Full opinion text
DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS I. INTRODUCTION..........................................................228 II. BACKGROUND...........................................................229 A. FACTS...............................................................229 1. The Parties........................................................230 a. Plaintiffs.......................................................230 b. Defendants ....................................................231 i. In General.................................................231 ii. In Relation to the Act.......................................231 2. HIV/AIDS.........................................................231 a. Internationally.................................................231 b. In Central Asia.................................................232 c. Among High-Risk Populations ...................................232 3. The Act ...........................................................232 a. In General.....................................................232 b. Role of Private Partners in Combating HIV/AIDS ..................233 c. Findings and Policies Regarding the Social and Behavioral Cause of HIV/AIDS, Particularly Prostitution..........................233 d. The Government Funds Restriction...............................233 e. The Policy Requirement.........................................233 4. Defendants’ Implementation of the Act................................234 a. USAID........................................................234 i. Acquisition and Assistance Policy Directives....................234 ii. Plaintiffs Seek Clarification of Requirements...................235 b. HHS and the CDC..............................................237 5. Plaintiffs’ Complaint and Motions for a Preliminary Injunction............237 III. APPLICABLE STANDARD FOR PRELIMINARY INJUNCTION.............239 IV. DISCUSSION.............................................................239 A. Likelihood of Success on the Merits.......................................239 1. Statutory Interpretation.............................................239 a. Plain Meaning of the Statutory Text...............................240 b. Purpose of the Statute...............■............................242 c. Legislative History..............................................244 d. Draining Other Provisions of Meaning.............................246 i. Superfluous Provisions......................................246 ii. Other Provisions............................................248 (a) “Moral Objection”.......................................248 (b) Palliative and Prophylactic Care ..........................248 (c) Specific Restriction in § 7631(e)...........................249 e. Doctrine of Constitutional Avoidance and Deference to Agency Interpretation................................................249 2. First Amendment Claims............................................251 a. Applicable Standard Review......................................251 i. Congress’s Power Pursuant to the Spending Clause.............252 ii. Overview of Unconstitutional Conditions Doctrine...............252 iii. Determination of the Applicable Standard......................253 (a) The Government Cannot Adequately Distinguish Regan, League of Women Voters, and Rust......................261 i. Alternate Channels for First Amendment Activities.....261 ii. The Role of NGOs ..................................262 (b) American Library Association Is Not Controlling...........263 (c) The Act’s Effect on International Affairs Is Not Cause for the Automatic Application of a Rational Basis Standard of Review ...................................265 iv. Statement of Standard of Review.............................267 b. Application of Standard and Additional First Amendment Analysis.....................................................268 i. As Construed by Defendants, the Provision Is Not Narrowly Tailored to Achieve Congress’s Goals........................268 ii. The Policy Requirement, As Construed by Defendants, Is Unconstitutional Because it Improperly Applies Its Viewpoint Discriminatory Restriction to Plaintiffs’ Private Funds...................................................271 iii. The Act Unconstitutionally Compels Speech....................274 3. AOSI and Pathfinder Have Demonstrated a Likelihood of Success on Their Constitutional Claims........................................276 4. OSI Has Not Demonstrated a Likelihood of Success With Regard to Its Claim for Relief...............................................277 B. IRREPARABLE HARM................................................278 V.ORDER..................................................................278 I. INTRODUCTION Plaintiffs, Alliance for Open Society International (“AOSI”), Open Society Institute (“OSI”) and Pathfinder International (“Pathfinder”) (collectively “Plaintiffs”) brought suit against defendants, the United States Agency for International Development and Andrew S. Natsios in his official capacity as its administrator (collectively “USAID”), the United States Department of Health and Human Services and Michael O. Leavitt in his official capacity as its Secretary (collectively “HHS”), and the United States Centers for Disease Control and Prevention and Julie Louise Gerbeding in her official capacity as its Director (collectively “CDC”) (and USAID, HHS and CDC collectively “Defendants,” or the “Agencies,” or the “Government”). Plaintiffs seek clarification of a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the “Act”), 22 U.S.C. §§ 7601 et seq. Under the Act, AOSI receives funding from USAID and Pathfinder receives funding from USAID, HHS, and CDC to administer programs authorized by the Act. OSI does not receive government funding pursuant to the Act but fears that AOSI’s funding under the Act my be jeopardized by OSI’s activities. The Act forbids the Agencies from awarding funds authorized for its purposes to “any group or organization that does not have a policy explicitly opposing prostitution[J” 22 U.S.C. § 7631(f). Plaintiffs challenge Defendants’ interpretation of this provision, which Plaintiffs contend places limits on Plaintiffs’ activities carried out with their private, non-government funds, and leaves Plaintiffs with no alternative avenue to express certain points of view. Plaintiffs argue that this restriction violates the First Amendment. Thus, they seek a preliminary injunction enjoining Defendants from penalizing Plaintiffs, through the withholding of Act-authorized funds or other methods, on the grounds that Plaintiffs have used their private funding to engage in activities that Defendants view as insufficiently opposed to prostitution. II. BACKGROUND A. FACTS 1. The Parties a. Plaintiffs Plaintiffs are United States-based nonprofit organizations actively participating in the worldwide effort to limit the spread of HIV/AIDS. As part of this effort, they work closely with populations that have a high risk of contracting HIV/AIDS, including persons engaged in prostitution. OSI is the principal United States-based foundation established and financed by George Soros, organized under New York law, supporting a network of more than thirty “Soros Foundations” that operate worldwide (the “Open Society Network”). Each of these Soros foundations is