Agency for Int'l Development v. Alliance for Open Society International, 591 U.S. ___ (2020), also known as Alliance for Open Society II (to distinguish it from the
2013 case), was a
United States Supreme Court case in which the Court held that compelled speech required as a condition for funding on foreign non-governmental affiliates of U.S. non-government organizations does not violate First Amendment rights.[1]
This Policy Requirement was originally challenged by NGO looking to receive the funding as early as 2005 as it was seen as
compelled speech, which violated their First Amendment rights and resulted in the Supreme Court case Agency for International Development v. Alliance for Open Society International, Inc., which ruled that the anti-prostitution pledge was compelled speech on American NGOs to mirror the government's view.[3]
Following the 2013 decision, the government subsequently backed off the Policy Requirement for those NGOs based in the United States, but maintained the requirement for affiliates that were established in a foreign country. Several of the same NGOs on the 2013 case again filed suit on the First Amendment grounds and following the Supreme Court's decision. In both the
United States District Court for the Southern District of New York[4] and
United States Court of Appeals for the Second Circuit,[5] the courts upheld in favor of the NGOs on the basis of the Supreme Court's prior ruling.
Supreme Court
The responsible government organizations petitioned the Supreme Court, which accepted to hear the case in August 2019. Oral arguments were heard on May 5, 2020, part of the first set of arguments to be held by teleconference due to the
COVID-19 pandemic. Justice
Elena Kagan, who took no part in the 2013 decision, also did not participate here.
The Court issued its opinion on June 29, 2020. The 5–3 majority decision reversed the Second Circuit. Justice
Brett Kavanaugh wrote the major opinion joined by Chief Justice
John Roberts and Justices
Clarence Thomas,
Samuel Alito and
Neil Gorsuch. Kavanaugh wrote that two factors affect the Court's judgment. First, the foreign affiliates are legally separate entities from the American NGOs, and secondly, "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."[6]
In a concurring opinion, Justice Thomas expressed his "continued disagreement" of the 2013 Court decision, stating the federal government's rule "does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything."[7]
Justice
Stephen Breyer wrote the dissent joined by Justices
Ruth Bader Ginsburg and
Sonia Sotomayor. Breyer wrote that the foreign NGOs were clearly extensions of the American NGOs, and that the American NGOs "speak[s] through clearly identified affiliates that have been incorporated overseas" as his reason to apply the same 2013 decision to those foreign NGOs.[6]
References
^Agency for Int'l Dev. v. Alliance for Open Soc'y, No.
19-177,
591U.S. ___ (2020).