Agency for Int'l Development v. Alliance for Open Society ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AGENCY FOR INTERNATIONAL DEVELOPMENT
ET AL. v. ALLIANCE FOR OPEN SOCIETY
INTERNATIONAL, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 19–177. Argued May 5, 2020—Decided June 29, 2020
In the United States Leadership Against HIV/AIDS, Tuberculosis, and
Malaria Act of 2003, as relevant here, Congress limited the funding of
American and foreign nongovernmental organizations to those with “a
policy explicitly opposing prostitution and sex trafficking.” 22 U. S. C.
§7631(f). In 2013, that Policy Requirement, as it is known, was held
to be an unconstitutional restraint on free speech when applied to
American organizations. Agency for Int’l Development v. Alliance for
Open Society Int’l, Inc., 570 U. S. 205. Those American organizations
now challenge the requirement’s constitutionality when applied to
their legally distinct foreign affiliates. The District Court held that the
Government was prohibited from enforcing the requirement against
the foreign affiliates, and the Second Circuit affirmed.
Held: Because plaintiffs’ foreign affiliates possess no First Amendment
rights, applying the Policy Requirement to them is not unconstitu-
tional. Two bedrock legal principles lead to this conclusion. As a mat-
ter of American constitutional law, foreign citizens outside U. S. terri-
tory do not possess rights under the U. S. Constitution. See, e.g.,
Boumediene v. Bush, 553 U. S. 723, 770–771. And as a matter of Amer-
ican corporate law, separately incorporated organizations are separate
legal units with distinct legal rights and obligations. See, e.g., Dole
Food Co. v. Patrickson, 538 U. S. 468, 474–475. That conclusion cor-
responds to Congress’s historical practice of conditioning funding to
foreign organizations, which helps ensure that U. S. foreign aid serves
U. S. interests.
Plaintiffs’ counterarguments are unpersuasive. First, they claim
2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
Syllabus
that because a foreign affiliate’s policy statement may be attributed to
them, American organizations themselves possess a First Amendment
right against the Policy Requirement’s imposition on their foreign af-
filiates. First Amendment cases involving speech misattribution be-
tween formally distinct speakers, see, e.g., Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–
575, however, are premised on something missing here: Government
compulsion to associate with another entity. Even protecting the free
speech rights of only those foreign organizations that are closely iden-
tified with American organizations would deviate from the fundamen-
tal principle that foreign organizations operating abroad do not pos-
sess rights under the U. S. Constitution and enmesh the courts in
difficult line-drawing exercises. Second, plaintiffs assert that the
Court’s 2013 decision encompassed both American organizations and
their foreign affiliates. That decision did not facially invalidate the
Act’s funding condition, suggest that the First Amendment requires
the Government to exempt plaintiffs’ foreign affiliates or other foreign
organizations from the Policy Requirement, or purport to override
longstanding constitutional law and corporate law principles. Pp. 3–
9.
911 F. 3d 104, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. THOMAS, J., filed a
concurring opinion. BREYER, J., filed a dissenting opinion, in which GINS-
BURG and SOTOMAYOR, JJ., joined. KAGAN, J., took no part in the consid-
eration or decision of the case.
Cite as: 591 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
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SUPREME COURT OF THE UNITED STATES
_________________
No. 19–177
_________________
AGENCY FOR INTERNATIONAL DEVELOPMENT,
ET AL., PETITIONERS v. ALLIANCE FOR OPEN
SOCIETY INTERNATIONAL, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2020]
JUSTICE KAVANAUGH delivered the opinion of the Court.
In 2003, Congress passed and President George W. Bush
signed the United States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act, known as the Leadership
Act. 117 Stat. 711, as amended, 22 U. S. C. §7601 et seq.
Aiming to enhance America’s response to the ravages of the
global HIV/AIDS crisis, the Leadership Act launched “the
largest international public health program of its kind ever
created.” §7601(29). The Act has helped save an estimated
17 million lives, primarily in Africa, and is widely viewed
as the most successful American foreign aid program since
the Marshall Plan.
To advance the global relief effort, Congress has allocated
billions of dollars to American and foreign nongovernmen-
tal organizations that combat HIV/AIDS abroad. As rele-
vant here, Congress sought to fund only those organizations
that have, or agree to have, a “policy explicitly opposing
prostitution and sex trafficking.” §7631(f ); see also
§7631(e); 45 CFR §89.1 (2019). Congress imposed that con-
2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
Opinion of the Court
dition on funding, known as the Policy Requirement, be-
cause Congress found that prostitution and sex trafficking
“are additional causes of and factors in the spread of the
HIV/AIDS epidemic” and that prostitution and sex traffick-
ing “are degrading to women and children.” §7601(23).
Plaintiffs are American nongovernmental organizations
that receive Leadership Act funds to fight HIV/AIDS
abroad. Plaintiffs have long maintained that they do not
want to express their agreement with the American com-
mitment to eradicating prostitution. Plaintiffs consider a
public stance of neutrality toward prostitution more helpful
to their sensitive work in some parts of the world and also
to their full participation in the global efforts to prevent
HIV/AIDS.
After enactment of the Leadership Act, plaintiffs chal-
lenged the Policy Requirement, alleging that it violated the
First Amendment. In 2013, this Court agreed, concluding
that the Policy Requirement ran afoul of the free speech
principle that the Government “may not deny a benefit to a
person on a basis that infringes his constitutionally pro-
tected . . . freedom of speech.” Agency for Int’l Development
v. Alliance for Open Society Int’l, Inc., 570 U. S. 205, 214
(2013) (internal quotation marks omitted). Therefore, the
Policy Requirement no longer applies to American organi-
zations that receive Leadership Act funds, meaning that
American organizations can obtain Leadership Act funds
even if they do not have a policy explicitly opposing prosti-
tution and sex trafficking.
But as has been the case since 2003, foreign organizations
that receive Leadership Act funds remain subject to the Pol-
icy Requirement and still must have a policy explicitly op-
posing prostitution and sex trafficking. Following this
Court’s 2013 decision barring the Government from enforc-
ing the Policy Requirement against American organiza-
tions, plaintiffs returned to court, invoking the First
Cite as: 591 U. S. ____ (2020) 3
Opinion of the Court
Amendment and seeking to bar the Government from en-
forcing the Policy Requirement against plaintiffs’ legally
distinct foreign affiliates. The U. S. District Court for the
Southern District of New York agreed with plaintiffs and
prohibited the Government from enforcing the Policy Re-
quirement against plaintiffs’ foreign affiliates. The U. S.
Court of Appeals for the Second Circuit affirmed. Judge
Straub dissented. He described as “startling” the proposi-
tion that the First Amendment could extend to foreign or-
ganizations operating abroad. 911 F. 3d 104, 112 (2018).
The Second Circuit’s decision was stayed pending this
Court’s review, meaning that foreign organizations cur-
rently remain subject to the Policy Requirement.
We granted certiorari, 589 U. S. ___ (2019), and now re-
verse the judgment of the Second Circuit. Plaintiffs’ posi-
tion runs headlong into two bedrock principles of American
law.
