on plaintiffs’ closely aligned



                                                            14
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   foreign affiliates.

 2                                                          II.

 3           The Government also argues that the District Court violated Federal Rule

 4   of Civil Procedure 65 by imposing the permanent injunction on the basis of letter

 5   briefing and in the absence of a formal motion and a full hearing. The

 6   Government also argues that the injunction is unclear because its reference to

 7   plaintiffs “or their domestic and foreign affiliates” is imprecise. We see no abuse

 8   of discretion.

 9           There is no requirement that a District Court must wait for a formal motion

10   and hold a hearing to issue a permanent injunction. This conclusion is, in our

11   view, particularly sound in a case such as this, involving nearly a decade of

12   litigation, multiple appeals and resolution by the Supreme Court. In any event,

13   Rule 65 requires hearings for only preliminary injunctions, not permanent

14   injunctions. Beck v. Levering, 947 F.2d 639, 641-42 (2d Cir. 1991) (per curiam)

15   (“Appellants contend that [Rule 65] requires that an evidentiary hearing be held

16   in order to issue a permanent injunction. However, Rule 65 requires hearings for

17   preliminary injunctions, not permanent injunctions.”).

18           Nor does the injunction violate Rule 65(d)’s requirement that an injunction

19   “describe in reasonable detail . . . the act or acts restrained or required.” Fed. R.

                                                            15
     15-974 (L)
     Alliance for Open Society International, Inc. v. United States Agency for International Development

 1   Civ. P. 65(d)(1)(C). We are confident that the term “affiliate” is sufficiently clear

 2   so that the Government will be able “to ascertain from the four corners of the

 3   order precisely what acts are forbidden.” In re Baldwin-United Corp., 770 F.2d 328,

 4   339 (2d Cir. 1985) (internal quotation marks omitted). As the District Court

 5   correctly noted, the word “affiliate” has a sufficiently clear meaning. It is defined,

 6   according to that Court, as “[a] corporation that is related to another corporation

 7   by shareholdings or other means of control; a subsidiary, parent, or sibling

 8   corporation.” 258 F. Supp. 3d 391, 396 (S.D.N.Y. 2017) (quoting Black’s Law

 9   Dictionary (10th ed. 2014)). As previously noted, there is an unusually full record

10   in this case. We do not think that the Government, in applying a definition such

11   as this, lacks adequate guidance in determining the entities to which the

12   injunction applies or that the District Court otherwise abused its discretion in

13   fashioning the permanent injunction as it did.

14                                                CONCLUSION

15           For the foregoing reasons, the order of the District Court is AFFIRMED.




                                                            16
 


STRAUB, Circuit Judge, dissenting:

      Today, a majority panel of this Court requires the United States to fund the

activities of foreign organizations, which have no constitutional rights, despite their

refusal to comply with our government’s funding condition. There is no support for

such a startling holding. The majority misreads the Supreme Court’s 2013 decision

in this case, which only held that the First Amendment protects United States-based

organizations from being required to adopt a particular policy position as a condition

of federal funding and to conform their privately-funded activities to that position.

The majority decision extends the Supreme Court’s holding to an unspecified group

of “clearly identified” foreign “affiliates,” or “co-branded” foreign partner

organizations—an issue that was not before the Supreme Court, and a result that is

clearly foreclosed by two of this Court’s precedential decisions, Center for

Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), and Planned

Parenthood Federation of America v. United States Agency for International

Development, 915 F.2d 59 (2d Cir. 1990), which held that the Government’s foreign

policy interest in choosing which foreign organizations it wishes to fund outweighs

any incidental impact on domestic organizations’ ability to associate with foreign

organizations. The majority decision overrules those cases without even the benefit

of en banc review and effectively extends First Amendment rights to foreign

organizations operating outside of the United States by treating “clearly identified”


                                          1
 
 


domestic and foreign organizations as a single entity for First Amendment purposes.

Although the majority asserts that its decision is narrow because it only applies to

“clearly identified” foreign organizations, nothing in our constitutional

jurisprudence allows foreign organizations to avoid the Government’s funding

restrictions by closely associating with domestic organizations and nothing in the

majority’s decision limits the scope of foreign organizations that may gain First

Amendment protection by forming associations with United States-based entities

going forward. Indeed, the majority further expands the applicable class of foreign

organizations to those which are “closely aligned”—whatever that might mean.

Accordingly, I respectfully dissent.

                                       Background

    I.   Procedural History

            A. 2005–2013: United         States   Organizations      Challenge     Policy
               Requirement

         A close reading of the procedural history of this case clarifies that the Supreme

Court never had any reason to consider whether 22 U.S.C. § 7631(f) (the “Policy

Requirement”) is constitutional as applied to Plaintiffs’ foreign affiliates or any other

foreign organization. At several points during this litigation, Plaintiffs made clear

that they did not dispute that the Policy Requirement could be constitutionally

applied to any foreign organization, including their foreign partners or affiliates.

Rather, they only challenged the Policy Requirement’s direct application to United
                                             2
 
 


States-based organizations, and they took great pains to distinguish this Court’s

binding case law upholding similar funding requirements for the foreign partners of

United States-based organizations. Only in 2014, after the Supreme Court had ruled

in this case, did Plaintiffs begin to assert that their foreign affiliates must also be

exempted from the Policy Requirement. This is a clear departure from their position

during earlier stages of this litigation, and this assertion significantly broadens the

scope of their First Amendment challenge to the Policy Requirement. As discussed

below, this result, which effectively exports First Amendment free speech rights to

foreign organizations, was not contemplated by the Supreme Court in 2013 or by

any of the prior decisions in this litigation.

