The opinion of the court was delivered by: SHIRLEY WOHL KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
The factual background for this motion is set forth in the Court's December 14, 1989 opinion, GMHC v. Sullivan, 733 F. Supp. 619 (S.D.N.Y. 1989) ("GMHC I"), familiarity with which is assumed. For purposes of the present motions, however, the most relevant considerations are the Court's decision of December 14, 1989 and subsequent developments.
The December 14, 1989 Opinion
In GMHC I, the Court concluded that four issues remained in this action: (1) whether the CDC gave "detailed and reasoned" consideration to the development of the grant terms, id. at 634, (2) whether the grant terms were "rationally related" to their acknowledged purposes, id. at 637, (3) whether the grant terms have been applied in an arbitrary fashion, id., and (4) whether the grant terms are "void for vagueness." Id. at 639. The Court also concluded that further discovery was required on each of the four issues.
It is these four issues that are to be resolved on these motions.
Revision of the Grant Terms
Subsequent to GMHC I, the CDC published a notice of revised grant terms and requested public comment on the proposed changes. See 55 Fed. Reg. 10667 (March 22, 1990). Parts (a) and (b) of the proposed revised Basic Principles read as follows:
a. Language used in written materials . . ., audiovisual materials . . ., and pictorials . . . to describe dangerous behaviors and explain less risky practices concerning HIV transmission should use terms, descriptors, or displays necessary for the intended audience to understand the messages.
b. Written materials, audiovisual materials, and pictorials should not include terms, descriptors, or displays which will be offensive to a majority of the intended audience or to a majority of persons outside the intended audience.
The CDC received 133 comments on the proposed revised grant terms. 55 Fed. Reg. 23414 (June 7, 1990). These responses came "from concerned citizens and organizations including health departments, State and local government agencies, national organizations, and many local organizations," id., as well as plaintiffs in this action. As summarized by the CDC,
There were no objections to the requirement that materials not be offensive to a majority of the intended audience. However, 91 respondents provided comments concerning the requirement that materials not be offensive 'to a majority of persons outside the intended audience.' Five of the 91 respondents concurred while 86 expressed concerns regarding the impact of using such a standard. In addition to the respondents who specifically commented, 33 others objected generally to limitations on the content of materials for use in HIV prevention efforts.
Id. According to the Federal Register, examples of relevant comments included:
this standard is contradicted by the standard set out in section 1.a., that materials 'should use terms, descriptors, or displays necessary for the intended audience to understand the message.'
an 'offensiveness' standard is so vague that it provides little guidance to those designing educational materials. It may actually deter the development of materials.
Offensiveness, even if it were capable of definition or application as a standard, has absolutely no relationship to how effective particular materials are in reducing risk behaviors.
people outside the intended audience do not need to be concerned with this information. If it does not affect them, they can choose to ignore it.
reactions of persons who are not the intended audience should not be the standard for assessing the suitability of materials that are specifically designed to reduce the rate of transmission in a defined, targeted audience.
The most effective and popular educational materials often contain pictorials and verbal messages that the majority of persons outside the intended audience may find offensive.
strong objections to any efforts to censor or eliminate graphic language or visuals from AIDS education efforts.
After considering these comments, the CDC modified several of the proposed changes, and on June 7, 1990, issued final revisions of the grant terms (the "Revised Grant Terms") applicable to AIDS-related educational materials. Id. The Revised Grant Terms provide that:
a. Written materials . . ., audiovisual materials . . ., and pictorials . . . should use terms, descriptors, or displays necessary for the intended audience to understand dangerous behaviors and explain less risky practices concerning HIV transmission.
b. Written materials, audiovisual materials, and pictorials should not include terms, descriptors, or displays which will be offensive to a majority of the intended audience or to a majority of adults outside the intended audience unless, in the judgment of the Program Review Panel, the potential offensiveness of such materials is outweighed by the potential effectiveness in communicating an important HIV prevention message.
55 Fed. Reg. 23414 (June 7, 1990).
Plaintiffs' Supplemental Pleading
In order to conform the pleadings to reflect the adoption of the Revised Grant Terms, on September 26, 1990, plaintiffs moved to supplement the First Amended Complaint.