First, it is long settled as a matter of American constitu-
tional law that foreign citizens outside U. S. territory do not
possess rights under the U. S. Constitution. Plaintiffs do
not dispute that fundamental principle. Tr. of Oral Arg.
58–59; see, e.g., Boumediene v. Bush, 553 U. S. 723, 770–
771 (2008); Hamdi v. Rumsfeld, 542 U. S. 507, 558–559
(2004) (Scalia, J., dissenting); United States v. Verdugo-Ur-
quidez, 494 U. S. 259, 265–275 (1990); Johnson v. Eisen-
trager, 339 U. S. 763, 784 (1950); United States ex rel.
Turner v. Williams, 194 U. S. 279, 292 (1904); U. S. Const.,
Preamble.
As the Court has recognized, foreign citizens in the
United States may enjoy certain constitutional rights—to
take just one example, the right to due process in a criminal
trial. See, e.g., Verdugo-Urquidez, 494 U. S., at 270–271;
Plyler v. Doe, 457 U. S. 202, 210–213 (1982); Kwong Hai
Chew v. Colding, 344 U. S. 590, 596 (1953); Bridges v.
Wixon, 326 U. S. 135, 148 (1945); Yick Wo v. Hopkins, 118
U. S. 356, 369 (1886); cf. Bluman v. Federal Election
4 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
Opinion of the Court
Comm’n, 800 F. Supp. 2d 281, 286–289 (DC 2011), aff ’d,
565 U. S. 1104 (2012). And so too, the Court has ruled that,
under some circumstances, foreign citizens in the U. S. Ter-
ritories—or in “a territory” under the “indefinite” and “com-
plete and total control” and “within the constant jurisdic-
tion” of the United States—may possess certain
constitutional rights. Boumediene, 553 U. S., at 755–771.
But the Court has not allowed foreign citizens outside the
United States or such U. S. territory to assert rights under
the U. S. Constitution. If the rule were otherwise, actions
by American military, intelligence, and law enforcement
personnel against foreign organizations or foreign citizens
in foreign countries would be constrained by the foreign cit-
izens’ purported rights under the U. S. Constitution. That
has never been the law. See Verdugo-Urquidez, 494 U. S.,
at 273–274; Eisentrager, 339 U. S., at 784.* To be sure,
Congress may seek to enact laws that afford foreign citizens
abroad statutory rights or causes of action against miscon-
duct by U. S. Government officials, or laws that otherwise
regulate the conduct of U. S. officials abroad. See Verdugo-
——————
* As Justice Jackson stated for the Court in Eisentrager:
“If the Fifth Amendment confers its rights on all the world . . . , the
same must be true of the companion civil-rights Amendments, for none
of them is limited by its express terms, territorially or as to persons.
Such a construction would mean that during military occupation irrec-
oncilable enemy elements, guerrilla fighters, and ‘werewolves’ could re-
quire the American Judiciary to assure them freedoms of speech, press,
and assembly as in the First Amendment, right to bear arms as in the
Second, security against ‘unreasonable’ searches and seizures as in the
Fourth, as well as rights to jury trial as in the Fifth and Sixth Amend-
ments.
“Such extraterritorial application of organic law would have been so
significant an innovation in the practice of governments that, if intended
or apprehended, it could scarcely have failed to excite contemporary com-
ment. Not one word can be cited. No decision of this Court supports such
a view. Cf. Downes v. Bidwell, 182 U. S. 244. None of the learned com-
mentators on our Constitution has even hinted at it.” 339 U. S., at 784–
785.
Cite as: 591 U. S. ____ (2020) 5
Opinion of the Court
Urquidez, 494 U. S., at 275; cf. 10 U. S. C. §§2734(a),
2734a(a); 18 U. S. C. §2340A; 21 U. S. C. §904; 22 U. S. C.
§§2669, 2669–1; 42 U. S. C. §2000dd; but see 28 U. S. C.
§2680(k) (Federal Tort Claims Act’s exception for torts
“arising in a foreign country”). Plaintiffs did not raise any
such statutory claim in this case.
Second, it is long settled as a matter of American corpo-
rate law that separately incorporated organizations are
separate legal units with distinct legal rights and obliga-
tions. See Dole Food Co. v. Patrickson, 538 U. S. 468, 474–
475 (2003); Cedric Kushner Promotions, Ltd. v. King, 533
U. S. 158, 163 (2001); P. Blumberg, K. Strasser, N. Geor-
gakopoulos, & E. Gouvin, Corporate Groups §§6.01, 6.02,
6.05 (2020 Supp.).
Plaintiffs’ foreign affiliates were incorporated in other
countries and are legally separate from plaintiffs’ American
organizations. Even though the foreign organizations have
affiliated with the American organizations, the foreign or-
ganizations remain legally distinct from the American or-
ganizations. Plaintiffs do not ask this Court to pierce the
corporate veil, nor do they invoke any other relevant excep-
tion to that fundamental corporate law principle. Tr. of
Oral Arg. 54.
Those two bedrock principles of American constitutional
law and American corporate law together lead to a simple
conclusion: As foreign organizations operating abroad,
plaintiffs’ foreign affiliates possess no rights under the First
Amendment.
That conclusion corresponds to historical practice regard-
ing American foreign aid. The United States supplies more
foreign aid than any other nation in the world. Cong. Re-
search Serv., Foreign Assistance: An Introduction to U. S.
Programs and Policy (2020) (Summary). Acting with the
President in the legislative process, Congress sometimes
imposes conditions on foreign aid. See 22 U. S. C. §§2271,
2272, 2371, 7110(g)(2). Congress may condition funding on
6 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
Opinion of the Court
a foreign organization’s ideological commitments—for ex-
ample, pro-democracy, pro-women’s rights, anti-terrorism,
pro-religious freedom, anti-sex trafficking, or the like. Do-
ing so helps ensure that U. S. foreign aid serves U. S. inter-
ests. By contrast, plaintiffs’ approach would throw a con-
stitutional wrench into American foreign policy. In
particular, plaintiffs’ approach would put Congress in the
untenable position of either cutting off certain funding pro-
grams altogether, or instead funding foreign organizations
that may not align with U. S. values. We see no constitu-
tional justification for the Federal Judiciary to interfere in
that fashion with American foreign policy and American aid
to foreign organizations.
In short, plaintiffs’ foreign affiliates are foreign organiza-
tions, and foreign organizations operating abroad have no
First Amendment rights.
To overcome that conclusion, plaintiffs advance two main
arguments. But neither persuades us.
First, plaintiffs theorize that the foreign affiliates’ re-
quired statement of policy against prostitution and sex traf-
ficking may be incorrectly attributed to the American or-
ganizations. Therefore, the theory goes, the American
organizations themselves possess a First Amendment right
against imposition of the Policy Requirement on their for-
eign affiliates.
As support, plaintiffs point to First Amendment cases in-
volving speech misattribution between formally distinct
speakers. See, e.g., Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–575
(1995); Pacific Gas & Elec. Co. v. Public Util. Comm’n of
Cal., 475 U. S. 1, 15 (1986) (plurality opinion); cf. Prune-
Yard Shopping Center v. Robins, 447 U. S. 74, 87 (1980).
