USAID v. Alliance for Open Society (2020) - Wikipedia

Agency for Int'l Development v. Alliance for Open Society
Decided June 29, 2020
Full case nameAgency for International Development, et al. v. Alliance for Open Society International, Inc., et al.
Docket no.19-177
Citations591 U.S. ___ (more)
140 S. Ct. 2082
Case history
  • Permanent injunction granted, Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 106 F. Supp. 3d 355 (S.D.N.Y. 2015);
  • Affirmed, 911 F.3d 104 (2d Cir. 2018);
  • Cert. granted, 140 S.Ct. 660 (2019).
Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinions
MajorityKavanaugh, joined by Roberts, Thomas, Alito, Gorsuch
DissentBreyer, joined by Ginsburg, Sotomayor
Kagan took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. I

Agency for Int'l Development v. Alliance for Open Society International, 591 U.S. ___ (2020), also known as Alliance for Open Society II (to distinguish it from the 2013 case), was a United States Supreme Court case in which the Court held that compelled speech required as a condition for funding on foreign non-governmental affiliates of U.S. non-government organizations does not violate First Amendment rights.[1]


The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 was signed into law as a means to fund private non-governmental organizations (NGO) to help fight AIDS and other diseases in foreign countries. As a condition of this funding, entities were required to also promote an anti-prostitution pledge requiring them to establish "a policy explicitly opposing prostitution and sex trafficking", a term known as the Policy Requirement.[2] This program is overseen through the United States Agency for International Development, the United States Department of Health and Human Services and the Centers for Disease Control and Prevention.

This Policy Requirement was originally challenged by NGO looking to receive the funding as early as 2005 as it was seen as compelled speech, which violated their First Amendment rights and resulted in the Supreme Court case Agency for International Development v. Alliance for Open Society International, Inc., which ruled that the anti-prostitution pledge was compelled speech on American NGOs to mirror the government's view.[3]

Following the 2013 decision, the government subsequently backed off the Policy Requirement for those NGOs based in the United States, but maintained the requirement for affiliates that were established in a foreign country. Several of the same NGOs on the 2013 case again filed suit on the First Amendment grounds and following the Supreme Court's decision. In both the United States District Court for the Southern District of New York[4] and United States Court of Appeals for the Second Circuit,[5] the courts upheld in favor of the NGOs on the basis of the Supreme Court's prior ruling.

Supreme Court[edit]

The responsible government organizations petitioned the Supreme Court, which accepted to hear the case in August 2019. Oral arguments were heard on May 5, 2020, part of the first set of arguments to be held by teleconference due to the COVID-19 pandemic. Justice Elena Kagan, who took no part in the 2013 decision, also did not participate here.

The Court issued its opinion on June 29, 2020. The 5–3 majority decision reversed the Second Circuit. Justice Brett Kavanaugh wrote the major opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Kavanaugh wrote that two factors affect the Court's judgment. First, the foreign affiliates are legally separate entities from the American NGOs, and secondly, "because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard the policy requirement."[6]

In a concurring opinion, Justice Thomas expressed his "continued disagreement" of the 2013 Court decision, stating the federal government's rule "does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything."[7]

Justice Stephen Breyer wrote the dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer wrote that the foreign NGOs were clearly extensions of the American NGOs, and that the American NGOs "speak[s] through clearly identified affiliates that have been incorporated overseas" as his reason to apply the same 2013 decision to those foreign NGOs.[6]


  1. ^ Agency for Int'l Dev. v. Alliance for Open Soc'y, No. 19-177, 591 U.S. ___ (2020).
  2. ^ Liptak, Adam (20 June 2013). "Justices Say U.S. Cannot Impose Antiprostitution Condition on AIDS Grants". The New York Times. Retrieved 25 June 2013.
  3. ^ Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013).
  4. ^ Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 106 F. Supp. 3d 355 (S.D.N.Y. 2015).
  5. ^ Alliance for Open Soc'y Int'l, Inc. v. U.S. Agency for Int'l Dev., 911 F.3d 104 (2d Cir. 2018).
  6. ^ a b Kruzel, John (June 29, 2020). "Supreme Court rules US requirements on overseas NGOs do not violate free speech". The Hill. Retrieved June 29, 2020.
  7. ^ Howe, Amy (June 29, 2020). "Opinion analysis: Justices uphold condition for HIV/AIDS funding". SCOTUSblog. Retrieved June 30, 2020.

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