independently established under local laws and governed by a local board of directors. OSI does not currently receive funding from Defendants under the Act. AOSI, although closely affiliated to OSI as a member of the Open Society Network, is a legally independent non-profit organization incorporated in Delaware with offices in New York, New York and Almaty, Kazakhstan. AOSI was created in 2003 with a mission to “promote democratic governance, human rights, public health and economic, legal and social reform” in Central Asia. (Kushen Decl. at 2.) AOSI administers a program, known as the Drug Demand Reduction Program (“DDRP”), aimed at limiting the spread of injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan. It has done so with the financial support of USAID, but also with a substantial private grant of nearly $2.2 million from OSI. The DDRP is directed towards three populations: drug users, high-risk groups (e.g., young people, prisoners, prostitutes, and rural-urban migrants), and the general public. Pathfinder provides family planning and reproductive health services in twenty countries. It administers a number of programs that benefit from the financial assistance of USAID, HHS, and the CDC, including a health services project in Peru, a program to prevent mother-to-child HIV transmission in Kenya, and other global reproductive health services programs. Pathfinder also uses funding from private sources to engage in the following activities: organizing of prostitutes in India to collectively agree to engage in HIV prevention methods, like using condoms; as well as additional outreach to promote safer sex practices, including cooperation with brothel owners and pimps. b. Defendants i. In General Created by executive order in 1961, USAID is an independent agency that provides economic, development, and humanitarian assistance around the world in support of the foreign policy goals of the United States. HHS is charged with protecting the health of all Americans and providing essential human services, to those ends managing programs encompassing health and social science research, food and drug safety, Medicare and Medicaid, faith-based and community initiatives, and financial assistance for low-income families. CDC, one of the operating components of HHS, works to prevent and control infectious and chronic diseases, injuries, workplace hazards, disabilities, and environmental health threats. ii. In Relation to the Act Pursuant to Congress’s policy initiative, see 22 U.S.C. 7603(1), the President in his State of the Union Address on January 28, 2003, announced a comprehensive, five-year global strategy to fight HIV/AIDS. USAID and HHS are two of the seven primary implementing agencies of the President’s Emergency Plan for AIDS Relief (“Emergency Plan”). Under the Emergency Plan, both USAID and HHS implement prevention, care, and treatment programs for HIV/ AIDS. USAID supports implementation through direct in-country presence and seven regional programs. HHS operates in developing countries and conducts HIV/ AIDS research. As an operating component of HHS, CDC coordinates its Global AIDS Program, which assists with surveillance, training, monitoring, evaluation, and implementation of HIV/AIDS prevention, treatment, and care programs, by partnering with governments, non-governmental organizations (“NGOs”), international organizations, U.S.-based universities and the private sector. See Emergency Plan at 149-50. 2. HIV/AIDS a. Internationally In passing the Act, Congress made a number of findings as to the global status of HIV/AIDS. The Court pauses to take note of some of these findings in order to establish the larger context in which the present dispute takes place. To begin, Congress found that “HIV/AIDS has assumed pandemic proportions, spreading ... to all corners of the world, and leaving an unprecedented path of death and devastation.” 22 U.S.C. § 7601(1). At the time of enactment, approximately 65 million people worldwide had been infected with the disease, of which more than 25 million had died. See id. § 7601(2). The effects of HIV/AIDS have permeated every conceivable level of social, cultural, political, economic and geographic organization, affecting individuals, families, communities, countries, economies and continents. See id. §§ 7601(3)-(12). Although these statistics have undoubtedly changed since the legislation’s enactment, they establish the grievous situation that Congress sought to address through the provisions of the Act. b. In Central Asia Plaintiff AOSI contends that, as a result of spillover from the drug trafficking routes that run from Afghanistan through Tajikistan, Uzbekistan, and Kyrgyzstan, Central Asia has experienced dramatic increases in HIV/AIDS rates, with public health experts fearing “the outbreak of a full-scale HIV/AIDS epidemic fueled by the exploding use of injection drugs.” (Kushen Deck ¶ 8.) Already, Central Asia “is experiencing one of the world’s fastest growing rates of HIV.” (Beyrer Deck ¶ 55.) e. Among High-Risk Populations HIV/AIDS often begins its assault on a community in small, high-risk populations, such as prostitutes and injection drug users. (See Beyrer Deck ¶ 2.) In enacting the statute, Congress made clear its finding that prostitution and sex trafficking are “causes and factors in the spread of the HIV/AIDS epidemic.” 22 U.S.C. § 7601(23). Indeed, in one congressional hearing Senator Sam Brownback set forth statistics from various countries demonstrating this connection, including that “50 to 70 percent of the Burmese prostitutes in Thailand are HIV positive ... 40 to 50 percent of the prostitutes in Cambodia are HIV positive, [and] 60 percent of women prostitutes in Bombay’s red light district are infected with STDs or AIDS.” Considerable debate persists as to how to appropriately and effectively engage members of these groups. It has been argued that preventing the spread of infection among such high-risk individuals is an important way to combat the spread of HIV/ AIDS in the general population. (See, e.g., Beyrer Deck ¶ 19) (“Stigma and discrimination push people in high risk groups ... underground, making them difficult to reach through prevention programs and thus creating more opportunities for HIV/ AIDS to spread to the general population.”); see also USAID, Leading the Way: USAID Responds to HIV/AIDS 1997-2000 (2001), attached to Diller Deck as Exhibit 18 (“[I]nvolving individuals from the particular target community — sex workers, for example — in delivering the message gives credibility, reduces fear and stigma, and makes it more likely that people hearing the message will follow through with specific behaviors.”). Advocates for these populations and programs believe that the imposition of harsh criminal penalties for prostitution runs contrary to accepted best principles and practices of public health. (See, e.g., AIDS Action Mem. at 13-21.) One country, Brazil, as one part of its comprehensive HIV/AIDS program, has adopted an approach treating prostitutes as “essential partners” in the fight against HIV/AIDS. (Chequer Deck ¶ 6.) 3. The Act a. In General In response to this dire situation, Congress promulgated the Act with the single overriding purpose of “strengthen[ing] United States leadership and the effectiveness of the United States response to” HIV/AIDS, tuberculosis, and malaria. 