But the constitutional issue in those cases arose because
the State forced one speaker to host another speaker’s
speech. See Hurley, 515 U. S., at 572–573; Pacific Gas, 475
U. S., at 15; cf. PruneYard, 447 U. S., at 85, 87. Here, by
Cite as: 591 U. S. ____ (2020) 7
Opinion of the Court
contrast, the United States is not forcing plaintiffs to affili-
ate with foreign organizations. Plaintiffs are free to choose
whether to affiliate with foreign organizations and are free
to disclaim agreement with the foreign affiliates’ required
statement of policy. Any alleged misattribution in this case
and any effect on the American organizations’ message of
neutrality toward prostitution stems from their choice to af-
filiate with foreign organizations, not from U. S. Govern-
ment compulsion. Because the First Amendment
misattribution cases are premised on government compul-
sion to associate with another entity, those cases do not ap-
ply here.
In support of their misattribution argument, plaintiffs
also cite Regan v. Taxation With Representation of Wash.,
461 U. S. 540, 544–545, and n. 6 (1983). But as relevant
here, that case simply explained that a speech restriction
on a corporate entity did not prevent a separate affiliate
from speaking, a point that is not disputed in this case.
We appreciate that plaintiffs would prefer to affiliate
with foreign organizations that do not oppose prostitution.
But Congress required foreign organizations to oppose pros-
titution in return for American funding. And plaintiffs can-
not export their own First Amendment rights to shield for-
eign organizations from Congress’s funding conditions.
Stressing that their position is limited, plaintiffs empha-
size that the Court could narrowly decide to protect the free
speech rights of only those foreign organizations that are
closely identified with American organizations—for exam-
ple, those foreign affiliates that share similar names, logos,
and brands with American organizations. According to
plaintiffs, those “closely identified” scenarios greatly in-
crease the risk of misattribution. But again, the First
Amendment cases involving speech misattribution arose
when the State forced one speaker to host another speaker’s
speech. No compulsion is present here. Moreover, plain-
tiffs’ proposed line-drawing among foreign organizations
8 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
Opinion of the Court
would blur a clear rule of American law: Foreign organiza-
tions operating abroad do not possess rights under the U. S.
Constitution. Plaintiffs’ carve-out not only would deviate
from that fundamental principle, but also would enmesh
the courts in difficult line-drawing exercises—how closely
identified is close enough?—and leave courts without any
principled basis for making those judgments. We discern
no good reason to invent a new and legally unmoored excep-
tion to longstanding principles of American constitutional
and corporate law.
Second, plaintiffs argue that the Court’s 2013 decision in
this case encompassed both plaintiffs’ American organiza-
tions and their foreign affiliates, meaning that, in plaintiffs’
view, the Court has already resolved the issue before us.
That is not correct. The plaintiffs in the 2013 case were
these same American organizations. It is true that the
Court considered the possibility that an American organi-
zation could work through affiliates to potentially avoid the
burdens of the otherwise-unconstitutional application of
the Policy Requirement. But the Court rejected that alter-
native, which in essence would have compelled the Ameri-
can organizations to affiliate with other organizations. The
Court instead ruled that the Policy Requirement may not
be applied to plaintiffs’ American organizations. Therefore,
plaintiffs’ current affiliations with foreign organizations are
their own choice, not the result of any U. S. Government
compulsion.
Stated simply, in the prior decision, the Court did not fa-
cially invalidate the Act’s condition on funding. The Court
did not hold or suggest that the First Amendment requires
the Government to exempt plaintiffs’ foreign affiliates or
other foreign organizations from the Policy Requirement.
And the Court did not purport to override the longstanding
constitutional law principle that foreign organizations op-
erating abroad do not possess constitutional rights, or the
elementary corporate law principle that each corporation is
Cite as: 591 U. S. ____ (2020) 9
Opinion of the Court
a separate legal unit.
The dissent emphasizes that this case concerns “the First
Amendment rights of American organizations.” Post, at 1
(opinion of BREYER, J.). We respectfully disagree with that
characterization of the question presented. The Court’s
prior decision recognized the First Amendment rights of
American organizations and held that American organiza-
tions do not have to comply with the Policy Requirement.
This case instead concerns foreign organizations that are
voluntarily affiliated with American organizations. Those
foreign organizations are legally separate from the Ameri-
can organizations. And because foreign organizations oper-
ating abroad do not possess constitutional rights, those for-
eign organizations do not have a First Amendment right to
disregard the Policy Requirement.
In sum, plaintiffs’ foreign affiliates are foreign organiza-
tions, and foreign organizations operating abroad possess
no rights under the U. S. Constitution. We reverse the
judgment of the U. S. Court of Appeals for the Second
Circuit.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or de-
cision of this case.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–177
_________________
AGENCY FOR INTERNATIONAL DEVELOPMENT,
ET AL., PETITIONERS v. ALLIANCE FOR OPEN
SOCIETY INTERNATIONAL, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2020]
JUSTICE THOMAS, concurring.
I agree with the Court that the Policy Requirement does
not violate the First Amendment as applied to respondents’
foreign affiliates, and I agree that nothing about this
Court’s decision in Agency for Int’l Development v. Alliance
for Open Society Int’l, Inc., 570 U. S. 205 (2013) (AOSI I),
suggests otherwise. See ante, at 8–9. I write separately to
note my continued disagreement with AOSI I and to ex-
plain that the Policy Requirement does not violate the First
Amendment for a far simpler reason: It does not compel an-
yone to say anything.
In AOSI I, the Court erred by holding that the Policy Re-
quirement violated respondents’ First Amendment rights
by conditioning their receipt of Leadership Act* funds on
the affirmation of certain program objectives. “The First
Amendment does not mandate a viewpoint-neutral govern-
ment.” AOSI I, 570 U. S., at 221 (Scalia, J., joined by
THOMAS, J., dissenting). Thus, the Government may re-
quire those who seek to carry out federally funded programs
——————
* As the Court explains, the United States Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22
U. S. C. §7601 et seq., “allocate[s] billions of dollars to American and for-
eign nongovernmental organizations that combat HIV/AIDS abroad.”
Ante, at 1.
2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
THOMAS, J., concurring
to support the Government’s objectives with regard to those
programs. Ibid. After all, the Constitution itself “impos[es]
affirmative ideological commitments prerequisite to assist-
ing in the government’s work.” Id., at 227. It excludes view-
points such as communism and anarchism, stating that
those engaged in government work must swear an oath to
support our Constitution’s republican form of government.
See Art. VI, cl. 3.
Moreover, the mere conditioning of funds on “ ‘the affir-
mation of a belief’ ” tied to the purpose of a government pro-
gram involves “no compulsion at all.” AOSI I, 570 U. S., at
226 (Scalia, J., joined by THOMAS, J., dissenting). Such a
condition is “the reasonable price of admission to a limited
government-spending program that each organization re-
mains free to accept or reject.” Ibid. Just as respondents
are not compelled to associate with their foreign affiliates,
see ante, at 6–8, they are not compelled to participate in the
Leadership Act program.
