“The First Amendment does not permit the government to do indirectly what it may not do directly.”
—Cory Andrews, WLF Vice President of Litigation
Click here for WLF’s brief.
WASHINGTON, DC—Today Washington Legal Foundation (WLF) urged the U.S. Supreme Court to clarify an earlier holding that prohibits Congress from conditioning the receipt of federal funds, or other public benefits, on the relinquishing of First Amendment rights. WLF filed its amicus curiae brief with the pro bono assistance of Douglas Dunham, Melanie MacKay, and Daniel Goldberg-Gradess of Dechert LLP.
No one disputes that when Congress chooses to fund a program, it may impose limits to ensure that federal funds are used only to advance Congress’s specific aim in funding that program. But in Agency for Int’l Dev. v. All. for Open Soc’y, 570 U.S. 205 (2013), the Supreme Court held that a law forcing organizations receiving funding to speak a message that cannot be confined to the scope of the funded program violates the First Amendment. That question (and those same parties) are back before the Court this Term.
At issue is whether the First Amendment also bars Congress from compelling the speech of legally distinct, foreign entities who are closely affiliated with a U.S. organization. In its amicus brief, WLF argues that the First Amendment harm to the U.S. entity is not diminished just because the government’s speech compulsion is aimed at the U.S. entity’s clearly identified foreign affiliates. While legally distinct, the U.S.-based respondents and their foreign affiliates share identical goals and objectives, speak with one voice, and appear to outsiders to be one organization bearing the same name, logo, brand, and mission. Although constitutional protections do not apply extraterritorially, here any constitutional violation resulting from government-compelled speech would harm the entire organization.
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