The World of International Organizations

U.S. rules foreign NGOs lack speech rights

Protesters outside the U.S. Supreme Court just before Senate vote on the Kavanaugh confirmation (AN/John Heilprin)
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WASHINGTON — The U.S. Supreme Court on Monday ruled foreign affiliates of U.S.-based organizations lack free speech rights and, therefore, must adopt policies opposing prostitution to get federal money to fight AIDS abroad.

The case hinged on whether a foreign affilitate of Alliance for Open Society International had to adhere to an anti-prostitution pledge required in a 2003 federal law as a condition of receiving taxpayer money from a federal program that has disbursed almost US$80 billion against the global spread of HIV/AIDS.

Some international organizations have criticized the pledge as an impractical impediment towards public health efforts to persuade more sex workers to join in the fight against AIDS.

The nation’s highest court ruled in 2013 that the anti-prostitution pledge unlawfully restricted the U.S.-based organization’s free speech rights under the U.S. Constitution’s First Amendment. Chief Justice John Roberts Jr. wrote for the majority that U.S.-based organizations cannot be made “to pledge allegiance to the government’s policy of eradicating prostitution.”

This time, however, justices were asked to decide if that pledge can be applied to foreign affiliates of U.S.-based organizations.

The 2003 law says that to qualify for the United States’ assistance, foreign affiliates — irregardless of their NGOs’ views or their own nations’ laws on prostitution — must adopt “a policy explicitly opposing prostitution and sex trafficking.”

‘No rights’ vs. ‘evident hypocrisy’

In a 5-3 ruling, Justice Brett Kavanaugh’s conservative-majority opinion upheld that requirement based on their determination that “foreign organizations operating abroad possess no rights under the U. S. Constitution.” The ninth member, Justice Elena Kagan, did not take part in the case, USAID v. Alliance for Open Society International Inc.

The law was adopted under the administration of President George W. Bush, whose Republican base included conservative white evangelicals and anti-abortion activists that also pushed to restrict U.S. Agency for International Development programs for contraceptive info and related health services.

Kavanaugh was nominated by Bush in 2003 for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. Justice Stephen Breyer wrote a dissenting opinion that was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

“Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a clearly identified foreign affiliate to espouse the same government message,” Breyer wrote. “Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitutionally high “price of evident hypocrisy.’ ”

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