God save the United States and this honorable court. This morning we will hear argument in case 19177 the United States agency for International Development versus the alliance for open society international. I note at the outset that Justice Kagen is recused in this case. Mr. Michelle . Justice, may it please20 years ago, the hiv aids the court. Pandemic was devastating the world. In response, president bush proposed since reauthorized three times, the act has committed nearly 80 billion to global aids relief. It has worked. The funding condition at issue here requires recipients to have a policy opposing prostitution and sex trafficking, which Congress Found are coercive practices that spread hivaids. This court held that a flight that condition to respondents, domestic entities violates the unconstitutional conditions doctrine but respondents sought more and the question is whether the condition can still be applied to foreign grant recipients operating abroad. It can, for two reasons. Foreign entities lack Constitutional Rights, so they cannot ring constitutional conditions claim. Near can neither can respondents, because they are not subject to the funding condition. Next to their victory in this court, respondents can accept and use funds without any withheld speech. Respondents can i choose to affiliate with foreign entities that must comply with the condition, but any effect on respondents message is now a product of their own choice, not government compulsion. Respondents contrary view is startling. They would allow u. S. Allow u. S. Nonprofits to export Constitutional Rights to legally separate foreign entities abroad, simply because they share similar brands. That novel theory has no basis in this court prior decision. It could it has no practical justification. For 17 years, foreign recipients have adhered to the policy condition without harming the aids Relief Program or harming speech. This court afforded respondents all the relief they deserve. The decision below should we reserve one thing that clear from the record is the precise relationship between the domestic entity and its foreign affiliates. We know that there are no formal corporate ties, but that these entities share the same name, the same logo, the same land. What would you require beyond that before exhibiting the speech of the foreign entity to the domestic one . You are correct that the record is not particularly thorough on that issue despite 15 years of litigation on this matter the District Court entered the injunction at issue here based on letter briefing. Our position is that the formal distinction between the entities, the u. S. Entity and foreign entity is all that is required to attach separate legal rights. It is important to note that respondents and the foreign entity they claim is affiliated made the choice to be separate legal entities. That choice had certain enefits such as shielding them from liability. Justice roberts is it reasonable to insist on formal corporate ties in this context . I gather that it is undisputed that to be effective in many of the Foreign Countries involved here, you have to operate through a foreign entity. The effort would not be as effective if the american entity were the one on the ground in the foreign country. Mr michel i think that is not true as a uniform matter. Many of the respondents that are u. S. Entities do operate in forest Foreign Countries through Branch Offices. As a result of the courts prior decision they have the choice to operate in that way without compromising their speech. They are completely in charge of their own message, while also accepting leadership act funds. On your second point, if they make the choice to operate through a foreign entity, because they decide that is more convenient or effective, they have to accept the bitter with the sweet to be sure that operating through a distinct legal entity they are not without legal recourse. They can explain that a policy statement being issued by the foreign entity does not reflect their own views. Their free speech allows them to do that. Justice roberts presumably it does reflect their own views. They have the same name, same logo, same brand. I wonder if it makes more sense to think of the foreign entity as simply another channel for the omestic entity speech. With respect, i dont think it does. When that was the only option available as it was in the court in the courts decision last time, i can understand why the court decided the way it did. Now that respondents have a second choice, the choice they were fighting for last time, any consequences of the choice to operate as separate entities is he result of their own decisions. Thank you, counsel. Justice thomas . Justice thomas the respondent seems to argue that your guidelines your affiliate guidelines support their argument. What do you think of that . Justice thomas, i dont think that they do as a judicial matter. Even if they did i think that would be at most a basis for challenging the guidelines, not the constitutionality of the statutes. The guidelines which are reproduced on pages one a through iiia of the reply brief supply that an entity can affiliate with a separate entity that has a different policy on prostitution and sex trafficking if it meets certain requirements. There are five nonexhaustive requirements spelled out there. Four of those would generally be satisfied by an entity that has legal separation. It would be a rare circumstance that these regulations would ever result in the denial of funding to a foreign affiliate. The respondents themselves are no longer subject to the policy of requirement as a result of their prior decision in this case. If they run afoul of these regulations, which simply interpret what it means to have a policy opposing prostitution and sex trafficking, these regulations cannot be a mechanism for depriving