Centers second day of the Supreme Court recap. As a part of this historical experiment to hear Supreme Court arguments life for the first time for those that filed briefs on both sides of the case to help us Learn Together the Constitution Center is a private nonprofit with Inspiring Mission from congress to disseminate information about the u. S. Constitution on a nonpartisan basis in order to increase awareness and understanding of the constitution among the American People and that is just what we are trying to do a both of whom have filed briefs called amicus briefs on different sides of the case. Walter weber fondled a brief in support of the petitioners known as usaid and of course the cases in usaid versus alliance for open society international. Hes the senior counsel for the American Center for law and justice in washington, d. C. Which is the organization on whose behalf he final debriefing hes written many in landmark cases that the Supreme Court. And in support of the respondents of the alliance for the society international. Hes the director of the robert media center the Cato Institute and the publisher of the Supreme Court review. Part of the grand experiment. I just keep thinking of those words of Justice Holmes in defining the constitution. He said it is an experiment of life. And i have to say based on the arguments yesterday and today, i think experiment is going very well so lets be part of that position. Walter, perhaps you can begin. We just heard a lawyer for the government or giving on behalf of the government. That was Christopher Michael assistant to the solicitor general. And he said that the case comes down to two basic propositions. First, the foreign recipients lacked the Constitutional Rights and cannot bring the constitutional claim. Then he says that neither the respondents also cant bring the constitutional claim because any effect on their message is a product of their own choice and not of government coercion. Can you please unpack and summarize the core of the government arguments in this case . Chief Justice Roberts, youve been very good at this, keep it crisp and then we will have time for questions. Being shipped overseas on this case. And spreading these diseases with thwith a congress that is a clause to the statutory grant party saying you are not eligible to receive these once you have a policy opposing the trafficking and constitution. I think it violates the First Amendment rights as they are not eligible for this unless we have the government Supreme Court i divided the 6to vote if you are insisting they adopt the policy to receive the required grant. Back down to the lower court and they have one and said wait a second, it isnt just us. We are not going to push around but the policies are going to have to. Same logo, same brand, same name. The lower court will agree with as to the affiliates that are sharing the same name logo brands the government then says hold on a second there is a longstanding line of cases the Supreme Court is recognizing it operating abroad. The day cant be under the umbrella of the First Amendment for domestic entities cant be forced to take the pledge, but the governments case is the foreign affiliates relax the rights and shouldnt be able to claim them. They said that there are two violations of the First Amendment rights of the u. S. Respondents. It takes the pledge that it wont support its actions are attributed to. Big u. S. Entity from contradicting the pledge on its own dime to use the phrase from chief justice 2013 opinion making it impossible to disavow the message without doublespeak and using the phrases in from chief Justice Roberts opinion. The First Amendment rights are being violated. From the laymans perspective, the first point is basically if you have a foreign affiliates who takes a particular position, people dont, the general public observing this they dont say that us and care usa or global or what have you. It is colloquial and attributed throughout the network. That is where the second part comes in. I think this whole argument into this whole case come down to something when she found her un mute button. She had a problem with that. Justices are just like us. They said in the First Amendment context we are much less concerned in the corporate formalities. You can look at cases of different as hobby lobby about the First Amendment rights and the publicly Held Corporation or the hurley case. We dont like to see whether the partnership or corporation or nonprofit, however you structured your localities, that is beside the point of whether there are First Amendment rights. At the end of the day this is more of a Corporate Structure case than in First Amendment one because the question is in 2013, the court did rule and by the way, all of those justices were still on the court except Justice Gorsuch. Does the 2013 ruling apply to those foreign entities, and i think this is simply a question of the First Amendment context. The corporate entities do not matter so much for the purpose of protecting the free speech rights and Justice Ginsburg said it is not just whether foreign entities or individuals or persons of amendment rights under the constitution. They dont. But about the u. S. Government obligations the Congress Shall make no law not to infringe. Lets talk more about the question whether the distinction is formal. The question Justice Roberts asked was if one thing the precise relationship between foreign and domestic