By Lawrence Hurley
WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday voiced concern that a 2003 law violates constitutional free speech rights by requiring overseas affiliates of American-based nonprofit groups that seek federal funding for HIV/AIDS relief to take a formal stance opposing prostitution and sex trafficking.
The case is the second in which the justices heard arguments by teleconference following Monday’s debut of the call-in format prompted by the coronavirus pandemic.
The groups challenging the funding restrictions – part of a law enacted under Republican former President George W. Bush – currently take no stance on prostitution. They said the requirement that their overseas affiliates take such a position interferes with the ability to provide advice and counseling to sex workers about the risks of HIV infection.
Several justices signaled sympathy toward arguments by the groups that to an ordinary person these organizations and their overseas affiliates that help carry out their work and are known by similar names are indistinguishable.
Other justices seemed concerned that a ruling in favor of the groups would tie the hands of Congress in other instances in which lawmakers may want to add conditions to overseas funding.
As with Monday’s trademark case argued by teleconference, conservative Justice Clarence Thomas, usually silent when the court hears arguments in person, again dove in when it was his turn to ask questions. The argument proceeded smoothly, though Justice Sonia Sotomayor again appeared to forget to unmute her phone when called upon by Chief Justice John Roberts to ask questions, as she had done the prior day.
“I’m sorry, chief,” Sotomayor said. “I did it again.”
President Donald Trump’s administration is appealing a 2018 ruling by the New York-based 2nd U.S. Circuit Court of Appeals in favor of the nonprofits.
Organizations including the Alliance for Open Society International, Pathfinder International, InterAction and the Global Health Council challenged the provision as a violation of the U.S. Constitution’s First Amendment. The ruling would affect other well-known international groups such as Save the Children.
The groups did not challenge a separate provision that bars applicants from using federal funds to promote or advocate the legalization of prostitution or sex trafficking.
The plaintiffs obtained an injunction in 2006 preventing the policy from being enforced against them. The Supreme Court ruled in 2013 that the law violated the free speech rights of the U.S.-based groups but did not decide whether applying it to their overseas partners also is unconstitutional.
Roberts, the 2013 ruling’s author, wondered if the “precise relationship” between the U.S. groups and the affiliates could amount to a free speech violation.
“We know there are no formal corporate ties, but that these entities share the same name, the same logo, the same brand. What would you require beyond that before attributing the speech of the foreign entity to the domestic one?” Roberts asked Justice Department lawyer Christopher Michel.
Sotomayor made a similar point.
“Presuming that the public does perceive these entities as one, then why wouldn’t the First Amendment apply to the inability of the domestic corporations to receive funds and partner with a closely affiliated foreign entity in implementing the program?” Sotomayor asked.
Justice Samuel Alito voiced concern about the broader implications. He wondered if it would be unconstitutional for Congress to require recipients of overseas education funding to denounce terrorist attacks against U.S. citizens.
Justice Brett Kavanaugh similarly asked if it would be unlawful for the U.S. government to require recipients of funding as part of efforts to seek Middle East peace to recognize the legitimacy of the state of Israel.
Trump’s administration argued that foreign entities like those affiliated with the nonprofits lack free speech rights enforceable in U.S. courts and that the rights of the American groups therefore are not violated.
Congress imposed the policy requirement on the basis that prostitution and sex trafficking help spread HIV – the virus that causes AIDS – and to make clear the U.S. commitment to eradicate both practices.
(Reporting by Lawrence Hurley; Editing by Will Dunham)