Skip to main content

tv   Supreme Court Oral Argument in USAID v. Alliance for Open Society...  CSPAN  May 10, 2020 5:48am-6:59am EDT

5:48 am
customers, and industry itself would be better served for the long term with a different balance. the chief justice and the associate justices of the supreme court.
5:49 am
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.
5:50 am
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 hiv-aids. 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 respondent's message is now a product of their own choice, not government compulsion.
5:51 am
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
5:52 am
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
5:53 am
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 court's 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
5:54 am
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 don't think it does. when that was the only option available as it was in the court -- in the court's 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
5:55 am
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 don't 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
5:56 am
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?
5:57 am
>>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 court's 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
5:58 am
this court's prior decision into global relief and we don't think there is any basis for that. > thank you. ginsburg? justice ginsburg: the statute exempts certain nondomestic entities from the requirement to adopt an anti-prostitution 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
5:59 am
wanted to respect the sovereignty of the members of those organizations in a way that doesn't 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 anti-prostitution and sex trafficking pledge because they are not operating in the field, hey're 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?
6:00 am
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 anybody's face about it. they are encouraged to work with prostitutes and victims of sex trafficking to prevent hiv-aids
6:01 am
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.
6:02 am
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 don't like it, we are against it, it's 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
6:03 am
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 don't we accept it now? mr. michel: a couple of quick responses. i don't think that the court did base its prior decision on that
6:04 am
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. it's that the entities subject to the funding condition lacked constitutional rights under deeply established principles that foreign entities abroad don't exercise constitutional rights and can be subject to
6:05 am
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 hiv-aids. justice roberts: thank you, counsel. justice alito? justice alito: as i understand the government's 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 --
6:06 am
we think that turns on whether they're 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
6:07 am
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 don't 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
6:08 am
organizations from domestic organizations. we are happy to take a further look at the trust hypothetical. justice alito: is that because, until recently the government's test was not whether it was a legally separate entity, but a multi-fact 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: i'm sorry, chief, did it again. a domestic agency would not want
6:09 am
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 don't 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 government's message but does want to do the program,
6:10 am
cannot, unless it finds an affiliate who will speak a government's 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.
6:11 am
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, let's put aside any other context, in the first amendment context we are
6:12 am
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 don't think there is enough in the record and we can deal with that separately -- presuming the public does perceive these entities as one, why wouldn't the first amendment apply to the inability of the domestic corporations to receive funds and partner with a closely affiliated foreign entity? in implementing the program? mr. michel: a couple of points. i think hurley and the other cases you cited depend on the predicate of a forced affiliation between the two groups. in hurley it was the parade organizers and the group that wanted to join the parade. a response to the last part of your question, nobody is forcing the domestic entity to affiliate with the foreign entity. the domestic entity has a choice to take the money and use it
6:13 am
itself. any hypocrisy or disturbance to the message is a result of its own choice to affiliate with the group must make the statement. they are not being forced to affiliate with anyone in the way that was at issue in the cases you cited. justice roberts: thank you, counsel. justice gorsuch? justice gorsuch: you seem to rely heavily on legal separation, but the first amendment, it's not clear to me why that cares, as opposed to the imputation in her lye as justice sotomayor pointed out. can you speak to that further please? mr. michel: the reason to follow corporate separation here is
6:14 am