entity. Entity. Is it reasonable to assist in this context our position is that the formal distinction between these entities is all that is needed to attach the certain legal rights and then many of the justices noted about the corporate formalities. The hobby lobby case, remember the famous case that says the religiously scrupulous corp. Couldnt be required to offer the contraceptive coverage suggesting that they were less concerned with corporate formalities and perception. People might think the Hobby Lobby Corporation was endorsing a pledge. The affiliates speech of the entity sounds like an alter ego argument that resist any attempt to pierce the corporate veil and the entity of the respondents we dont ask the government to pierce the corporate veil. It is being attributed even when the court formalities are imposed. The comment that is a way of saying what is your response it is a crucial distinction in the argument should we take a pragmatic view of whether these entities would be attributed to the domestic and what is your argument about why we should do this formalistic way rather than pragmatic. A couple of things. First, the Supreme Court has not been consistent. If you look at the common sense that they were pointing to, you have say an entity like planned parenthood. You have the aclu and then the 501 c. Four. And on the one hand, planned parenthood saying we are a Nonprofit Group and on the other hand in entity battling for particular candidates and that is their right to do that. But its also legitimate for congress to say you are entitled to the nonprofit status if you are a campaign entity. So, you have the same logo, same name, same general worldview and get the formalistic distinction if you had a different formal status. Is the guy on the street going to say it looks the same to me . Probably. Does it matter nonetheless. We have advanced the inconsistency on whether it is decisive and people have said in the context that it does matter. So why cant the same distinction apply for domestic entity that is restricted but we have the entity that is restricted and that is part of the territory. Now the second point i want to make is part of the problem the Government Faces displayed on the one hand i find we fully accept the courts prior decision. Our brief takes the position of the state that is because it turned to the notion that there is a compelled speech. Our view is the acceptance of the limited Grant Program is not. No one is required to apply and for that matter 99 of the people that apply for the foreign grant to combat aids and hiv overseas. But something you voluntarily undertake and it is typical with voluntary Grant Program to set up the strings to do with it. If it controls the budget it can pull the strings come so its important to draw the line between those kind of programs that are discretionary and limited by quitting smoking, fighting drug abuse, fighting hiv aids, versus a General Program like access to programs and libraries, where it would be completely impermissible to say you can only do so if you accept the governments position on smoking, sex trafficking, etc. We consider that original decision, one that enrollment objectives were going to get the subsequent ten. Thank you for signaling the important point in your grief. You argue that the original 2013 u. S. Aig decision was incorrect in the court should overturn it and allow foreign aid to be conditioned on ensuring that the organizations are basically onboard and a general purpose of the program. As we know, the courts reluctance to overturn its prior decision especially the 6to decision and your briefing argues that this case was already decided by the 2013 decision. You said that the distinction between the foreign and domestic affiliates is unsupported by the record which constraints the speech by the close for an affiliate indistinguishable from the respondents speech and you say that this sort of technical distinction between the two was rejected in the previous decision as evidence of hypocrisy and Justice Breyer seemed to pick up on the notion in several of his questions he said the following about Justice Ginsburgs question if the organizations say we are against prostitution, but the Foreign Organization are disavowing it and saying they dont support the pledge, Justice Breyer said some will say they are hypocrites. How does that change one iota instead of sending their own work over there to give them the money and not the Foreign Workers that do the exact same thing about how does that interfere domestically and otherwise as hypocrites interfering in the nation if we accepted that argument before, why should we accept it now . Tell us why Justice Breyer seemed to suggest that it was covered by the decision and why you believe that it is. For the free speech purposes, this isnt about piercing the corporate veil in terms of the contractual liability issues or issuing stock or some other reasons with which they have the affiliates and things like that. It was a colloquy Justice Gorsuch near the end of the argument. For the free speech purposes, it is very different. And indeed, it would be hypocritical or disingenuous to continue the particular policy while one body still refuses to adopt it or another one does. At the end of the day, this is a question if the corporate entity exists and not even for some sort of a legalistic immunity or protection with respect to Corporate Law or tort liability, but because in many