1st Amendment Violation – United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 – Policy Requirement

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United States Supreme Court

Case Name: Agency for International Development, et al., v. Alliance for Open Society International, Inc., et al.,

Case No.: 19-177

Focus: 1^st Amendment Violation – United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 – Policy Requirement

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.” 22 U. S. C. §7631(f). In 2013, that Policy Requirement, as it is known, was held to be an unconstitutional restraint on free speech when applied to American organizations. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205. 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.

Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional. Two bedrock legal principles lead to this conclusion. As a matter of American constitutional law, foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. See, e.g., Boumediene v. Bush, 553 U. S. 723, 770–771. And as a matter of American corporate law, separately incorporated organizations are separate legal units with distinct legal rights and obligations. See, e.g., Dole Food Co. v. Patrickson, 538 U. S. 468, 474–475. 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, see, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574– 575, 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 identified 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. Pp. 3– 9.

Reversed

Dissenting: BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Concurring: THOMAS, J., filed a concurring opinion.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.