USAID v. Alliance for Open Society (2020)

Last updated
Agency for Int'l Development v. Alliance for Open Society
Seal of the United States Supreme Court.svg
Decided June 29, 2020
Full case nameAgency for International Development, et al. v. Alliance for Open Society International, Inc., et al.
Docket no. 19-177
Citations591 U.S. ___ ( more )
140 S. Ct. 2082
Case history
Prior
  • Permanent injunction granted, Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 106 F. Supp. 3d 355 (S.D.N.Y. 2015);
  • Affirmed, 911 F.3d 104 (2d Cir. 2018);
  • Cert. granted, 140 S.Ct. 660 (2019).
Holding
Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas  · Ruth Bader Ginsburg
Stephen Breyer  · Samuel Alito
Sonia Sotomayor  · Elena Kagan
Neil Gorsuch  · Brett Kavanaugh
Case opinions
MajorityKavanaugh, joined by Roberts, Thomas, Alito, Gorsuch
ConcurrenceThomas
DissentBreyer, joined by Ginsburg, Sotomayor
Kagan took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. I

Agency for Int'l Development v. Alliance for Open Society International, 591 U.S. ___ (2020), also known as Alliance for Open Society II (to distinguish it from the 2013 case), was a United States Supreme Court case in which the Court held that compelled speech required as a condition for funding on foreign non-governmental affiliates of U.S. non-government organizations does not violate First Amendment rights. [1]

Contents

Background

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 was signed into law as a means to fund private non-governmental organizations (NGO) to help fight AIDS and other diseases in foreign countries. As a condition of this funding, entities were required to also promote an anti-prostitution pledge requiring them to establish "a policy explicitly opposing prostitution and sex trafficking", a term known as the Policy Requirement. [2] This program is overseen through the United States Agency for International Development, the United States Department of Health and Human Services and the Centers for Disease Control and Prevention.

This Policy Requirement was originally challenged by NGO looking to receive the funding as early as 2005 as it was seen as compelled speech, which violated their First Amendment rights and resulted in the Supreme Court case Agency for International Development v. Alliance for Open Society International, Inc. , which ruled that the anti-prostitution pledge was compelled speech on American NGOs to mirror the government's view. [3]

Following the 2013 decision, the government subsequently backed off the Policy Requirement for those NGOs based in the United States, but maintained the requirement for affiliates that were established in a foreign country. Several of the same NGOs on the 2013 case again filed suit on the First Amendment grounds and following the Supreme Court's decision. In both the United States District Court for the Southern District of New York [4] and United States Court of Appeals for the Second Circuit, [5] the courts upheld in favor of the NGOs on the basis of the Supreme Court's prior ruling.

Supreme Court

The responsible government organizations petitioned the Supreme Court, which accepted to hear the case in August 2019. Oral arguments were heard on May 5, 2020, part of the first set of arguments to be held by teleconference due to the COVID-19 pandemic. Justice Elena Kagan, who took no part in the 2013 decision, also did not participate here.

The Court issued its opinion on June 29, 2020. The 5–3 majority decision reversed the Second Circuit. Justice Brett Kavanaugh wrote the major opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Kavanaugh wrote that two factors affect the Court's judgment. First, the foreign affiliates are legally separate entities from the American NGOs, and secondly, "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." [6]

In a concurring opinion, Justice Thomas expressed his "continued disagreement" of the 2013 Court decision, stating the federal government's rule "does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything." [7]

Justice Stephen Breyer wrote the dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer wrote that the foreign NGOs were clearly extensions of the American NGOs, and that the American NGOs "speak[s] through clearly identified affiliates that have been incorporated overseas" as his reason to apply the same 2013 decision to those foreign NGOs. [6]

Related Research Articles

First Amendment to the United States Constitution 1791 amendment limiting government restriction of civil rights

The First Amendment to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Lemon v. Kurtzman, 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States. The court ruled in an 8–0 decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act from 1968 was unconstitutional and in an 8–1 decision that Rhode Island's 1969 Salary Supplement Act was unconstitutional, violating the Establishment Clause of the First Amendment. The act allowed the Superintendent of Public Schools to reimburse private schools for the salaries of teachers who taught in these private elementary schools from public textbooks and with public instructional materials. Lemon was a major precedent in federal and local courts until it was effectively overturned by Kennedy v. Bremerton School District in 2022.

Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affirmed on rehearing, 158 U.S. 601 (1895), was a landmark case of the Supreme Court of the United States. In a 5-to-4 decision, the Supreme Court struck down the income tax imposed by the Wilson–Gorman Tariff Act for being an unapportioned direct tax. The decision was superseded in 1913 by the Sixteenth Amendment to the United States Constitution, which allows Congress to levy income taxes without apportioning them among the states.

Samuel Alito US Supreme Court justice since 2006 (born 1950)

Samuel Anthony Alito Jr. is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served since January 31, 2006. He is the second Italian-American justice to serve on the U.S. Supreme Court, after Antonin Scalia, and the eleventh Roman Catholic.

Presidents Emergency Plan for AIDS Relief United States governmental initiative

The United States President's Emergency Plan For AIDS Relief (PEPFAR) is a United States governmental initiative to address the global HIV/AIDS epidemic and help save the lives of those suffering from the disease. Launched by U.S. President George W. Bush in 2003, as of May 2020, PEPFAR has provided about $90 billion in cumulative funding for HIV/AIDS treatment, prevention, and research since its inception, making it the largest global health program focused on a single disease in history until the COVID-19 pandemic. PEPFAR is implemented by a combination of U.S. government agencies in over 50 countries and overseen by the Global AIDS Coordinator at the U.S. Department of State. As of 2021, PEPFAR has saved over 20 million lives, primarily in Sub-Saharan Africa.

The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Pathfinder International Global non-profit organization

Pathfinder International, based in Watertown, Massachusetts, US, is a global non-profit organization 501(c)(3) that focuses on reproductive health, family planning, HIV/AIDS prevention and care, and maternal health. The organization operates in more than 15 low- and middle-income countries in Africa and South Asia. According to its website, "Pathfinder is driven by the conviction that all people, regardless of where they live, have the right to decide whether and when to have children, to exist free from fear and stigma, and to lead the lives they choose."

Fifth Amendment to the United States Constitution 1791 amendment enumerating due process rights

The Fifth Amendment to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amendment applies to every level of the government, including the federal, state, and local levels, in regard to a US citizen or resident of the US. The Supreme Court furthered the protections of this amendment through the Due Process Clause of the Fourteenth Amendment.

The Federal government of the United States requires certain non-governmental organizations (NGOs) that receive federal anti-HIV/AIDS or anti-trafficking funds to adopt an organization-wide policy opposing prostitution and sex-trafficking. This requirement, known as the anti-prostitution pledge, has been in place since 2003.

Alliance for Open Society International, Inc. (AOSI) is a U.S. public charity organized in 2003 under the laws of the State of Delaware.

Schmerber v. California, 384 U.S. 757 (1966), was a landmark United States Supreme Court case in which the Court clarified the application of the Fourth Amendment's protection against warrantless searches and the Fifth Amendment right against self-incrimination for searches that intrude into the human body. Until Schmerber, the Supreme Court had not yet clarified whether state police officers must procure a search warrant before taking blood samples from criminal suspects. Likewise, the Court had not yet clarified whether blood evidence taken against the wishes of a criminal suspect may be used against that suspect in the course of a criminal prosecution.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), was a landmark decision of the Supreme Court of the United States regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution. It was argued in 2009 and decided in 2010. The court held 5-4 that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations.

Clapper v. Amnesty International USA, 568 U.S. 398 (2013), was a United States Supreme Court case in which the Court held that Amnesty International USA and others lacked standing to challenge 50 U.S.C. § 1881a of the Foreign Intelligence Surveillance Act as amended by the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.

Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205 (2013), also known as Alliance for Open Society I, was a United States Supreme Court decision in which the court ruled that conditions imposed on recipients of certain federal grants amounted to a restriction of freedom of speech and violated the First Amendment.

National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018), was a case before the Supreme Court of the United States addressing the constitutionality of California's FACT Act, which mandated that crisis pregnancy centers provide certain disclosures about state services. The law required that licensed centers post visible notices that other options for pregnancy, including abortion, are available from state-sponsored clinics. It also mandated that unlicensed centers post notice of their unlicensed status. The centers, typically run by Christian non-profit groups, challenged the act on the basis that it violated their free speech. After prior reviews in lower courts, the case was brought to the Supreme Court, asking "Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the Fourteenth Amendment."

Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018), abbreviated Janus v. AFSCME, was a landmark decision of the US Supreme Court on US labor law, concerning the power of labor unions to collect fees from non-union members. Under the Taft–Hartley Act of 1947, which applies to the private sector, union security agreements can be allowed by state law. The Supreme Court ruled that such union fees in the public sector violate the First Amendment right to free speech, overturning the 1977 decision in Abood v. Detroit Board of Education that had previously allowed such fees.

Jam v. International Finance Corp., 586 U.S. ___ (2019), was a United States Supreme Court case from the October 2018 term. The Supreme Court ruled that international organizations, such as the World Bank Group's financing arm, the International Finance Corporation, can be sued in US federal courts for conduct arising from their commercial activities. It specifically held that international organizations shared the same sovereign immunity as foreign governments. This was a reversal from existing jurisprudence, which held that international organizations had near-absolute immunity from lawsuits under the Foreign Sovereign Immunities Act and the International Organizations Immunities Act.

Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020), was a landmark United States Supreme Court case in which the Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the Free Exercise Clause of the Constitution.

Barr v. American Assn. of Political Consultants, Inc., 591 U.S. ___ (2020), was a United States Supreme Court case involving the use of robocalls made to cell phones, a practice that had been banned by the Telephone Consumer Protection Act of 1991 (TCPA), but which exemptions had been made by a 2015 amendment for government debt collection. The case was brought by the American Association of Political Consultants, an industry trade group, and others that desired to use robocalls to make political ads, challenging the exemption unconstitutionally favored debt collection speech over political speech. The Supreme Court, in a complex plurality decision, ruled on July 6, 2020, that the 2015 amendment to the TCPA did unconstitutionally favor debt collection speech over political speech and violated the First Amendment.

Fulton v. City of Philadelphia, 593 U.S. ___ (2021), was a United States Supreme Court case dealing with litigation over discrimination of local regulations based on the Free Exercise Clause and Establishment Clause of First Amendment to the United States Constitution. The specific case deals with a religious-backed foster care agency that was denied a new contract by the City of Philadelphia, Pennsylvania, due to the agency's refusal to certify married same-sex couples as foster parents on religious grounds.

References

  1. Agency for Int'l Dev. v. Alliance for Open Soc'y, No. 19-177 , 591 U.S. ___(2020).
  2. Liptak, Adam (20 June 2013). "Justices Say U.S. Cannot Impose Antiprostitution Condition on AIDS Grants". The New York Times . Retrieved 25 June 2013.
  3. Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc. , 570 U.S. 205 (2013).
  4. Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 106F. Supp. 3d355 ( S.D.N.Y. 2015).
  5. Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 911F.3d104 ( 2d Cir. 2018).
  6. 1 2 Kruzel, John (June 29, 2020). "Supreme Court rules US requirements on overseas NGOs do not violate free speech". The Hill . Retrieved June 29, 2020.
  7. Howe, Amy (June 29, 2020). "Opinion analysis: Justices uphold condition for HIV/AIDS funding". SCOTUSblog . Retrieved June 30, 2020.