Case No. 19-177 | 2d Cir.
May 5, 2020
Preview by Emma Liggett, Online Editor
In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“Leadership Act”). 22 U.S.C. §§ 7601–7682 (2018). Through the Leadership Act, Congress apportioned billions of dollars towards funding non-governmental organizations (NGOs) involved in the fight against HIV/AIDS. In order to receive funding, NGOs had to satisfy certain conditions, including the requirement that they “have a policy explicitly opposing prostitution and sex trafficking.” 22 U.S.C. § 7631(f) (2012). However, in 2013 the Supreme Court held that the First Amendment bars enforcement of this requirement upon Respondents, who are US-based organizations receiving funding under the Leadership Act. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 221 (2013). In that case, the government argued that § 7631(f) did not violate the First Amendment because the guidelines allowed respondents to speak freely through their affiliates while complying themselves and receiving funding, or vice versa. Id. at 219. The Court rejected this argument, stating that recipients of the funds would risk “evident hypocrisy” by using affiliates who are “clearly identified” with them to express beliefs inconsistent with their own. Id. The issue today is whether the First Amendment further bars enforcement of § 7631(f) upon Respondents’ legally distinct overseas affiliates.
After the 2013 ruling, Respondents sought to obtain a permanent injunction against the enforcement of § 7631(f) against themselves and their foreign affiliates. A divided Second Circuit affirmed the injunction, stating that this question was answered by the 2013 Court. All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 911 F.3d 104, 109-10 (2d Cir. 2018), cert. granted, 140 S. Ct. 660 (2019). By requiring Respondents’ foreign affiliates to abide by § 7631(f), the Second Circuit reiterated, the Government violates the First Amendment rights of the domestic Respondents by compelling them to choose between adopting a Government-sanctioned idea or engaging in “evident hypocrisy” by sending conflicting messages from their foreign affiliates. Id. (quoting Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 219 (2013)). The Government appealed.
The Government’s argument is four-fold. First, it contends that foreign entities operating abroad do not have constitutional rights. Second, enforcing § 7631(f) against foreign affiliates does not violate the rights of domestic organizations, because they are legally distinct entities. Under corporate law, the Government contends, “distinct legal entities have distinct responsibilities and rights.” Brief for Petitioners at 17, U.S. Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc., No. 19-177 (U.S. filed Jan. 27, 2020). Third, the Second Circuit erroneously interpreted the Court’s 2013 statement regarding hypocrisy, which was confined to the context of applying § 7631(f) to domestic organizations. In order to receive funding, domestic organizations would have to use foreign affiliates to express their true beliefs, while they themselves complied with § 7631(f). The issue of hypocrisy is not present here, says the Government, because domestic organizations can express their desired beliefs and receive funding without the use of affiliates. Finally, the Government contends that applying § 7631(f) to foreign affiliates advances Congress’s goal of fighting HIV/AIDS.
Respondents counter that the Court’s reasoning in 2013 compels the decision reached by the Second Circuit. Citing the 2013 Court, Respondents state that the compelled viewpoint in § 7631(f) cannot be attributed to one affiliate alone, but will effectively be attributed to all others and thus constrain their speech as well. Respondents would suffer a First Amendment violation if an affiliate is subject to § 7631(f), because they are “unified organizations that use the same name, brand, and logo and speak as one.” Brief for Respondents at 22, U.S. Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc., No. 19-177 (U.S. filed Feb. 26, 2020). Thus, the foreign affiliates’ compelled speech would be imputed to Respondents, and they would suffer from the “evident hypocrisy” discussed by the Court in 2013. Id. at 23. Furthermore, the foreign affiliates’ legal separation would not lessen the likelihood of this attribution. Finally, Respondents state that the Government’s policy arguments have no merit. U.S. foreign aid’s effectiveness does not hinge on the requirement of § 7631(f), as is shown by success in many other areas.
Considering that both the Government and the NGOs have the same goal of promoting health and development abroad, it will be interesting to see how the Court determines which means are more appropriate for doing so.