the espondents themselves of funds. Whenthis issue was here last i seem to remember it was about the Domestic Organization. What has changed since it was here . There was very little talk. The only time the affiliates actually came out was as an alternative to enforcement procedures that were being used for the Domestic Organizations. What has changed since this case was here last . You are right, that was all that was at issue last time and the only thing that has changed is respondents have asked for broader relief. We accepted the courts prior decision and submit that respondents are not entitled to any further relief. As you suggest, there is nothing in the decision that contemplates or suggests a prohibition on requiring the policy requirement to foreign entities overseas. I think the ourt ought to simply analyze the claim under first principles. I think two simple principles resolve the case. Respondents are not subject to a funding condition so they cannot have a constitutional conditions claim. The foreign entities that are subject to it have no Constitutional Rights so they cannot have an unconstitutional condition claim. We think that what respondents are asking for is unjustifiably bootstrapping this courts prior decision into Global Relief and we dont think there is any basis for that. Thank you. Ginsburg . Justice ginsburg the statute exempts certain nondomestic entities from the requirement to adopt an antiprostitution policy, those are the global fund to fight aids, the world health organization, International Aids Vaccine initiative, and any u. N. Agency. What is the reason for the exemption . Why are these organizations exempt and not the organizations at issue here . There are a few reasons. Those are in the Main International organizations that are composed of their own separate sovereigns. I think it makes sense that congress would have wanted to respect the sovereignty of the members of those organizations in a way that doesnt apply to nonprofit organizations receiving funds at issue here. The vaccine organization that you mention seems to be particularly unlikely to bring into play the considerations that motivated congress to require the antiprostitution and sex trafficking pledge because they are not operating in the field, heyre simply doing research on vaccines. Justice ginsburg it seems to me that these organizations are doing the same thing. My second question s, may a pledge taker may they nonetheless work with prostitutes to encourage the prostitutes to take preventative measures that will advance control of aids . Mr. Michel the answer to that question Justice Ginsburg can they do that . Can they say, all right take the pledge we will take the pledge and work with prostitutes to make sure they use preventative devices. Mr. Michel absolutely they can. We encourage that. That goes back to a point i was going to make earlier, the pledge that is required by the statute only requires one affirmative speech act. That is submitting to usaid with the Grant Agreement a policy opposing prostitution and sex trafficking. There is no requirement that foreign entities that make that pledge and shout it from the mountain tops or get it to anybodys face about it. They are encouraged to work with prostitutes and victims of sex trafficking to prevent hivaids and one of the reasons for including this requirement in the statute and many other provisions dealing with prostitution and sex trafficking is that congress recognized that women who are often coerced into those practices are at heightened risk of contracting the disease, spreading the disease and of losing other opportunities in their lives. We certainly encourage groups to do that kind of work and it is not in all intentioned with the policy requirement. The amicus brief filed by the coalition against trafficking and women, which made the point that many prostitutes and victims of sex trafficking are themselves opposed to prostitution and sex trafficking so would not take offense at the statement the groups have to make. Justice roberts thank you, counsel. Justice breyer . Justice breyer following up on that question. Some would take offense. In the last case, this court said this organization, which takes money from the government and uses it to fight aids, goes to prostitutes as part of their effort and says, use safety. That is one way of helping to fight aids. If at the same time they have to say, we are against prostitution, we dont like it, we are against it, its terrible. The prostitutes will think they are hypocrites or maybe worse and will be suspicious. That was their reasoning last time. How does that change one iota in terms of their rights, which we said they have, the major organizations in the u. S. Have the right to do. How does that change one iota if they are scared of sending their own workers there, they give their money to a Foreign Worker in india who is associated with them . And that Foreign Worker goes and says the same thing to the prostitutes . Since the Foreign Workers are identified by name, mission, logo with the domestic workers, how does it interfere one whit less if we accept your argument they will be seen domestic as well as foreign ones as hypocrites, or worse, interfering with their mission. If we accepted that argument before why dont we accept it now . Mr. Michel a couple of quick responses. I dont think that the court did base its prior decision on that particular concern. They based it on the First Amendment rights of the u. S. Entities receiving the funds. The principal difference between the case last time and this time is not that the entities are interacting with prostitutes in any different manner. Its that the entities subject to the funding condition lacked Constitutional Rights under deeply established principles that foreign entities abroad dont exercise Constitutional Rights and can be