              The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria

Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq., authorized appropriations

to fund worldwide efforts to combat HIV/AIDs, tuberculosis, and malaria. Among

other objectives, the Act “make[s] the reduction of HIV/AIDS behavioral risks a

priority of all prevention efforts.” 22 U.S.C. § 7611(a)(12); see also § 7601(15)

(“Successful strategies to stem the spread of the HIV/AIDS pandemic will require

. . . measures to address the social and behavioral causes of the problem . . . .”).1 The

Act identifies “[t]he sex industry, the trafficking of individuals into such industry,

and sexual violence” as “additional causes of and factors in the spread of the

                                                            
1
    All references to the U.S. Code are to Title 22, unless otherwise indicated.
                                                               3
 
 


HIV/AIDS epidemic” and declares 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.” § 7601(23). The Leadership Act

authorizes funding to combat HIV/AIDS, § 7631, but imposes two restrictions on

such funding. First: “No funds . . . may be used to promote or advocate the

legalization or practice of prostitution or sex trafficking.” § 7631(e). Second:

              No funds . . . 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). Only the second condition—the “Policy Requirement”—is at issue.

              In 2004, the Government began requiring foreign organizations that applied

for Leadership Act funding to comply with § 7631(f) by adopting an affirmative

anti-prostitution policy. See U.S. Agency for Int’l Dev. (“USAID”), Acquisition &

Assistance Policy Directive (“AAPD”) 04–04 (Revised) (Feb. 26, 2004); see also

All. for Open Soc’y Int’l v. U.S. Agency for Int’l Dev., 430 F. Supp. 2d 222, 234

(S.D.N.Y. 2006).2                                  Notably, Plaintiffs did not challenge the Government’s

application of the Policy Requirement to their foreign affiliates, partners, or sub-

                                                            
2
  Those foreign organizations included the Soros Foundations in Tajikistan and
Kyrgyzstan, which implemented a Leadership Act-funded project in Central Asia in
partnership with the U.S.-based Alliance for Open Society International, one of the
Plaintiffs in this litigation. See All. for Open Soc’y Int’l, 430 F. Supp. 2d at 235–36.
                                                                   4
 
 


grantees. All. for Open Soc’y Int’l, 430 F. Supp. 2d at 235–36. Instead, they initiated

this lawsuit in September 2005, shortly after the Government began requiring United

States-based organizations to comply with the Policy Requirement. See id. at 237;

see also USAID, AAPD 05–04 (June 9, 2005). And throughout this litigation, until

2014, Plaintiffs explicitly limited the relief they sought to United States-based

organizations.

      In 2006, when the District Court granted Plaintiffs’ motion for a preliminary

injunction, it distinguished our cases regarding funding restrictions to foreign

nongovernmental organizations (“NGOs”). All. for Open Soc’y Int’l, 430 F. Supp.

2d at 267. Specifically, the District Court stated:

      In the instant case, as Plaintiffs have pointed out, the restrictions at issue
      apply to NGOs based in the United States, restrictions which extend to
      these NGOs’ speech within [the] United States (for example, a
      conference on sexual rights and sexual health that AOSI will co-
      sponsor in this country in June of 2006). Defendants simply have not
      made an adequate showing as to why such domestic, private speech
      activity should be necessarily classified as a matter of American foreign
      policy.

Id. The District Court ordered the parties to submit a proposed injunction. Id. at

278. In June 2006, the District Court entered the preliminary injunction. In addition

to prohibiting the Government from enforcing the Policy Requirement against

Plaintiffs Alliance for Open Society International (“AOSI”) and Pathfinder

International, the injunction proposed by the parties and entered by the District Court

included a paragraph that exempted Plaintiffs’ United States-based “sub-recipients,
                                            5
 
 


sub-grantees and sub-contractors” (referred to collectively as “sub-organizations”).

This paragraph did not exempt foreign sub-organizations, and the injunction makes

no reference to foreign organizations.

      In August 2006, the Government appealed the preliminary injunction. In

2007, we remanded for the District Court to consider whether new federal guidelines

provided an adequate constitutional safeguard for domestic organizations bound by

the Policy Requirement. All. for Open Soc’y Int’l v. U.S. Agency for Int’l Dev., 254

F. App’x 843 (2d Cir. 2007) (summary order). These guidelines—the Government’s

“Affiliate Guidelines”—were intended to provide an alternative channel for the

Plaintiffs and other United States-based organizations to express their First

Amendment-protected views regarding prostitution but have instead been the source

of a great deal of unnecessary confusion in this case. The Affiliate Guidelines stated

as follows:

      [T]he Government’s organizational partners that have adopted a policy
      opposing prostitution and sex-trafficking may, consistent with the
      policy requirement, maintain an affiliation with separate organizations
      that do not have such a policy, provided that such affiliations do not
      threaten the integrity of the Government's programs and its message
      opposing prostitution and sex trafficking, as specified in this guidance.
      To maintain program integrity, adequate separation as outlined in this
      guidance is required between an affiliate which expresses views on
      prostitution and sex trafficking contrary to the government’s message
      and any federally-funded partner organization.

Dep’t of Health and Human Servs. (“HHS”), Guidance Regarding Section 301(f) of

the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of

                                          6
 
 


2003, 72 Fed. Reg. 41,076 (July 23, 2007); see also USAID, AAPD 05–04 Amend.

1 (July 23, 2007). Simply put: the Affiliate Guidelines provided a way for domestic

entities to abide by the Policy Requirement while using affiliates to express their

contrary views on prostitution.

              Plaintiffs’ 2008 declarations argued that the Affiliate Guidelines did not

provide an adequate alternative channel for communicating their own viewpoints on

prostitution, in large part because of the degree of legal separation that the

Guidelines required between an organization receiving Leadership Act funding and

an affiliate organization expressing views on prostitution that deviated from the

Policy Requirement. The 2008 declarations also discussed the legal and practical

difficulties of establishing affiliates in foreign countries, implying that they did not

currently have any affiliates operating in those countries. In particular, declarations

from the presidents of Cooperative for Assistance and Relief Everywhere (“CARE”)

and Pathfinder International described how the United States-based organizations

operated directly in several foreign countries through “registered branch offices” or

“field offices,” and did not mention the existence of any legally separate affiliate

organizations operating in those countries.3



                                                            
3
  The 2008 Gayle declaration described CARE as a member of CARE International, “a
federation of 12 other CARE nonprofit members incorporated separately in Australia,
Austria, Belgium, Canada, Denmark, France, Germany, Japan, the Netherlands, Norway,
Thailand, and the United Kingdom.” However, the declaration only discussed the
                                                               7
 
 


              On remand, Plaintiffs moved to add Interaction and Global Health Council

(“GHC”) to the lawsuit. These are umbrella organizations for public health NGOs,

and GHC includes foreign members. However, Plaintiffs explicitly limited the relief

sought to Interaction’s and GHC’s United States-based members. And Plaintiffs’

motion to extend the preliminary injunction to Interaction and GHC again exempted

only United States-based sub-grantee organizations from the Policy Requirement.

