May 5 (UPI) -- The U.S. Supreme Court expressed skepticism Tuesday during arguments in a case about whether Congress can force foreign affiliates of non-governmental organizations to abide by language outlawed for its local affiliates.
Because of coronavirus limitations, high court justices heard arguments via telephone for the second straight day. Justice Clarence Thomas, known for his years of silence during hearings, was again an active questioner under the structured format that allows senior members to quiz lawyers from both sides first.
The arguments centered around a 2003 law that provided billions to fight HIV/AIDS. As a requirement to receive funds, the law said groups had to "have a policy explicitly opposing prostitution and sex trafficking."
The Supreme Court ruled seven years ago that the law violated the First Amendment rights of U.S.-based NGOs, but left unclear whether the ruling extends to overseas affiliates.
"What has changed since this case was here last?" Thomas asked while fellow conservatives Brett Kavanaugh and Samuel Alito wondered about larger implications if the government could not make such demands of foreign NGOs.
David Bowker, an attorney for NGOs in the case, said at Tuesday's arguments if free speech rights are applied differently it could lead to confusion and hinder their general missions.
"There can be a risk of attribution across corporate lines, where the entities in question are so clearly identified as they are here," Bowker said. "When those entities speak together with one voice and make their speech and policy decisions together."
Chris Michel, an assistant U.S. solicitor general, argued that foreign NGOs can't make constitutional claims if they have no constitutional rights. He added that making such requirements of foreign entities are well within Congress' right.