U.S. Supreme Court Holds Foreign Affiliates Do Not Have First Amendment Rights

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The Supreme Court, in a 5-3 decision, held that specific requirements for the foreign affiliates of American NGOs to be funded are valid. The United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act, has a provision which states that organizations need to have a policy explicitly opposing prostitution and sex trafficking to receive government funds to fight the HIV/AIDS.

Background

Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act in 2003. This law has funded billions of dollars to the effort of fighting HIV/AIDS abroad. This program has helped millions in African countries. It has been viewed as the most successful program. Seven years ago, the Supreme Court held that the organizations based in The USA need not have a policy explicitly opposing prostitution and sex trafficking to receive governmental funds. The funding policy was held to violate the First Amendment Right. The present case was in order to receive the same status for foreign affiliates. Four U.S. based NGOs turned to the Court in order to stop enforcement of this policy for the foreign affiliates.

Arguments

The argument was that this policy violates the First Amendment Rights of foreign affiliates. The four NGOs argued that they are closely affiliated with these foreign organizations. Any policy that the foreign organizations are bound by would bind them too. This is the result even if the two organizations might be legally different entities. The plaintiffs also had a view about the prostitution stance taken by the policy. They have expressed that they do not want to agree to the American commitment to the eradication of prostitution. Their argument aims for a more neutral stance on the prostitution aspect. This will help in the global approach in efforts to prevent HIV/AIDS. The respondent’s argued that foreign organizations could not have any rights under the U.S. Constitution when they are operating abroad. This would be fundamentally against the principles of the constitution.

Court’s Opinion

Justice Kavanaugh gave the decision for the majority. Thus, the Supreme Court reversed the decision of the U.S. Court of Appeals, which took the side of the NGOs. Furthermore, the opinion stated that there were two main principles in action. Foreign citizens who are outside the United States cannot have constitutional rights. The second principle is that the separate legal entities have distinct legal rights and duties. Hence, these two principles play a pivotal role in the case. Therefore, Kavanaugh held that the foreign organizations which operate abroad could not possess First Amendment Rights.

The concurring decision by Justice Thomas stated that there is no violation of any right in the first place. In addition to that, the First Amendment Right has not been violated as this policy does not compel anyone to say anything. The dissent was lead by Justice Breyer and joined by Justice Ruth and Sotomayor. Their primary opinion was concerning the First Amendment right violation. The dissent stated that the violation of this right is of the American organizations and not the foreign affiliates.

Court’s Decision

The Court held that foreign organizations do not possess First Amendment rights. They can be subject to the policy under the Act. This will not be unconstitutional.


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