Partisan Hypocrisy on Display in Supreme Court Ruling on Anti-Prostitution Pledge and the First Amendment

Can the government compel speech? For Supreme Court justices, that seems to depend on the content of that speech.

Foreign groups that receive American funding to fight HIV and AIDS must still pledge to oppose sex work, following a U.S. Supreme Court ruling in favor of the requirement. A similar requirement for U.S. nonprofits was struck down as unconstitutional in 2013.

In the recent case, United States Agency for International Development v. Alliance for Open Society International, Inc., U.S. groups whose international affiliates must still abide by the rule sought to have it overturned, too, arguing that compelling anti-prostitution speech from these foreign affiliates was attributed to the American groups and therefore violated their First Amendment rights.

But in a 5-3 decision, the Court rejected their plea.

"In short, plaintiffs' foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights," wrote Justice Brett Kavanaugh in the majority's opinion. While anti-prostitution statements "may be incorrectly attributed to the American organizations," these groups "are free to choose whether to affiliate with foreign organizations and are free to disclaim agreement with the foreign affiliates' required statement of policy."

Also siding in favor of the law were Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. Justice Elena Kagan did not participate in the case.

In a dissenting opinion, Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor suggest that the court "asks the wrong question and gives the wrong answer. 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."

"The last time this case came before us," writes Breyer, "we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they 'pledge allegiance' to a state-sponsored message. This time, the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes."

"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," adds Breyer, rejecting the majority's suggestion that American affiliates suffered no harm by simply contradicting the compelled messages put forth by foreign affiliates.

"When the Government demands as a condition of federal funding that their clearly identified affiliate 'espouse a specific belief as its own,' respondents may express a contrary view through some other corporate channel only on pain of appearing
hypocritical," he writes. "Leveraging Congress' Article I spending power to distort respondents' protected speech in this way therefore violates respondents' First Amendment rights—whatever else might be said about the affiliate's own First
Amendment rights (or asserted lack thereof )."

It's easy to imagine the conservative justices in this case coming to the same conclusion as Breyer if the compelled speech were of a different variety.

Republicans have (rightfully) objected to, for instance, a California law compelling crisis pregnancy centers that oppose abortion to display messages about where women could get an abortion. Would that suddenly be OK if the California centers themselves were excluded but any international anti-abortion groups they partnered with to help pregnant women in need were still compelled to advertise abortion services?

It's interesting to note that in 2018 when the Supreme Court decided that California's compelled speech law was indeed unconstitutional, Justices Alito, Thomas, Gorsuch, and Roberts all agreed with that assessment. Meanwhile, the three justices now opposing the prostitution pledge on First Amendment grounds—Breyer, Ginsburg, and Sotomayor—all said that California's crisis pregnancy center speech law should be upheld.

Wouldn't it be nice if our Supreme Court justices could maintain the same respect for free speech and the First Amendment regardless of what subject that speech was about?

For now, however, it looks like the only way to remedy America's rule requiring groups to denounce prostitution is for Congress to once again take up the issue.