that is how the grant program is organized. this court, in hur lee, there was a forced association the court ruled attribution matters. but in every one of their funding case, the court looked to the effect thope recipient of the funds itself and here respondents and foreign entity -- foreign entities are making the choice to apply for separate grants and agree to separate conditions. justice gorsuch: i think the argument goes beyond the forced nature of the association to the concern about chilling of speech. can you speak to that? the first amendment does not care just about protecting speech, it is concerned about avoiding chilling speech. mr. michel: i think you are right about that. i simply don't see any chilling of speech here, given that as a result of this court's prior decision domestic entities are free to take the money and use it themselves in charge of their own message and free to make a different choice which is to
6:15 am
work through a foreign affiliate that as a result of the respondent's own choice will have to make the policy statement opposing prostitution and second trafficking. in that instance respondents are free to use their own speech rights to explain that they don't share the views of the foreign affiliate on prostitution and sex trafficking. i think ultimately respondents are asking for a right to optimal message management, which is simply not what the first amendment protects. if you look at cases like rumsfeld, the law schools in that case might well be concerned about misattribution of their position of letting military recruiters onto campus, yet that concern alone was not a reason to find it un -- to find an unconstitutional conditions violation. in the other funding cases like rust and reagan the entities were ultimately not allowed to operate in their preferred manner, but the abortion providers in rust certainly did
6:16 am
not want to have to separate their speech in the way they did. the court found that it was constitutionally permissible for congress and the executive branch to require them to separate that speech because they still had an open channel to express their first amendment views. after the prior decision, the respondents clearly have an open channel to express their views without chilling and having to give up the money. justice roberts: thank you, counsel. justice kavanaugh. justice kavanaugh: thank you, chief justice. i am interested in the implications of our decision in this case, in particular if the government were to lose this case, would any other programs or statutes be invalidated or called into question by such a decision? mr. michel: i think there would be real concerns about that. i am not here to give up any other statutes, but i think the graphmen of the positions and the foreign -- the gravamen of
6:17 am
the positions and what they've chosen to keep separate should somehow be treated as some kind of single global unified entity and if that is the theory that they are operating under i think it would call into question a number of different statutory and administrative regulations of foreign speech that likely could not be applied domestically. congress has long banned campaign contributions in u.s. elections by foreign entities, but congress could not ban such contributions by u.s. entities. if a u.s. entity were able to say that it shares or confers on a foreign affiliate its first amendment rights it might well claim a basis for challenging that ban on foreign speech. there are many other examples that we cite in our brief.
6:18 am
it is commonplace for congress and the executive branch to condition foreign aid to entities abroad on certain policy objectives such as opposing terrorism or supporting women's rights or opposing apartheid, or in the case of the mexico city policy taking certain positions on abortion. those content-based speech restrictions might not be permissible in the united states and domestic entities who are table confer on, you know, unite with their foreign bodies, foreign entity, challenge those would, i think, create considerable risk of disturbing long-settled laws. justice kavanaugh: one other question. has the program with respect to u.s. domestic organizations suffered any problems or been any less successful since this court's decision in 2013 as far as you're aware?
6:19 am
mr. michel: not at all. it has truly been one of historic successes in the history of u.s. foreign aid and i think we do have sort of the controlled experiment over the last 15 years as a result of injunctions in the first case and stays in this case that the the stasstuss quo that u.s. entities are not subjected to policy requirement and foreign entities are is the background in place for years and that has not set back the extraordinary success of the program nor created as judge sprout noted in his powerful dissent any hypocrisy or confusion of message for respondents themselves. justice roberts: mr. michel, take a minute to wrap up, please. mr. michel: thank you, mr. chief justice. thing case can be resolved on a straightforward basis that respondents themselves long accepted. and that's that the policy question -- is it a permissible exercise of congress' power as applied to foreign recipients that lack first amendment rights
6:20 am
but not domestic recipients that have first amendment rights. though respondents have broadened their position they had it right the first time and nothing supports the bootstrapping they have requested. chief justice roberts: thank you, counsel. mr. bowker. mr. bowker: the undisputed record shows that they suffer arrest amendment harms when it is imposed on them. respondents and their affiliates they share a name, brand, logo, mission and voice. they speak as one, make speech and policy decisions together and are indistinguishable to the public.
