Speech. The other point i would add is that even the clearly identified , i think theerseas government would concede they have First Amendment rights when they act here in the United States as they often do when they come here for meetings or to publish papers or participate in conferences and of the problem with the pledge requirement is that it binds these organizations forever and for all purposes. Justice breyer . It seems to me the government is prepared to concede that you, care usa, does not have to oppose prostitution. But they say the First Amendment does not prevent them from telling care india that it has to oppose. So why dont you simply write a grants to get all the money yourself and give it to care india . That, yourlem with honor, is that according to the government the policy requirement still binds the u. S. Organization in the following way. If care u. S. Gets the money and some grants to care india, it must carry the burden of the government in imposing the policy requirement on its own affiliate and Police Compliance with the policy requirements. Not just with respect to the speech and activities of foreign affiliates, but with respect to itself, lest it violate the regulations Justice Breyer where can i find in the briefs or records what you said . It seems that what you said shows this case is 100 about the rights of an american company, the parent. The question is can they for bid can the government require them to for bid one channel of communicating the message . Can it control what they say in that channel . The channel happens to be a channel that goes abroad. I dont know that there is any precedent. The precedent that says they can. If i have that right have i got that right, is that clear mr. Bowker the regulations themselves ja248ja265. Attentionrect to your to the commentary of 45cs489. 3 ja256ja258 where the government makes clear that not only do funding recipients have to demonstrate their separation from entities that speak inconsistently, but they go so far as to say there has to be separation from entities that do not have a policy themselves suggesting that the government i good place to ja390 where5 and the Pathfinder Organization talks about u. S. Funding criteria that require them to work through local affiliates and locally incorporated entities. Justice breyer thank you. Justice roberts Justice Alito . I agreed with your clients position when this case was before us previously. What concerns me today is not only the Immediate Impact of the decision in your favor, but where it would lead. Concerned that it will force congress either to withhold foreign aid entirely or to allow foreign aid to be used in ways that are contrary to the interests of the people of this country. Let me give you an example. States provides grants to domestic entities and allows them to make subgrants to foreign schools for the purpose of promoting education in countries with weak educational systems. Suppose that congress specifies that any foreign entity that gets a subgrant must have a policy denouncing terrorist attacks against american civilians. Would that be unconstitutional . No, it wouldnt be. Requirement does not require the affirmation of a belief. And then conformity with that belief. And espousing it as one possible ones own. The school that gets the money must have a policy dent announcing a terrorist attacks. It is compelled speech, it does not want to make that speech. It is affiliated with an american entity, why isnt the argument exactly the same in that situation . I think that there is a problem with jermaine this ss in thatne case. Larger question, this does not turn on the particular ideology. Commitment, any requirement of an ideological commitment by grantees is problematic for the same reason that the ones here are. Let me ask you one more question. Why doesnt the logic of your argument apply to the provision of funds to totally independent these independent entities . Suppose they want to make a subgrant to a nonaffiliated corporate entity but cannot foreign entity but cannot unless the u. S. Entity tells the foreign entity, you can you must have a policy prostitution. To u. S. Entity is compelled make a statement it does not want to make. Why doesnt the logic of your argument apply their . Mr. Bowker in that case, the entity being made to take the pledge is not clearly identified with the u. S. Entity. Therefore, the pledge of the foreign entity does not get attributed back to the u. S. Entity. I think that is a very important difference. Here, when the u. S. Entity on its the requirement subgrantee, its clearly identified foreign affiliate, the message of imposing the pledge requirement on itself. These organizations are indistinguishable and speak with one voice. I think it is important to make a point that the government still has very Broad Authority to control what happens with its funds and put in place policies for its programs, and to require that grantees fulfill the requirements of the program in every respect. This particular requirement is unique. There is no other requirement like it in u. S. Law. I think a decision for respondents can be very narrow, turning on the facts of this case and the prior ruling of this court which declared the policy requirement unconstitutional. Justice sotomayor . Justice sotomayor there has been a lot of history to this case. The not sure what relationship is of your client to the agency now. Are your clients grant recipients who currently receive grants or currently work through foreign affiliates and their foreign affiliates have not taken this pledge . Or have they not receive the grants and want to work with their foreign affiliates. I am not sure what the status is of what the government has been doing or not doing. Mr. Bowker these organizations are the same organizations that were before the board in 2013. In smaller groups, the rest of the clients are too small to have global networks. We are talking about the entities that were before the court in 2014 that were Large International entities like care and save the children and world vision and pathfinder that are the ones with their own