22 U.S.C. § 7603. Congress designated several avenues through which this international campaign was to run: a comprehensive, five-year strategy designed by the President; bilateral and multilateral efforts; private sector efforts; public-private partnerships; and vaccine and treatment development. See id. § 7603(l)-(5). To effectuate these ends, the Act, among other strategies, establishes an HIV/AIDS Response Coordinator, see id. § 7612; authorizes an HIV/AIDS Working Capital Fund, see id. § 7612a; authorizes U.S. participation in the Global Fund to Fight AIDS, Tuberculosis, and Malaria, see id. § 7622; authorizes the use of funds to assist organizations in fighting HIV/AIDS, see id. § 7631, tuberculosis, see id. § 7632, and malaria, see id. § 7633; provides assistance for children and families, see id. §§ 7651-7655; and provides for consideration of expanding debt relief, see id. § 7681. b. Role of Private Partners in Combating HIV/AIDS Recognizing that “[n]on-governmental organizations ... have proven effective in combating the HIV/AIDS pandemic,” id. § 7601(18), Congress voiced its sense that “the sustainment and promotion of public-private partnerships should be a priority element of the strategy pursued by the United States to combat the HIV/AIDS pandemic and other global health crises,” id. § 7621(b)(1). c. Findings and Policies Regarding the Social and Behavioral Causes of HIV/AIDS, Particularly Prostitution In the Act, Congress expressed its concern with the social, cultural, and behavioral antecedents of the HIV/AIDS pandemic, determining that “[s]uccessful strategies to stem the HIV/AIDS pandemic will require ... measures to address the social and behavioral causes of the problem.” § 7601(15); see also § 7601(21)(C). Congress considered prostitution to be among the behavioral causes of HIV/ AIDS. See § 7611(a)(4) (“[T]he reduction of HIV/AIDS behavioral risks shall be a priority of all prevention efforts in terms of funding, educational messages, and activities by ... [among other things,] eradicating prostitution, the sex trade, rape, sexual assault and sexual exploitation of women and children.”). In addition, Congress expressly found that the eradication of prostitution should be a policy of the United States: Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices. The sex industry, the trafficking of individuals into such industry, and sexual violence are additional causes of and factors in the spread of the HIV/ AIDS epidemic. § 7601(23). d. The Government Funds Restriction The provision of the Act referred to by Plaintiffs as the “the restriction on government funds” and by Defendants as the “government funding restriction” states: No funds made available to carry out this Act, or any amendment made by this Act, may be used to promote or advocate the legalization or practice of prostitution or sex trafficking. Nothing in the preceding sentence shall be construed to preclude the provision to individuals of palliative care, treatment, or post-exposure pharmaceutical prophylaxis, and necessary pharmaceuticals and commodities, including test kits, condoms, and, when proven effective, microbicides. § 7631(e) (“§ 7631(e)”). Plaintiffs do not challenge the restriction placed on government funds. e. The Policy Requirement In addition to the government funds restriction, the Act provides: No funds made available to carry out this Act, or any amendment made by this Act, 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) (“§ 7631(f)” or the “Policy Requirement”). It is the interpretation and implementation of this provision that is the point of contention in this case. The final clause of this provision exempts certain recipients from the Policy Requirement. See § 7631(f). Some of these exempted recipients have recognized that advocacy for the reduction or removal of criminal penalties for prostitution is among the best practices in HIV prevention. (See Beyrer Decl. ¶ 25.) 4. Defendants’ Implementation of the Act a. USAID i. Acquisition and Assistance Policy Directives USAID initially refrained from applying the Policy Requirement to U.S.-based organizations because the Department of Justice (“DOJ”) warned that such an application would be unconstitutional. Specifically, USAID issued guidance stating that the government funds restriction applied to both U.S. and foreign recipients, but that the Policy Requirement required only “non-U.S. non-governmental organizations and certain Public International Organizations ... to agree that they have a policy explicitly opposing ... prostitution and sex trafficking.” Id. USAID followed the DOJ’s advice, issuing a policy directive omitting any requirement that U.S.-based organizations receiving funds under the Act have a policy explicitly opposing prostitution. Subsequently, the DOJ withdrew what it characterized as its prior “tentative advice.” The DOJ asserted that there are “reasonable arguments to support” the constitutionality of applying the restrictions to U.S.-based recipients. Id. Following suit with the revised DOJ position, USAID changed course in June 2005, issuing a directive applying the Policy Requirement to U.S.-based recipients. Under AAPD 05-04, USAID required, as a prerequisite for private organizations to receive funding under the Act, (1) a policy explicitly opposing prostitution and sex trafficking (see id. at 5), and (2) certification of compliance with the “Prohibition on the Promotion and Advocacy of the Legalization or Practice of Prostitution or Sex Trafficking” (id. at 7). This shift in position coincided with pressure exerted upon USAID and the President by members of Congress concerning the allocation of funds under the Act. ii. Plaintiffs Seek Clarification of Requirements Under USAID’s initial interpretation of the Act, as reflected in AAPD 04-04, AOSI was not itself subject to the Policy Requirement. See supra Section I.A.4.a.i. However, because AOSI partnered with non-U.S.-based organizations in administering the DDRP, it adopted the following policy: AOSI and the Soros Foundations in Tajikistan and Kyrgyzstan believe that trafficking and sex work do harm both to the individuals directly involved and to others in various ways. AOSI and the Soros Foundations in Tajikistan and Kyrgyzstan do not promote or advocate such activities. Rather, our approach is to try to reduce the harms caused by disseminating credible information on questions such as the prevention of disease, and by providing direct public health assistance to vulnerable populations ... (Kushen Decl. ¶ 23). In a memorandum dated May 26, 2004, AOSI asked Kerry Pelzman, Regional HIV/AIDS Adviser for USAID/Central Asia, for guidance concerning its compliance with AAPD 04-04. The memo stated that AOSI believed itself to be exempt from the Policy Requirement as a U.S-based organization, but sought clarification regarding funds given to non-U.S.