On Tuesday, May 5, 2020, the Supreme Court will hear remote arguments in an important First Amendment case about the scope of the government’s funding power to condition and limit private speech. This is the second time in the case that the Court will need to decide whether the government can require HIV/AIDS funding recipients to voice an anti-prostitution policy.
This policy requirement is found in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7601 et seq. (“Leadership Act” or the “Act”). The Act authorized billions of dollars to combat HIV/AIDS and imposed a condition that no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” Id. § 7631(f) (the “Policy Requirement”). The Policy Requirement applies to Respondents: domestic grant recipients who received government funds pursuant to the Leadership Act to combat HIV/AIDS worldwide.
On the first trip to the Supreme Court, Respondents were the winners. The Supreme Court held that the Policy Requirement was unconstitutional, because it required Respondents “to pledge allegiance to the Government’s policy of eradicating prostitution.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 220 (2013). As a result, the Court held that the Policy Requirement violated the First Amendment by effectively compelling Respondents to speak the government’s anti-prostitution message.
This time, Respondents argue that the Policy Requirement is also unconstitutional when it is applied to their closely identified foreign affiliates. The government, in response, claims that “[n]o basis exists to bar” enforcement of the Policy Requirement against foreign organizations operating abroad. Gov’t Br. at 20, Jan. 27, 2020.
The Second Circuit agreed with Respondents. It held that Respondents’ closely identified foreign affiliates were covered by the Supreme Court’s prior decision, because the First Amendment rights of the domestic organizations were violated by compelling “closely related—and often indistinguishable”—foreign affiliates to assert an anti-prostitution government message. All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 911 F.3d 104, 110 (2d Cir. 2018). Accordingly, the Second Circuit affirmed a permanent injunction barring the government from enforcing the Policy Requirement against Respondents and their foreign affiliates. The government appealed.
Here are five things to watch for during oral argument on May 5 and in the Supreme Court’s coming opinion:
- Compelled Speech Precedent: As an uncommon First Amendment case, this opinion will play a large role in countless future compelled speech cases. It will also be interesting to see how the Court handles its prior opinion in this case and whether this new opinion will strengthen or diminish the Court’s prior ruling in this case that limited the government-spending doctrine and whether changes in the Court’s composition affect its analysis.
- “Evident Hypocrisy” as a First Amendment Standard: In its prior opinion, the Court addressed speech by Respondents’ foreign affiliates and rejected the government’s purported distinction between speech by domestic entities and speech by foreign affiliates because it would come at the price of “evident hypocrisy.” Agency for Int’l Dev., 570 U.S. at 219-20. The Second Circuit agreed and relied on this language to hold that the Policy Requirement is unconstitutional when applied to closely related foreign affiliates: “when the Government requires contrasting, hypocritical messages between domestic and foreign affiliates by making one speak the Government’s message, this requirement infringes the speech of the domestic affiliate and, in so doing, violates the First Amendment.” All. for Open Soc’y Int’l, 911 F.3d at 110. Keep an eye out for how the Court addresses this language and whether the Court will provide direction on how to apply this functional approach to speech in future cases.
- The Role of Corporate Technicalities: The government relies heavily on the fact that the affected organizations are foreign entities operating abroad. In the government’s view, the First Amendment has no application to entities that are incorporated outside the United States. The record, however, demonstrates that speech by close foreign affiliates is indistinguishable from Respondents’ speech. The Court’s First Amendment precedent has many examples where the Court has held that one party’s speech can implicate the First Amendment rights of a legally distinct party. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 559 (1995). Will the Court adopt the government’s reliance on corporate technicalities to distinguish compelled speech? Or, like in its last opinion, will the Court apply a functional approach to find that these corporate formalities create a distinction without a difference?
- Whose Speech is at Issue?: The Second Circuit made clear that the First Amendment rights in this case were those of the domestic Respondents. Even though the Policy Requirement compels speech from foreign entities, it is the domestic Respondents that suffer the First Amendment violation. “It is the domestic organization’s speech, not its funding, that is at stake when its affiliate is forced to speak the Government’s message.” All. for Open Soc'y Int'l, 911 F.3d at 110. Keep an eye out for who the Court identifies as the “victim” of the compelled speech requirement. The Court may find that speech by domestic Respondents continues to be limited by the Policy Requirement, signaling a First Amendment violation. Or the Court may find, as the government argues, that speech harms suffered by closely related foreign affiliates is not covered by the First Amendment.
- Long-Term Consequences for Grant Recipients: This is also an important case because of the growth and expansive nature of government grant programs. Government grant programs extend into every facet of society, and many politically, socially, or spiritually motivated groups take advantage of these grants. There is no question that this ruling will have an effect on future government grant conditions. How will the marketplace of ideas look in the future if the government is allowed to compel speech, or restrict speech that it does not like, from domestic organizations through their foreign affiliates? Watch out for the Court to address the need for First Amendment protections in the ever-expanding sea of government funding, and for a discussion of how the government may use a ruling in this case to further its policies.
Join us on Tuesday, May 5, at 3pm for a Courthouse Steps Teleforum call discussing the oral argument in the case.