The Policy Requirement does not violate the First
Amendment, regardless of whether it is applied to respond-
ents, respondents’ legally distinct foreign affiliates, or any
other organization, foreign or domestic. Because the Court
properly rejects respondents’ attempt to extend our errone-
ous precedent, I join its opinion in full.
Cite as: 591 U. S. ____ (2020) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–177
_________________
AGENCY FOR INTERNATIONAL DEVELOPMENT,
ET AL., PETITIONERS v. ALLIANCE FOR OPEN
SOCIETY INTERNATIONAL, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2020]
JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE SOTOMAYOR join, dissenting.
The Court, in my view, asks the wrong question and gives
the wrong answer. This case is not about the First Amend-
ment rights of foreign organizations. It is about—and has
always been about—the First Amendment rights of Ameri-
can organizations.
The last time this case came before us, those American
organizations vindicated their constitutional right to speak
freely, both at home and abroad. In Agency for Int’l Devel-
opment v. Alliance for Open Society Int’l, Inc., 570 U. S. 205(2013) (AOSI I ), we held that the First Amendment forbids
the Government from distorting their speech by requiring,
as a condition of receiving federal funds, that they “pledge
allegiance” to a state-sponsored message. Id., at 220.
This time, the question is whether the American organi-
zations enjoy that same constitutional protection against
government-compelled distortion when they speak through
clearly identified affiliates that have been incorporated
overseas. The answer to that question, as I see it, is yes.
I dissent from the Court’s contrary conclusion.
2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
BREYER, J., dissenting
I
To understand the issue now before us, one must appre-
ciate how it got here. Given this litigation’s lengthy history,
that requires a rather detailed look at why this dispute first
arose, what we decided in our prior decision (namely,
AOSI I ), and where the case proceeded from there.
A
As we explained in AOSI I, the plaintiffs in this action
(respondents in this Court then and now) “are a group of
domestic organizations engaged in combating HIV/AIDS
overseas.” Id., at 210. Their lifesaving work spans multiple
continents. Id., at 211. For example, respondents run “pro-
grams aimed at limiting injection drug use in Uzbekistan,
Tajikistan, and Kyrgyzstan, preventing mother-to-child
HIV transmission in Kenya, and promoting safer sex prac-
tices in India.” Ibid. Respondents also counsel high-risk
populations such as sex workers, encourage foreign govern-
ments to adopt beneficial public policies, and share infor-
mation about best practices in publications and at confer-
ences. See ibid.; App. 171, 217, 222, 419. To support these
international efforts, respondents must make fundraising
appeals to donors worldwide. See, e.g., id., at 366, 384, 431–
433, 457. But crucially for both their mission and for this
case, respondents also “receive billions [of dollars] annually
in financial assistance from the United States.” AOSI I,
570 U. S., at 210.
One of respondents’ primary sources of federal funding is
the United States Leadership Against HIV/AIDS, Tubercu-
losis, and Malaria Act of 2003. 117 Stat. 711, as amended,
22 U. S. C. §7601 et seq. (Leadership Act). Congress en-
acted the Leadership Act with the goal of creating “a ‘com-
prehensive, integrated’ strategy to combat HIV/AIDS
around the world.” AOSI I, 570 U. S., at 209 (quoting
§7611(a)). To that end, the statute allocates considerable
federal dollars to nongovernmental organizations fighting
Cite as: 591 U. S. ____ (2020) 3
BREYER, J., dissenting
HIV/AIDS abroad. Id., at 209–211.
But Leadership Act funding comes with strings attached.
Two, in particular. First, no Leadership Act funds “ ‘may be
used to promote or advocate the legalization or practice of
prostitution or sex trafficking.’ ” Id., at 210 (quoting
§7631(e)). Second, with some exceptions not relevant here,
any recipient of Leadership Act funds must have “ ‘a policy
explicitly opposing prostitution and sex trafficking.’ ” Id., at
210 (quoting §7631(f )). The first condition limiting how
Leadership Act funds may be spent has never been chal-
lenged in this litigation. Id., at 210. What has driven this
decades-long dispute is the second condition, the “Policy Re-
quirement” that requires recipients to espouse a govern-
ment message. Ibid.
Concerned that “adopting a policy explicitly opposing
prostitution” could “alienate certain host governments” and
“mak[e] it more difficult to work with prostitutes in the
fight against HIV/AIDS,” respondents sued. Id., at 211.
They asserted that the Policy Requirement put an uncon-
stitutional condition on the receipt of federal funds and was
thus unenforceable. Id., at 212. Accordingly, as the case
came to us in AOSI I, the question was whether this fund-
ing condition violated respondents’ First Amendment
rights. Id., at 211.
B
The answer, we held in AOSI I, was yes. Our reasoning
then demands close inspection now.
To begin, we observed in AOSI I that “the Policy Require-
ment would plainly violate the First Amendment” if it op-
erated “as a direct regulation of speech.” Id., at 213. Com-
manding someone to speak a government message
contravenes the “basic First Amendment principle that
‘freedom of speech prohibits the government from telling
people what they must say.’ ” Ibid. (quoting Rumsfeld v.
Forum for Academic and Institutional Rights, Inc., 547
4 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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U. S. 47, 61 (2006) (FAIR)); see also, e.g., West Virginia Bd.
of Ed. v. Barnette, 319 U. S. 624, 642 (1943); Wooley v.
Maynard, 430 U. S. 705, 717 (1977).
That the Policy Requirement is a funding condition, ra-
ther than a direct command, complicated the analysis in
AOSI I but did not change the outcome. True, Congress’
Article I spending power “includes the authority to impose
limits on the use of [federal] funds to ensure they are used”
as “Congress intends,” even conditions that “may affect the
recipient’s exercise of its First Amendment rights.” AOSI I,
570 U. S., at 213–214. That is all the first (and unchal-
lenged) Leadership Act condition does by forbidding federal
funds from being used to promote prostitution or sex traf-
ficking. See id., at 217–218. Congress may not, however,
“leverage funding to regulate speech outside the contours”
of the program it has chosen to subsidize. Id., at 214–215.
That, as we will see, is what the Policy Requirement does—
and why we held in AOSI I that this second condition vio-
lated respondents’ First Amendment rights.
The constitutional line is whether a funding condition
helps “specify the activities Congress wants to subsidize” or
instead seeks to “reach [speech] outside” the federal pro-
gram. Id., at 214, 217. We recognized in AOSI I that this
line “is not always self-evident.” Id., at 217. To “hel[p] il-
lustrate the distinction,” our decision gave two examples
from our precedents. Id., at 215.
As an example of what the Government may not do, we
pointed to our decision FCC v. League of Women Voters of
Cal., 468 U. S. 364 (1984). There, the Government required
noncommercial broadcasters receiving federal financial as-
sistance to refrain from editorializing entirely; they could
not even “establish [an] ‘affiliate’ organizatio[n]” to editori-
alize on their behalf “with nonfederal funds.” Id., at 400.
By giving a broadcaster no way “to make known its views
on matters of public importance,” the funding condition in
League of Women Voters violated the First Amendment.
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Id., at 400–401. That condition, as we put it in AOSI I,
“went beyond” ensuring that federal funds did not subsidize
the broadcasters’ editorial content and therefore distorted
their “speech outside the scope of the program.” 570 U. S.,
at 216.