              In 2008, the District Court reaffirmed its 2006 preliminary injunction and

extended that injunction to Interaction and GHC. All. for Open Soc’y Int’l v. U.S.

Agency for Int’l Dev., 570 F. Supp. 2d 533 (S.D.N.Y. 2008). The District Court

reasoned that the Affiliate Guidelines did not cure the First Amendment violation,

namely, the requirement that the United States-based Plaintiffs adopt an anti-

prostitution policy and conform their privately-funded activities to this policy in

order to receive Leadership Act funding. Id. at 545–50. When discussing the

question of standing, the District Court focused exclusively on GHC’s United States-

based members. Id. at 538, 540, 541–42.

              In 2011, this Court upheld the District Court’s preliminary injunctions. All.

for Open Soc’y Int’l v. U.S. Agency for Int’l Dev., 651 F.3d 218 (2d Cir. 2011), en




                                                            
Government’s application of the Policy Requirement to CARE itself and did not further
mention CARE International or its foreign members.
                                                               8
 
 


banc reh’g denied, 678 F.3d 127 (2d Cir. 2012). In doing so, the instant majority

explicitly distinguished the Government’s restrictions on funding to foreign NGOs:

      The Agencies’ reliance on DKT Memorial Fund Ltd. v. Agency for
      International Development, 887 F.2d 275 (D.C. Cir. 1989), is
      misplaced, as that case centered around a restriction on the First
      Amendment activities of foreign NGOs receiving U.S. government
      funds. The challenge here is to the impact of the Policy Requirement
      on domestic NGOs. Indeed, the Agencies have applied the Policy
      Requirement to foreign organizations since its inception, without
      challenge. This litigation arose only after the government reversed
      course and began also applying the Requirement to U.S.-based
      organizations like AOSI and Pathfinder. The Policy Requirement
      compels domestic NGOs to adopt a policy statement on a particular
      issue, and prohibits them from engaging in certain expression at, for
      example, conferences and forums throughout the United States. These
      factors convince us that the speech is far more of a domestic than a
      foreign concern.

Id. at 238–39. The Court agreed with the District Court that the Affiliate Guidelines

could not cure the First Amendment violation of requiring United States-based

organizations to affirmatively adopt an anti-prostitution policy. Id. at 239.

      Before the Supreme Court, Plaintiffs made it clear that they raised only an

“as-applied” challenge to the constitutionality of the Policy Requirement. Brief for

Respondents at 42 n.11, U.S. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570

U.S. 205 (2013) (No. 12–10), 2013 WL 1247770; Transcript of Oral Argument at

36, U.S. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570 U.S. 205 (2013) (No.

12–10). The parties and the Supreme Court Justices briefly discussed the difficulty

of establishing affiliate organizations that would comply with the laws of the foreign


                                          9
 
 


countries in which they operated—a discussion that was relevant to the burden

imposed by the Affiliate Guidelines and which suggested that Plaintiffs operated

directly in those foreign countries and did not have any existing foreign affiliates.

Brief for Respondents at 52–56, U.S. Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, 570 U.S. 205 (2013) (No. 12–10), 2013 WL 1247770; Transcript of Oral

Argument at 18–19, 27, U.S. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570

U.S. 205 (2013) (No. 12–10).

      In 2013, the Supreme Court held that the Policy Requirement violated the First

Amendment rights of United States-based NGOs by conditioning funding on

adoption of the Government’s point of view in a way that could not be cabined to

the Leadership Act-funded programs but would also affect the organizations’

privately-funded activities. U.S. Agency for Int’l Dev. v. All. for Open Soc’y Int’l,

570 U.S. 205, 213–21 (2013). The Supreme Court concluded that while affiliates

can provide an adequate safeguard in other contexts, such as where a funding

restriction prohibits an organization from using the specified funds for a particular

First Amendment-protected activity, “[a]ffiliates cannot serve that purpose when the

condition is that a funding recipient espouse a specific belief as its own.” Id. at 219.

The Supreme Court characterized Plaintiffs as “a group of domestic organizations

engaged in combating HIV/AIDS overseas.” Id. at 210.




                                          10
 
 


      Not a single reference was made to the Government’s ability to impose the

Policy Requirement on foreign organizations in the Supreme Court’s decision itself,

in the parties’ briefs, or at oral argument. Tellingly, the Supreme Court made no

mention of our decisions in Center for Reproductive Law & Policy (“CRLP”) and

Planned Parenthood because at issue before it was the Policy Requirement’s

application to domestic organizations and not foreign partner organizations, as in

those two cases.

         B. 2014–2017 District Court Proceedings: Plaintiffs Challenge
            Government’s Application of the Policy Requirement to Their
            Foreign “Affiliates”

      As discussed above, from 2004 until 2014, the Plaintiffs never challenged the

Government’s requirement that all foreign organizations which applied for

Leadership Act funds or received Leadership Act sub-grants from domestic

organizations adopt an anti-prostitution policy. In this vein, in September 2014, the

Government issued funding notices that explicitly exempted all United States-based

organizations from the Policy Requirement but continued to apply the Policy

Requirement to foreign organizations. See HHS Guidance, 79 Fed. Reg. 55,367

(Sept. 16, 2014); USAID, AAPD 14–04, at 9–10 (Sept. 12, 2014). In October 2014,

for the first time, Plaintiffs began to argue that the Supreme Court’s 2013 decision

required the Government to exempt their “foreign affiliates” from the Policy

Requirement. Notably, the foreign affiliate organizations described in Plaintiffs’


                                         11
 
 


October 2014 declarations were not mentioned at all in Plaintiffs’ 2008 declarations,

or at any other point during the eight years of litigation that led to the Supreme

Court’s 2013 decision.4

              In its pre-motion responses and at an October 2014 pre-motion conference,

the Government strongly contested this position, pointing to this Court’s decision in

Planned Parenthood and arguing that the Supreme Court had not considered the

Policy Requirement’s application to foreign organizations in its 2013 decision

because the Plaintiffs had never challenged that practice. The Government also

argued that the District Court should require further submissions, including a formal

motion and opposition, before issuing an injunction. Specifically, in its October 30,

2014, submission, the Government stated:

              There are numerous factual and legal issues that have not been
              addressed at any stage of this litigation that are implicated by
              [P]laintiffs’ pre-motion letters, including . . . the applicability of
              constitutional rights to foreign organizations even when affiliated with
              U.S. organizations, the degree of affiliation that exists in fact, and many
              others. . . . Additionally, the parties must be afforded an opportunity to
              respond to each other’s submissions provided to the Court today.




