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USAID v. Alliance for Open Society International

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Supreme Court of the United States
United States Agency for International Development v. Alliance for Open Society International, Inc.
Term: 2019
Important Dates
Argument: May 5, 2020
June 29, 2020
Outcome
Reversed
Vote
5-3
Majority
Brett Kavanaugh • Chief Justice John G. Roberts • Samuel Alito • Neil Gorsuch
Concurring
Clarence Thomas
Dissenting
Stephen Breyer • Ruth Bader Ginsburg • Sonia Sotomayor


United States Agency for International Development (USAID) v. Alliance for Open Society International, Inc. was argued before the Supreme Court of the United States on May 5, 2020, during the court's October 2019-2020 term. The case came on a writ of certiorari to the United States Court of Appeals for the 2nd Circuit.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 required U.S. and foreign organizations that fight HIV/AIDS overseas to explicitly adopt a policy opposing prostitution and sex trafficking. A 2013 U.S. Supreme Court case ruled the requirement to adopt this policy was unconstitutional for U.S. organizations. The 2019 USAID v. Alliance for Open Society International case concerned whether the policy requirement was constitutional for foreign-based affiliates of U.S. organizations.

The court reversed the decision of the United States Court of Appeals for the 2nd Circuit in a 5-3 ruling, holding foreign affiliates of U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad are not protected under the U.S. Constitution. Therefore, the policy requirement for foreign affiliates is constitutional. Justice Brett Kavanaugh wrote for the majority, "In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights."[1] Click here for more information.

Oral argument was initially scheduled for March 25, 2020. However, the U.S. Supreme Court announced on March 16 that it was postponing the 11 oral arguments originally scheduled during its March sitting. In a press release, the court said the delay was "in keeping with public health precautions recommended in response to COVID-19."[2] COVID-19 was the abbreviation for coronavirus disease 2019, caused by SARS-CoV-2.

  • Click here for more information about the court's response to the coronavirus pandemic.
  • Click here for more information about political responses to the pandemic.
HIGHLIGHTS
  • The case: The Alliance for Open Society International (AOSI) challenged a 2003 Congressional provision requiring U.S.-based organizations that receive federal funds to prevent HIV/AIDS overseas to adopt anti-prostitution and anti-sex trafficking policies. After litigation in the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the 2nd Circuit, the U.S. Supreme Court held the provision violated the First Amendment. The government did not enforce the policy against U.S. organizations but continued to apply it to foreign affiliates. AOSI again challenged the provision. USAID petitioned SCOTUS for review, asking the court to determine whether, in light of its 2013 decision, the First Amendment prohibits enforcement of the provision for foreign entities affiliated with organizations like AOSI.[3][4][5]
  • The issue: Whether—considering SCOTUS' 2013 decision in Agency for International Development v. Alliance for Open Society International Inc., in which the court held the First Amendment bars enforcement of Congress' policy requirement—the First Amendment further bars enforcement of that requirement with respect to legally distinct foreign entities operating overseas that are affiliated with U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad.[6]
  • The outcome: The court reversed the decision of the United States Court of Appeals for the 2nd Circuit in a 5-3 ruling, holding foreign affiliates of U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad are not protected under the U.S. Constitution. Therefore, the policy requirement for foreign affiliates is constitutional.[1]


    • You can review the lower court's opinion here.

    Timeline

    The following timeline details key events in this case:

    • June 29, 2020: The U.S. Supreme Court reversed the U.S. Court of Appeals for the 2nd Circuit's ruling.
    • May 5, 2020: Oral argument was heard.
    • March 16, 2020: The U.S. Supreme Court postponed its March sitting. Oral arguments were initially scheduled for March 25, 2020.
    • December 13, 2019: The U.S. Supreme Court agreed to hear the case.
    • August 7, 2019: The U.S. Agency for International Development (USAID), the petitioner, filed a petition with the U.S. Supreme Court.
    • May 9, 2019: The 2nd Circuit denied USAID's petition for rehearing.
    • December 20, 2018: The 2nd Circuit affirmed the ruling of the U.S. District Court for the Southern District of New York.