-based sub-grantees. (Id.) It further explained that internal principles of governance prevented AOSI from accepting funding that would restrict its speech “in a manner contrary to the values of an open society.” (Id.) The memo recited AOSI’s policy statement and requested, in writing, confirmation that it complied with AAPD 04-04. On June 13, 2004, AOSI received a response from Pelzman via e-mail. (See Kushen Deck, Exhibit B, at 2-3.) The June 13 e-mail neither certified AOSI’s compliance nor provided any substantive advice. (See id.) Accordingly, AOSI again solicited guidance from USAID. By a second e-mail to Pelzman on June 15, 2004, AOSI clarified that it was seeking advice specifically relating to the question of whether AOSI’s policy satisfied the requirements of AAPD 04-04. (See Kushen Deck, Exhibit B, at 2 (“Our goal in sending you our policy was for AID to provide an interpretation of the AAPD and related provisions and determine if our policy complied with the law and AID’S policies.”).) In response, Belinda K. Barrington, in her capacity as Acting Regional Legal Ad-visor, USAID/Central Asia sent AOSI an e-mail on June 18, 2004. (See Kushen Deck, Exhibit B, at 1.) Barrington apparently interpreted the past correspondence between AOSI and the agency as raising a question of AOSI’s ability to certify its compliance consistently with its internal governance principles. (See id. (“The issue was not, as your June 15th e-mail seems to suggest, whether your policy complies with the law or USAID policies, but whether AOSI is able to sign or is comfortable with signing the certification required.”).) As to whether its policy was in compliance, AOSI was told that “[o]nly future actions can determine whether recipients have complied with the certification.” (Id.) Still uncertain as to whether AOSI’s policy was in compliance, Robert Kushen, Chairperson of AOSI, arranged a meeting with USAID officials. Present at a meeting held on April 11, 2005 were Kent Hill, Acting Assistant Administrator for Global Health at USAID; Susan Pascocello, Acting Assistant General Counsel to Global Health; and various other USAID officials and AOSI staff. Plaintiffs allege that, in the course of this meeting, Hill cautioned that he could not proffer official guidance, but divulged his belief that (1) organizations that promoted the legalization of prostitution would violate the requirement and (2) organizations that limited their activities to providing health services to prostitutes would be in compliance. Plaintiffs allege that questions about the status of the universe of activities between these two poles were unanswered. On June 9, 2005, USAID issued AAPD 05-04, shifting its prior stance and applying the Policy Requirement to both U.S.based and non-U.S.-based organizations receiving funding under the Act. See supra Section II.A.4.a.i. AOSI then contacted USAID on June 13, 2005 again to reaffirm its belief that its policy complied with the requirement, emphasizing the distinction between OSI and AOSI, and highlighting the problems with an overly broad interpretation of the Act. While waiting for USAID’s response, a question arose over the allocation of interim funds for the DDRP. On August 2, 2005, AOSI received a response via facsimile. (See Neier Deck, attached as Exhibit D.) USAID reiterated its position that “prospective determinations for private organizations about whether or not their policy statements comply with the statutory requirement reflected in AAPD 05-04” were inappropriate. (See id. at 1.) It outlined the contours of what a future inquiry of compliance might look like, including verification that (1) the certification had been signed, (2) certification clauses were incorporated into sub-awards, and (3) policies explicitly opposing prostitution were in place. On August 3, 2005, AOSI received a Modification of Assistance from USAID to restart funding. (See Kushen Deck, attached as Exhibit C.) The Acting Executive Director of AOSI, Oksana Korneo, decided to sign the modification agreement to ensure the survival of the DDRP. (See id.) Once funding had been allocated, according to the complaint in this action, AOSI felt comfortable proceeding with the present litigation. (ComplV 67.) Subsequent to filing suit for a preliminary injunction, AOSI received a letter from USAID in October 2005 indicating that “advocating for the legalization of prostitution” or “organizing or unionizing prostitutes for the purpose of advocating for the legalization of prostitution” will result in a finding of noncompliance. b. HHS and the CDC The factual record concerning the implementation of the Act by the HHS and the CDC is considerably less complete. Plaintiff Pathfinder alleges that “in all relevant respects Defendant CDC is implementing the pledge requirement in the same manner as Defendant USAID.” (Path. Mem. at 3.) Following the DOJ’s change of course, see supra Section II.A.4.a.i, the CDC allegedly began applying the Policy Requirement to U.S.-based recipients “on or about” May 2005. (Id.) This shift is reflected in the cooperative agreements between Pathfinder and HHS and the CDC. Whereas earlier agreements lack the new standard provisions, which include the Policy Requirement (see Suppl. Pellegrom Deck, attached as Exhibits 3-5); later agreements do in fact subject Pathfinder to the Policy Requirement (see Pellegrom Deck, attached as Exhibits 6-9). In July 2005, Pathfinder adopted the following policy to comply with the requirement: In order to be eligible for federal funding for HIV/AIDS, Pathfinder opposes prostitution and sex trafficking because of the harm they cause primarily to women. Pathfinder’s HIV/AIDS programs seek to promote effective ways to prevent the transmission of HIV/AIDS and to reduce the suffering caused by HIV/AIDS. In order to achieve these goals, Pathfinder works with, and provides assistance and support to and for, many vulnerable groups, including women who are commercial sex workers, who, if not effectively reached by HIV/ AIDS programs, will suffer and can become drivers of the HIV/AIDS epidemic. (Pellegrom Deck ¶ 17.) 5. Plaintiffs’ Complaint and Motions for a Preliminary Injunction On September 23, 2005, OSI and AOSI filed the complaint commencing this action against USAID, and moved for a preliminary injunction on September 28, 2005. The Court held a conference on October 7, 2005 at which the parties resolved to undertake to agree upon a briefing schedule and enter into a temporary “standstill” agreement, with the Government to agree that AOSI and OSI could continue their activities pending the outcome of the preliminary injunction motion. Because the parties were initially unable to come to an agreement, AOSI and OSI moved for a Temporary Restraining Order on October 12, 2005. Following a phone conference, the parties continued to negotiate, and entered into a stipulated agreement on October 14, 2005. The agreement provided that pending the decision on the motions for a preliminary injunction and temporary retraining order, AOSI would continue to comply with its understanding of the Policy Requirement in good faith, and USAID agreed to provide at least two weeks notice prior to taking any action to redress any perceived violation of the Act. On December 5, an amended complaint was filed adding Pathfinder as a plaintiff and HHS, Leavitt, the CDC, and Gerberding as defendants. Pathfinder thereafter filed a motion for a preliminary injunction. Its supporting brief set forth the relevant facts with regard to Pathfinder and incorporated all of the legal arguments from AOSI’s and OSI’s memorandum of law in support of a preliminary injunction. Plaintiffs seek a declaratory judgment that the Policy Requirement requires only that U.S-based recipients state that prostitution causes harm to women, but does not in any way restrict the activities that