Just the opposite was true in Regan v. Taxation With
Representation of Wash., 461 U. S. 540 (1983), the case we
cited in AOSI I as an example of what the Government may
do. In Regan, a nonprofit group received tax-exempt status
as a §501(c)(3) organization on the condition that the organ-
ization not engage in lobbying. AOSI I, 570 U. S., at 215
(citing Regan, 461 U. S., at 544). Even though this condi-
tion on federal financial assistance affected the nonprofit’s
exercise of First Amendment rights, the condition was con-
stitutional because it “did not prohibit [the nonprofit] from
lobbying Congress altogether.” 570 U. S., at 215.
Specifically, the nonprofit in Regan—unlike the broad-
casters in League of Women Voters—was permitted to es-
tablish an affiliate to carry on its lobbying activities as a
§501(c)(4) organization. AOSI I, 570 U. S., at 215 (citing
Regan, 461 U. S., at 544). The nonprofit could thus act
(and speak) through two corporate entities: The §501(c)(3)
organization could get the tax exemption (but not lobby),
while the §501(c)(4) organization could lobby (but not get
the tax exemption). 570 U. S., at 215. Since requiring the
nonprofit to adopt this “ ‘dual structure’ ” was not “ ‘unduly
burdensome,’ ” the condition in Regan “did not deny the
[nonprofit] a government benefit ‘on account of its intention
to lobby.’ ” 570 U. S., at 215 (quoting Regan, 461 U. S., at
545, and n. 6). The condition was thus constitutional, even
though it essentially compelled the nonprofit to affiliate
with other organizations. See 570 U. S., at 215.
In AOSI I, we held “that the Policy Requirement falls on
the unconstitutional side of the line” separating League of
Women Voters (unconstitutional) and Regan (constitu-
tional). 570 U. S., at 217. Like the funding condition in
6 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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League of Women Voters, we explained, the Policy Require-
ment affects protected speech outside the scope of the fed-
eral program. 570 U. S., at 218. “By requiring recipients to
profess a specific belief,” it “goes beyond defining” the pro-
gram “to defining the recipient” in the eyes of their global
audience. Ibid. Respondents cannot “avow [a] belief dic-
tated by” the Government “when spending Leadership Act
funds, and then turn around and assert a contrary belief, or
claim neutrality,” when acting on their “own time and
dime.” Ibid. The Policy Requirement thus conditioned
funding on an across-the-board distortion of respondents’
message. See ibid.
We further explained in AOSI I—and this is critical—
why we could not accept the Government’s suggestion that
the case was just a redux of Regan. In AOSI I, the Govern-
ment suggested a similar “dual-structure” solution to the
First Amendment problem. Like the nonprofit in Regan,
the Government noted, respondents could act (and speak)
through two corporate entities: One organization could re-
ceive Leadership Act funds on respondents’ behalf (and
comply with the Policy Requirement), while a legally sepa-
rate affiliate could communicate respondents’ preferred
message (and not receive Leadership Act funds)—or vice
versa. AOSI I, 570 U. S., at 219. True enough. But we
rejected the Government’s argument all the same.
Why did we reject it? Because corporate formalities do
nothing to ward off speech distortion where—like AOSI I,
but unlike Regan—the Government has required a speaker
to “espouse a specific belief as its own.” 570 U. S., at 219.
“If the affiliate is distinct from the recipient,” we reasoned,
“the arrangement does not afford a means for the recipient
to express its beliefs.” Ibid. And if “the affiliate is more
clearly identified with the recipient, the recipient can ex-
press those beliefs only at the price of evident hypocrisy.”
Ibid. With respect to the latter situation, in other words,
compelling a recipient to disavow a message involuntarily
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uttered by its clearly identified affiliate is forced hypocrisy,
not free speech. See ibid.
In sum, the Policy Requirement conditioned federal funds
on an unavoidable and irreversible distortion of respond-
ents’ protected speech. We therefore held in AOSI I that
the Policy Requirement “violates the First Amendment and
cannot be sustained.” Id., at 221.
C
On remand from our decision, the District Court did what
district courts ought to do. It “tailor[ed] ‘the scope of the
remedy’ to fit ‘the nature and extent of the constitutional
violation’ ” that we identified in AOSI I. Hills v. Gautreaux,
425 U. S. 284, 294 (1976) (quoting Milliken v. Bradley, 418
U. S. 717, 744 (1974)).
The District Court, like our Court, recognized that re-
spondents’ work—and with it their protected speech—has
a global reach. But respondents, it turns out, use different
organizational structures to deliver services in different
places. 106 F. Supp. 3d 355, 360–361 (SDNY 2015). Some-
times, particularly when foreign governments (or our own
government) require, respondents operate through legally
separate affiliates incorporated abroad. Ibid.; see also, e.g.,
App. 368, 373–375.
In the District Court’s view, those corporate formalities
did not meaningfully change the First Amendment calcu-
lus. See 106 F. Supp. 3d, at 360–361. Respondents, to-
gether with their affiliates, convey a clear, consistent mes-
sage to high-risk populations, government officials,
healthcare professionals, prospective employees, and pri-
vate donors across the globe. See, e.g., App. 370–371, 391,
460–461. They share the same name, logo, and branding—
all of which use identical colors, fonts, and imagery. See,
e.g., id., at 445–455. They adhere to shared values, work
towards common goals, and coordinate their collective mes-
8 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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sage. See, e.g., id., at 385–386, 404–429. To an outside ob-
server, respondents and their affiliates are a single, cohe-
sive unit. They speak as one.
The District Court consequently concluded that imposing
the Policy Requirement on respondents’ affiliates—wher-
ever they happen to have been incorporated—would force
respondents to “expres[s] contrary positions on the same
matter through [their] different organizational compo-
nents.” 106 F. Supp. 3d, at 361. To prevent that from hap-
pening, and in keeping with the principles we set forth in
AOSI I, the District Court enjoined enforcement of the Pol-
icy Requirement against respondents and their clearly
identified affiliates, including affiliates that were incorpo-
rated overseas. Id., at 363. The District Court thought that
remedial order necessary to protect respondents’ own First
Amendment rights—rights that, as American organiza-
tions, respondents unquestionably have. Id., at 361.
The Court of Appeals understood the District Court’s or-
der that way, too. “The narrow issue before” us, the Court
of Appeals explained, “is whether applying the Policy Re-
quirement to [respondents’] closely aligned foreign affili-
ates violates [respondents’] own First Amendment rights.”
911 F. 3d 104, 109 (CA2 2018). The Court of Appeals held
that the answer was yes and affirmed on that basis.
Ibid. We granted certiorari to review the Court of Appeals’
decision.
II
The road has been long, but we have arrived at the spe-
cific question now before us: whether enforcing the Policy
Requirement against respondents’ clearly identified foreign
affiliates violates respondents’ own First Amendment
rights. Like the District Court and the Court of Appeals,
I believe the answer is yes.