    Background

    When this case was argued, the U.S. Agency for International Development (USAID) provided federal funds to U.S.-based organizations like the Alliance for Open Society International, Inc. (AOSI), to prevent HIV/AIDS in foreign countries.[5]

    The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (22 U.S.C. § 7601 et seq.) barred AOSI and similar U.S.-based organizations from receiving the funds unless they adopted "a policy explicitly opposing prostitution and sex trafficking," (22 U.S.C. § 7631(f)) known as the policy requirement. In 2005, AOSI sought to prohibit enforcement of the policy requirement. The U.S. District Court for the Southern District of New York granted a preliminary injunction, barring enforcement.[3][4]

    In 2011, the U.S. Court of Appeals for the 2nd Circuit affirmed the Southern District of New York's preliminary injunction. USAID petitioned the Supreme Court for review. In Agency for International Development v. Alliance for Open Society International, Inc. (2013), the U.S. Supreme Court upheld the 2nd Circuit's ruling, holding the policy requirement violated the First Amendment.[3][4]

    According to the 2nd Circuit, "The Government subsequently interpreted the Supreme Court’s opinion as allowing the Policy Requirement to continue to be applied to foreign affiliates." AOSI again challenged the government, obtaining a permanent injunction in the Southern District of New York. The government appealed to the 2nd Circuit, which affirmed the district court's ruling a second time.[3][4]

    USAID petitioned the U.S. Supreme Court for review. USAID asked the court to determine whether, in light of its 2013 decision in Agency for International Development v. Alliance for Open Society International, Inc., the First Amendment prohibits enforcement of the policy requirement for "legally distinct foreign entities operating overseas that are affiliated with" U.S.-based organizations like AOSI. In its petition, USAID argued, "Foreign recipients of federal funds operating overseas have no First Amendment right to object to conditions on those funds."[5]

    Questions presented

    The petitioner presented the following questions to the court:

    Questions presented:

    Whether—considering SCOTUS' 2013 decision in Agency for International Development v. Alliance for Open Society International Inc., in which the court held the First Amendment bars enforcement of Congress' policy requirement—the First Amendment further bars enforcement of that requirement with respect to legally distinct foreign entities operating overseas that are affiliated with U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad.[7]

    Outcome

    The court reversed the United States Court of Appeals for the 2nd Circuit's decision in a 5-3 ruling. The court held the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act's policy requirement was constitutional because foreign affiliates of U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad are not protected under the U.S. Constitution.[1]

    Justice Brett Kavanaugh delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion. Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined. Justice Elena Kagan did not participate in the case.

    Opinion

    In his opinion, Justice Kavanaugh wrote:

    “ We ... now reverse the judgment of the Second Circuit. Plaintiffs’ position runs headlong into two bedrock principles of American law.


    First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. ... The Court has not allowed foreign citizens outside the United States or such U. S. territory to assert rights under the U. S. Constitution. If the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens’ purported rights under the U. S. Constitution. That has never been the law.

    Second, it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations. ... Plaintiffs’ foreign affiliates were incorporated in other countries and are legally separate from plaintiffs’ American organizations. Even though the foreign organizations have affiliated with the American organizations, the foreign organizations remain legally distinct from the American organizations. Plaintiffs do not ask this Court to pierce the corporate veil, nor do they invoke any other relevant exception to that fundamental corporate law principle. ...

    Those two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment. ...

    The dissent emphasizes that this case concerns “the First Amendment rights of American organizations.” Post, at 1 (opinion of BREYER, J.). We respectfully disagree with that characterization of the question presented. The Court’s prior decision recognized the First Amendment rights of American organizations and held that American organizations do not have to comply with the Policy Requirement. This case instead concerns foreign organizations that are voluntarily affiliated with American organizations. Those foreign organizations are legally separate from the American organizations. And because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard the Policy Requirement.

    In sum, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution. We reverse the judgment of the U. S. Court of Appeals for the Second Circuit.[8]

    		”
    —Justice Kavanaugh[1]

    Concurring opinion

    Justice Thomas filed a concurring opinion in which he agreed with the majority's opinion in this case and expressed his disagreement with the court's decision in the 2013 case, Agency for International Development v. Alliance for Open Society International, Inc.

