Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc.

Background

The case concerns the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act and its funding condition that recipients have a “policy explicitly opposing prostitution and sex trafficking.” American nongovernmental organizations that fight HIV/AIDS challenged that Policy Requirement. In 2013 the Court held that the Government could not enforce the Policy Requirement against American organizations, but foreign organizations remained subject to it. Plaintiffs later sued to block enforcement against their legally separate foreign affiliates; a district court and the Second Circuit sided with the plaintiffs, and the Government asked this Court to review the issue.

Reasoning

The central question was whether the foreign affiliates of American organizations have First Amendment rights to challenge the Policy Requirement. The opinion explains two controlling principles from the Court’s view: (1) foreign citizens and foreign organizations operating outside U.S. territory do not possess rights under the U.S. Constitution, and (2) separately incorporated entities are legally distinct. Applying those principles, the Court rejected arguments about speech “misattribution” and the idea that the 2013 ruling already protected foreign affiliates. The Court concluded that foreign affiliates operating abroad have no First Amendment protection and reversed the Second Circuit.

Real world impact

As a result, the Government may apply the Leadership Act’s Policy Requirement to foreign organizations that receive U.S. funds for HIV/AIDS work abroad. American organizations remain able to receive funds without the same compelled-policy requirement. The decision affects how the United States conditions foreign aid and which overseas partners can receive funding.

Dissents or concurrances

Justice Thomas concurred, offering an alternative rationale that the requirement does not compel speech. Justice Breyer, joined by two colleagues, dissented, arguing the case really concerns American organizations’ speech when they operate through clearly identified foreign affiliates and that the prior 2013 decision should protect that speech.