Our reasoning in AOSI I, along with the body of prece-
dent on which it relied, should decide this case. Just as
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BREYER, J., dissenting
compelling a clearly identified domestic affiliate to espouse
a government message distorts respondents’ own protected
speech, AOSI I, 570 U. S., at 219, so too does compelling a
clearly identified foreign affiliate to espouse the same gov-
ernment message. Either way, federal funding conditioned
on that affirmative avowal of belief comes at an unconstitu-
tionally high “price of evident hypocrisy.” Ibid.
Properly understood, our speech-misattribution cases—
in particular Hurley v. Irish-American Gay, Lesbian and Bi-
sexual Group of Boston, Inc., 515 U. S. 557 (1995)—confirm
that common-sense conclusion. Any other result would un-
dermine First Amendment protections for the countless
American speakers who address audiences overseas.
A
Respondents should prevail here for the same reasons
they prevailed in AOSI I. When respondents speak through
legally separate but clearly identified affiliates, we held,
that speech is attributed to respondents for First Amend-
ment purposes. AOSI I, 570 U. S., at 219. So when the
Government demands as a condition of federal funding that
their clearly identified affiliate “espouse a specific belief as
its own,” respondents may express a contrary view through
some other corporate channel only on pain of appearing
hypocritical. Ibid. Leveraging Congress’ Article I spending
power to distort respondents’ protected speech in this way
therefore violates respondents’ First Amendment rights—
whatever else might be said about the affiliate’s own First
Amendment rights (or asserted lack thereof ). Ibid.
These principles apply with full force to the dispute now
before us. Respondents and their affiliates receive federal
funding to fight HIV/AIDS overseas. What has been at
stake in this case from the beginning, then, is protected
speech often aimed at audiences abroad. Our decision in
AOSI I shielded respondents’ global message from govern-
10 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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ment-compelled distortion in the eyes of those foreign audi-
ences, as well as listeners here at home. Ibid. Yet in the
wake of our ruling, respondents have continued to suffer
that exact same First Amendment harm.
True, respondents’ international mission sometimes re-
quires that they convey their message through affiliates in-
corporated in far-off countries, rather than registered here
at home. But so what? Audiences everywhere attribute
speech based on whom they perceive to be speaking, not on
corporate paperwork they will never see. What mattered in
AOSI I was thus how “clearly identified” the affiliates were
with respondents, not the fact that the affiliates were incor-
porated as separate legal entities. Ibid. And what matters
now is once again how “clearly identified” the affiliates are
with respondents, not the fact that the affiliates were incor-
porated as foreign legal entities.
The First Amendment question therefore hinges, as it did
before, on what an objective observer sees, hears, and un-
derstands when respondents speak through their foreign
affiliates. As to that, not even the Government meaning-
fully disputes that respondents and their foreign affiliates
are clearly identified with one another. Their appearances
are the same. Their goals are the same. Their values are
the same. Their message is the same. Leveraging Congress’
spending power to demand speech from respondents’ for-
eign affiliates distorts that shared message—and violates
respondents’ First Amendment rights. So while respond-
ents and their clearly identified foreign affiliates may be
technically different entities with respect to such matters
as contracts, taxes, and torts, they are constitutionally the
same speaker when it comes to the protected speech at is-
sue in this case.
This two-entities-one-speaker principle is an established
part of our First Amendment jurisprudence. Take Regan.
To refresh, in that case we upheld a ban on engaging in cer-
tain protected speech (lobbying) that the federal tax code
Cite as: 591 U. S. ____ (2020) 11
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imposed on a nonprofit’s §501(c)(3) organization because
the nonprofit could still speak through a separate §501(c)(4)
organization. See 461 U. S., at 544. Put simply, one
speaker (the nonprofit) could act (and speak) through two
legally separate entities (the §501(c)(3) and §501(c)(4) or-
ganizations).
Recall also our similar observation in League of Women
Voters. There we noted that a funding condition’s ban on
editorializing would have been constitutional if, in contrast
to the law at issue, the statute let noncommercial broad-
casters “make known” their “views on matters of public im-
portance” by speaking through legally separate “editorial-
izing affiliate[s].” 468 U. S., at 400. Once again, we made
clear that a single speaker can act (and speak) through two
legally separate entities. But because the speaker in
League of Women Voters was not free to do so, we held that
the Government’s funding condition violated the First
Amendment. Id., at 400–401.
Regan and League of Women Voters are far from our only
precedents recognizing this firmly entrenched First
Amendment principle. See Legal Services Corporation v.
Velazquez, 531 U. S. 533, 546 (2001) (observing that organ-
izational affiliates may provide “alternative channel[s] for
expression” by a single speaker); Rust v. Sullivan, 500 U. S.
173, 196–198 (1991) (similar). We reiterated that rule once
again in AOSI I. See 570 U. S., at 215–217, 219.
Thus, in the First Amendment context, the corporate veil
is not an iron curtain. Just the opposite. We attribute
speech across corporate lines all the time.
Rightly so. When a funding condition restricts speech,
this familiar framework often avoids First Amendment
problems by allowing “alternative channel[s]” for speakers
to express themselves. Velazquez, 531 U. S., at 546. And
when a funding condition compels speech, the same logic
leads to a similarly sensible result: The Government may
not require you to speak out of both sides of your mouth,
12 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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even if each side happens to have been incorporated as a
separate legal entity. See AOSI I, 570 U. S., at 219.
A contrary approach would have led to a rather surpris-
ing result in AOSI I. Assume for a moment that the Policy
Requirement simply commanded respondents’ clearly iden-
tified affiliates to speak—the kind of “direct regulation of
speech” that we said “would plainly violate the First
Amendment,” id., at 213. Treating corporate lines as iron-
clad would mean that respondents could not object to that
direct distortion of their own message. Under all the cases
just discussed, however, that cannot be right. And as dis-
cussed below, it is equally wrong under our cases involving
speech misattribution.
B
The First Amendment protects speakers from govern-
ment compulsion that is likely to cause an audience to mis-
take someone else’s message for the speaker’s own views.
See, e.g., Hurley, 515 U. S., at 572–573; Pacific Gas & Elec.
Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 15–16 (1986).
Corporate separation makes no meaningful difference in
this speech-misattribution context, either.
Consider our unanimous decision in Hurley. In that case,
a group called the South Boston Allied War Veterans
Council organized a parade. 515 U. S., at 560. The Irish-
American Gay, Lesbian and Bisexual Group of Boston—a
separate group who called themselves “GLIB” for short—
wanted to participate. Id., at 561. After the Veterans
Council said no, GLIB obtained a court order directing the
Veterans Council to let GLIB march in the parade. Id., at
561–562. Recognizing that “every participating unit affects
the message conveyed by the parade organizers,” we held in
Hurley that the order distorted the Veterans Council’s pro-
tected speech. Id., at 572–573. Because GLIB wanted to
“carr[y] its own banner” with its own message, and because
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BREYER, J., dissenting
onlookers would understand GLIB as “contribut[ing] some-
thing to” the parade’s “common theme,” the order “essen-
tially requir[ed]” the Veterans Council “to alter the expres-
sive content of their parade.” Id., at 572–573, 576. That
violated the First Amendment. Id., at 573.