Defendants did not oppose the motion, and on October 15, 1990, the Court granted plaintiffs' motion for leave to file their supplemental pleading. See Supplemental Pleading, Attached as Exhibit "L" to Declaration of Steven C. Bennett, executed on January 31, 1991 ("Bennett Dec. I"). The Supplemental Pleading alleges that the Revised Grant Terms continue to require panel members to determine whether the content of funded materials are "offensive . . . to a majority of adults outside the intended audience." Supplemental Pleading, at 1-2. It also alleges that the grant terms give no guidance as to how a Panel Member is to make such a determination. Id. at 2. Accordingly, plaintiffs request that the Court: (1) declare that the CDC Revised Grant Terms on their face violate the First and Fifth Amendments to the United States Constitution, (2) enjoin further application of the revised grant terms, (3) award plaintiffs reasonable attorneys' fees and costs, and (4) grant plaintiffs such other and further relief as the Court may deem proper. Id.
Subsequent Discovery Proceedings
In accordance with GMHC I, the parties have engaged in the discovery necessary to resolve at least three of the four remaining issues.
Pursuant to GMHC I, on February 1, 1990, defendants provided the Magistrate Judge with copies of the 12 documents that had been withheld by the Government so he could determine whether any of the documents related to the remaining issues, and if so, whether the deliberative process privilege prevented their disclosure to the plaintiffs. Exhibit "A" to Bennett Dec. I. After an in camera review of the documents, the Magistrate Judge issued a ruling which directed that five of the 12 documents be produced to the plaintiffs. Exhibit "B" to Bennett Dec. I. The Magistrate Judge determined that the other documents were not relevant to the remaining issues in the action.
Accordingly, the Government has produced the five relevant documents to the plaintiffs.
Discovery of the State plaintiffs' records for evidence of the "chilling effect" of the funding restrictions has also gone forward as directed in GMHC I. See GMHC I, 733 F. Supp. at 637 n.17.
On February 1, 1990, defendants sent a letter to the State plaintiffs calling for production of documents from their subgrantees relating to plaintiffs' claims that they have been deterred from producing certain AIDS educational materials and applying for federal funds for AIDS-related education. Exhibit "C" to Bennett Dec. I. On February 8, 1990, the State plaintiffs wrote a letter in response, which acknowledged that they had received no such documents. Exhibit "D" to Bennett Dec. I. According to the defendants, since February 8, 1990, the State plaintiffs have produced no documents in this category. See Bennett Dec. I, at P10.
The parties have also engaged in additional discovery. On October 4, 1990, defendants served their First Request for Admissions on plaintiffs, Exhibit "M" to Bennett Dec. I, in an effort to determine whether plaintiffs contended that any PRP had ever withheld approval for any AIDS-related educational materials based on the Revised Grant Terms. Id. at P1. If plaintiffs so contended, defendants requested that they produce all documents, and identify all potential witnesses, with respect to that contention. See id. at 4 (instruction number 4). Defendants also requested that plaintiffs produce all information in their possession concerning their allegations that some grant applicants have been "deterred" from applying for CDC funded grants for AIDS-related education. See Declaration of Steven Bennett, executed on May 31, 1991 ("Bennett Dec. II"), at PP2-4 (detailing defendants' discovery requests). There has been substantial disagreement as to the production of such materials.
According to defendants, prior to this motion plaintiffs had identified only three examples (and produced only three documents) of what they contend are decisions by PRPs that denied federal funding for AIDS-related educational materials based on the Revised Grant Terms. See Bennett Dec. I, at 21, 23, 25. Since the motion, however, plaintiffs have referred to a number of other PRP decisions, but have produced no supporting information. For example, plaintiffs claim that various PRPs have rejected materials, but have not produced copies of those materials, or any documentation concerning the PRP decisions. See Bennett Dec. II, at PP8, 10, 11, 12, 14, 18, 19, 25, 26, 32, 33, 35, 38, 40. Further, although plaintiffs have claimed that they and other AIDS education groups have been deterred from producing materials that might violate the revised grant terms, they have failed to produce copies of any such materials. Id. at PP7, 13, 17, 20-22, 27, 28-29, 30, 37.
As a result, in July 1991 defendants served a second set of interrogatories and document requests upon plaintiffs. See Letter of Steven Bennett, dated July 2, 1991, at 2.
Plaintiffs claim, however, that they have produced such evidence. According to plaintiffs, the declarations submitted in connection with the present motion provide the details of each PRP decision to which they refer. Defendants have simply failed to appreciate the sufficiency of such declarations to adduce proof. Moreover, plaintiffs claim that they produced the GMHC safer-sex comics referred to in the Declaration of Amy DeGroff, see Exhibit "B" to Declaration of Dr. Gary R. Noble, executed on May 29, 1991 ("Noble Dec. IV"), an example of Hetrick Martin's AIDS education comics, Harlow Dec. II, at P4, and copies of educational materials referred to in the Declaration of David Prybylo. Exhibit "A" to Declaration of Ruth E. Harlow, executed on June 25, 1991 ("Harlow Dec. II"). Further, plaintiffs assert that they have produced numerous other relevant documents and have provided extensive interrogatory answers concerning the kinds of materials that are at issue here. See Plaintiffs' Reply Memorandum of Law In Support of Partial Summary Judgment ("Pl. Rep. Mem."), at 18, n. 12. Finally, plaintiffs assert that because AIDS education groups are deterred by the restrictions from producing certain educational materials, there are no documents to produce on this subject.