recipients may engage in with their private funds. In the alternative, they seek a declaratory judgment that Defendants’ application of the Policy Requirement is unconstitutional. Plaintiffs also seek a preliminary injunction barring Defendants from (1) discontinuing funding until a ruling on the merits of this litigation, (2) unilaterally terminating the cooperative agreements, and (3) otherwise taking action solely on the ground that Plaintiffs engaged in privately-funded speech. To this end, they allege that there is a likelihood they will succeed on the merits and that they will suffer irreparable harm if the injunction is denied. OSI claims that it will be irreparably harmed due to the uncertainty as to whether the Policy Requirement will be applied to its activities by its association with AOSI, even though it is not technically a partner in the DDRP or a recipient of federal funds pursuant to the Act. OSI emphasizes that it has already been subjected to scrutiny by some members of Congress. Accordingly, OSI claims that, absent assurances that its speech will not be imputed to AOSI, it must monitor its own speech for fear of endangering AOSI. Section 6(e) of the cooperative agreement between AOSI and USAID provides that “any violation ... shall be grounds for unilateral termination of the agreement by USAID prior to the end of its term.” (Suppl. Kushen Deck, attached as Exhibit 1.) AOSI claims that USAID’s implementation of the Policy Requirement (1) compels the organization to engage in speech against its own will, (2) forces it to monitor its own speech and refrain from engaging in certain activities, even with its private funds, for fear of unilateral termination of government funding, and (3) violates AOSI’s internal rules of governance. As an example, AOSI claims it will be chilled from fully participating in a conference in June 2006 entitled “Sexual Rights, Sexual Health: Countering the Conservative Sexual Agenda,” which will include a discussion of the legal status of prostitution. (Suppl. Kushen Deck ¶ 3.) Pathfinder alleges that it must refrain from using its private funding in such a manner as to run afoul of a broad interpretation of the Policy Requirement. For example, Pathfinder wishes to continue using its private funds to “organize sex workers in India,” to collaborate “with community organizations in Brazil that ... have sought to change the legal regime surrounding sex work,” and, more generally, to engage in a thoughtful policy debate on the appropriate legal regime for prostitution. (Path. Mem. at 5-6.) Pathfinder fears that Defendants may penalize it for such activities. See 45 C.F.R. §§ 74.13, 74.6, 74.62 (2006) (permitting the HHS to unilaterally terminate the award and disqualify the grantee from receiving future funding as a penalty for violating the Policy Requirement); Expanding and Support of HIV/AIDS/STI/TB Information, Education, and Communication and Behavior Change Communication Activities in Ethiopia — Amendment, Centers for Disease Control and Prevention, 70 Fed.Reg. 29760, (May 24, 2005), attached to Rosber-ger Decl. as Exhibit E (“Any violation of the provisions shall be grounds for unilateral termination of the agreement prior to the end of its term.”). III. APPLICABLE STANDARD FOR PRELIMINARY INJUNCTION The Court notes at the outset that it will address only Plaintiffs’ as applied challenges to Defendants’ construction of the Policy Requirement. Plaintiffs state that they are bringing an as applied challenge to Defendants’ statutory construction of the statute, as well as challenging the constitutionality of the agency’s interpretation both facially and as applied. The Court is not persuaded of the necessity to address a facial challenge to Defendants’ interpretation of the statute at this early stage in the litigation and before the Agencies have undergone a review process or issued any formal guidance or regulations on the implementation of the Act and the meaning of the phrase “policy opposing prostitution.” At this juncture, the Court views it as premature to look beyond the facts presented by these parties, particularly, as noted, prior to any formal statutory construction or regulatory action on the part of the Agencies. Thus the Court confínes its analysis to the question of whether a preliminary injunction preventing Defendants from penalizing Plaintiffs for engaging in protected speech with their private funds should be issued pending the final outcome of this litigation. For the Court to issue a preliminary injunction against the government, Plaintiffs must demonstrate both a likelihood of success on the merits and a threat of irreparable harm. See, e.g., Velazquez v. Legal Servs. Corp., 164 F.3d 757, 763 (2d Cir.1999) (‘Velazquez /”). The Court will first address the requirement that Plaintiffs demonstrate a likelihood of success on the merits. In considering this question, the Court must first analyze the parties’ statutory construction arguments, to determine whether or not Plaintiffs can prevail on their claims that Defendants’ reading of § 7631(f), to the limited extent an interpretation or application has been articulated, is incorrect, and should be supplanted by Plaintiffs’ construction pursuant to the canon of constitutional avoidance. Because the Court concludes that Plaintiffs have not demonstrated that Defendants’ statutory construction regarding certain issues central to this action is erroneous, it then turns to the question of whether Plaintiffs are likely to show that the Policy Requirement, as construed by Defendants, violates the First Amendment by restricting Plaintiffs’ privately funded speech, leaving Plaintiffs with no alternative means of communicating countering viewpoints, and compelling Plaintiffs to adopt an organization-wide policy consistent with the Government’s position. IV. DISCUSSION A. Likelihood of Success on the Merits 1. Statutory Interpretation According to Plaintiffs, § 7631(f)’s Policy Requirement demands only a declaration that the applicant for funding under the Act generally opposes the harms caused by prostitution and that if it has complied with this condition, the organization should not lose its contract for engaging in specific activities, such as advocating for changes in the legal status of prostitution, or providing funding or technical assistance to entities that so advocate, as long as no Act funds are used for these purposes. Plaintiffs make several arguments in support of this proposition. First, they assert that the plain text compels that interpretation of the statute. Second, they argue that their construction is also supported by the purpose of the Act, as well as by legislative history. Third, they maintain that Defendants’ interpretation saps other statutory provisions of meaning, including rendering § 7631(e) — the government funds restriction-superfluous. Finally, they argue that Defendants’ interpretation necessarily implicates constitutional issues and thus acceptance of that reading would violate the doctrine of constitutional avoidance, under which courts are to narrowly construe statutes so as to avoid conflicts with constitutional provisions. The Court will address each of these arguments in turn. a. Plain Meaning of the Statutory Text As discussed above, § 7631(f) requires organizations receiving funds under the Act to have a “policy explicitly