SCOTUS Rejects First Amendment Claim of Foreign Affiliate Organizations

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Agency for International Development v. Alliance for Open Society International — or what will be called USAID v. Alliance for Open Society II — the Court's majority rejected the applicability of the First Amendment to foreign affiliates of the United States organizations who had previously prevailed in their First Amendment challenge.

Recall that AOSI I, the Court in 2013 held that the anti-prostitution pledge required of organizations seeking federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violated the First Amendment. Writing for the Court, Chief Justice Roberts opined that the provision was an unconstitutional condition ("the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself").

Yet questions arose whether this holding extended to not only to the plaintiffs but to their "foreign affiliates."  A district court and a divided Second Circuit found that foreign affiliates were included.

A divided United States Supreme Court, in an opinion written by the Court's newest Justice, held that foreign organizations have no First Amendment rights.  Kavanaugh, joined by Chief Justice Roberts,  Thomas, Alito, and Gorsuch, wrote that

two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.

Thomas authored a brief concurring opinion restating his view that AOSI I was incorrectly decided.

Justice Breyer wrote a dissenting opinion which was joined by Ginsburg and Sotomayor (note that Kagan had recused herself), arguing that the Court's opinion misapprehended the issue:

The Court, in my view, asks the wrong question and gives the wrong answer. 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. . . .

the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.

The Court's opinion could seriously impair overseas work by US aid organizations as we noted in our argument preview. Moreover, the subject of sex-work makes it particularly contentious as we previously referenced.