6:21 am
as a result the first amendment rights are violated here in two ways. first, by a speech compulsion that is attributed to them. when care in kenya takes a pledge, its affirmation of belief is attributed to care in the united states, putting words in the mouth of the u.s. entity. the second violation is from a speech restriction. under regulations that prohibit any care entity from contradicting the pledge, even on its own time and dime, thus making it impossible for care u.s. to disavow care kenya's pledge without engaging in double speak and losing u.s. funding for its global network. the government says the burden son them to avoid such harm by disavowing the pledge. this has it backwards. when a statute violates the first amendment the burden is on the government, not the speaker, to give first amendment freedoms the necessary breathing space. plus the government's proposals all fail in practice. asking respondents to apply for funds ignores that they must work through local affiliates,
6:22 am
in places where local laws or the u.s. government's own funding criteria require it. severing ties with affiliates would destroy their organization. imposing such a choice shows how the government continues to use its vast spending power to coerce respondent's fealty. as the court recognized in 2013, u.s. respondents cannot credibly disavow the speech of their own clearly identified affiliates. this injunction affords complete relief from this and you should uphold it. chief justice roberts: can your client avow what the affiliates -- compel what the foreign affiliates say? mr. bowker: we represent several organizations and i think it's correct as a factual matter that in every case the u.s. organization effectively can veto the speech of a foreign organization on these issues. they do speak together, they make their speech choices together, but the u.s. entity hears as a practical
6:23 am
matter typically control that speech. chief justice roberts: can you give me a citation of the record where i can find that? i thought by saying there was not a remote affiliation but the organizations share a logo and name and so forth that there was some absence of control, and that's what the foreign governments were insisting on. mr. bowker: i think your honor is correct that there is as a legal matter there may be the absence of control in some cases. in every case, there is practical control. i think the best citations to the record for care would be ja389, which talks about how the care entity with a single global voice. and ja436, which discusses care
6:24 am
u.s.'s ownership of the brand and licenses on the brand, which is in that case legal control to dictate what occurs under that brand. chief justice roberts: thank you, counsel. you used the phrase practical control. i just wonder precisely what your test for that would be. mr. bowker: i think the right test here is the risk of attribution. as this court recognized in 2013, there can be a risk of attribution across corporate lines where the entities in question are so clearly identified as they are here. i think the practical control point is even stronger when those entities speak together with one voice and make beach and policy decisions together. chief justice roberts: thank you, counsel. justice thomas? justice thomas: did you have the
6:25 am
opportunity in the lower courts to discuss or debate what criteria would be used to determine whether or not the two organizations merged or are affiliated closely enough so that first amendment rights apply domestically? mr. bowker: we did, your honor. judge marrero gave the parties an opportunity to both submit voluminous materials into the record and to explain to him the relationship between these entities. what is important is there is no dispute about the relationships here. these entities are clearly identified with one another. there is no dispute that they share a name, brand, logo, mission, and voice. critically, there was a two year period where we worked hard to
6:26 am
settle this case with the government. we provided extensive factual information to the government during that period. we also provided lists of the entities involved and offered to stipulate to a definition and the government rejected that effort by us. but we did make a full effort in the district court and separately with the government to come to terms with this issue. justice thomas: if you went that far, could you give us a recap of what the criteria would be for that affiliation that would be close enough? mr. bowker: absolutely. i think here the test should be organizations that are part of a
6:27 am
global network that share names, brands, logos, missions, and voices. i think the reason that that is the right test is because we are talking about attribution by the reasonable observer. as this court has recognized in a long line of cases that justice sotomayor mentioned and that justices alito and breyer previously discussed, a long line of cases recognized there can be attribution across corporate lines, especially with tightly knit international organizations like these. justice thomas: i understand that.