1. Counsel for the plaintiffs shall make inquiry of the declarants and shall, not later than October 25, 1991, produce to counsel for defendants copies of each and every document referred to by the declarants who submitted factual declarations in opposition to the defendants' motion to dismiss or for summary judgment and in support of plaintiffs' motion for summary judgment (i.e., Amy DeGroff, Ellie Emanuel, Jeff Felshman, Frances Kunreuther, David Prybylo, Michael Rampolla, Roger Rosenthal, Timothy Sweeney, Brad Trowbridge, Susanne Watson, and Reggie Williams) to the extent that those documents can be obtained from the declarants;
2. To the extent that the documents described in the preceding paragraph (1) do not exist, counsel for plaintiffs shall so state in writing;
3. Plaintiffs need not respond, except to the extent described in paragraphs 1 and 2, to Defendants' Second Set of Interrogatories and Request for Documents . . . .
Pursuant to the above Order, on October 25, 1991, plaintiffs sent a letter to defendants, enclosing various documents mentioned in the factual declarations filed in conjunction with the pending summary judgment motions. See Exhibits "A" (letter) and "B" (documents) attached to Supplemental Declaration of Steven Bennett, executed on November 22, 1991. According to defendants, however, plaintiffs have still failed to produce documents in many categories. See Supplemental Declaration of Steven Bennett, at PP7, 9-34, 36, 37, 39, 41. Plaintiffs rebut this allegation in a December 10, 1991 letter to the Court, and again state that it is unreasonable to expect plaintiffs to produce the very educational materials that have not been developed by AIDS educators because of the chilling effect of the grant terms. Id. at 2.
*Further Revision of the Grant Terms
On December 13, 1991, the CDC published in the Federal Register a request for comments on its proposed Revision of Requirements for Content of HIV/AIDS-Related Written materials, Pictorials, Audiovisuals, Questionnaires, Survey Instruments, and Educational Sessions in Centers for Disease Control Assistance Programs. 56 Fed. Reg. 65169 (Dec. 13, 1991). The revised terms and conditions specified in the notice require "that if a nongovernmental organization receiving CDC funds chooses to establish its own Program Review Panel, it must include a health department representative in the composition of the panel." Id. at 65170. In addition, in recognition that the Fiscal Year 1992 Appropriations Act does not contain the language of the Kennedy-Cranston Amendment,
the Revision eliminates that requirement from the grant terms. Id. at 65170.
On March 30, 1992, after taking into account comments from 53 organizations and concerned citizens, CDC issued final revised terms and conditions. 57 Fed. Reg 10794 (Mar. 30, 1992). These final revised terms are consistent with those that were proposed in the December 13, 1991 Federal Register Notice. Id. Specifically, the final revised terms contain two essential changes. First, the Kennedy-Cranston requirement was eliminated from the grant terms.
Id. The CDC contends, however, that its "administratively-imposed restrictions, currently in place in the CDC Guidelines, already cover the practical situations where the Kennedy-Cranston language would have applied." Id. According to CDC, although Congress has deleted the Kennedy-Cranston provision from CDC's 1992 appropriation act, it has not "disturbed the more stringent 'offensiveness' standard that CDC has developed administratively and which is retained unchanged in the Basic Principles in section 1 of these guidelines." Id. As such, it is CDC's view that "any material which would have failed to meet the Kennedy-Cranston standard . . . would also fail to meet the 'offensivenes' standard that continues as part of the Basic Principles to be applied by Program Review Panels." Id.15 The second change requires that if a nongovernmental organization chooses to establish its own PRP, it must include a state or local health department representative. Id. at 10796.
These revised grant terms are effective immediately, and apply to all materials being developed or distributed with CDC funds that have not yet been reviewed by a PRP. Id. at 10795.
*The Fiscal Year 1992 Appropriations Act
As stated above, the Fiscal Year 1992 Appropriations Act, P.L. 102-170, 105 Stat. 1107, 1115-16 (November 26, 1991), eliminated any reference to the Kennedy-Cranston Amendment. Thus, the Appropriations Act itself contains no content restrictions on the fiscal year 1992 ...