    In his concurring opinion, Justice Thomas wrote:

    “ I agree with the Court that the Policy Requirement does not violate the First Amendment as applied to respondents’ foreign affiliates, and I agree that nothing about this Court’s decision in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205 (2013) (AOSI I), suggests otherwise. See ante, at 8–9. I write separately to note my continued disagreement with AOSI I and to explain that the Policy Requirement does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything. ...


    The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respondents, respondents’ legally distinct foreign affiliates, or any other organization, foreign or domestic. Because the Court properly rejects respondents’ attempt to extend our erroneous precedent, I join its opinion in full.[8]

    		”
    —Justice Thomas[1]

    Dissenting opinion

    Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg and Sotomayor.

    In his dissent, Justice Breyer wrote:

    “ The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. ...


    The question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes. I dissent from the Court’s contrary conclusion. ...

    The Policy Requirement conditioned federal funds on an unavoidable and irreversible distortion of respondents’ protected speech. We therefore held in AOSI I that the Policy Requirement “violates the First Amendment and cannot be sustained.” ... Respondents should prevail here for the same reasons they prevailed in AOSI I. When respondents speak through legally separate but clearly identified affiliates, we held, that speech is attributed to respondents for First Amendment purposes. ...

    What mattered in AOSI I was thus how “clearly identified” the affiliates were with respondents, not the fact that the affiliates were incorporated as separate legal entities. Ibid. And what matters now is once again how “clearly identified” the affiliates are with respondents, not the fact that the affiliates were incorporated as foreign legal entities.

    In the First Amendment context, the corporate veil is not an iron curtain. Just the opposite. We attribute speech across corporate lines all the time. ... Enforcing the Policy Requirement against respondents’ clearly identified foreign affiliates would plainly distort respondents’ message. See supra, at 7–8, 10. That violates respondents’ First Amendment rights. ...

    The majority justifies its contrary result on three main grounds, two of which it says are “bedrock principles” of American law. See ante, at 3–6, 8. I do not find these arguments persuasive. ... The first “bedrock principle” on which the majority relies is the supposedly long-settled, across-the-board rule “that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” Ante, at 3. That sweeping assertion is neither relevant to this case nor correct on the law.

    It is not relevant because, as I have said, this case does not concern the constitutional rights of foreign organizations. This case concerns the constitutional rights of American organizations. ...

    The majority’s second supposedly “bedrock principle” is that “separately incorporated organizations are separate legal units with distinct legal rights and obligations.” Ante, at 5. Sometimes true, sometimes not. This baseline rule gives way in many contexts, and our First Amendment precedents (including AOSI I) refute any suggestion that a workaday principle of corporate law somehow resolves the constitutional issue here in dispute.[8]

    		”
    —Justice Breyer[1]

    Text of the opinion

    Read the full opinion here.

    Oral argument

    Audio

    Audio of oral argument:[9]



    Transcript

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Supreme Court of the United States, United States Agency for International Development v. Alliance for Open Society International, decided June 29, 2020
    2. ↑ U.S. Supreme Court, "Press release from March 16, 2020," accessed March 16, 2020
    3. ↑ 3.0 3.1 3.2 3.3 United States Court of Appeals for the 2nd Circuit, Alliance for Open Society International v. United States Agency for International Development, decided December 20, 2018
    4. ↑ 4.0 4.1 4.2 4.3 United States Court of Appeals for the 2nd Circuit, Alliance for Open Society International v. United States Agency for International Development, decided July 6, 2011
    5. ↑ 5.0 5.1 5.2 Supreme Court of the United States, "Petition for a writ of certiorari," accessed December 16, 2019
    6. ↑ SCOTUSblog, "United States Agency for International Development v. Alliance for Open Society International, Inc." accessed December 16, 2019
    7. ↑ SCOTUSblog, "United States Agency for International Development v. Alliance for Open Society International, Inc." accessed December 16, 2019
    8. ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ Supreme Court of the United States, "Oral Argument - Audio," accessed May 11, 2020
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