U.S. Policy Requirements and Speech Misattribution: How U.S. Policy Requirements Attached to Funding Indirectly Limit the Freedom of Speech for American Organizations on an International Scale

A blog post by Venesha White, Junior Associate.

Through the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“the Leadership Act”), the United States has allocated funding for domestic and international organizations that seek to stop sex workers from becoming a vector for the spread of infectious diseases such as HIV/AIDs, tuberculosis and malaria.1 However, in order to receive these funds, the recipient organization must have a policy that explicitly opposes prostitution and sex trafficking.2 Although there is an international consensus that human trafficking is illegal, there is no agreement about the legality of sex work.

In 2013, four domestic Non-Government Organizations (NGOs) engaged in tackling HIV/AIDS overseas challenged the constitutionality of the Leadership Act’s policy requirement, alleging freedom of speech violations.3 In Agency for Int’l Development v. Alliance for Open Society Int’l, Inc (ASCOI I), the domestic NGOs asserted that adopting the U.S. policy to explicitly oppose prostitution would hamper their efforts to combat AIDS/ HIV in host countries where prostitution is legal, thus alienating their organizations on an international scale. The Supreme Court held that the First Amendment precludes the Government from distorting the domestic NGOs’ speech by requiring, as a condition of receiving federal funds, a “pledge allegiance” to a state-sponsored message.4 As such, the domestic NGO’s “may disregard the policy requirement and use their own funds to speak or act as they wish on prostitution and sex trafficking, with no repercussions for their federal funding.” 5

However, in All. for Open Soc. Int’l, Inc. v. U.S. Agency for Int’l Dev (ASCO II), the NGOs claimed that they had continued to suffer First Amendment harms by speech misattribution due to the policy requirement once applied to their clearly identified international affiliates.6   Nonetheless, in 2020, the Supreme Court ruled against the domestic NGOs and dismissed their speech misattribution claim. The Court held that the clearly identified affiliates have no constitutional protections and, despite their affiliations, are separate legal entities.7 The Court reasoned that while the domestic NGOs are protected by the First Amendment, the international affiliates must adhere to the policy requirement or refuse the funding.

To date, speech misattribution cases have dealt with a specific group or entity made by law to associate with another group that does not share the same message.9 Explicitly opposing prostitution forces close international affiliates to adopt a U.S. policy that the American Organizations do not have, all while sharing the same logos and mission.10 This is hypocrisy due to the homogenous nature and nexus between the American Organizations and their clearly identified foreign affiliates that have a unified message to achieve the government intended purpose of the Leadership Act.  Therefore, the policy requirement will impede on all parties’ ability to remain “politically neutral” abroad.11  Remaining neutral is crucial for the NGOs and their closely held international affiliates because taking a position adversarial to a host government will isolate and impede on all parties’ ability to work to free sex workers. Furthermore, international sex workers will be reluctant to seek help due to the international affiliates’ denunciation of prostitution, which stigmatizes sex workers.  Consequently, the U.S. policy requirement alienates clearly identified foreign affiliates, misattributes and distorts the speech of the American organizations, and essentially weakens the efforts to reduce HIV/ AIDS globally.

  1. 22 U.S.C.A. § 7601.  See also I, § 8, cl. 1.
  2. See 22 U.S.C.A. § 7631(f) (explaining the policy requirement in the Leadership Act).
  3. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013).
  4. Id. at 205.
  5. Id.
  6. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2097 (2020).
  7. Id.
  8. Id.
  9. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995).
  10. See Agency for Int’l Dev., 570 U.S. at 219; see also Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. at 2094 (explaining the nexus between the American organizations and their closely aligned international affiliates and why they are considered a united front).
  11. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. at 2094.

 

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