Justices weigh whether US requirements on overseas NGOs violate free speech

The Supreme Court on Tuesday weighed whether Congress can legally 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 justices previously ruled that Congress’s funding requirement violated the First Amendment when it applied to U.S. nongovernmental organizations (NGOs) engaged in the global fight against HIV and AIDS.    

Following the Supreme Court’s 2013 ruling, several American NGOs filed a second lawsuit seeking to have those protections extended to their foreign partners.  

David Bowker, who argued the case on behalf of the NGOs, said free speech rights should apply equally to U.S. groups and their foreign affiliates because of the closeness of their relationship. Applying different requirements could run the risk of “doublespeak” and undermine the groups’ mission, he said. 

“There can be a risk of attribution across corporate lines, where the entities in question are so clearly identified as they are here,” Bowker said, emphasizing the close connection, “when those entities speak together with one voice and make their speech and policy decisions together.”

Chris Michel, an assistant U.S. solicitor general, said that while lawmakers cannot require the American groups to disavow the international sex trade, imposing such requirements on their foreign affiliates is a lawful exercise of Congress’s power of the purse. 

“Respondents themselves are not subject to a funding condition so they can’t have an unconstitutional conditions claim,” he said. “And the foreign entities that are subject to the funding condition have no constitutional rights, so they can’t have an unconstitutional conditions claim either.”

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