The First Amendment violation in this case is even more
apparent. In Hurley, the Veterans Council had merely
“combin[ed] multifarious voices” of disparate groups with-
out bothering to “isolate an exact message,” yet the First
Amendment protected its message from government-
compelled distortion all the same. Id., at 569. Respondents
in this case have done the Veterans Council one better.
They have carefully constructed a cogent message and mar-
shaled their clearly identified foreign affiliates to express it
across the globe. See supra, at 7–8, 10.
Furthermore, in Hurley we could only speculate about
what GLIB’s exact message was and why the Veterans
Council did not want to be associated with it. See 515 U. S.,
at 574–575. But here we know exactly what the challenged
message is (“a policy explicitly opposing prostitution and
sex trafficking”) and why respondents don’t want to be as-
sociated with it (the message, among other things, purport-
edly “ ‘stigmatizes one of the very groups whose trust [re-
spondents] must earn to conduct effective HIV/AIDS
prevention’ ”). 22 U. S. C. §7631(f ); Brief for Respondents
11. For that reason as well, the First Amendment injury in
this case is open, obvious, and unusually well defined.
True, Hurley and our other speech-misattribution cases
dealt with a speaker complaining about being forced to af-
filiate with someone else’s speech, rather than (as here)
their pre-existing affiliate being forced to speak. Cf. ante,
at 6. But that factual distinction makes no constitutional
difference. From a First Amendment perspective, the latter
situation is just as bad or even worse, not better.
Consider Hurley again. If, rather than requiring the Vet-
erans Council to let GLIB march while carrying its banner,
14 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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the state court had ordered a previously invited marcher (or
worse still, all previously invited marchers) to display
GLIB’s banner, the Veterans Council would have prevailed
all the same. By compelling speech from an existing affili-
ate (or all of them), that order would have required, even
more brazenly, that the Veterans Council “alter the expres-
sive content of their parade” in violation of the Veterans
Council’s First Amendment rights. 515 U. S., at 572–573.
So too if the state court had decreed that GLIB’s banner
must adorn a horse, oxen, or for that matter R2–D2, a
robot—even though those entities lack their own First
Amendment rights. Whether the transmitter of a speaker’s
protected message does (or does not) have its own First
Amendment rights is beside the point. Cf. Wooley, 430
U. S., at 717 (prohibiting New Hampshire from requiring
that the state motto adorn a driver’s car, even though cars
do not have First Amendment rights).
There is a reason why, until today, we had not confronted
a case like the one just described. Cf. ante, at 6. Requiring
someone to host another person’s speech is often a perfectly
legitimate thing for the Government to do. See, e.g., FAIR,
547 U. S., at 65 (holding that the Government may require
law schools to host speech from military recruiters); Prune-
Yard Shopping Center v. Robins, 447 U. S. 74, 87–88 (1980)
(holding that the Government may require the owner of a
private shopping mall to host speech from politically
minded pamphleteers). Even the court order at issue in
Hurley was an understandable (though unconstitutional)
application of a “venerable” civil rights law. See 515 U. S.,
at 571. But because compelling people to profess a belief
they do not hold is almost always unconstitutional, see
AOSI I, 570 U. S., at 213, the Government rarely dares try.
The Government’s well-founded reticence in the past is no
reason to bless its boldness at present.
Bottom line: The critical question here, as in Hurley, is
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simply whether the Government has demanded a profes-
sion of belief that will distort the speaker’s message. How
the Government causes that distortion makes no constitu-
tional difference. And as explained, enforcing the Policy Re-
quirement against respondents’ clearly identified foreign
affiliates would plainly distort respondents’ message. See
supra, at 7–8, 10. That violates respondents’ First Amend-
ment rights.
C
So far as I am aware, we have never before held that an
American speaker forfeits First Amendment protection
when it speaks though foreign affiliates to reach audiences
overseas. It is easy to understand why.
Many American news networks operate through clearly
identified foreign affiliates when speaking abroad. Viewers
attribute that speech to an American speaker: the network.
That is the whole point of using clearly identified foreign
affiliates. For example, CNN speaks to audiences in
the Philippines, Brazil, Indonesia, and other countries
using foreign affiliates, usually styled as CNN
Philippines, CNN Brazil, CNN Indonesia, and so on.
See CNN Worldwide Fact Sheet (Oct. 2019), https://
cnnpressroom.blogs.cnn.com/cnn-fact-sheet. But does that
corporate structure mean that CNN—i.e., the American
parent organization—has no First Amendment protection
against a Government effort to, say, prevent CNN Mexico
from covering the fatal shooting of a Mexican child by a
U. S. Border Patrol agent? Cf. Hernández v. Mesa, 589
U. S. ___ (2020) (Hernández II ). Or to compel CNN Mexico
to run a different story, perhaps one produced by Govern-
ment personnel, that praises American policy at the border?
We should be highly skeptical. If the Government com-
mandeered CNN’s clearly identified foreign affiliate in
these or similar ways, whether by monetary pressure or
16 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
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some other means, CNN should have constitutional re-
course. Some critical foreign policy interests might compli-
cate the First Amendment calculus—say, a wartime need
to keep future battle plans secret. But nothing like that is
present here. And it is difficult to accept the notion that the
First Amendment permits the Government to suppress,
compel, or otherwise distort any and all American speech
transmitted abroad through a clearly identified foreign af-
filiate.
III
The upshot is: (1) The messages at issue here belong to
American speakers; (2) clearly identified foreign affiliates
are a critical means of conveying those messages overseas;
and (3) enforcing the Policy Requirement against those af-
filiates distorts respondents’ own protected speech—and
thus violates respondents’ own First Amendment rights.
The majority justifies its contrary result on three main
grounds, two of which it says are “bedrock principles” of
American law. See ante, at 3–6, 8. I do not find these ar-
guments persuasive.
A
The first “bedrock principle” on which the majority relies
is the supposedly long-settled, across-the-board rule “that
foreign citizens outside U. S. territory do not possess rights
under the U. S. Constitution.” Ante, at 3. That sweeping
assertion is neither relevant to this case nor correct on the
law.
It is not relevant because, as I have said, this case does
not concern the constitutional rights of foreign organiza-
tions. This case concerns the constitutional rights of Amer-
ican organizations. Every respondent here is—and has al-
ways been—American. AOSI I, 570 U. S., at 210; see also
Brief for Petitioners 7, 19 (acknowledging as much). No for-
eign entities are party to this case, and respondents have
Cite as: 591 U. S. ____ (2020) 17
BREYER, J., dissenting
never claimed that the Policy Requirement violates any-
one’s First Amendment rights apart from their own. Both
the District Court and the Court of Appeals decided the case
on that basis. The question before us is clear: whether the
First Amendment protects Americans when they speak
through clearly identified foreign affiliates to reach audi-
ences overseas. See supra, at 8. Whether the foreign affil-
iates themselves have their own First Amendment rights is
not at issue. See Brief for Respondents 36, n. 3.
Even taken on its own terms, the majority’s blanket as-
sertion about the extraterritorial reach of our Constitution
does not reflect the current state of the law. The idea that
foreign citizens abroad never have constitutional rights is
not a “bedrock” legal principle. At most, one might say that
they are unlikely to enjoy very often extraterritorial protec-
tion under the Constitution. Or one might say that the mat-
ter is undecided. But this Court has studiously avoided es-
tablishing an absolute rule that forecloses that protection
in all circumstances.
