Amy Howe

Jun 29 2020

Justices uphold condition for HIV/AIDS funding

Seven years ago, the Supreme Court ruled that nongovernmental organizations based in the United States cannot be required to have a policy that expressly opposes prostitution and sex trafficking in order to receive government funds to fight HIV/AIDS. However, by a vote of 5-3, the court held today in U.S. Agency for International Development v. Alliance for Open Society International that enforcement of a similar requirement against the foreign affiliates of the same U.S.-based NGOs does not violate the First Amendment.

The law at the center of today’s ruling is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. Passed by Congress in 2003, the law has provided billions of dollars to fund efforts to fight HIV/AIDS abroad. One provision in the law requires organizations that receive funds to combat HIV/AIDS to “have a policy explicitly opposing prostitution and sex trafficking.” In 2013, by a vote of 6-2 (with Justice Elena Kagan recused, as she was today), the court held that the funding condition violates the First Amendment when it is applied to NGOs that are based in the United States.

Four U.S.-based NGOs returned to federal court after the 2013 decision, arguing that the funding condition could not be enforced against their foreign affiliates either. Requiring their foreign affiliates to have a policy opposing prostitution and sex trafficking would violate their own First Amendment rights, the NGOs contended, because they are so closely identified with the foreign affiliates that the policy would be attributed to them even if they are legally separate entities. The U.S. Court of Appeals for the 2nd Circuit agreed with the NGOs, but today the Supreme Court, in an opinion written by Justice Brett Kavanaugh, reversed that ruling.

The NGOs’ argument, Kavanaugh wrote, “runs headlong into two bedrock principles of American law.” The first is that foreign citizens who are outside the United States and its territories do not have constitutional rights. The second and equally well-established principle is that when entities are incorporated separately, they are “separate legal units with distinct legal rights and obligations.” When those two principles are combined, Kavanaugh continued, they “lead to a simple conclusion: As foreign organizations operating abroad,” the foreign NGOs do not have First Amendment rights.

Kavanaugh rejected the argument by the U.S.-based NGOs that the enforcement of the funding condition against their foreign affiliates violates their own First Amendment rights because their affiliates’ speech against prostitution and sex trafficking could be attributed to them. The United States, Kavanaugh stressed, does not require the U.S.-based NGOs to affiliate with the foreign groups; even if the U.S.-based NGOs still opt to affiliate with the foreign groups despite the funding condition, they can always disavow the affiliates’ speech. “We appreciate,” Kavanaugh wrote, that the U.S.-based NGOs “would prefer to affiliate with foreign organizations that do not oppose prostitution.” But Congress imposed such a condition in exchange for providing funding, and the U.S. NGOs “cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.”

Kavanaugh dismissed the U.S. NGOs’ suggestion that in its 2013 decision the Supreme Court had already decided the question at the heart of this case for both the U.S. NGOs and their foreign affiliates. That decision, Kavanaugh stressed, did not invalidate the funding condition altogether, nor did the court hold that the funding condition does not apply to the foreign affiliates of U.S. NGOs. The decision held only that the U.S.-based NGOs did not have to comply with the funding condition. Here, he reiterated, “because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard” the funding condition.

Justice Clarence Thomas filed a concurring opinion in which he expressed his “continued disagreement” with the court’s 2013 decision and explained that the funding condition “does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything.” The government, Thomas reasoned, can require groups that take money from it to carry out programs to “support the Government’s objectives with regard to those programs.”

Justice Stephen Breyer filed a dissenting opinion that was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. The majority, Breyer contended, “asks the wrong question and gives the wrong answer.” The issue before the court, Breyer stressed, was the First Amendment rights of the U.S.-based NGOs, rather than the rights of their foreign affiliates. The court’s 2013 decision made clear that the funding condition could not be enforced directly against the U.S.-based NGOs; the same should be true when the U.S.-based NGOs “speak through clearly identified affiliates that have been incorporated overseas.” By denying First Amendment protection when the U.S.-based NGOs speak through their foreign affiliates to audiences in other countries, Breyer cautioned, today’s decision could “seriously impede the countless American speakers who communicate overseas” – including, Breyer seemed to suggest, news networks like CNN – “in a similar way. That weakens the marketplace for ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores.”

This post is also published on SCOTUSblog.

Amy L Howe
Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.
Tweets by @AHoweBlogger
Recent ScotusBlog Posts from Amy
  • Court rules for deaf student in education-law case
  • Parties disagree over court’s power to reach decision in election law case
  • Justices throw out lower-court ruling allowing state court clerk to be sued in parental notification abortion case
More from Amy Howe

Recent Posts

  • Court rules for deaf student in education-law case
  • Parties disagree over court’s power to reach decision in election law case
  • Justices throw out lower-court ruling allowing state court clerk to be sued in parental notification abortion case
  • Justices decline to halt execution of Texas man with intellectual disability claim
  • Justices take up case on federal admiralty law, seek government’s views on two pending petitions
Site built and optimized by Sound Strategies