clearly identified affiliates overseas and these organizations receive money here in the United States and receive money through their locally incorporated affiliates. Is the example we have been using, the u. S. Entity receives all u. S. Grant money under this program and sub grants to local affiliates. In the case of care, it has done that under objection. Behas asserted it should free of this policy requirement and it believes that the litigation in 2013 would dispose of this issue and it continues to suffer these First Amendment harms and violations we have been discussing today. Justice sotomayor i am not sure you have answered my question. ,hey are receiving the funds are they subcontracting with affiliates or partnering with affiliates, and are these affiliates making the pledge and complaining about the fact that they are forced to do that . Policinghey not been the foreign affiliates and the government is now threatening to take away the funding . Mr. Bowker well its a little bit of both. Let me explain. Funds andeceiving the they are imposing the pledge requirements under objection onto their clearly identified foreign affiliates overseas. The government has said that all these years there has been no objection to this practice. I dont think thats exactly right with respect to my friend. Therein the litigation was a disagreement in the District Court about the proper scope of injunctive relief and the respondents wanted broader relief to include subgrantees and the government objected on the grounds that those facts were not yet known. The facts are now known. That was fully 12 years ago. The facts are known and the record is developed. The district entered its findings and i think there is no dispute about the nature of the relationship now. Justice sotomayor are they threatening to take away the funding, why . Mr. Bowker they are saying that the policy requirement will be enforced as against the clearly identified foreign affiliates of the respondents because they say those organizations have no First Amendment rights. Not abouthat this is any rights of foreign organizations. Justice sotomayor i am sorry for interrupting, but if the foreign affiliates have made the icy statement, what they have done what the government wants, why would a government take the funding away from you . Object to that policy requirement. We dont want to have to impose it on our clearly identified affiliates. Respondentsg u. S. To have to engage in doublespeak. If they do that and attempt to disavow that pledge which is attributed to them they will lose their funding for the global network. Justice roberts Justice Gorsuch . Totice gorsuch in response Justice Ginsburg and justice thomas, you indicated that the primary harm your client has suffered is the risk of attribution, mistaken attribution of a foreign affiliates speech to the domestic entity. Sounds a bit like an alter ego argument that the ordinary listener will be confused and attribute the speech of foreign affiliates to domestic entities. At the same time i assume that you would resist any effort to pierce the corporate veil from those foreign entities and impose liability on the domestic entity. It and whenect is should we attribute speech for actions of foreign affiliates to the domestic entity . Why would we pierce the corporate veil sometimes but not all the times. We dont ask the court to pierce the veil or treat these entities as alter egos, rather we are focused on the unique nature of speech and the way speech can be attributed even when corporate formalities are observed. I think the right line of case law here is not just this courts decision in 2014, but also cases like Pleasant Grove texasthe walker v division funds of confederate veterans, pacific gas and electric, and as Justice Sotomayor mentioned, the hurley parade case. All of those cases recognized are for legally separate entities or individuals and entities that can have speech attributed from one to the other without engaging in any kind of veil piercing or alter ego analysis we think of a more limited holding based on the nature of speech and the First Amendment d suffice. What evidence is there there is a risk of confusion or attribution, given that the demented entity is free to disavow statements of any foreign affiliates . It seems an empirical question. Do we have any empirics . Mr. Bowker the best evidence is in the record and the unrebutted which talkration about how they are perceived in the Public Health community. The price they are paying in the form of hypocrisy in the way they lose their integrity and their reputation and their brand when they are forced to speak out of two sides of their mouth. The declaration understandsuch i the harm people will see the will takeand cognizance of it, but is that the same thing as anyone thinking the domestic entity abides by the government restrictions endorses them . Does anyone really think that when they read that or do they think this is a statement made by a foreign entity in order to that thes. Dollars u. S. Entity does not promote or agree with. Why would not that be the average reading . Mr. Bowker when these Public Health organizations take a pledge saying they believe something, people take it very seriously. When they say they believe hivaids is transmitted in a certain way or when they say they believe prostitution should be dealt with in a way that stops the spread of the disease, people listen to them. The reason they are so effective in these programs. Justice gorsuch i accept that. That is not quite my question. Couldnt a reasonable person hold in his or her mind that a foreign entity believes x, and two, the domestic entity does not believe x . Mr. Bowker i think that falls apart when the organization speaks with one voice as these organizations do. They have a right to speak that way. They have a right to join with in having their common voice and their common mission. When they are told to say one thing and then disavowal it in another breath, it undercuts the reputation and brand and their own speech. I think your honor has it exactly right. Gorsuch are we back to the belief that people will