In Agency for International Development v. Alliance for Open Society International, Inc. II, the U.S. Supreme Court ruled 5-3 that foreign organizations did not have a First Amendment right to challenge a congressional provision prohibiting U.S. funding to organizations without a “policy explicitly opposing prostitution and sex trafficking.”
The Court reasoned that foreign groups do not have a right to assert rights under the U.S. Constitution.
Law bars AIDS funding to groups that don’t oppose prostitution, sex trafficking
In 2003, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, also known as the Leadership Act. Under this Act, Congress has funded both domestic and foreign groups that combat AIDS/HIV. Congress sought to fund only those groups that explicitly opposed prostitution and sex trafficking. Thus, Congress passed the so-called “Policy Requirement” which denied funding to groups that would not oppose prostitution and sex trafficking.
Several groups, including the Alliance for Open Society International, challenged the constitutionality of the Policy Requirement, arguing that the government violated the First Amendment by conditioning a benefit on the basis of violating freedom of speech. These groups felt that to be more effective with fighting AIDS and HIV, they needed to be neutral toward prostitution to ensure their full participation in these efforts in different parts of the world.
Supreme Court says law is unconstitutional for conditioning funding on belief
In 2013, the Supreme Court ruled in Agency for International Development v. Alliance for Open Society International I that this requirement violated the First Amendment as applied to American organizations.
After this ruling, the Alliance for Open Society International and other groups returned to court, arguing that the Policy Requirement also violated foreign affiliates. A federal district court and a divided panel of the 2nd U.S. Circuit Court of Appeals agreed and prohibited enforcement of the Policy Requirement to foreign affiliates and organizations.
The government appealed to the U.S. Supreme Court, which granted review.
Supreme Court says foreign organizations don’t have same First Amendment rights
The majority, in an opinion by Justice Brett Kavanaugh, noted that “it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.” He also noted that separately incorporated organizations are separate legal units with distinct rights and, thus, that “foreign affiliates were incorporated in other countries and are legally separate from plaintiff’s American organizations.”
According to Kavanaugh, these “bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.”
Kavanaugh rejected the notion that the Policy Requirement amounted to a form of unconstitutional compelled speech. “No compulsion is present here,” he wrote, adding later that “plaintiffs’ current affiliations with foreign organizations are their own choice, not the result of any U.S. Government compulsion.”
Justice Clarence Thomas wrote a concurring opinion, agreeing with the result of the majority but reiterating his view that the Court’s 2013 decision was erroneous. “The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respondents, respondents’ legally distinct foreign affiliates, or any other organization.”
Breyer dissents, says First Amendment applies across all corporate lines
Justice Stephen Breyer, joined by two other justices, wrote a dissenting opinion. He wrote that the case was not about the rights of foreign organizations but about “the First Amendment rights of American organizations.” He viewed the majority’s line-drawing between domestic and foreign affiliates with the same messages as overly formalistic.
“Thus, in the First Amendment context, the corporate veil is not an iron curtain,” he wrote. “Just the opposite. We attribute speech across corporate lines all the time.” He concluded that the majority’s decision “weakens the marketplace of ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores.”
This article was published July 1, 2020. David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).