WASHINGTON (Reuters) – The Supreme Court on Tuesday heard arguments over whether a U.S. law violates constitutional free speech rights by requiring overseas affiliates of American-based nonprofit groups that seek federal funding for HIV/AIDS relief to formally adopt a stance against prostitution and sex trafficking.
FILE PHOTO: Children ride scooters across the plaza at the United States Supreme Court, following the government’s notice to halt all building tours due to the (COVID-19) coronavirus, on Capitol Hill in Washington, U.S., March 17, 2020. REUTERS/Tom Brenner
The case is the second in which the nine justices heard arguments by teleconference following Monday’s debut of the call-in format prompted by the coronavirus pandemic in a trademark dispute involving hotel reservation website Booking.com.
As with Monday’s case, conservative Justice Clarence Thomas, usually silent when the court hears cases in person, again dove in when it was his turn to ask questions. The argument proceeded generally 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 non-profit organizations that challenged a provision of the 2003 law as a violation of the U.S. Constitution’s First Amendment.
Organizations including the Alliance for Open Society International, Pathfinder International, InterAction and the Global Health Council challenged the constitutionality of the measure. The ruling would affect other well-known international groups such as Save the Children.
The groups, which currently take no stance on prostitution, said the law interferes with their work providing advice and counseling to sex workers about the risks of HIV infection. The groups did not challenge a separate provision of the law 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 that has prevented 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 the question over whether applying it to the overseas entities with which they are affiliated also is unconstitutional.
Roberts, who authored the 2013 ruling, wondered if the “precise relationship” between the U.S. groups and the affiliates could give rise 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.
The Trump administration argued that foreign entities like those affiliated with the nonprofits do not have free speech rights that can be enforced in U.S. courts and that the rights of the American groups therefore were not violated.
The law, enacted under Republican former President George W. Bush, intended to bar funding for organizations that operate programs overseas but do not have a blanket policy opposing prostitution and sex trafficking. The United States has spent billions of dollars to fight HIV/AIDS overseas.
Congress imposed the policy requirement on the basis that prostitution and sex trafficking help spread HIV – the virus that causes AIDS – and to make it clear that the United States was committed to eradicating both practices.
Reporting by Lawrence Hurley; Editing by Will Dunham