Anti-Prostitution Pledge Faces Another Blow by High Court

WASHINGTON (CN) — Chief Justice John Roberts seemed inclined Tuesday to hold that First Amendment protections are available to the foreign partners of U.S. entities combatting AIDS and other diseases.

“They have the same name, the same logo, the same brand, and I wonder if it makes more sense to think of the foreign entity as simply another channel for the domestic entity’s speech,” Roberts said this morning in oral arguments.

As was the case Monday, coronavirus safeguards meant that proceedings today were held in a teleconference — a groundbreaking feat for the court that had previously spurned the trend of livestreaming its hearings.

The case before the court is an offshoot of one the justices decided in 2013, involving an “anti-prostitution pledge” that AIDS charities must make to qualify for federal funding. Seven years ago the court held that the pledge enshrined in the 2003 Leadership Act tramples the free-speech rights of charities whose very missions involve reaching out to sex workers.

Because their new injunction applied only to domestic organizations, the charities fought next to have enshrine their foreign affiliates with the same relief.

Led by the group Alliance for an Open Society International, the nonprofits have found success in U.S. District Court and the Second Circuit U.S. Court of Appeals.

Pushing for a reversal Tuesday, Assistant Solicitor General Christopher Michael argued that the international charities lack formal corporate ties to any domestic entity and thus are not entitled to constitutional rights. 

Roberts, who wrote the court’s opinion in 2013, asked Michael if it was reasonable to “insist on formal corporate ties.”

“I gather that it’s undisputed that to be effective in many of the foreign countries involved here, you have to operate through a foreign entity,” Roberts said. “The effort would not be as effective if the American entity were the one actually on the ground in the foreign country.” 

Michael disagreed with this characterization, reiterating it was a U.S. company’s choice to enlist the service of a foreign counterpart. 

“Many of the respondents, the U.S. entities, do in fact operate in foreign countries through branch offices and as a result of this court’s prior decision, they always have a choice to operate in that way, without compromising their speech in anyway,” Michael said. 

Michael called it the charities' lot to “accept the bitter with the sweet,” as the lack of formal ties brings organizations certain benefits.

In its brief to the court, the government elaborated on some of these benefits: “For instance, a legal entity is generally not liable for wrongful conduct by a distinct, separately incorporated entity, even if the two entities have the same affiliation.”

Representing the nonprofits, WilmerHale attorney David Bowker invoked the example of a charity called CARE, short for Cooperative for Assistance and Relief Everywhere.

“When CARE in Kenya takes the pledge, it’s affirmation of belief is attributable to CARE in the United States, thus putting words in the mouth of the U.S. entity,” Bowker said.

“The second violation is from a speech restriction under regulations that prohibit any CARE entity from contradicting the pledge, even on its own time and dime — thus making it impossible for CARE U.S. to disavow CARE Kenya’s pledge without engaging in doublespeak, and losing U.S. funding for its global network.” 

A novelty in themselves, the arguments Tuesday were also unique in featuring questions by Justice Clarence Thomas, who prior to this week had kept silent on the bench for over a year.

Having posed questions in Monday’s case as well, Thomas today asked Bowker for a recap of the relief the entities were asking the court for and from what injury. Bowker termed this resolution of what he called a “Catch-22” for U.S. organizations. 

“When the government says that the U.S. organization can disavow the pledge, that comes at a high price, which is the loss of funding for the foreign affiliates,” Bowker said. “And so, the categories of injuries are twofold: one from the speech compulsion and the other from the speech restrictions.” 

Gabe Roth, executive director of the Supreme Court transparency group Fix the Court, noted in an email Tuesday that Justice Elena Kagan had likely recused herself from today’s oral arguments as she was the U.S. solicitor general during the case’s litigation. Roth said the law requires Kagan to recuse herself from litigation in which she participated. 

While it is still unclear whether the court will make live audio of their arguments routine, Roth said, the online format has allowed for a different type of discourse. 

“Tens of thousands of Americans, who likely would not have tuned in to week’s end audio, have heard in real time how our tip legal minds grapple with difficult questions of law and due to the question-by-seniority format, everyone listening was compelled the views of all the justices not, just the ones they favor politically or those who generally speak the most,” Roth said in an email. “Once real-time access is granted, there’d be a giant outcry if it were taken away, but then again, it’s the Supreme Court, so anything is possible.” 

Bowker did not return an email request for comment Tuesday.

Funding provided through the Leadership Act has allowed charities that fight tuberculosis, malaria and AIDS to saved more than 17 million lives. The law has been reauthorized three times, providing more than $80 billion to combat these diseases. 

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