By Grant McCool
NEW YORK, Sept 19 (Reuters) - U.S. officials must hand over
a 2004 legal memorandum on the constitutionality of requiring
non-governmental, U.S.-based HIV/AIDS groups to make a pledge
opposing prostitution when they work abroad, a federal appeals
court ruled on Wednesday.
The ruling follows a July 2011 decision by the court that
struck down the "pledge requirement" contained in the U.S.
Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of
2003. The court said at the time that the pledge violated First
Amendment free speech rights.
Wednesday's ruling by a three-judge panel of the 2nd U.S.
Circuit Court of Appeals upheld a trial judge's order in favor
of the Brennan Center for Justice at New York University School
of Law in obtaining a February 2004 memorandum by the Department
of Justice's Office of Legal Counsel.
The Brennan Center, a public policy and law institute, had
sued under the Freedom of Information Act in October 2009. In
its lawsuit it had argued that the OLC had reversed course on
the constitutionality of the pledge.
The lawsuit said that for 18 months, the memorandum served
as the basis for the administration of former president George
W. Bush's policy to not enforce the pledge. At that point the
OLC decided the pledge might be constitutional after all and
began enforcing it, the lawsuit said.
A redacted version of the memorandum was provided during the
Apart from the Department of Justice, the Department of
Health and Human Services and the U.S. Agency for International
Development were named as defendants because they asked the
Department of Justice for advice on the constitutional issue of
The pledge requirement is still in force under the
administration of President Barack Obama.
The issue could come before the U.S. Supreme Court in its
upcoming term because USAID appealed the 2nd Circuit's decision
of last July. The high court would consider whether the "pledge
requirement" violates free speech rights of domestic
non-governmental organizations that receive federal funding for
their programs in other countries.
In its ruling on Wednesday, the panel of circuit judges
Guido Calabresi, Robert Sack and Peter Hall concluded that there
was no dispute that the memorandum was "predecisional and
deliberative." The government could not refer to "a protected
document as authoritative" and "then shield the authority upon
which it relies from disclosure."
In the lower court, U.S. District Judge Victor Marrero had
also ordered the release of two draft OLC memoranda of July
2004. The appeals court reversed him "because there is
insufficient evidence that those memoranda were expressly
adopted or incorporated by reference" as policy.
A spokeswoman for the Department of Justice declined to
comment on the decision.
The Brennan Center said in a statement that the ruling "is
an important victory for all groups and organizations who face
questionable government restrictions."
The cases are Brennan Center for Justice at New York
University School of Law v. U.S. Department of Justice, 2nd U.S.
Circuit Court of Appeals, No. 11-4599; U.S. Agency for
International Development v. Alliance for Open Society
International Inc, U.S. Supreme Court, No. 12-10
For Brennan Center: Dorothy Heyl, Elizabeth Virga of
Milbank, Tweed, Hadley & McCloy.
For Department of Justice: Sharon Swingle, Benjamin
Torrance, Sarah Normand, Beth Brinkmann and Michael Raab, Office
of the U.S. Attorney for the Southern District of New York.
(Additional reporting By Jonathan Stempel)
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