6:28 am
one final question, and i know you have covered this, but it would be helpful if you would give us a recap of what precisely you think your injury is. mr. bowker: i think the types of injuries are twofold. the first injury is the compulsion of speech. the problem here is that even though the pledge is being imposed on our foreign affiliate, those words are
6:29 am
effectively put into the mouths of the u.s. respondents because of the attribution problem. the government says it is no harm to the u.s. organizations because they can remain neutral. but that's not right. once those words are put into the mouth of the u.s. respondents, that policy position is attributed to them and the harm is done from that compelled speech. the second category of harm comes from speech restrictions imposed by the regulations. those say the foreign affiliate will lose its funding unless it maintains adequate separation from organizations that say or do anything inconsistent with the policy. when the government says the u.s. organization can disavow the pledge, that comes at a high price, which is the loss of funding for the foreign affiliate. the categories of injuries are twofold. one from the speech compulsion and the other from the speech restriction. it is a catch-22 for these organizations. chief justice roberts: thank you, counsel. justice ginsburg? justice ginsburg: i don't follow your last response because a domestic organization is able to speak for itself. as far as any attribution of the
6:30 am
foreign entity to the domestic organization, aosi can disclaim the foreign entity's pledge by saying, we don't take the pledge and we disclaim any pledge made by the foreign entity. they can say, and they say, that pledge taken by the foreign entity was the price for receiving u.s. dollars. i know the organization continues to work with prostitutes. they have just made a statement that, on the ground, means nothing. mr. bowker: justice ginsburg, i think this court had it right in 2013 when it recognized that an organization cannot both avow the government's viewpoint and turn around and assert a contrary belief or claim neutrality without appearing hypocritical and without appearing to engage in doublespeak. the problem here is the entities are indistinguishable and speak as one. focusing on the corporate difference is a mistake. it would be odd that the
6:31 am
international operating arms of these u.s. organizations are treated differently based on whether they operate through branch offices or separate corporations. in fact, what is wrong with the government's view that this is all by choice is that there are certain jurisdictions where local law and even the u.s. government's on funding criteria require u.s. respondents to work through local affiliates. we are caught unable to credibly disavow the speech of an entity that looks like our clients and speaks as one with our clients.
6:32 am
justice ginsburg: let me ask you a question, an argument you didn't make. you concede the foreign entity has no first amendment rights. but what about the first amendment obligations of the u.s. -- u.s. government? for example, we can say the eighth amendment doesn't apply abroad. but does that mean a u.s. government official operating abroad is free to torture people? mr. bowker: justice ginsburg -- i'm sorry for interrupting. justice ginsburg: i am asking whether u.s. actors have an obligation to conform their conduct to constitutional norms. mr. bowker: the first response is i don't want the court to think we are trying to export the first amendment.
6:33 am
that is not what we are trying to do. we are just trying to afford complete relief to u.s. organizations that have first amendment rights here. to your honor's good question, i think in a system with a limited government and a constitution that includes a bill of rights, there is a fair question about the extent to which the u.s. government can go beyond what it is authorized to do in the constitution with respect to speech. the other point i would add is that even these clearly identified affiliates overseas, i think the government concedes have first amendment rights when they act in the united states, which they often do when they come here for meetings, to publish papers, or participate in conferences. the problem with the pledge requirement is that it binds these organizations forever and all purposes -- chief justice roberts: thank you, counsel. justice breyer? justice breyer: it seems to me the government is prepared to
6:34 am
concede that 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 don't you simply write a grant to get all the money yourself, and then you give it to care india? why doesn't that work? mr. bowker: the problem with that, your 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 sub-grants to care india, it must carry the burden of the government in the sense of imposing the policy requirement on its own affiliate and police compliance with the governance, not just with respect to the speech and activities of the
6:35 am
foreign affiliate, but with respect to itself, lest it violate the regulation -- justice breyer: where do i read in the briefs just what you said? it seems what you said shows this case is 100% about the rights of an american company, the parent, and the question is can the government require them to forbid 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 don't know that there is any president -- any precedent that says they can. have i got that right? is that clear? mr. bowker: i think the best
6:36 am
citations in the record would be the regulations themselves, ja248 to 265. and i would direct your attention to the commentary of 45 cfr 89.3. where the government makes very clear that not only do funding recipients have to demonstrate their separation from entities that speak inconsistently, they even go so far as to say there has to be separation from entities that do not have a policy themselves, suggesting that the government's view is that the u.s. responded itself should have a policy. another place to look in the record is at ja375 and 390, where the pathfinder organization talks about u.s. funding criteria that requires them to work through local affiliates and locally incorporated entities.