opposing prostitution.” According to Plaintiffs, the word “policy,” by its plain meaning, indicates that the statute requires nothing more than a general statement — a declaration of “general orientation only,” regardless of the specific program activities the organization actually undertakes. (PI. Br. at 16.) In support of this argument they proffer definitions from Black’s Law Dictionary, the American Heritage Dictionary of the English Language, and Congress’s use of the word “policy” elsewhere in the Act. This argument fails, even under the definitions set forth in the dictionaries that Plaintiffs cite. As Plaintiffs themselves point out, Black’s Law Dictionary defines “policies” as “general principles by which a government is guided.” (PI. Br. at 16) (citing Black’s Law Dictionary 1157 (6th ed.1990).) Although Plaintiffs emphasize the words “general principles” in this definition, the second half of the definition— “by which a government is guided” — indicates that the words “general principles” are used in context: that a policy could encompass a statement of principle, but that such statement indicates and is intended to guide an organization’s actions. Otherwise, any policy an entity adopts— whether voluntarily or compelled, whether informally or pursuant to stated procedure — and then in practice ignores, would amount to nothing more than lofty ornamentation, an empty ceremony of words. Similarly, the definition in the American Heritage dictionary — a “plan or course of action” or “guiding principle” — by its terms suggests more than the lip service of a written statement. American Heritage Dictionary of the English Language 1401 (3d ed.1996) (emphasis added). Conduct inconsistent with the principle would mean that the policy no longer served as a guiding principle. The more reasonable conclusion to draw from these definitions is that a policy is not just a set of abstract disembodied words that have no bearing on or connection to an organization’s conduct. Rather, the term constitutes an expression of principle that sets forth, mirrors and guides an organization’s conduct along the paths of its mission and purposes. If anything, the plain text of the statute demonstrates that conforming conduct is not only necessarily interwoven with words but expected when issued as an organization’s “policy.” Plaintiffs’ argument that Congress’s use of the word “policy” elsewhere in the Act reinforces their reading of the statute is unpersuasive. According to Plaintiffs, throughout the Act the term “policy” refers consistently to generalized goals, not to means used to achieve those goals, while other words, such as “project” or “program” refer to activities. Yet § 7652, to which Plaintiffs point, is not properly read this way. That section of the statute, entitled “Policy and Requirements,” states, under the subsection entitled “Policy”: The United States Government’s response to the global HIY/AIDS pandemic should place high priority on the prevention of mother-to-child transmission, the care and treatment of family members and caregivers, and the care of children orphaned by AIDS. To the maximum extent possible, the United States Government should seek to leverage its funds by seeking matching contributions from the private sector, other national governments, and international organizations. 22 U.S.C. § 7652(a). The “policy” itself contains suggested conduct to which some follow-up commitment is made — such as “seekfing] to leverage” funds and “seeking matching contributions.” Section 7652(b), entitled and containing the “Requirements,” simply enumerates certain mandated activities (such as “expanding] programs designed to care for children orphaned by AIDS”) and benchmarks (“providing] for meeting or exceeding the goal to reduce the rate of mother-to-child transmission of HIV by 20 percent by 2005 and by 50 percent by 2010”) in conformity with the policy, but does not mean that the policy does not encompass those or other activities. At oral argument, Plaintiffs argued that it was not their contention that they should be permitted to adopt a policy and then flout it by engaging in conduct contrary to that policy. Rather, Plaintiffs asserted that different courses of conduct (i.e., different approaches to the problem) could be consistent with having a “policy opposing prostitution,” and as such they vigorously contest Defendants’ position that only a narrow set of actions is consistent with having a policy opposing prostitution. Thus, Plaintiffs argue, they are not seeking an interpretation of the term “policy” that is disembodied from conduct or action; instead they seek recognition that a wide array of conduct, including possibly advocating for a reduction in criminal penalties for prostitution, is consistent with having a “policy opposing prostitution.” The Court is not persuaded by this argument. Problematically, it leaves no room for agency interpretation of the term “policy opposing prostitution,” as it would allow Plaintiffs to unilaterally designate which among various courses of conduct they view as fulfilling the provision’s meaning. While Plaintiffs are correct that different courses of action can be consistent with a stated policy, and that in § 7631(f) Congress did not specify which courses of action it would view as manifesting a policy opposing prostitution, this does not mean that Congress meant that any conduct Plaintiffs pronounce to be consistent with such a policy is necessarily so. Again, if this were the ease, the provision would be barren of meaning. b. Purpose of the Statute Plaintiffs argue that their interpretation of § 7631(f) supports the purpose of the statute. According to Plaintiffs, the overarching purpose of the Act is “to fight the spread of HIV/AIDS and other diseases.” (PL Reply Br. at 27.) Moreover, under that view, because organizations, after issuing a statement opposing the harms caused by prostitution, remain free to choose the strategies that they deem most effective in responding to the HIV/AIDS epidemic, such a reading furthers the purpose of the Act. Plaintiffs’ theory further suggests that “eradicating prostitution” is a “secondary” objective whereas the primary goal of the Act is to address HIV/ AIDS. Since Plaintiffs’ work seeks to combat the spread of HIV/AIDS, impeding that mission is inconsistent with the primary purpose of the Act. (See also AIDS Action Mem. at 5 (“[T]he pledge requirement undermines, rather than supports, the public health objectives of the AIDS Leadership Act....”)). In contrast, Defendants argue that Plaintiffs’ interpretation would in fact “frustrate the Act’s strategies and goals, and create an environment for risky behavior that the Act aims to prevent as part of its comprehensive approach to fighting the spread of HIV/AIDS.” (Def. Mem. at 22.) It is clear that combating the spread of HIV/AIDS and other diseases — and making the United States a leader in this effort — is the primary goal of the Act. Indeed, as noted above, the Act expressly declares so in stating that its purpose is “to strengthen United States leadership and the effectiveness of the United States response to certain global infectious diseases [HIV/AIDS, tuberculosis and malaria],” and designating several means through which to achieve this end. 22 U.S.C. § 7603. The focus of this statement of purpose is clearly on eradicating