Agency for Int’l Development v. Alliance for Open Society

(Slip Opinion) OCTOBER TERM, 2019 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus AGENCY FOR INTERNATIONAL DEVELOPMENT ET AL. v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 19–177. Argued May 5, 2020—Decided June 29, 2020 In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, as relevant here, Congress limited the funding of American and foreign nongovernmental organizations to those with “a policy explicitly opposing prostitution and sex trafficking.” 22 U. S. C. §7631(f). In 2013, that Policy Requirement, as it is known, was held to be an unconstitutional restraint on free speech when applied to American organizations. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205. Those American organizations now challenge the requirement’s constitutionality when applied to their legally distinct foreign affiliates. The District Court held that the Government was prohibited from enforcing the requirement against the foreign affiliates, and the Second Circuit affirmed. Held: Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitu- tional. Two bedrock legal principles lead to this conclusion. As a mat- ter of American constitutional law, foreign citizens outside U. S. terri- tory do not possess rights under the U. S. Constitution. See, e.g., Boumediene v. Bush, 553 U. S. 723, 770–771. And as a matter of Amer- ican corporate law, separately incorporated organizations are separate legal units with distinct legal rights and obligations. See, e.g., Dole Food Co. v. Patrickson, 538 U. S. 468, 474–475. That conclusion cor- responds to Congress’s historical practice of conditioning funding to foreign organizations, which helps ensure that U. S. foreign aid serves U. S. interests. Plaintiffs’ counterarguments are unpersuasive. First, they claim 2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. Syllabus that because a foreign affiliate’s policy statement may be attributed to them, American organizations themselves possess a First Amendment right against the Policy Requirement’s imposition on their foreign af- filiates. First Amendment cases involving speech misattribution be- tween formally distinct speakers, see, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574– 575, however, are premised on something missing here: Government compulsion to associate with another entity. Even protecting the free speech rights of only those foreign organizations that are closely iden- tified with American organizations would deviate from the fundamen- tal principle that foreign organizations operating abroad do not pos- sess rights under the U. S. Constitution and enmesh the courts in difficult line-drawing ...

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