                                                            
4
  The majority emphasizes an October 2014 declaration from Save the Children’s executive
vice president and chief operating officer describing that organization’s foreign affiliate
structure. As noted above, the 2008 declarations stated that Plaintiffs worked directly in
foreign countries through local branch offices and did not highlight the role of any foreign
affiliates. Save the Children’s executive officers did not submit a declaration in this
litigation prior to October 2014.
 

                                                               12
 
 


      In January 2015, without any further submissions or hearings, the District

Court granted a permanent injunction. All. for Open Soc’y Int’l v. U.S. Agency for

Int’l Dev., 106 F. Supp. 3d 355 (S.D.N.Y. 2015). The District Court relied solely on

the Supreme Court’s 2013 decision, reasoning that the Supreme Court’s discussion

of the Government’s Affiliate Guidelines exempted both Plaintiffs and their foreign

affiliates from the Policy Requirement. Id. at 360–61. The District Court prohibited

the Government from enforcing the Policy Requirement against Plaintiffs’ foreign

affiliates, without defining which foreign organizations qualify as Plaintiffs’

affiliates. Id. at 360–61, 363–64. Under the terms of the injunction, foreign

organizations are eligible to receive grants from the Government or sub-grants from

Plaintiffs without adopting an anti-prostitution policy, just as the Plaintiffs

themselves need not comply with the Policy Requirement to receive Leadership Act

grants from the Government or sub-grants from other organizations. The District

Court further directed that, “[i]f the Government intends to apply the Policy

Requirement to any organizations whatsoever, then the Government must show

cause identifying which categories of organizations and why imposing the

requirement would not violate the decisions of this Court and the Supreme Court.”

Id. at 363. The District Court stayed the injunction from January 2015 until June

2017, while the parties engaged in mediation and while it considered the

Government’s motion for reconsideration and clarification.


                                        13
 
 


      In 2017, the Government moved for reconsideration of the District Court’s

2015 injunction, arguing that the order did not comply with Federal Rule of Civil

Procedure 65’s requirement that injunctions be clear and definite because the

Government could not ascertain which foreign organizations the injunction applied

to. Plaintiffs opposed reconsideration. Plaintiffs stated that “[w]hile the injunction

as written is sufficiently clear and specific to take immediate effect, Plaintiffs would

have no objection to the Court’s addition of language explaining that ‘clearly

identified’ foreign affiliates are those that share the same name, trademark, and

public branding (e.g., corporate logo) as Plaintiffs . . . .” Plaintiffs provided

examples of “clearly identified” foreign affiliates, such as CARE India and

Pathfinder India, and contrasted their definition with the Government’s Affiliate

Guidelines. Finally, Plaintiffs stated that they “stand ready to work with the

government to address individual questions and to provide the government lists of

their affiliates—as they have done on prior occasions—which would identify foreign

affiliates that share Plaintiffs’ same name, trademark, and public branding.” The

Government argued that the Plaintiffs’ definition was not sufficient because it did

not identify a controlling legal standard and because a shared name, trademark, and

public branding alone would not necessarily demonstrate that a foreign organization

is so closely tied to a domestic organization that the domestic organization’s First

Amendment rights would be violated if the Government requires the foreign


                                          14
 
 


organization to adopt an anti-prostitution policy in order to receive Leadership Act

funding.

      In June 2017, the District Court denied reconsideration and lifted its stay of

the 2015 order. All. for Open Soc’y Int’l v. U.S. Agency for Int’l Dev., 258 F. Supp.

3d 391 (S.D.N.Y. 2017). Citing the Black’s Law Dictionary and Oxford English

Dictionary definitions of “affiliate,” the District Court concluded that, “[t]he class

of non-governmental organizations, or corporations, which share such a relationship

with Plaintiffs and are thus affiliates for the purposes of the permanent injunction is

almost certainly limited and ascertainable.” Id. at 396. However, the District Court

added the following:

      Insofar as the Government needs any additional guidance in defining
      “affiliate” or identifying specific entities that would be covered by the
      definition, Plaintiffs have offered a reasonable suggestion to develop
      clarifying language. The parties therefore should meet and confer in an
      effort to propose an agreed-upon response within thirty days of the date
      of this Order. The parties are directed to submit a report on the status
      of such discussions at that time.

Id. The District Court extended the time for the parties to submit the status report

until August 2017. The Government moved to defer the meetings in light of this

Court’s July 2017 order staying the injunction. Plaintiffs submitted a status report

representing that the parties had reached a tentative agreement and reflecting that

Plaintiffs wished to continue meeting despite this Court’s stay order. In September

2017, the District Court denied the Government’s motion to defer the meetings,


                                          15
 
 


reasoning that this Court only stayed the injunction insofar as it applied to foreign

affiliates; the parties could still agree to a definition of “affiliate” for the purpose of

implementing the injunction as to Plaintiffs’ domestic affiliates. In October 2017,

the parties submitted another status report. The parties agreed that a definition of

domestic affiliates was unnecessary because the Government concedes that it may

not constitutionally apply the Policy Requirement to any United States-based

organizations, regardless of affiliation with Plaintiffs. The Government argued that

the parties should hold off on any further meetings until this Court concluded its

review of the injunction, while Plaintiffs argued that “coming to agreement on the

definition of ‘affiliate’ at this juncture, would facilitate the government’s timely

implementation of the injunction as to foreign affiliates in the event the court of

appeals affirms that aspect of the injunction.” This is the last District Court docket

entry and it reflects that the District Court and parties have not yet decided exactly

which organizations qualify as Plaintiffs’ foreign affiliates.