disease; the language does not mention eradicating prostitution. Rather, the statement that it should be the policy of the United States to “eradicate” prostitution is embedded in the “Findings” section of the statute. See id. § 7601(23). However, Congress made several policy and strategic choices as to how it would meet its primary goal of eradicating HIV/AIDS. One of those choices, based on the finding that prostitution is a cause of HIV/AIDS, was to eradicate prostitution. Indeed, Congress specifically found that the sex industry was one of the causes of and factors in the spread of HIV/AIDS. See id. § 7601(28). At minimum in light of this finding, the statute indicates that eradicating prostitution is an integral part of the comprehensive strategy Congress envisioned in the fight against HIV/AIDS. In the section setting forth the “Comprehensive Strategy” — which itself is described as part of the purpose of the statute, see id. § 7603(1) — Congress stated: The President shall establish a comprehensive, integrated, five-year strategy to combat HIV/AIDS ... Such strategy ... shall ... provide that the reduction of HIV/AIDS behavioral risks shall be a priority of all prevention efforts in terms of funding, educational messages, and activities by ... eradicating prostitution ... Id. § 7611(a)(4) (emphasis added). Congress thus explicitly chose to include eradicating prostitution in its strategy to fight HIV/AIDS under the statute. Whether or not other approaches — such as legalizing prostitution, or reforming the sex industry through unionizing prostitutes, or other approaches advocated by Plaintiffs and other organizations — are more effective programmatic responses to HIV/AIDS, that choice among strategies was already made by Congress and unequivocally adopted in the Act. In legislating ways and means, Congress is free to choose which strategies best serve the goal to fight HIV/AIDS. In this case, Congress manifestly chose to prescribe a strategy with which at least some of Plaintiffs’ program strategies are at odds. Although, as Plaintiffs point out, Congress’s finding that prostitution is “degrading to women and children and it should be the policy of the United States to eradicate such practices” is embedded among twenty-seven other congressional findings regarding a large-scale effort to prevent, treat, and eradicate HIV/AIDS, those other findings do not suggest that eradicating prostitution was not meant to be part of this large-scale effort, or that Congress was thereby making a deliberate normative choice to regard the eradication of prostitution as a “secondary” purpose. Apropos of this issue, the Court notes the observation proffered by the AIDS Action amici that reducing the stigma associated with HIV/AIDS is part of how Congress described an appropriate response to the HIV/AIDS pandemic, and that forcing organizations to adopt a stance opposing prostitution could lead to more stigmatization of the very individuals these organizations are trying to help. See 22 U.S.C. § 7601(21)(C) (“The magnitude and scope of the HIV/AIDS crisis demands a comprehensive, long-term, international response focused upon addressing the causes, reducing the spread, and ameliorating the consequences of the HIV/AIDS pandemic, including ... development and implementation of national and community-based multisector strategies that ... increase the participation of at-risk populations in programs designed to ... reduce the stigma associated with HIV/ AIDS”) (emphasis added). Other amici however, who also provide HIV/AIDS prevention services to prostitutes, argue that requiring organizations to oppose prostitution, including requiring them to oppose the legalization of prostitution, does not stigmatize prostitutes and in fact that such opposition is necessary to work effectively against the harms inflicted by prostitution, including HIV/AIDS. (See Apne Aap Mem. at 12-13.) Regardless of who has the better of these policy arguments, it is clear that the question as to whether opposition to prostitution does or does not necessarily involve stigmatization is at least arguable, and that Congress, by including findings addressing the problems of both HIV/AIDS and prostitution in the same statute did not view the opposition of prostitution as necessarily stigmatizing of this population. c. Legislative History Plaintiffs’ key, indeed entire, piece of evidence in the legislative history arsenal is an exchange on the Senate floor between Senate Majority Leader Bill Frist and Senator Patrick Leahy. In it Senator Leahy expressed concern about the potential counterproductive consequence of the Policy Requirement insofar as it could impair the relationship of trust necessary between the organizations that help women involved in the sex industry and the victims they seek to serve, and thereby impede the effectiveness of these programs. In response, Senator Frist assured Senator Leahy that he was in agreement that the organizations who work with and on behalf of these women need to be supported in their efforts, while at the same time noting that the legislation should be careful to not condone prostitution or sex trafficking. See 149 Cong. Rec. S6451-01, S6457 (daily ed. May 15, 2003). Senator Frist then stated that the answer to this issue would be “to include a statement in the contract or grant agreement between the U.S. Government and such organization that the organization is opposed to the practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women.” Id. He further noted that “[s]uch a statement ... would satisfy the intent of this provision.” Id. According to Plaintiffs, this exchange demonstrates that Congress intended § 7631(f) to be satisfied by a simple statement from an organization that it opposes prostitution, without otherwise imposing any impediments upon that organization’s activities. Under this interpretation, § 7631(f) “was simply a means for Congress to express its opposition to prostitution generally, while funding organizations that work closely with sex workers to prevent the spread of HIV/AIDS.” (PI. Reply at 30.) There are aspects of Plaintiffs’ interpretation of this exchange that appear compelling. Indeed, Senator Frist’s words do seem to indicate an intent to have organizations funded under the Act retain the ability to engage in the work that they normally do, and such work could include activities that the Government is now construing as inconsistent with a policy against prostitution. Yet a closer look reveals that Senator Frist’s words are not inconsistent with the Government’s position. First, neither senator discusses the effect of the provision on organizations whose work includes advocating legalization or promotion of prostitution. Instead, Senator Leahy mentions other types of work organizations perform on behalf of women involved in prostitution — “edu-cat[ing]” and “counselling],” “helping] them escape,” and “providing] them with condoms” — and Senator Frist agrees that “these organizations” play an important role in preventing the spread of HIV/AIDS and should be supported. The passage does not address whether these organizations could advocate for the legalization of prostitution or, for example, unionization of prostitutes and remain consistent with a policy explicitly opposing prostitution. Second, the exchange simply does not speak to the issue of public