6:37 am
chief justice roberts: justice alito? justice alito: i agree with your client's position when this case was before us previously, but what concerns me today is not so much the immediate impact of a decision in your favor, but where it would lead. i am 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 an example. suppose the united states provides grants to domestic entities and allows them to make sub-grants to foreign schools for the purpose of promoting education in countries with weak educational systems. suppose congress specifies that any foreign entity that gets a subgrant must have a policy denouncing terrorist attacks against american civilians. would that be unconstitutional? mr. bowker: it wouldn't be, your
6:38 am
honor, because that requirement does not require the affirmation of a belief and then conformity with that belief and espousing it as one's own. justice alito: the school that gets the money must have a policy denouncing terrorist attacks against american civilians. it is compelled to speak. it does not want to make that speech. it is affiliated with an american entity. why isn't the argument the same in that situation? mr. bowker: i think there is a problem with germaneness in that case. the requirement would not be related to the federal program. to your honor's larger question, this does not turn on the particular ideology. any ideological commitment, any requirement of an ideological commitment, by grantees is problematic for the same reasons as the one here. justice alito: exactly right.
6:39 am
let me ask you one more question before my time expires. why doesn't your argument applied to the provision of funds to totally independent foreign entities? suppose a u.s. entity gets money. under the leadership act, it wants to make a subgrant to a
6:40 am
nonaffiliated foreign entity but can't unless the u.s. entity tells the foreign entity, you must have a policy opposing prostitution. the u.s. entity is compelled to make a statement it doesn't want to make. why doesn't the logic of your argument apply there? mr. bowker: in that case, the entity being made to take the pledge is not clearly identified with the u.s. entity, and 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 imposes the requirement on its subgrantee, on its clearly identified for an affiliate, it is as if it is imposing the pledge requirement on itself, because these organizations are indistinguishable and speak with one voice. i do think it is important to make the point that the government still has very broad
6:41 am
authority to control what happens with its funds, to 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. and 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. chief justice roberts: thank you, counsel. justice sotomayor? justice sotomayer: counsel, there has been a long history to this case. i'm not quite sure what the relationship is of your clients to the agency now. are your clients grant recipients who currently receive grants or currently work through their foreign affiliates, and their foreign affiliates have not taken this pledge? or have they not received grants and want to work with their foreign affiliates? i am not quite 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 court in 2013. but a smaller group, because the rest of the clients are too small to have global networks. we now are talking about the
6:42 am
entities that were before the court in 2013 that were both the large international entities, like care and save the children and world vision and pathfinder, and were 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. care, which is the example we have been using, the u.s. entity receives all u.s. grant money under this program and sub grants to its local local affiliates.