always confuse this is one entity, and it is not possible for a local chapter of an organization to have a different view than the National Organization or the interNational Organization . That people cannot hold that concept in their heads . I think thebriefly, public does not know these are separate corporations. The problem is they are indistinguishable and they look to the public to be exactly the same. It would be more like your honors case in Masterpiece Cake shop making the baker say one thing and then attempt to disavowal it in the next breath. Thank you. Justice kavanaugh . Totice kavanaugh i want clarify one thing from your colloquy with Justice Ginsburg. You agree on affiliated foreign entities acting abroad have no Constitutional Rights under this under thisnt Court Precedent . Mr. Bowker we do. I want tovanaugh pick up on the effects of the Foreign Policy on your approach. Suppose the u. S. Government wants to fund foreign ngos that support peace in the middle east, but only if the ngos explicitly recognize israel as a legitimate state. Are you saying the u. S. Cannot impose that kind of speech recognition on foreign ngos affiliated with u. S. Organizations . Mr. Bowker i think that is a harder case because i do not fear that as requiring affirmation of the belief. Rather, it is in recognizing a fact that the u. S. Has established a certain diplomatic relationship with israel, and the u. S. Government gets to say what that relationship is for the United States. I do not think that is making the entities espouse that view as their own. I think that would be acceptable. Justice kavanaugh that would be acceptable in your view . Mr. Bowker i think it would be. Theice kavanaugh government says your position would unleash foreign affiliates of u. S. Corporations to pump money into the u. S. Election process. I want to give you a chance to respond to that claim, which was in the governments reply brief and repeated here today. Mr. Bowker i disagree with that. That is a very different case. That is a speech restriction. It is not speech compulsion. That restriction does not apply to the u. S. Organizations. I think this court dealt with that the right way in Citizens United and distinguished the foreign organizations from the u. S. Organizations, and it is a different case. Thank you, counsel. One minute to wrap up. Mr. Bowker thank you, your honor. Applying the policy requirement to foreign members of these tightknit International Entities writing hivaids overseas puts words in the mouths of the u. S. Members of those entities, and the Program Regulations effectively prevent the u. S. Members from disavowing what the foreign members are compelled to say. The injunction should be upheld. Thank you, counsel. Mr. Michelle, three minutes for rebuttal. Thank you. A few points in rebuttal. To respond to Justice Sotomayors question, one of our reply brief explains the governments prior submissions, it was clear the statute was being challenged only with respect to domestic entities and a true evaluation would invalidate the statute even as applied to foreign entities that have no connection to the United States, which i take it my friend has just conceded is not his position. My friend stated that the u. S. Entity truly is in control. I think that is exactly right. That ultimately underscores that it is the u. S. Entity, the holder of the First Amendment rights, that is making a choice to affiliate with a foreign entity that accepts leadership backed funds. Unlike in this case last time, and unlike in state unlike in cases like hurley and masterpiece, the u. S. Entity is not required to make that choice. The u. S. Entity has a separate choice to accept leadership backed funds itself in Foreign Countries without any risk of hypocrisy or a mixed message. Says, you gorsuch have to take the sweet with the sour when you decide to set up a separate corporate entity. My friend suggests u. S. Funding conditions or foreign law somehow give an incentive for u. S. Entities to use foreign affiliates, but they are not challenging any u. S. Funding decisions, which would be beyond challenge anyway. Foreign law cannot change the scope of a u. S. Entitys First Amendment rights. My friends position rests on what he frames is a risk of attribution test. Rightk the judge got it when he called deposition startling. As Justice Kavanaugh and Justice Alito alluded to, that test would be unworkable, and call into question all manner of u. S. Speech restrictions on foreign entities abroad. My friend says there is a restriction between speech restriction and speech compulsions, but the risk of attribution test he has outlined, or you compare names and brands, has nothing to do with the distinction between speech attribution and speech compulsion, and in all events, the foreign entities here are only if the u. S. Entities required to make the statement in a letter to usaid, not to shout it from the mountaintops or say anything that will ultimately interfere with the u. S. Recipient message. I want to note respondents never made this argument for more than a decade of the litigation. I think having secured rights for u. S. Entities, they decided to ask for the world. There is no basis in this courts prior decision or any other source of law for that holding. Provisionnvalidate a congress has adopted and reauthorized and is working. The decision should be reversed. Thank you. The case is submitted. The Supreme Court is holding oral arguments live by Conference Call this weekend next. 10 cases in all. The first time the public can listen live. The National Constitution center will discuss the case argued today. Live coverage begins in a moment. Welcome to the National Constitution centers second day of Supreme Court reback recap. I am jeffrey rosen, president of the National Constitution center, and it is a thrill to welcome all of you today as part of this historic experiment, to hear Supreme Court arguments live for the first time in American History and then convene advocates and scholars who have filed briefs on both sides of the case to help us learn
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