    II.       Proceedings in this Court

              The Government timely appealed both the 2015 injunction and the 2017

denial of reconsideration.5 In its opening brief, the Government argues that (1) its


                                                            
5
  The Government’s appeal of the 2015 injunction was withdrawn and reinstated several
times while the parties engaged in mediation. In March 2017, this Court reinstated the
appeal, but held it in abeyance pending the District Court’s determination of the motion to
reconsider. This Court reactivated the appeal on June 12, 2017.  
 

                                                               16
 
 


funding restriction is constitutional as applied to foreign organizations, and thus the

District Court erred in extending the injunction to Plaintiffs’ foreign affiliates, and

(2) the injunction does not “state its terms specifically” or “describe in reasonable

detail . . . the act or acts restrained or required” as demanded by Federal Rule of

Appellate Procedure 65 because it is unclear which foreign organizations the

injunction applies to. In response, the Plaintiffs argue that the Supreme Court’s 2013

decision in this case prohibits the Government from applying its funding restriction

to Plaintiffs’ “clearly identified” foreign affiliates. They attempt to distinguish

CRLP and Planned Parenthood, which upheld a similar funding restriction on

foreign organizations, based on Plaintiffs’ close association with their foreign

affiliates, which they argue will result in “evident hypocrisy” if the foreign affiliates

are forced to adopt an anti-prostitution policy. Plaintiffs also argue that the terms of

the injunction are clear and specific enough to give the Government notice of what

is prohibited.

      The Government replies that (1) Plaintiffs mischaracterize the Supreme

Court’s 2013 decision, which did not address the application of the Policy

Requirement to Plaintiffs’ foreign affiliates or any other foreign organization, (2) the

injunction is not clear enough for the Government to determine which foreign

organizations qualify as Plaintiffs’ “clearly identified” foreign affiliates, and (3) the

District Court should have allowed further briefing before issuing the permanent


                                           17
 
 


injunction. In July 2017, another panel of this Court stayed the injunction insofar as

it applies to foreign organizations, including Plaintiffs’ foreign affiliates.

                                          Discussion

      We review a district court’s grant of a permanent injunction for abuse of

discretion. Davis v. Shah, 821 F.3d 231, 243 (2d Cir. 2016). “A district court abuses

its discretion when (1) its decision rests on an error of law or a clearly erroneous

factual finding, or (2) its decision—though not necessarily the product of a legal

error or a clearly erroneous factual finding—cannot be located within the range of

permissible decisions. Id. (internal quotation marks and ellipsis omitted). We

review questions of law de novo. See N.Y. Civil Liberties Union v. N.Y. City Transit

Auth., 684 F.3d 286, 294 (2d Cir. 2012).

      An injunction must “state its terms specifically” and “describe in reasonable

detail—and not by referring to the complaint or other document—the act or acts

restrained or required.”     Fed. R. Civ. P. 65(d)(1)(B)–(C).        Rule 65 “reflects

Congress’ concern with the dangers inherent in the threat of a contempt citation for

violation of an order so vague that an enjoined party may unwittingly and

unintentionally transcend its bounds.” Corning Inc. v. PicVue Elecs., Ltd., 365 F.3d

156, 158 (2d Cir. 2004) (quoting Sanders v. Airline Pilots’ Ass’n, Int’l, 473 F.2d

244, 247 (2d Cir. 1972)). Under this standard, the enjoined party must be able to

“ascertain from the four corners of the order precisely what acts are forbidden.” Id.

                                           18
 
 


(quoting Sanders, 473 F.2d at 247). An injunction violates Rule 65’s specificity

requirement if a party “would have to resort to extrinsic documents to comply with

the order’s commands.” Id.

         To obtain a permanent injunction, a party “must succeed on the merits and

show ‘the absence of an adequate remedy at law and irreparable harm if the relief is

not granted.’” Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006) (quoting N.Y. State

Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989)). Injunctions

that alter the status quo, and injunctions against government statutes and policies,

are typically disfavored. Cf. N.Y. Civil Liberties Union, 684 F.3d at 294 (in

preliminary injunction context, injunctions that “alter rather than maintain the status

quo” require a heightened showing of likelihood of success); Able v. United States,

44 F.3d 128, 131 (2d Cir. 1995) (in preliminary injunction context, “governmental

policies implemented through legislation or regulations developed through

presumptively reasoned democratic processes are entitled to a higher degree of

deference and should not be enjoined lightly.”).

    I.   Constitutional Issue

         Although “freedom of speech prohibits the government from telling people

what they must say,” All. for Open Soc’y Int’l, 570 U.S. at 213, this principle has

never before been extended to foreign organizations operating outside the United

States that apply for discretionary funding from the United States government.


                                          19
 
 


While the Spending Clause empowers Congress to attach restrictions on the funds it

provides to private organizations, the Government may not impose funding

conditions that infringe domestic organizations’ First Amendment rights. All. for

Open Soc’y Int’l, 570 U.S. at 213–17. This “unconstitutional conditions” doctrine

distinguishes between “conditions that define the limits of the government spending

program—those that specify the activities Congress wants to subsidize,” which are

generally permissible, and “conditions that seek to leverage funding to regulate

speech outside the contours of the program itself,” which are not. Id. at 214–15. In

its 2013 decision, the Supreme Court applied this “unconstitutional conditions”

doctrine to the Government’s requirement that domestic NGOs adopt an anti-

prostitution policy to receive Leadership Act funding and concluded that the Policy

Requirement compelled Plaintiffs to adopt the Government’s position in a way that

could not be limited to the Leadership Act-funded programs and was thus

unconstitutional. Id. at 217–21.

