Free Speech for US Charities but Not Partners Abroad, High Court Rules

Residents of the Malawi village of Tomali wait to have their young children become test subjects for the world’s first vaccine against malaria in 2019.(AP Photo/Jerome Delay)

WASHINGTON (CN) — Foreign charities are not entitled to the same First Amendment freedoms that protect American entities from having to make anti-prostitution pledges for U.S. grant money, the Supreme Court ruled 5-3 Monday.

The grants are available through the 2003 Leadership Act, which supports an international campaign to fight AIDS, tuberculosis and malaria pandemics across the globe. Controversially, however, the law was originally passed with language that said no funds could go “to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”

This spurred a court challenge by nonprofit groups that said making such pledge hurt their ability to work with sex workers on prevention outreach.

Alleging violation of their free-speech rights, the groups Alliance for an Open Society International and Pathfinder International prevailed at the Supreme Court in 2013, then moved to have their injunction extended to also cover any foreign affiliates operating overseas.

While both the District Court and the Second Circuit supported the move, the Supreme Court reversed Monday, only a month following oral arguments held by teleconference for what was the second time in the court’s history.

“In sum, plaintiffs’ foreign affiliates are foreign organizations and foreign organization operating abroad possess no rights under the U.S. Constitution,” Justice Brett Kavanaugh wrote for the majority.

Kavanaugh called it a “long settled” that citizens outside U.S. territories do not possess rights under the Constitution. Even when foreign citizens are afforded the right to due process in a criminal trial, Kavanaugh emphasized that even this is observed only for individuals inside the United States or a U.S. territory.

“But the court has not allowed foreign citizens outside the United States or such U.S. territory to assert rights under the U.S. Constitution,” he wrote. “If the rule were otherwise, actions by American military, intelligence and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens’ purported rights under the U.S. Constitution. That has never been the law.” 

Kavanaugh said nothing in the original 2013 holding extended First Amendment rights to the foreign affiliates of American entities.

“Stated simply, in the prior decision the court did not facially invalidate the act’s condition on funding,” Kavanaugh wrote. “The court did not hold or suggest that the First Amendment requires the government to exempt plaintiffs’ foreign affiliates or other foreign organizations from the policy requirement.”

Justice Stephen Breyer, joined in dissent by Justices Ruth Bader Ginsburg and Sonya Sotomayor, meanwhile emphasized that the case turned, not on the rights of foreign organizations, but those of their American affiliates.

“The court … asks the wrong question and gives the wrong answer,” he wrote, saying Congress is authorized to impose limits on the use of federal funds but not to leverage those funds to regulate that speech.

This reasoning, Breyer wrote, is guided by the court’s 2013 decision in the U.S. AID case, which considered whether entities were “clearly identified” with grant recipients, not whether they were incorporated separately.

While American entities must use foreign entities to distribute their message globally, Breyer said no audience hinges their understanding of who is speaking that message “on corporate paperwork they will never see.”

“As to that, not even the government meaningfully disputes that respondents and their foreign affiliates are clearly identified with one another,” Breyer wrote. “Their appearances are the same. Their goals are the same. Their values are the same. Their message is the same. Leveraging Congress’ spending power to demand speech from respondents’ foreign affiliates distorts that shared message — and violates respondents’ First Amendment rights.” (Emphasis in original.)

Justice Clarence Thomas joined the majority and also filed a 2-page concurring opinion to note his “continued disagreement” with the court’s previous decision. In his view, the Leadership Act program “does not compel anyone to say anything,” as an agency’s participation in the program was voluntary.

“Just as respondents are not compelled to associate with their foreign affiliates … they are not compelled to participate in the Leadership Act program,” Thomas wrote.

David Bowker, a Wilmer Hale attorney representing the nonprofits, did not immediately respond to a request for comment. The Department of Justice also did not immediately respond for a request for comment.

Justice Elena Kagan did not participate in the consideration or decision of the case.

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