Jan 12, 2013

Posted in Corporate Prayer, Uncategorized

Wait a minute. So a nonprofit organization that fights AIDS has First Amendment rights?

Maybe I’m missing something here.  The case of  Agency for International Development v. Alliance for Open Society International, Inc. presents the question whether a statute that “requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.”

The full name of the party in this case is ALLIANCE FOR OPEN SOCIETY INTERNATIONAL INC.

Inc. stands for incorporation. That is, this group is a corporation.

Since when do corporations have First Amendment rights?

The Second Circuit’s opinion makes no mention of the most obvious precedent on point–Citizens United.

The Second Circuit’s opinion does address associational standing:

Because [**7]GHC and InterAction are suing on behalf of their members, each must establish associational standing by demonstrating that (a) at least one of the association’s members would otherwise have standing to sue in its own right — i.e., has constitutional standing; (b) the interests the association seeks to protect are germane to its purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n,432 U.S. 333342-4397 S.Ct. 243453 L.Ed.2d 383 (1977). The district court held that Plaintiffs had established standing. As explained below, we conclude that the district court was correct.

But this misses the question. As I understand it, the relevant statute applies directly to the organization seeking funding, not individuals. From the SG’s petition for cert:

Pursuant to the Leadership Act, the United States has provided billions of dollars to nongovernmental organizations so that they can assist in the fight against the HIV/AIDS epidemic overseas. See 22 U.S.C. 2151b-2(c), 7671 (2006 & Supp. IV 2010). In order to ensure that those funds are spent consistently with the Act’s objectives, Congress has placed two limitations on the use of those funds. First, 22 U.S.C. 7631(e) provides that no funds made available under the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” Second, 22 U.S.C. 7631(f)—the provision at issue in this case—provides that no funds made available under the Act “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” That statutory restriction does not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria; the World Health Organization; the International AIDS Vaccine Initiative; or to any United Nations agency. See ibid

Could Citizens United have been brought on behalf of members of the group of had standing? Or, is it simply the fact that people who choose to speak through entities such as a corporation do not lose their rights.

Am I missing something?

This is why I never thought the idea of corporate personhood was so strange. For years the courts have considered alternate businesses structures as having First Amendment rights. As Justice Alito mentioned, the Pentagon Papers case could not have been decided unless the Court understood that the Times had First Amendment rights. Of course, some may hang their hats on the Press Clause.

But that won’t help the nonprofit in this case. They decidedly need to rely on the First Amendment speech clause for the rights of a corporation to speak.

Update: It would be interesting to do a search of all Supreme Court cases where corporations were the Plaintiffs, and they argued on behalf of various constitutional rights (New York Times and other newspapers come to mind, as does Planned Parenthood).


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  • Corporate personhood gets progressively stranger as you start enumerating through the BOR and into some of the rest of the constitution, not to mention criminal law.

    If a corporation has 2A rights, does that mean corps can be prohibited persons? If so, does that mean if you reorganize are they miraculously not prohibited persons any longer? What constitutes a violent and dangerous corporation who can be disarmed?

    If a corporation has 3A rights, that extends the protection from quartering into businesses. Yet, the amendment is clear it applies to homes and not businesses. Is the business the home of the corporation?

    Clearly the 4A is eminently amenable to personhood.

    If corp has 5A rights, then it should not be compelled to testify against itself. Does that mean all employees are forbidden to testify against the corporation because it’s in the best interests of the corporation? Just officers? What happens when they cease to be either?


    All of this is not to say these rights can’t be conferred to corporations in some manner consistent with the meaning and purpose, but personhood is a crude hack to make that happen. Congress should have been forced to create a constitutional entity of the corporation and make it clear what the lines are.

  • Dru Stevenson

    There’s a huge difference between punishing a corporation for expressing political views (Citizens United said you can’t) and having conditions for getting a particular government grant or handout, which is the issue in this case. The courts have held that corporations are not necessarily entitled to tax exempt status or government grants, so there is no “right” at stake here. This is different than imposing sanctions on corporations.

    • This doctrine presumes that a First Amendment right is being violated. If the corp doesn’t have a First Amendment right in the first place, they couldn’t state a claim that the gov’s conditions are unconstitutional.

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