      The Government does not dispute that it may no longer apply the Policy

Requirement to any domestic organizations. The only remaining question is whether

the Government may apply the Policy Requirement to foreign organizations,

including but not limited to, Plaintiffs’ foreign affiliates. Because the District Court

legally erred when it enjoined the Government from requiring foreign organizations




                                          20
 
 


that receive Leadership Act funding to adopt an anti-prostitution policy, I would

reverse the injunction.

           A. Supreme Court’s 2013 Decision

      As illustrated by the procedural history detailed above, Plaintiffs’ and the

District Court’s reliance on the Supreme Court’s 2013 decision, at this time and in

these circumstances, is misplaced. The constitutionality of the Policy Requirement,

as applied to any and all foreign organizations, was never contemplated by the

Supreme Court, as it was never challenged by the Plaintiffs. The Plaintiffs and

District Court misread an excerpt from one paragraph of the Supreme Court’s 2013

decision to state that the Government could not constitutionally enforce the Policy

Requirement against Plaintiffs’ foreign affiliates. The relevant paragraph reads as

follows:

      When we have noted the importance of affiliates in this context, it has
      been because they allow an organization bound by a funding condition
      to exercise its First Amendment rights outside the scope of the federal
      program. Affiliates cannot serve that purpose when the condition is
      that a funding recipient espouse a specific belief as its own. If the
      affiliate is distinct from the recipient, the arrangement does not afford
      a means for the recipient to express its beliefs. If the affiliate is more
      clearly identified with the recipient, the recipient can express those
      beliefs only at the price of evident hypocrisy.
 
All. for Open Soc’y Int’l, 570 U.S. at 219 (internal citation omitted). The District

Court and Plaintiffs rely solely on the Supreme Court’s statement regarding the

“evident hypocrisy” of differing policy viewpoints between Plaintiffs and their


                                         21
 
 


“clearly identified” affiliates, but they have taken this statement out of context. The

full excerpt above illustrates that the Supreme Court did not hold that the “evident

hypocrisy” created by affiliates’ differing positions violated the First Amendment in

itself, but rather that the Affiliate Guidelines failed to provide an adequate alternative

channel for Plaintiffs to express their own First Amendment-protected views while

complying with the Policy Requirement themselves. Id.; contrast Regan v. Taxation

Without Representation, 461 U.S. 540, 544 (1983) (noting that a domestic

organization which was required to refrain from lobbying as a condition of its

501(c)(3) tax-exempt status could form a “dual structure” by establishing a separate

501(c)(4) organization to engage in lobbying activities with independent funding).

Because the Plaintiffs and all other United States-based organizations are now

exempt from the Policy Requirement, they may express their views on prostitution

directly and no longer need to make use of the alternative channel for expression

offered by the Government’s Affiliate Guidelines.

      Plaintiffs also suggest that the Supreme Court’s 2013 decision must have

applied to foreign organizations as well as domestic organizations because it is a

“facial invalidation” of the Policy Requirement. Not so. Plaintiffs repeatedly

assured the Supreme Court that they brought only an as-applied challenge. Brief for

Respondents at 42 n.11, U.S. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 570

U.S. 205 (2013) (No. 12–10), 2013 WL 1247770; Transcript of Oral Argument at


                                           22
 
 


36, U.S. Agency for Int’l Dev., 570 U.S. 205 (2013) (No. 12–10).    However, the

Supreme Court’s decision can best be understood as striking down the Policy

Requirement as applied to any domestic organization. It is a facial invalidation in

the sense that it applies to all United States-based organizations, not only the

Plaintiffs. The Government has never contested this point. But the Supreme Court’s

decision should not be read as striking down the Policy Requirement’s application

to foreign organizations, both because foreign organizations operating outside the

United States have no First Amendment rights and because Plaintiffs made clear

throughout the litigation that they did not challenge the Government’s Policy

Requirement as applied to any foreign organization.

         B. Applicable Case Law

      Because the Supreme Court’s 2013 decision and the prior decisions in this

litigation did not decide whether the Government may require foreign organizations

to comply with the Policy Requirement, we must apply controlling case law

upholding restrictions on funding to foreign organizations.

      It is undisputed that Plaintiffs’ foreign affiliates lack First Amendment rights

because they are foreign organizations operating outside the United States. See, e.g.,

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is well established that certain

constitutional protections available to persons inside the United States are

unavailable to aliens outside of our geographic borders.”). The Plaintiffs do not

                                         23
 
 


contest this issue. Instead, Plaintiffs argue that requiring their foreign affiliates to

comply with the Policy Requirement violates their own First Amendment rights

because the foreign affiliates’ positions on prostitution will be mistakenly attributed

to Plaintiffs or will contradict Plaintiffs’ own positions on prostitution, resulting in

“evident hypocrisy.”

      Because the Plaintiffs may now receive Leadership Act funding without

regard to whether they have an affirmative anti-prostitution policy—in other words,

the Government is no longer compelling the Plaintiffs to adopt any particular

position on prostitution as a condition of Leadership Act funding—the issue in this

case is no longer about Plaintiffs’ free speech rights.          Instead, the current

constitutional question turns on Plaintiffs’ right to associate with foreign

organizations. Plaintiffs’ argument that their own free speech rights are impacted

by their foreign affiliates’ compelled speech assumes that Plaintiffs’ right to

associate with foreign affiliates outweighs Congress’s ability to regulate funding to

foreign organizations.

      The Supreme Court has held that United States citizens’ First Amendment

right to associate with foreigners (aliens) does not override Congress’s plenary

power to decide which aliens to admit to the United States and which to exclude.

Kleindienst v. Mandel, 408 U.S. 753 (1972) (rejecting American scholars’ attempt

to compel admission of a Belgian Marxist scholar who was invited to an academic


                                          24
 
 


conference); see also Kerry v. Din, 135 S. Ct. 2128, 2139–41 (2015) (Kennedy, J.,

concurring) (assuming that U.S. citizen wife had a protected liberty interest in her

foreign husband’s admission to United States, but upholding the Government’s

denial of the husband’s visa because it was based on a “facially legitimate and bona

fide” reason). It follows that United States-based organizations’ First Amendment

right to associate with foreign organizations does not outweigh the Government’s

power to conduct foreign affairs by deciding which, if any, foreign organizations it

wishes to fund.

