WASHINGTON — In its second argument conducted by conference call, the Supreme Court considered a knotty First Amendment question: May the government require the foreign affiliates of groups receiving federal money to fight AIDS abroad to adopt policies opposing prostitution?
The question was a variation on one the court had decided in 2013, when it said that imposing the requirement on domestic groups ran afoul of the First Amendment’s protection of free speech because, as Chief Justice John G. Roberts Jr. wrote for the majority, it required recipients “to pledge allegiance to the government’s policy of eradicating prostitution.”
The new case, United States Agency for International Development v. Alliance for Open Society International, No. 19-177, concerned foreign affiliates of domestic groups that share names, brands, logos and missions but are formally separate entities. The justices appeared to find the new question, of whether the anti-prostitution pledge may be imposed on the foreign affiliates, much harder.
It was common ground between the parties that foreign entities themselves lack First Amendment rights. The question was whether their speech could be attributed to their domestic partners.
“They speak as one, make speech and policy decisions together and are indistinguishable to the public,” said David W. Bowker, a lawyer for the private groups challenging the requirement, including Cooperative for Assistance and Relief Everywhere, or CARE. “When CARE in Kenya takes the pledge, its affirmation of belief is attributed to CARE in the United States, thus putting words in the mouth of the U.S. entity.”
Christopher G. Michel, a lawyer for the federal government, said the domestic groups had suffered no harm from the policy.
“Respondents are still free to use their own free speech rights to explain that they don’t share the views of the foreign affiliates on prostitution and sex trafficking,” he said. “I think ulimately what respondents are asking for is a sort of right to optimal message management, which is simply not what the First Amendment protects.”
Several justices seemed inclined to accept the distinction offered by the government.
“The domestic organization is able to speak for itself,” Justice Ruth Bader Ginsburg said.
Justice Neil M. Gorsuch asked whether there was proof that the policy had caused confusion. “What evidence is there that there is this risk of confusion or attribution, given that the domestic entity is free to disavow the statements of any foreign affiliates?” he asked.
Under a 2003 law, the federal government has distributed billions of dollars to private groups, both foreign and domestic, to help fight AIDS around the world, imposing a condition in the process: Recipients were required to have “a policy explicitly opposing prostitution and sex trafficking.”
The groups challenging the law say they avoid taking positions on contentious political and cultural issues. In the 2013 decision, Chief Justice Roberts wrote that the groups feared that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes.”
On Tuesday, Justice Ginsburg asked whether the anti-prostitution pledge had practical consequences for the foreign groups. “May they nonetheless work with prostitutes to encourage the prostitutes to take preventive measures that will advance control of AIDS?” she asked Mr. Michel, who said yes.
The argument considered the doctrine of “unconstitutional conditions,” a particularly confusing area of First Amendment jurisprudence. As a general matter, the government has no obligation to spend money, and potential recipients are not required to take the government’s money. But the Supreme Court has said that some conditions attached to grants of government money can place an unconstitutional burden on First Amendment rights.
The 2013 ruling was decided by a 6-to-2 vote. Justice Antonin Scalia, who died in 2016, and Justice Clarence Thomas dissented. Justice Elena Kagan recused herself, presumably because she had worked on it as United States solicitor general. She was also recused from Tuesday’s sequel.
The phone arguments went smoothly, with only one hiccup. For the second day in a row, Justice Sonia Sotomayor’s line was silent for a few moments, apparently because she had neglected to unmute it.
“I’m sorry, chief,” she said to Chief Justice Roberts. “I did it again.”