6:43 am
in the case of care, it has done that, under objection. it asserts it should be free of this policy requirement. it believes that the litigation in 2013 would have disposed of this issue and it continues to suffer the first amendment harms and violations we have been discussing today. justice sotomayor: i am not sure you have answered my question. they 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? or have they not been policing the foreign affiliates and the government is now threatening to take away the funding? mr. bowker: well, it's a little bit of both, your honor. let me explain. they are receiving the funds and they are imposing the pledge requirement, under objection, on their clearly identified foreign
6:44 am
affiliates overseas. the government has said that all these years there has been no objection to this practice. i don't think that's exactly right, with respect to my friend. in fact, early in the litigation there was a disagreement in the district court about the proper scope of the 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. and the facts are now known. that was fully 12 years ago. the facts are known, the record is developed. the district court entered its findings, and i think there is no dispute about the nature of the relationship now. justice sotomayer: and so are they threatening to take away
6:45 am
the funding? why? mr. bowker: they are now saying that the policy requirement will be enforced as against the clearly identified foreign affiliates of the u.s. respondents, because, they say, those organizations have no first amendment rights. we argue that this is not about any rights of the foreign organizations. it is about the first amendment rights -- justice sotomayor: i am sorry for interrupting, but if the foreign affiliates have made the
6:46 am
policy statement, what -- so they have done what the government wants. why would the government take the funding away from you or them? mr. bowker: we object to that policy requirement. we don't want to have to impose it on our clearly identified affiliates. and it is causing the u.s. respondents to have to engage in doublespeak. and if they do that, if they attempt to disavow that pledge, which is attributed to them, they will lose their funding for the global network. chief justice roberts: thank you, counsel. justice gorsuch? justice gorsuch: counsel, in response to justice ginsburg and justice thomas, you indicated that the primary harm your client had suffered is the risk of attribution, mistaken attribution of a foreign affiliate's speech to the domestic entity. that sounds a bit like an alter ego argument that the ordinary listener will be confused and attribute the speech of a foreign affiliate to the domestic entities. yet at the same time, i assume you would resist any effort to pierce the corporate veil from those foreign entities and
6:47 am
impose liability on the domestic entity. so in what respect is it and when should we attribute speech or actions of the foreign affiliates to the domestic entity? why would we pierce the corporate veil sometimes but not all the time? mr. bowker: your honor, we don't ask the court to pierce the veil or to 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 court's decision in 2013 and aosi, but also cases like pleasant grove city, the walker v. texas division sons 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
6:48 am
analysis, which would get the courts mired into the corporate formalities, which we don't advocate. rather, we think a more limited holding based on the nature of speech and the first amendment would suffice. justice gorsuch: on that score, what evidence is there that there is this risk of confusion or attribution, given that the domestic entity is free to disavow the statements of any foreign affiliates? it seems to me an empirical action. do we have any empirics? mr. bowker: i think the best evidence is in the record and the sworn declarations of these organizations, which talk about how they are perceived in the public health community, the price they are paying in the form of hypocrisy, and 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 declarations that were --
6:49 am
justice gorsuch: i understand that part, counsel. i am sorry to interrupt. i understand the harm that people will see the disavowal and will take cognizance of it, but is that the same thing as anyone really thinking that the domestic entity abides by the government restrictions and endorses them? does anyone really think that when they read that, or do they think that this is a statement made by a foreign entity in order to secure u.s. dollars that obviously the u.s. entity itself does not promote or agree with. why wouldn't that be the natural reading by the average reader? mr. bowker: i think when these public health organizations take a pledge saying they believe something, i think people take it very seriously. when they say they believe that hiv-aids is transmitted in a certain way, or when they say they believe that prostitution should be dealt with in a way
6:50 am
that stops the spread of the disease, people listen to them. the reason they are so effective in these programs. justice gorsuch: counsel, i accept that, again. that is not really quite my question. couldn't a reasonable person hold in his or her mind two things? one, a foreign entity believes x. two, the domestic entity does not believe x. mr. bowker: your honor, 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 their affiliates in having their common voice and their common mission. when they are told to say one thing and then disavow it in another breath, i think it undercuts their reputation and brand and their own speech. i think your honor had it exactly right -- justice gorsuch: are we back to the belief that people will
6:51 am
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? chief justice roberts: briefly, counsel. mr. bowker: briefly, i think the 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. and so it really would be more like your honor's case in masterpiece cake shop, making the bakers say one thing and then attempt to disavow it in the next breath. chief justice roberts: thank you. justice kavanaugh? justice kavanaugh: i want to clarify one thing from your colloquy with justice ginsburg. you agree, i assume, that unaffiliated foreign entities
6:52 am
acting abroad have no constitutional rights under this court's process? mr. bowker: we do, your honor. justice kavanaugh: ok. and i want to pick up on justice alito's concern about the foreign policy effects on your approach. i have a hypothetical as well. suppose the u.s. government wants to fund foreign ngo's that support peace in the middle east, but only if the ngo's explicitly recognize israel as a legitimate state. are you saying the u.s. can't impose that kind of speech restriction on foreign ngo's that are affiliated with u.s. organizations? mr. bowker: i think that is a harder case, because i don't hear that as requiring affirmation of a 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
6:53 am
what that relationship is for the united states. i do not think that is making the entities espouse that view as their own. and so i think that's different. i think that would be acceptable. justice kavanaugh: that would be acceptable in your view? mr. bowker: i think it would be. justice kavanaugh: ok. and then the government says that your position would unleash foreign affiliates of u.s. corporations to pump money into the u.s. election process. i wanted to give you a chance to respond to that claim, which was in the government's reply brief and then repeated here today. mr. bowker: i disagree with that. that is a very different case. that is a speech restriction.
