Legal Docket - Foreign aid with strings attached

NICK EICHER, HOST: It’s Monday morning and we’re back at it for another week of The World and Everything in It. Today is the 15th of June, 2020. Good morning to you, I’m Nick Eicher.

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REICHARD: Well, first up today, Legal Docket.

Two more oral arguments to cover from this term of the US Supreme Court! Today, a case with roots in the administration of President George W. Bush.

Back then, the world was still in the grip of the HIV/AIDS epidemic. By 2002, it had killed more than 20 million people. African nations were hardest hit, with 30 percent of the adult population infected.

Listen as President Bush in June of that year announced a plan for African and Caribbean nations.

BUSH: The United States already contributes approximately a billion dollars a year to international efforts to combat HIV-AIDS. In addition, we plan to spend more than $2.5 billions on research and development for new drugs and new treatments. We’ve committed $500 million to the global fund to fight AIDS and other infectious diseases, and we stand ready to commit more as this fund demonstrates its success.

That was and still is historically the biggest global health program to fight a single disease.

But all that money came with a condition: only foreign groups that oppose sex trafficking and prostitution could receive it. Congress had determined those are coercive practices that spread HIV/AIDS—not to mention degrade women and girls.

More than a decade later came an objection from NGOs, nongovernmental organizations. Four NGOs that received funds from the program raised a First Amendment challenge to that condition. They argued the prostitutes they worked with to stop the spread of AIDS wouldn’t cooperate if they thought the NGOs wanted to take their livelihoods away.

Making money conditional on whether you denounce prostitution amounts to compelled speech, they say. And crucially, they argue, it’s compelled speech that thwarts their purpose to exist.

The Supreme Court took the case and sided with those NGOs, with Chief Justice John Roberts announcing the 6-2 decision in 2013. He said the government cannot tell you what to believe, but:

ROBERTS: The Policy Requirement does more. It tells an organization what it must believe. It must have a policy explicitly opposing prostitution. That compelled belief goes with the organization wherever it goes…The Government, therefore, cannot insist that organizations adopt the anti-prostitution policy as the price of obtaining funds.

Now seven years later, the case is back. 

This time, the question is whether that free speech right extends to overseas affiliates. 

Arguing for the government: assistant to the solicitor general Christopher Michel. He argued of course it doesn’t. You’ll hear him use the term “respondents.” And when he does, what he means is those U.S. based groups that distribute the money overseas.

MICHEL: Foreign entities lack constitutional  rights, so they cannot bring an unconstitutional conditions claim, and neither can Respondents because they are not subject to the funding  condition thanks to their victory in this court.

But lawyer David Bowker for the nonprofits argued a practical understanding on the ground demands a different approach.

BOWKER: An organization cannot both avow the government’s viewpoint and then turn around and assert a contrary belief or even claim neutrality without appearing hypocritical and without appearing to engage in doublespeak.  And the problem here, of course, is that the entities are indistinguishable and they speak as one. And so focusing on the corporate difference is a mistake.

It’s important to know that Congress places conditions on federal money all the time. You might even call them quid pro quos. 

Recipients have to promise to use the money for its intended purpose, for example, and submit to an audit as proof that it’s using the money properly. But use and audits don’t necessarily involve constitutional rights. 

Justice Clarence Thomas had a practical question of his own.

THOMAS: So what has changed since this case  was here last?

MICHEL: Well, Justice Thomas…the only thing that has changed is that Respondents have asked for broader relief.

It’s that broader relief that has pro-life advocates worried about the eventual ruling in this case. 

March for Life president Jeanne Mancini, for example, says if the court does extend first amendment rights to overseas affiliates, then federal tax money could be used to pay for abortions overseas. 

Right now, what was known as the “Mexico City Policy” prevents that.

Maybe Justice Brett Kavanaugh had that in mind in this exchange with the lawyer defending the conditional money. First you’ll hear Kavanaugh’s question, followed by Christopher Michel’s answer:

KAVANAUGH: I’m interested in the implications of our decision in this case. In particular, if the government were to lose this case, would any other programs or statutes be invalidated or called into question by such a decision?

MICHEL: I think that there would be real concerns about that. In fact, commonplace for Congress and the Executive Branch to condition foreign aid to entities abroad on certain policy objectives, such as opposing terrorism or supporting women’s rights or opposing apartheid, or, in the case of the Mexico City policy, taking certain positions on abortion.

Justice Samuel Alito wondered about a condition on foreign schools that take U.S. aid money:

ALITO: The school that gets the money must have a policy denouncing terrorist attacks against American civilians. It’s compelled speech. It doesn’t want to make that speech. It’s affiliated with an American entity. Why isn’t the argument exactly the same in that situation?

The groups opposed to the anti-prostitution condition say it all has to do with the way people think of the American entity and the foreign entity. Is it one in the same, or is it something else?

Now, here’s where it gets even more interesting: One of these grant recipients is The Alliance for Open Society International. Maybe you’ve heard of it. It’s one of billionaire George Soros’s organizations. He attracts conservative ire, and often deservedly so. But in this case, Soros is on the same side with conservative groups. Conservative Casey Mattox of the Charles Koch Institute supports Soros’s position here. 

Mattox says the issue isn’t Soros. It’s about the government’s power to compel speech.

The First Amendment protects the right to speak, and the right not to speak. That’s what these people mean when they say “compelled speech.” And that, they say, is a violation of the free-speech principle laid down in that earlier Supreme Court opinion. 

In the end, it probably comes down to this: 

Can American tax dollars have policy requirements attached when groups put those dollars to work far, far away from our nation’s shores? 

And that’s this week’s Legal Docket!

(AP Photo/J. Scott Applewhite, File) In this Oct. 10, 2017, file photo, the Supreme Court in Washington is seen at sunset. 

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