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Breyer Tears into Kavanaugh’s ‘Wrong’ Opinion in Major Case Limiting First Amendment Rights

U.S. Supreme Court Justice Stephen Breyer penned a lengthy and withering dissent in a major case on Monday which called into question fellow Justice Brett Kavanaugh’s command of and commitment to the First Amendment.

In the case stylized as Agency for Int’l Development v. Alliance for Open Society (AOSI II), the court’s conservative majority, in a 5-3 opinion, held that the government can force foreign affiliates of domestic organizations into espousing a public policy opposing “prostitution” and “sex trafficking” in order to receive federal funds.

Breyer’s summary of his dissent noted [emphasis in original]:

Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a clearly identified foreign affiliate to espouse the same government message. Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitutionally high “price of evident hypocrisy.”

The anti-prostitution pledge–as it is widely known because the major import of the law is to compel adherence to U.S. norms against prostitution in countries where prostitution is legal–has been in place since 2003 when Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act.

The act mandated that nongovernmental organizations (NGOs) and other entities must publicly proclaim their allegiance to the stated U.S. goal of eradicating prostitution worldwide. Foreign governments and nearly all public health organizations the world over have expressed clear opposition.

This is not the first time the nation’s high court has dealt with a clause that was initially promulgated by the George W. Bush administration and was subsequently defended by both the Barack Obama and Donald Trump administrations.

In the 2013 case of Agency for Int’l Development v. Alliance for Open Society Int’l (AOSI I), the Supreme Court ruled 6-2 against the Obama administration’s efforts to enforce the anti-prostitution pledge on domestic entities–determining the pledge was a classic example of compelled speech. (In both AOSI cases, Justice Elena Kagan did not take part because of her work for Obama’s Department of Justice.)

Under long-settled constitutional jurisprudence beginning with the landmark Supreme Court case of West Virginia State Board of Education v. Barnette, which was decided in 1943, the government cannot force an individual or a group to support certain expression.

Breyer’s dissent tidily revisits the AOSI I decision: “In sum, the Policy Requirement [the anti-prostitution pledge] conditioned federal funds on an unavoidable and irreversible distortion of respondents’ protected speech. We therefore held…that the Policy Requirement ‘violates the First Amendment and cannot be sustained.'”

Per the dissent, AOSI II should have been decided similarly because the legal issues were the same–save for the use of  “different organizational structures to deliver services in different places.”

Here, the respondent agencies were simply the foreign affiliates required by foreign law to operate in foreign countries. Those affiliates organizations are largely or entirely run by the same personnel and “share similar names, logos, and brands with [their] American organizations.” Breyer noted, for most intents and purposes, the foreign organizations are only different in terms of the papers filed to incorporate as legal entities under the law.

From the dissent, at length [emphasis in original]:

The First Amendment question therefore hinges, as it did before, on what an objective observer sees, hears, and understands when respondents speak through their foreign affiliates. As to that, not even the Government meaning- fully disputes that respondents and their foreign affiliates are clearly identified with one another. Their appearances are the same. Their goals are the same. Their values are the same. Their message is the same. Leveraging Congress’ spending power to demand speech from respondents’ foreign affiliates distorts that shared message—and violates respondents’ First Amendment rights. So while respondents and their clearly identified foreign affiliates may be technically different entities with respect to such matters as contracts, taxes, and torts, they are constitutionally the same speaker when it comes to the protected speech at issue in this case.

“True, respondents’ international mission sometimes requires that they convey their message through affiliates incorporated in far-off countries, rather than registered here at home,” Breyer rhetorically conceded. “But so what? Audiences everywhere attribute speech based on whom they perceive to be speaking, not on corporate paperwork they will never see. What mattered in AOSI I was thus how ‘clearly identified’ the affiliates were with respondents, not the fact that the affiliates were incorporated as separate legal entities. And what matters now is once again how ‘clearly identified’ the affiliates are with respondents, not the fact that the affiliates were incorporated as foreign legal entities.”

The majority, however, disagreed in a brief, nine-page opinion that hinged upon the foreign-based status of the affiliate organizations.

“We appreciate that plaintiffs would prefer to affiliate with foreign organizations that do not oppose prostitution,” Kavanaugh wrote. “But Congress required foreign organizations to oppose prostitution in return for American funding. And plaintiffs cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions.”

Breyer, on the other hand, said that the foreign-based affiliates did not actually file the litigation against the anti-prostitution pledge.

“This case concerns the constitutional rights of American organizations,” the dissent points out. “Every respondent here is—and has always been—American. No foreign entities are party to this case, and respondents have never claimed that the Policy Requirement violates anyone’s First Amendment rights apart from their own.”

Going even further, Kavanaugh asserted, in a drastic departure from precedent and federal law, that “it is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U. S. Constitution.” While referring to this concept as a “bedrock principle” of “American law,” the Breyer dissent noted that this was not entirely true:

Again, the dissent [emphasis in original]:

Even taken on its own terms, the majority’s blanket assertion about the extraterritorial reach of our Constitution does not reflect the current state of the law. The idea that foreign citizens abroad never have constitutional rights is not a “bedrock” legal principle. At most, one might say that they are unlikely to enjoy very often extraterritorial protection under the Constitution. Or one might say that the matter is undecided. But this Court has studiously avoided establishing an absolute rule that forecloses that protection in all circumstances.

Breyer is technically correct in terms of federal laws, protections and hypothetical situations not considered by the court in Monday’s opinion. But this is at least the second opinion in which long-recognized constitutional rights have been foreclosed against for foreign individuals or groups during the current Supreme Court term.

In Department of Homeland Security vs. Thuraissigiam, a 7-2 court denied habeas corpus and due process rights to undocumented immigrants in a similarly drastic departure from settled case law and a substantial blow to the reach of Bill of Rights protections.

Kavanaugh refers to “bedrock principles” of law, but time will tell whether a new edifice is being built. Breyer, for his part, seems to have made up his mind on the matter.

“The Court, in my view, asks the wrong question and gives the wrong answer,” Breyer argued. “This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations.”

[Image via Chip Somodevilla/Getty Images]

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