Court Battles

Supreme Court rules US requirements on overseas NGOs do not violate free speech

Greg Nash

The Supreme Court ruled on Monday that Congress can require that foreign affiliates of U.S. groups fighting AIDS overseas explicitly oppose prostitution and sex trafficking as a condition for receiving federal funding.

The 5-3 decision, written by conservative Justice Brett Kavanaugh, broke along ideological lines, with the court’s liberal bloc issuing a dissenting opinion. Justice Elena Kagan recused herself due to her previous involvement in the issue as solicitor general under President Obama.

The justices previously ruled in 2013 that the funding requirement violated the First Amendment when it applied to U.S. nongovernmental organizations (NGOs) engaged in the global fight against HIV and AIDS.

Several American NGOs then filed a second lawsuit seeking to have those protections extended to their foreign partners.

But the majority rejected that argument in a 9-page opinion on Monday, finding the so-called policy requirement did not run afoul of the Constitution.

“The Court’s prior decision recognized the First Amendment rights of American organizations and held that American organizations do not have to comply with the policy requirement,” Kavanaugh wrote. “This case instead concerns foreign organizations that are voluntarily affiliated with American organizations.

“Those foreign organizations are legally separate from the American organizations,” he continued. “And because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard the policy requirement.”

The law in question — a 2003 statute known as the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act — originally said only U.S. NGOs with “a policy explicitly opposing prostitution and sex trafficking” were eligible for funding, before that provision was struck down.

In a dissenting opinion on Monday, Justice Stephen Breyer said the majority incorrectly treated U.S.-based NGOs and foreign affiliates as separate entities, when in fact the former merely “speak[s] through clearly identified affiliates that have been incorporated overseas.”

“The court, in my view, asks the wrong question and gives the wrong answer,” he said. “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.”

Breyer’s dissent was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

–This report was updated at 2:48 p.m.

Tags Brett Kavanaugh Elena Kagan free speech Prostitution Ruth Bader Ginsburg sex trafficking Sonia Sotomayor Stephen Breyer Supreme Court

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