No en banc review in First Amendment challenge to anti-prostitution policy

It doesn't matter how interesting the legal issue is. The Second Circuit is not interested in hearing cases en banc. For the non-lawyers out there, en banc is Latin for the Court of Appeals as a whole, as opposed to the three judges who normally hear each case. This time around, the Court will not review a case that struck down a federal government requirement that certain international HIV/AIDS funding recipients maintain an express policy against prostitution and sex trafficking.

The case is Alliance for Open Society International v. United States Agency for International Development. The Court of Appeals, which originally resolved the case in July 2011, issued its order denying en banc review on February 2. Back in July 2011, the Second Circuit said that the requirement that aid recipients maintain the anti-prostitution policy constitutes viewpoint discrimination in violation of the First Amendment. As outlined in my write-up on this case from last year, there are reasons why certain aid recipients cannot adopt what would normally be a common-sense policy opposing prostitution.

The D.C. Circuit Court of Appeals came out the other way on this issue, which makes it a good candidate for U.S. Supreme Court review. Maybe that's why the rest of the Second Circuit does not see the point in hearing the case en banc. Writing for himself and two other Second Circuit colleagues, Judge Cabranes says the Circuit should take up this case, stating that the majority decision last July misapplies First Amendment case law and "relies upon a purported distinction between affirmative and negative speech restrictions."

Judge Cabranes goes on to write: "the panel decision thus presents the exceptionally important question of whether, despite Congress's broad powers under the Spending Clause, a funding condition that imposes an affirmative speech requirement 'infringes' constitutionally protected speech. Although the majority has vigorously denied 'putting ... aside the unconstitutional conditions doctrine in answering that question with respect to the policy requirement, 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."