              We have previously rejected United States-based organizations’ First

Amendment challenges to a funding restriction that applied only to foreign

organizations. Ctr. for Reprod. Law & Pol’y v. Bush, 304 F.3d 183 (2d Cir. 2002);

Planned Parenthood Fed’n of America v. U.S. Agency for Int’l Dev., 915 F.2d 59

(2d Cir. 1990).6                            These cases challenged the Government’s enforcement of a

restriction on foreign funding known as the Mexico City Policy.7 Under this policy,

                                                            
6
  As noted above, this Court distinguished the Government’s enforcement of restrictions
on domestic organizations from cases involving foreign organizations in its 2011 decision
in this litigation. All. for Open Soc’y Int’l, 651 F.3d at 238–39.
7
  The Mexico City Policy originated with President Reagan in 1984. See Ctr. for Reprod.
Law & Pol’y, 304 F.3d at 187. The policy was rescinded by Presidents Clinton and Obama
and reinstated by Presidents George W. Bush and Trump. See id. at 188; Memorandum,
The Mexico City Policy, 82 Fed. Reg. 8495 (Jan. 25, 2017). Human Rights Watch
estimated that the Mexico City Policy has affected approximately $8.8 billion in U.S.
funding for global health efforts, including funds disbursed for HIV/AIDS prevention. See
Human Rights Watch, Trump’s ‘Mexico City Policy’ Or ‘Global Gag Rule’: Questions &
Answers (Feb. 14, 2018, 12:55 AM), https://www.hrw.org/news/2018/02/14/trumps-
mexico-city-policy-or-global-gag-rule.
                                                               25
 
 


the Government prohibited grants to foreign NGOs that carried out any activities

related to abortion, including privately-funded speech and activities.           Planned

Parenthood, 915 F.2d at 61–62.8 Planned Parenthood argued that the restriction on

funding to foreign organizations violated its First Amendment associational rights

by “pick[ing] off or buy[ing] up” potential partner organizations for abortion-related

activities and requiring Planned Parenthood to spend more of its own private funds

on such activities. Id. at 63. This Court rejected the First Amendment claim,

reasoning that any harm to Planned Parenthood was incidental to the Government’s

otherwise-nonjusticiable foreign policy decision and that “[s]uch an incidental effect

from the refusal to subsidize the exercise of a constitutional right obviously is not

what the Supreme Court considers ‘an obstacle in the path’ of plaintiffs seeking to

exercise the right.” Id. at 64.9 We explained that:

              Were the courts to allow challenges to foreign aid programs on the
              ground that the government’s subsidy of a particular viewpoint abroad
              encourages the foreign recipients of American aid not to speak or
              associate with Americans opposed to that viewpoint, the political
              branches would find it impossible to conduct foreign policy.


                                                            
8
  Domestic NGOs that receive Government funding for family planning may carry out
privately-funded abortion-related activities and pro-abortion advocacy so long as the
organizations maintain adequate physical and financial separation between federally-
funded and abortion-related projects. See Rust v. Sullivan, 500 U.S. 173 (1991) (rejecting
domestic NGOs’ First Amendment and other challenges to this funding restriction).
9
  In a case involving the same restriction, the D.C. Circuit expressed skepticism of the
plaintiffs’ argument, but ultimately dismissed a First Amendment right to associate claim
on ripeness grounds. DKT Memorial Fund Ltd. v. U.S. Agency for Int’l Dev., 887 F.2d
275, 291–98 (D.C. Cir. 1989).
                                                               26
 
 


Id. at 64. In 2002, we reaffirmed this decision. Ctr. for Reprod. Law & Pol’y, 304

F.3d at 190–91. The Center for Reproductive Law & Policy (“CRLP”) argued that

“collaboration [with foreign organizations] is essential to their ability to carry out

their mission as advocates of reproductive rights,” and listed several ways in which

the organization’s decreased ability to partner with foreign organizations (because

of the funding restriction) hindered its mission. 304 F.3d at 189–90. We concluded

that the case was indistinguishable from Planned Parenthood, which remained

binding given the lack of intervening Supreme Court authority, and also rejected

CRLP’s due process and equal protection challenges to the funding restriction. Id.

at 190–91, 195–98.   

      Plaintiffs argue that Planned Parenthood and CRLP are distinguishable

because the Policy Requirement compels speech, whereas the Mexico City Policy

only restricted speech. However, because the compelled speech and unconstitutional

conditions doctrines have only been applied in the context of restrictions on funding

to domestic organizations and United States-based organizations are no longer

bound by the Policy Requirement (remember, foreign organizations operating

outside the United States have no First Amendment rights), this distinction does not

change the outcome. Further, although it is true that the Mexico City Policy does

not require foreign organizations to affirmatively state an opposition to abortion, the

policy does not distinguish between United States-funded and privately-funded


                                          27
 
 


activities and has been interpreted broadly: to receive USAID funding, a foreign

NGO must certify that it “will not, while receiving assistance under the grant,

perform or actively promote abortion as a method of family planning in AID-

recipient countries or provide funding to other foreign nongovernmental

organizations that conduct such activities.” Ctr. for Reprod. Law & Pol’y, 304 F.3d

at 189 (internal quotation marks omitted).                          Plaintiffs also argue that Planned

Parenthood and CRLP did not involve “co-branded, clearly identified affiliates that

share a common identity with U.S. organizations.” But while our prior decisions did

not turn on the identity of the foreign partner organizations, the Mexico City Policy

applies to all United States funding to foreign organizations, regardless of whether

the foreign organization applying for funding is “co-branded” or “clearly identified”

with a United States-based organization.10 Indeed, Plaintiffs’ case is weaker than

Planned Parenthood’s or CRLP’s because Plaintiffs are not alleging that they have

actually lost any or all of their foreign affiliates or partners, but rather that their

foreign affiliates’ anti-prostitution policies (which the affiliates need only adopt if




                                                            
10
   For example, Save the Children reportedly complies with the Mexico City Policy. See
Benjamin Kentish, Sweden Vows To Stop Giving Aid To Any Organisations That Follow
Donald Trump’s Anti-Abortion Rule, The Independent (July 12, 2017, 4:27 PM),
https://www.independent.co.uk/news/world/europe/sweden-donald-trump-anti-abortion-
rule-foreign-aide-ban-mexico-policy-organisations-pro-life-a7837591.html (stating that
Swedish officials identified Save the Children as a group of organizations that had adopted
the Mexico City Policy).
                                                               28
 
 


they apply for Leadership Act funding) will contradict Plaintiffs’ views and result in

inconsistent positions or “evident hypocrisy.”

