Opinion analysis: 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 was originally published at Howe on the Court.