## Facts

- Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, authorizing international HIV/AIDS assistance and restricting funds related to prostitution and sex trafficking.
- The Act barred use of program funds to “promote or advocate” prostitution and required that recipient organizations have a policy “explicitly opposing prostitution and sex trafficking” as a condition of eligibility.
- USAID implemented the eligibility requirement through an agency directive requiring a certification of an explicit organizational policy opposing prostitution and sex trafficking.
- DKT International, Inc., a U.S. nonprofit providing family-planning and HIV/AIDS prevention services abroad, including programs involving sex workers, did not maintain such an explicit institutional policy.
- A DKT representative initially signed a grant agreement containing the required certification but promptly voided the signature upon learning it required certifying an explicit anti-prostitution policy.
- Because DKT refused to adopt and certify the policy, it became ineligible for certain USAID HIV/AIDS funds under the program.
- DKT sued for declaratory and injunctive relief, arguing the eligibility/certification requirement violated the First Amendment as applied by compelling speech and imposing an unconstitutional condition.
- The district court entered judgment for DKT on summary judgment, holding the requirement unconstitutional as applied; USAID appealed.

## Issues

1. Whether conditioning foreign HIV/AIDS assistance on an organization’s adoption and certification of a policy explicitly opposing prostitution and sex trafficking violates the First Amendment as applied to a U.S. nonprofit.
2. Whether the policy-and-certification requirement is an impermissible compelled-speech/ unconstitutional-conditions device or a permissible definition of the scope and viewpoint of a federally funded program.

## Decision

- The D.C. Circuit reversed the district court’s judgment and upheld the statutory eligibility restriction and USAID’s certification requirement as applied to DKT.
- The court held the requirement was a permissible funding condition defining the government program’s contours in a foreign-assistance context.
- The court rejected DKT’s compelled-speech argument, reasoning the condition governed participation in the funded program and did not prohibit DKT from expressing contrary views using private funds.
- The court emphasized that DKT could decline the funds and remain free to speak outside the federally funded program.

## Legal Principles

- The government may selectively fund programs to advance its policy objectives and may set viewpoint-based limits that define what the funded program will be, without funding alternative approaches.
- A funding condition is more likely to be constitutional when it defines eligibility and conduct within the federally funded program rather than regulating or penalizing speech outside the program.
- A requirement that recipients align with the government’s policy within a foreign-aid program can be treated as a permissible program condition, particularly where the recipient remains free to speak with nonfederal funds and to forgo participation.
- In assessing unconstitutional-conditions and compelled-speech claims, courts distinguish between coercing private expression generally and limiting the terms of participation in a voluntary government subsidy program.

## Conclusion

The D.C. Circuit held that USAID could deny foreign HIV/AIDS assistance to a U.S. nonprofit that refused to adopt and certify an explicit policy opposing prostitution and sex trafficking because the requirement functioned as a permissible condition defining the government-funded program rather than an unconstitutional compulsion of speech.


DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758 (D.C. Cir. 2007)