versus private funding, and whether such organizations could retain the freedom to engage in certain activities with their own funds that they could not with federal funds. d. Draining Other Provisions of Meaning Plaintiffs point to several other provisions of the statute and argue that their reading is necessary to prevent those other provisions from being drained of meaning or becoming superfluous. The Court finds none of these arguments persuasive. i. Superfluous Provisions Plaintiffs argue that interpreting § 7631(f)’s Policy Requirement to encompass an organization’s program activities would render § 7631(e) superfluous. According to this reasoning, if § 7631(f) barred specific activities deemed to be inconsistent with a general policy stance opposing prostitution, this prohibition would necessarily encompass advocating for the legalization and practice of prostitution— including using government funds to so advocate. Thus, § 7631(e)’s ban on using government funds to promote the legalization and practice of prostitution would be rendered unnecessary, as such a ban already would be encompassed by § 7631(f). The Court rejects this reading of the statute. Certain canons of construction counsel courts to interpret statutes in a way that avoids rendering any language superfluous, and “to give effect, if possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883))) (internal quotation marks omitted); Collazos v. United States, 368 F.3d 190, 199 (2d Cir.2004). At the same time, the Court is mindful that canons of construction “are not mandatory rules” that trump other evidence, reasoning and common sense. See Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). Particular canons of statutory construction “ ‘should not take precedence over more convincing reasons.’ ” Krause v. Titleserv, Inc., 402 F.3d 119, 128 (2d Cir.2005) (quoting Hakala v. Deutsche Bank AG, 343 F.3d 111, 116 (2d Cir.2003)). Even the preference for avoiding surplusage construction “‘is not absolute.’ ” Id. (quoting Lamie v. U.S. Tr., 540 U.S. 526, 536, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)). For example, adopting the plain meaning of statutory language with the result that some language is superfluous is preferable to adopting an ambiguous meaning where there is no surplusage. See Lamie, 540 U.S. at 536, 124 S.Ct. 1023. Similarly, other evidence of congressional intent can overcome the force of an interpretive canon. See Chickasaw Nation, 534 U.S. at 94, 122 S.Ct. 528. Most relevant to this analysis, the Court notes that when construing a statute, the general preference against sur-plusage is constrained by the requirement that a construction avoiding surplusage must be a reasonable one. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-08, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961) (“The statute admits a reasonable construction which gives effect to all of its provisions. In these circumstances we will not adopt a strained reading which renders one part a mere redundancy.”) (emphasis added). Thus, even if the Court’s reading resulted in some redundancy in the statute, such redundancy — which may simply reinforce Congress’s message — would not be a reason to choose a reading that simply was not plausible. The Court has already determined, for the reasons discussed above grounded on statutory text and legislative intent, that Plaintiffs’ construction of the meaning of “policy,” while ostensibly designed to avoid rendering § 7631(e) superfluous, is simply not plausible. Here, however, the Court need not worry about choosing between an interpretation that strains logic but avoids surplus-age, and one that is more logical but may ostensibly contain surplusage. Instead, the Court offers two plausible readings of the statute, each of which gives effect to every clause. See Duncan, 533 U.S. at 174, 121 S.Ct. 2120. First, Congress could, as a matter of policy, choose to identify one form of activity that it determines is more offensive and harmful than others, and therefore more worthy of an expression of its disapproval highlighted in a separate provision of the statute, without needing to enumerate every other activity that may be inconsistent with the legislative purpose, or foreclosing subsequent determinations of other such activities pursuant to a more general delegation of authority to the statute’s administering agency. Such drafting technique is not uncommon, and is ordinarily employed in legislation that lays out either broad terms or particular priorities and leaves to the implementing agencies the task of filling in further details and proscriptions by appropriate regulations. Thus, in § 7631(e) Congress could have chosen to specify one form of activity (spending government funds for the legalization of prostitution) it deemed merited special proscription as an articulation of the significance Congress attached to barring that activity, without precluding limitations on other activities (e.g., advocating for the legalization of prostitution as an organization that is acting in some capacity as a government partner in the global fight against HIV/AIDS) imposed by the more general administrative means provided in § 7631(f). Second, § 7631(e) and § 7631(f) could be interpreted as addressing two different points in time in the grant of funds to organizations under the Act. Section 7631(f) may be viewed as providing an eligibility criterion defining which organizations qualify to apply for and receive funds, while § 7631(e) restricts specific activities for which Act funds could not be used after the grant is made, a violation of which presumably could warrant termination of a contract. Thus, viewed temporally, § 7631(f) stands as a first cut-off in the grant-seeking process: only those organizations with a policy expressly opposing prostitution are eligible to receive contracts. The prohibition of § 7631(e) would come into play, if called fox', after the organizations have been selected to receive federal funds. In other words, the provision imposes a condition on the use of those funds: that they not be expended to promote or advocate the legalization or practice of prostitution. This reading of the statute — an eligibility restriction and a funding restriction — does not render § 7631(e) superfluous and is better supported by legislative and administrative reasons than the more strained reading Plaintiffs advance. Read in either way suggested, each provision of the statute would be given effect, although this course raises other problems. As will be discussed below, if the Policy Requirement of § 7631(f) is read as an eligibility restriction demanding that organizations adopt a policy that encompasses speech activities carried out with their private funds to qualify for receipt of fed-ex'al funds, such a condition could infringe on the organizations’ First Amendment rights. This issue is addressed in Section IV.A.2 of this opinion. ii. Other Provisions (a) “Moral Objection” Plaintiffs also contend that the Government’s reading of the Policy Requirement would undermine § 7631(d), under which organizations that are “otherwise eligible to receive assistance ... shall not be required, as a condition of receiving the assistance, ... to participate in a prevention method or treatment program to which the organization has a religious or moral objection.” 22 U.S.C. §