6:54 am
it is not speech compulsion. that restriction doesn't 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. justice kavanaugh: thank you, counsel. chief justice roberts: one minute to wrap up, mr. bowker. mr. bowker: thank you, your honor. applying the policy requirement to foreign members of these tightknit international entities fighting hiv-aids overseas puts words in the mouths of the u.s. members of those entities, and the program regulations prevent the u.s. members from even disavowing what the foreign members are compelled to say. the injunction should be upheld. chief justice roberts: thank you, counsel. mr. michel, three minutes for rebuttal. mr. michel: just a few points. first to respond to justice sotomayor's question, a footnote on one of our briefs explains that the prior submission was clear the statute was being challenged only with respect to domestic entities, and a true
6:55 am
invalidation 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, and i think that is exactly right. that ultimately underscores that it is the u.s. entity, the holder of the first amendment right, that is making a choice to affiliate with a foreign entity that accepts leadership act funds. unlike in this case last time, the u.s. entity is not required
6:56 am
to make that choice. the u.s. entity has a separate choice to accept leadership act funds itself and operate itself without any risk of hypocrisy or a mixed message. as justice gorsuch says, you have to take the sweet with the sour when you set up a separate corporate entity. my friend suggests that 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, we believe, be beyond challenge anyway. foreign law cannot change the scope of a u.s. entity's first amendment rights. my friend's position ultimately rests on what he frames as a risk of attribution test. i think the judge got it right below when he called that position startling. as justice kavanaugh and justice alito alluded to, that test would be unworkable, and it would call into question all
6:57 am
manner of u.s. speech restrictions on foreign entities abroad. my friend says there is a distinction between speech restriction and speech compulsion. but the risk of attribution test he has outlined where you compare names, logos, and brands has nothing to do with a distinction between speech attribution and compulsion. the foreign entities here are only if the u.s. entities choose required to make the statement in a letter to usaid, not shout it from the mountaintops and say anything that will interfere with the u.s. recipient's message. finally, i want to know why the respondent never made this argument for more than a decade. i think having secured rights for u.s. entities, they decided to ask for the world. but there is no oasis in any source of law for that holding. it would invalidate the provision congress has adopted and reauthorized and is working. the decision should be reversed. chief justice roberts: thank you, counsel. the case is submitted. >> monday, the supreme court continues to hear arguments via teleconference.
6:58 am
issue, the0:00, at prosecution of a native american for crimes committed on native land. the justices then hear a consolidated case. our lady of waterloo bay school and st. james school. they look at whether the first amendment's religion clause events federal courts from taking up discrimination claims against religious employers. the supreme court live monday on c-span, on demand at or listen on the free c-span radio app. immediately following the session, join jeffrey rosen leading a live discussion with scholars. television has changed since c-span began 41 years ago but our mission contin


info Stream Only

Uploaded by TV Archive on