USAID v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL

Legal Principle at Issue

Can the U.S. government require NGOs to explicitly oppose prostitution and sex trafficking as a condition of receiving federal funding for global HIV/AIDS programs?

Action

In a 6-2 decision (with Justice Kagan recused), the Supreme Court ruled against the government. In a majority opinion written by Chief Justice Roberts, the Court said government cannot condition participation in a federal program on the affirmation of a belief that the organization does not hold. Such a policy requirement violated the First Amendment by compelling speech.

Facts/Syllabus

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Congress limited the funding of American and foreign nongovernmental organizations to those with “a policy explicitly opposing prostitution and sex trafficking.” Congress imposed that condition on funding, known as the Policy Requirement, because Congress found that prostitution and sex trafficking “are additional causes of and factors in the spread of the HIV/AIDS epidemic” and that prostitution and sex trafficking “are degrading to women and children.”

Plaintiff USAID, among others, are American nongovernmental organizations that receive Leadership Act funds to fight HIV/AIDS abroad. Plaintiffs have long maintained that they do not want to express their agreement with the American commitment to eradicating prostitution and consider a public stance of neutrality toward prostitution more helpful to gaining full participation in the global efforts to prevent HIV/AIDS. After enactment of the Leadership Act, Plaintiffs challenged the policy requirement, alleging that it violated the First Amendment. In 2013, the Supreme Court agreed, concluding in Agency for International Development v. Alliance for Open Society International that the policy requirement ran afoul of the free speech principle that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech.” Therefore, the policy requirement no longer applies to American organizations that receive Leadership Act funds, meaning that American organizations can obtain Leadership Act funds even if they do not have a policy explicitly opposing prostitution and sex trafficking.

However, as has been the case since 2003, foreign organizations that receive Leadership Act funds remain subject to the policy requirement and still must have a policy explicitly opposing prostitution and sex trafficking. Following the Supreme Court’s 2013 decision barring the government from enforcing the policy requirement against American organizations, Plaintiffs returned to court, invoking the First Amendment and seeking to bar the government from enforcing the policy requirement against their legally distinct foreign affiliates. 

The U.S. District Court for the Southern District of New York agreed with plaintiffs and prohibited the government from enforcing the policy requirement against their foreign affiliates. The U.S. Court of Appeals for the Second Circuit affirmed the lower court's ruling; however, the decision was stayed pending the Supreme Court’s review, meaning that foreign organizations remained subject to the policy requirement.