Kavanaugh Pens SCOTUS Decision: Foreign Organizations in U.S. Do Not Have First Amendment Protections

The U.S. Supreme Court is seen at dusk February 13, 2016 in Washington, DC. Supreme Court Justice Antonin Scalia was at a Texas Ranch Saturday morning when he died at the age of 79. (Photo by Drew Angerer/Getty Images)
Drew Angerer/Getty

The Supreme Court ruled on Monday that non-governmental agencies operating in the United States do not have First Amendment protections.

The decision involves a 2003 decision that provided First Amendment protections to non-governmental agencies based in the United States and ruled that these entities could be required to have policies in place that oppose prostitution and sex trafficking.

Since Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act in 2003, the U.S. has provided billions of dollars to fund efforts to fight HIV/AIDS abroad.

Justice Brent Kavanaugh wrote for the majority in the 5-3 decision, which held in U.S. Agency for International Development v. Alliance for Open Society International that the enforcement of a similar requirements against the foreign affiliates of the same U.S.-based NGOs does not violate the First Amendment.

SCOTUS Blog reported:

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 SCOTUS hearing transcript explained the majority’s decision:

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, as relevant here, Congress limited the funding of American and foreign nongovernmental organizations to those with “a policy explicitly opposing prostitution and sex trafficking.” In 2013, that Policy Requirement, as it is known, was held to be an unconstitutional restraint on free speech when applied to American organizations. Those American organizations now challenge the requirement’s constitutionality when applied to their legally distinct foreign affiliates. The District Court held that the Government was prohibited from enforcing the requirement against the foreign affiliates, and the Second Circuit affirmed.

Held: Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitu- tional. Two bedrock legal principles lead to this conclusion. As a mat- ter of American constitutional law, foreign citizens outside U. S. terri- tory do not possess rights under the U. S. Constitution. And as a matter of American corporate law, separately incorporated organizations are separate legal units with distinct legal rights and obligations. That conclusion corresponds to Congress’s historical practice of conditioning funding to foreign organizations, which helps ensure that U. S. foreign aid serves U. S. interests.

Plaintiffs’ counterarguments are unpersuasive. First, they claim that because a foreign affiliate’s policy statement may be attributed to them, American organizations themselves possess a First Amendment right against the Policy Requirement’s imposition on their foreign affiliates. First Amendment cases involving speech misattribution between formally distinct speakers, however, are premised on something missing here: Government compulsion to associate with another entity. Even protecting the free speech rights of only those foreign organizations that are closely iden- tified with American organizations would deviate from the fundamental principle that foreign organizations operating abroad do not possess rights under the U. S. Constitution and enmesh the courts in difficult line-drawing exercises. Second, plaintiffs assert that the Court’s 2013 decision encompassed both American organizations and their foreign affiliates. That decision did not facially invalidate the Act’s funding condition, suggest that the First Amendment requires the Government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the Policy Requirement, or purport to override longstanding constitutional law and corporate law principles. 

Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Stephen Breyer, joined Kavanaugh.

Justices Ruth Bader Ginsberg and Sonia Sotomayer, along with Kagan, “took no part in the consideration or decision of the case,” according to the SCOTUS hearing transcript.

The Associated Press advanced the Open Society Foundation’s condemnation of the ruling while citing it has nothing to do with the creation of the press release:

In a blow to free speech and public health, Alliance for Open Society International condemns the U.S. government’s Anti-Prostitution Pledge as it applies to American organizations’ foreign affiliates, despite a prior ruling that the Pledge itself violates American organizations’ First Amendment rights. This policy requires organizations and their foreign affiliates that receive U.S. government funding to fight HIV internationally to “explicitly oppose prostitution.”

Alliance for Open Society International, part of the Open Society Foundations, has been involved in a nearly 16-year battle on the constitutionality of the Anti-Prostitution Pledge. This is the second time the Supreme Court considered it, and marks a departure from previous rulings that determined the rule was unconstitutional.

The Anti-Prostitution Pledge demonstrates how the U.S. government plays politics with public health at the expense of organizations that are providing critical HIV services and the vulnerable groups they reach. Now, American organizations and their foreign affiliates must pledge allegiance to the U.S. government’s political goal of eradicating sex work.

Patrick Gaspard, president of the Open Society Foundations, said in the press release:

The Supreme Court upheld the U.S. government’s quest to impose its harmful ideological agenda on U.S. organizations and restrict their right to free speech. The Anti-Prostitution Pledge compromises the fight against HIV by impeding and stigmatizing efforts to deliver health services. Condemnation of marginalized groups is not a public health strategy.

But, the SCOTUS Blog analysis said, “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.’”

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