Justices Revive Speech Requirement for Overseas HIV Funding (2)

June 29, 2020, 2:09 PM; Updated: June 29, 2020, 8:28 PM

Foreign entities affiliated with U.S. nongovernmental organizations must comply with a federal requirement to explicitly disavow prostitution and sex trafficking in order to receive government funding to fight HIV/AIDS abroad, the U.S. Supreme Court ruled.

A ruling striking down the requirement would “throw a constitutional wrench into American foreign policy,” Justice Brett Kavanaugh wrote for the 5-3 majority on Monday in reversing an appeals court decision.

The decision split the court along traditional ideological lines, with its Democratic-nominated justices in dissent. Justice Elena Kagan didn’t participate in the case, likely due her work in the Justice Department prior to joining the Supreme Court.

The justices seven years ago struck down the same requirement as it applied to U.S. entities, saying that it’s “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.”

Here they said foreign “citizens outside U.S. territory do not possess rights under the U.S. Constitution,” adding that U.S. entities “cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.”

During oral arguments—held during the court’s historic May sitting when 10 cases were, for the first time, heard by phone and streamed live—many of the justices sounded skeptical that a clear line could be drawn between domestic entities and their foreign affiliates

The U.S. and foreign entities share “the same name, same logo, same brand,” Chief Justice John Roberts observed during those May 5 oral arguments.

Territorial limits.

It’s generally settled that non-citizens located outside of U.S. territory can’t bring constitutional claims in U.S. courts, said Timothy Zick, a constitutional law professor at William & Mary Law School.

But Anna Su, at the University of Toronto Faculty of Law, said the case was part of “a broader trend with respect to the availability of, or the lack there of, legal redress to non-US nationals.”

She pointed to the court’s earlier rulings in Hernandez v. Mesa, which found that the family of a Mexican teen couldn’t sue a U.S. Border Patrol agent for a deadly cross-border shooting and Jesner v. Arab Bank, finding non-citzens couldn’t sue foreign corporations in the U.S. for human rights abuses that were committed abroad.

Justice Stephen Breyer, writing for the dissent, said the majority’s focus on the First Amendment rights of foreign entities “asks the wrong question and gives the wrong answer.”

“This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations,” who “speak as one” with their foreign affiliates, Breyer wrote.

But ultimately the majority was satisfied that it could, in fact, draw “a clear line between the domestic group and its foreign affiliates,” Zick said.

$80 billion commitment

Under the Leadership Act of 2003, the U.S. has committed nearly $80 billion to fight HIV/AIDS abroad.

It “is widely viewed as the most successful American foreign aid program since the Marshall Plan,” Kavanaugh wrote in comparing the scope of the HIV/AIDS prevention initiative to the historic effort to help rebuild post-war Europe.

The case was brought by U.S. organizations who say their foreign partner’s speech is indistinguishable from their own. There’s no way for the American entity to disavow the foreign affiliate’s policy “without appearing hypocritical and without appearing to engage in doublespeak,” WilmerHale attorney David Bowker said during the argument.

They argue that requiring organizations to disavow sex work actually hampers the global response to the pandemic.

“Punitive laws, policies and practices continue to make it difficult for sex workers to access comprehensive, accessible and affordable health care,” said Grace Kamau of the African Sex Workers Alliance.

The entities are separate legal entities, said attorney Christopher Michel, arguing for the federal government then. That has advantages and disadvantages, he added. They have to “accept the bitter with the sweet.”

The case is USAID v. Alliance For Open Society International, Inc., U.S., No. 19-177.

(Adding comments from William & Mary's Timothy Zick, University of Toronto's Anna Su, and Grace Kamau of the African Sex Workers Alliance.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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