countries around the world including the united states, you have to have a locally incorporated affiliates to be able to do business. Whether as a nonprofit or a forprofit. So, in many cases this came right off the top with the chief justices first discussion with the government lawyer that they had no choice to incorporate the local entities, so it isnt even a matter of wanting to have some legal separation that they happened to be able to operate in that area. So again, just in the speech context it works differently. Or in terms of many fundamental rights rather and civil litigation world. Thank you for that. Walter, before we dig into your argument that the original decision should be overturned, lets ask about Justice Kavanagh questions can i add one thing lex sure. In terms of overturning them i think is less than a zero chance of that, because, no offense to walter it was a strongly written brief, of course, but that was a 62. You take away the justices that are no longer there and it becomes 51. So even if you have gorsuch and kavanagh on the dissent, theres still five votes for the previous position. So the only question is whether, you know, as we put it strongly, that the previous control and whether they even have to explain a little bit further to get to where they will need to go. Since you pressed the point, let me pose this to walter. You believe that there is any realistic aspect that the decision will be overturned in the composition of the court and if not, why did you decide to call on the court to overturn it rather than arguing as the government did the previous decision could be reconciled to treat the foreign entities differently, then maybe this is a chance to say clearly what it was about the previous decision that you think was incorrect and should be overturned as Justice Scalia laid out in his powerful dissent. One of the reasons why we filed this because it is really important for the Supreme Court to get it right and even if it gets it wrong then it becomes interim and its harder to fix down the road. One of them replaced somebody that was in the majority. I would like to see both of them at least note the arguments have some force and while it may not be presented in this case, they would at least recognize even if they do not there is a potential vulnerability in the previous decision that may become an issue down the road and that leads to the merits on this. You cant even prefer them because they do or do not have a policy so lets take an example that i hope everybody would agree on. There is a group in favor of [inaudible] on of the things the strongly agree on is that is the federal government side and ability and lets take it to suppose they want to have an antichildabuse Grant Program. We wont use the funds to promote what they are going to maintain the policy in saying that consent on both sides. We are going to give preference to the groups that dont have an express policy. Under the rationale for the first, we believe that cannot be done because what they are saying is if you have the First Amendment right, the government cannot require met and certainly also cannot refer to it and say we are going to disqualify or lower the ranking of the application. Where does that lead the government if you cannot have someone that represents the Tobacco Company talking about why. Yes it is true you dont want the government to be able to use the cash as a characteristic go along with our policies and you will get the money. As that is a problem. So, you have to come up with some line between on the one hand saying no one is going to use the library or public park unless they sign on the bottom line on the preferred position. And it can go both ways depending on who it is. It should be a bipartisan, nonpartisan issue. Versus saying we are going to have a targeted program to fight the evil that we have identified with this smoking, child sex abuse, whatever. We were prefer people that are with the program rather than those that are either opposed to it or are in different and just doing it for the money. Thank you for this opportunity to examine the merits of the case. Cspan friends, it is so meaningful to be able to go back. So thats the agency for International Development versus alliance for open society case from 2013 and the wind the chief Justice Roberts adopted in the 6to decision was the following. He said that the distinction that emerged in the cases is between the Spending Program and the conditions that seek to leverage funding to regulate speech outside the contours of the federal government itself and then he acknowledged those that reach outside it is not always self evident that the policy requirement here. Can you help us understand the distinction the chief justice was embracing and is it true that the congress couldnt save the Child Support agency in the u. S. Not support child abuse, or would that be within the conditions that defined the program itself and would only be people distributing them related to Child Welfare wouldnt be able to be restricted from supporting . Help us understand the core of that distinction. This goes to the doctrine of the unconstitutional provisions, not the First Amendment. That is, the government cannot tie your ability to exercise one constitutional right to your waiter or restriction voluntary quote on quote voluntary restriction for giving up the right to exercise a different right. And the wine that you just read from chief Justice Roberts is