The Trump administration urged the Supreme Court May 5 to leave in place a legal provision that requires foreign organizations receiving U.S. government grants to oppose prostitution and sex trafficking.
Oral arguments were heard by the high court telephonically for the second time in history in the case cited as USAID v. Alliance for Open Society International Inc. (AOSI). Chief Justice John Roberts announced at the outset of the hearing that Justice Elena Kagan recused herself and wouldn’t be participating.
AOSI was founded by the controversial billionaire George Soros, who has long been the focus of conservative ire. The preeminent funder of the activist left in this country, Soros has called the United States “the main obstacle to a stable and just world order” and hailed communist China for having “a better-functioning government than the United States.”
Formed under Delaware law in 2003, AOSI is a 501(c)(3) nonprofit, and part of Soros’s Open Society Foundations (OSF) network of philanthropies. On its more recent publicly available IRS filing, AOSI describes its mission as “to transform closed societies into open societies and to protect and expand the values of existing open societies.”
Soros and the philanthropies he funds have long opposed keeping prostitution illegal.
Attorney Christopher Michel from the U.S. Solicitor General’s office told the eight justices during oral arguments about the Leadership Act, which was enacted in 2003 to combat human immunodeficiency virus (HIV) and the disease it causes, acquired immune deficiency syndrome (AIDS), outside the United States.
Twenty years ago, “the HIV/AIDS pandemic was devastating the world,” he said.
Since the Leadership Act was enacted, the United States “has committed nearly $80 billion to global AIDS relief, and it has worked, saving more than 17 million lives in the most successful American foreign aid effort since the Marshall Plan.”
Congress imposed a funding condition that requires recipients of grants under the statute “to have a policy opposing prostitution and sex trafficking, which Congress found are coercive practices that spread HIV/AIDS and degrade women and girls.”
Congress can do that because “foreign entities lack constitutional rights, so they cannot bring an unconstitutional conditions claim.” AOSI, a U.S. entity, isn’t subject to the funding condition and after a previous Supreme Court victory in 2013 is free to “use funds without any compelled speech.”
Back then, the court ruled that the government can’t condition a grant on professing a belief approved by the government. The court held that it is “a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.”
Michel continued, “To be sure, respondents can choose to affiliate with foreign entities that must comply with the policy condition, but any effect on respondents’ message is now a product of their own choice, not government compulsion.”
AOSI’s contrary view is “startling,” Michel said.
“They would allow U.S. non-profits to export constitutional rights to legally separate foreign entities abroad simply because they share similar brands. That novel theory has no basis in this Court’s prior decision, it could undermine long-standing regulations of foreign speech, and it has no practical justification.”
Representing AOSI, attorney David Bowker said current law in effect forces U.S. entities to speak because their foreign affiliates are required to observe the requirement.
“They speak as one, make speech and policy decisions together, and are indistinguishable to the public,” he said.
The U.S. entity cannot disavow the foreign affiliate’s policy “without appearing hypocritical and without appearing to engage in doublespeak,” he said.
The entities share “the same name, same logo, same brand,” Roberts noted.
Despite that, the organizations are separate legal entities, Michel said, adding that such a relationship carries with it both advantages and disadvantages. They have to “accept the bitter with the sweet,” he said.
“When a statute violates the First Amendment, the burden is on the government, not the speaker, to give First Amendment freedoms the necessary breathing space,” Bowker said.
If AOSI had to sever ties with affiliates, it “would destroy their organization. Posing such a choice demonstrates how the government continues to use its vast spending power to coerce respondents’ fealty,” Bowker said.
Justice Samuel Alito said to Bowker, what “concerns me today is not so much the immediate impact of a decision in your favor but where it would lead. ... I am concerned that it will force Congress either to withhold foreign aid entirely or to allow foreign aid to be used in ways that are contrary to the interests of the people of this country.”