subject to greater speech protection restrictions then u. S. Entities at home. I want to reiterate that i think that concerns you have raised, while legitimate, are not born out of practice. Whether this applied in the past to domestic groups or thousand to foreign groups does not require them to tell prostitutes they oppose prostitution or to do anything affirmative beyond agreeing to oppose prostitution and sex trafficking in the letter. We are fortunate to have a 17 year track record to look at here. Foreign entities have from the very beginning and recently under the stays of the District Court injunction in the phase of this litigation, been subject to policy requirements throughout that period. As the judge noted in his dissent they have not identified one example of anyone perceiving hypocrisy in their message or setting back their work to fight hivaids. Justice roberts thank you, counsel. Justice alito . Justice alito as i understand the governments position it depends on whether the entity that ultimately gets the leadership act funds is a separate legal entity or legally distinct from the u. S. Entity, is that correct . What we look at is whether the recipient of the funds, the entity subject to the conditions has First Amendment rights or not. We think it we think that turns on whether theyre a u. S. Entity or foreign entity. Justice alito what do you understand to be the meaning of legally separate or legally distinct and how would that apply where the u. S. Entity is a nonprofit corporation, a trust, or an unincorporated association, if there are any of those, and in the situation where a foreign entity is organized in one of those ways . Mr. Michel the difficult questions about how to parse that has not araisin in this case. I think respondents in the foreign entities at issue are clearly legally separate in the way that matters for the funding program, which is to say they have applied separately for different grants. The easiest way to answer the question is that when a u. S. Entity applies for a grant it is not subject to the policy requirement. When a foreign entity applies for a separate grant, separate of any affiliation it might have with a u. S. Entity, it is subject to foreign requirement. Justice alito the u. S. Entity gets the money and wants to make a subgrant to a foreign entity. If i understood your position, whether or not the foreign entity can be required to endorse the policy depends on whether it is legally distinct from the u. S. Entity, is that correct . Mr. Michel that is correct. In the subgrant relationship that condition would attach to the foreign entity as the subgrantee of the u. S. Entity. Justice alito if the u. S. Entity is a trust, how would we determine what is legally separate what foreign entity is legally separate from a trust a u. S. Trust . Mr. Michel i have to confess, justice, we have not confronted the trust question. I dont have a ready answer for that. I think that in the 17 year history of the program there has not been any difficulty in telling apart Foreign Organizations from Domestic Organizations. We are happy to take a further look at the trust hypothetical. Justice alito is that because, until recently the governments test was not whether it was a legally separate entity, but a multifact or test under the regulation to which Justice Thomas referred . Mr. Michel no, with respect, that is not and has not been our position. From the outset the government has applied the policy requirement to foreign entities abroad. It turns out as the result of injunctions for almost that entire period the government has not applied the policy requirement two domestic entities. Justice roberts Justice Sotomayor. Justice sotomayor . Justice sew to mayor im sorry, chief, did it again. A Domestic Agency would not want to adopt a policy of being opposed to abortion, but who is willing to not support it is a program, they cannot receive funds unless they affiliate with someone who will make the statement for them, correct . Mr. Michel i dont think so, justice. A u. S. Entity that opposes prostitution and sex trafficking, which is the only requirement at issue in this case can receive funds and use those funds abroad without contracting or working through affiliates. Justice sotomayor the Domestic Corporation who does not want to speak the governments message but does want to do the program, cannot, unless it finds an affiliate who will speak a governments messages . Mr. Michel with respect i think that was the issue in the case last time. Justice sotomayor exactly. The last time, when you came before us you said it was tantamount or amounting to a facial challenge. If we read our prior decision as basically facially addressing the restrictions mr. Michel i think if you read it as truly facially invalidating the statute we could not win. Justice sotomayor i will move on to another question. In hobby lobby, we recognize that a closely Held Corporation at least could be viewed as expressing the religious beliefs of its owner. A person independent legally. In hurley we said that parade organizers could be identified by the people who marched in their parade. Similarly, in reagan, we said that an entity could speak through an affiliate who would be recognized as itself because it could then do lobbying that reagan could not do under the government program. These cases seem to suggest to me, that at least in the First Amendment context, lets put aside any other context, in the First Amendment context we are less concerned with corporate formalities then we are with imputation or perception, and to the extent that these corporations are closely affiliated i know you said before you dont think there is enough in the record and we can deal with that separately presuming the public does perceive these entities as one, why wouldnt the First Amendment apply to the inability of the