              It bears repeating that Plaintiffs never challenged the Government’s

application of the Policy Requirement to their “co-branded” or “clearly identified”

foreign affiliates until October 2014. No reference was made to any “co-branded”

or “clearly identified” foreign affiliates that actually existed during the earlier stages

of this litigation, and the majority’s argument to the contrary misreads portions of

the record in which the parties and Supreme Court Justices discussed the practical

barriers to establishing purely hypothetical affiliate organizations that would have

served as an alternative channel for the domestic organizations to express their own

anti-prostitution views under the Government’s Affiliate Guidelines. And although

the Government has been requiring all foreign organizations, including Plaintiffs’

“clearly identified” foreign affiliates, to comply with the Policy Requirement

throughout this litigation,11 Plaintiffs have only discussed the harm they face in

hypothetical terms. They have failed to identify even one specific instance where a

foreign affiliate’s position on prostitution actually resulted in harm such as lost

Leadership Act funding, lost private funding, or even inconsistent messaging (in

other words, “evident hypocrisy”). Moreover, any danger of “evident hypocrisy”


                                                            
11
   While the District Court enjoined the Policy Requirement as to Plaintiffs’ foreign
affiliates in 2015, that injunction has been stayed throughout the litigation.
                                                               29
 
 


resulting from the foreign and domestic organizations’ inconsistent positions on

prostitution can be avoided entirely if the Plaintiffs’ foreign affiliates use private

funding rather than applying for Leadership Act funding. In this situation, the

Plaintiffs would remain eligible for Leadership Act funding, but would be unable to

sub-grant Leadership Act funds to their foreign affiliates. Alternatively, as the

Government suggests, the Plaintiffs and their foreign affiliates may use disclaimers

(i.e., stating specifically that their views on prostitution are solely their own and do

not reflect their international affiliates’ views) to reduce any confusion regarding

their differing approaches to prostitution.

      The lack of certainty over which foreign organizations qualify as affiliates is

cause for further concern. Notably, the District Court and Plaintiffs seem to have

ascribed different meanings to the term “affiliate.” In its 2017 order denying

reconsideration, the District Court referred to the following definitions: (1) “a

corporation that is related to another corporation by shareholding or other means of

control; a subsidiary, parent, or sibling corporation,” (quoting Black’s Law

Dictionary 69 (10th ed. 2014)); and (2) “a person or organization officially attached

to a larger body,” (quoting Oxford English Dictionary). All. for Open Soc’y Int’l,

258 F. Supp. 3d at 396. The Plaintiffs, however, suggest that any foreign partner

organization that shares one of the Plaintiffs’ “name, branding, and logo” and

“operates within a common corporate framework toward a common mission” would


                                          30
 
 


be covered by the injunction, regardless of whether the organization is “related . . .

by shareholding or other means of control,” so as to satisfy the Black’s Law

Dictionary definition of an affiliate. The District Court ordered the parties to meet

and propose a joint definition of “affiliate,” or a list of covered foreign affiliates, to

help the Government identify which foreign entities are covered by the injunction.

But the parties have not yet agreed on a definition. Thus, it is unclear whether the

injunction can be enforced against the Government (for example, through contempt

proceedings) absent further agreement from the parties regarding which foreign

organizations the injunction applies to.

      I recognize that Plaintiffs have a practical interest in maintaining policy

positions that are consistent with their foreign partners, especially where the United

States-based and foreign organizations use the same name, signs, and logos, and

attempt to “speak with one voice.” Requiring Plaintiffs’ foreign affiliates to adopt

an anti-prostitution policy if they apply for Leadership Act grants or receive sub-

grants from Plaintiffs may result in inconsistent messaging between Plaintiffs and

their foreign affiliates, or require Plaintiffs to either go back to operating directly in

foreign countries (re-opening the branch offices they referred to in their 2008

declarations) or to seek out new foreign partner organizations for Leadership Act

projects. If anything, this dilemma raises a constitutional question of whether

domestic organizations have a First Amendment right to associate so closely with


                                           31
 
 


foreign organizations and whether that associative right outweighs the

Government’s interest in limiting its funding to foreign organizations. However,

this constitutional question was not decided by the Supreme Court in 2013 and has

never been briefed in this case. Instead, the Plaintiffs and majority seem to assume

that a domestic and foreign organization must be treated as one entity for First

Amendment free speech purposes because the two organizations share the same

name, brand, and mission. Neither the Supreme Court, nor any court, has ever held

as much. In sum, I am unconvinced that any inconvenience or inconsistent policy

positions that may result from the application of the Policy Requirement to

Plaintiffs’ “clearly identified” or “closely aligned” foreign affiliates amounts to a

violation of Plaintiffs’ own First Amendment rights, especially because our

decisions in Planned Parenthood and CRLP held that United States-based

organizations do not have an unlimited right to collaborate with foreign

organizations. Given the lack of intervening Supreme Court authority, we remain

bound by Planned Parenthood and CRLP, and those decisions control the outcome

here. See United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (“[W]e are

not the first panel to address this issue and are bound by the decisions of prior panels

until such time as they are overruled either by an en banc panel of our Court or by

the Supreme Court.”).       I also agree with the Court’s decisions in Planned




                                          32
 
 


Parenthood and CRLP because any other result would allow United States-based

organizations to export their own First Amendment rights to foreign organizations.

      For the reasons discussed above, I would reverse the District Court’s

injunction and hold that the Policy Requirement may constitutionally be applied to

any foreign organization, including Plaintiffs’ “clearly identified” foreign affiliates.

      I respectfully dissent.

 




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