In Hernández v. Mesa, 582 U. S. ___ (2017) (per curiam)
(Hernández I ), for example, we specifically declined to de-
cide the “sensitive” question whether, on the facts then be-
fore us, a Mexican citizen standing on Mexican soil had
Fourth Amendment rights—precisely because the answer
to that extraterritoriality question “may have consequences
that are far reaching.” Id., at ___ (slip op., at 5). Hernández
later came to this Court again, and we decided the case on
alternative grounds. See Hernández II, 589 U. S., at ___–
___ (slip op., at 19–20). Were the majority’s categorical rule
of (non)extraterritoriality etched in stone, we could have
disposed of Hernández the first time around in a few short
sentences.
Nor do the cases that the majority cites support an abso-
lute rule. See ante, at 3. The exhaustive review of our prec-
edents that we conducted in Boumediene v. Bush, 553
U. S. 723 (2008), pointed to the opposite conclusion. In
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Boumediene, we rejected the Government’s argument that
our decision in Johnson v. Eisentrager, 339 U. S. 763 (1950),
“adopted a formalistic” test “for determining the reach” of
constitutional protection to foreign citizens on foreign soil.
553 U. S., at 762. This is to say, we rejected the position
that the majority propounds today. See ante, at 4, and n.
(quoting Eisentrager at length). Its “constricted reading” of
Eisentrager and our other precedents is not the law. See
Boumediene, 553 U. S., at 764; see also, e.g., Neuman, Un-
derstanding Global Due Process, 23 Geo. Immigration L. J.
365, 400 (2009) (describing our cases as rejecting any abso-
lute view).
The law, we confirmed in Boumediene, is that constitu-
tional “questions of extraterritoriality turn on objective fac-
tors and practical concerns” present in a given case, “not
formalism” of the sort the majority invokes today. 553
U. S., at 764. Those considerations include the extent of
de facto U. S. Government control (if any) over foreign ter-
ritory. See ante, at 4. But they also include the nature of
the constitutional protection sought, how feasible extending
it would be in a given case, and the foreign citizen’s status
vis-à-vis the United States, among other pertinent circum-
stances that might arise. 553 U. S., at 766; see also United
States v. Verdugo-Urquidez, 494 U. S. 259, 278 (1990) (Ken-
nedy, J., concurring) (providing the decisive fifth vote for
rejecting a foreign citizen’s claim to constitutional protec-
tion on foreign soil outside U. S. control because “[t]he con-
ditions and considerations of this case would make adher-
ence to the Fourth Amendment’s warrant requirement
impracticable and anomalous” (emphasis added)). Our
precedents reject absolutism. Indeed, even our most sweep-
ing statements about foreign citizens’ (lack of ) constitu-
tional rights while outside U. S. Territory have come with
limits. See, e.g., Landon v. Plasencia, 459 U. S. 21, 32
(1982) (noting that “an alien seeking initial admission to”
Cite as: 591 U. S. ____ (2020) 19
BREYER, J., dissenting
this country “has no constitutional rights regarding his ap-
plication” (emphasis added)); Kleindienst v. Mandel, 408
U. S. 753, 762 (1972) (similar).
There is wisdom in our past restraint. Situations where
a foreign citizen outside U. S. Territory might fairly assert
constitutional rights are not difficult to imagine. Long-term
permanent residents are “foreign citizens.” Does the Con-
stitution therefore allow American officials to assault them
at will while “outside U. S. territory”? Many international
students attend college in the United States. Does the First
Amendment permit a public university to revoke their ad-
mission based on an unpopular political stance they took on
social media while home for the summer? Foreign citizens
who have never set foot in the United States, for that mat-
ter, often protest when Presidents travel overseas. Does
that mean Secret Service agents can, consistent with our
Constitution, seriously injure peaceful protestors abroad
without any justification?
We have never purported to give a single “bedrock” an-
swer to these or myriad other extraterritoriality questions
that might arise in the future. To purport to do so today, in
a case where the question is not presented and where the
matter is not briefed, is in my view a serious mistake.
And there is no need to set forth an absolute rule here.
Respondents have conceded that their foreign affiliates lack
First Amendment rights of their own while acting abroad.
See ante, at 3. If in spite of everything else, the majority
considers this point material to its decision, all that need be
said is: “We accept respondents’ concession and proceed on
that basis.” To say so much more “run[s] contrary to the
fundamental principal of judicial restraint,” a principle that
applies with particular force to constitutional interpreta-
tion. Washington State Grange v. Washington State Repub-
lican Party, 552 U. S. 442, 450 (2008); see also, e.g., Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U. S. 439,
20 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
BREYER, J., dissenting
445 (1988); Three Affiliated Tribes of Fort Berthold Reser-
vation v. Wold Engineering, P. C., 467 U. S. 138, 158 (1984);
United States v. Raines, 362 U. S. 17, 21 (1960); Liverpool,
New York & Philadelphia S. S. Co. v. Commissioners of Em-
igration, 113 U. S. 33, 39 (1885).
B
The majority’s second supposedly “bedrock principle” is
that “separately incorporated organizations are separate le-
gal units with distinct legal rights and obligations.” Ante,
at 5. Sometimes true, sometimes not. This baseline rule
gives way in many contexts, and our First Amendment
precedents (including AOSI I ) refute any suggestion that a
workaday principle of corporate law somehow resolves the
constitutional issue here in dispute.
As the majority acknowledges, corporate law itself per-
mits courts to pierce or otherwise disregard the corporate
veil in a variety of circumstances. See ante, at 5. Those
narrow exceptions, however, are not the only time the law
looks past corporate formalities. For instance, we have
treated “several nominally separate business entities” as “a
single employer” for purposes of federal labor law. Radio &
Television Technicians v. Broadcast Service of Mobile, Inc.,
380 U. S. 255, 256 (1965) (per curiam). Earlier this Term,
we reaffirmed that one corporate entity may sometimes in-
voke the right of another, legally separate entity to compel
arbitration. See GE Energy Power Conversion France SAS
v. Outokumpu Stainless USA, LLC, 590 U. S. ___, ___
(2020) (slip op., at 4). And these are far from the only rele-
vant examples. See, e.g., American Needle, Inc. v. National
Football League, 560 U. S. 183, 196 (2010) (observing that,
in many antitrust cases, corporate formalities are “not de-
terminative”).
More to the point, our First Amendment precedents leave
no doubt that corporate formalities have little to say about
the issue now before us. We have made clear again and
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BREYER, J., dissenting
again (and again) that speech may be attributed across cor-
porate lines in the First Amendment context—including in
our previous opinion in this very case. See AOSI I, 570
U. S., at 219 (concluding that speech uttered involuntarily
by legally separate affiliates may be attributed to respond-
ents if the affiliates are “clearly identified” with respond-
ents); League of Women Voters, 468 U. S., at 400 (observing
that funding conditions that restrict speech can survive
constitutional scrutiny if the speaker may “make known its
views on matters of public importance through” a legally
separate affiliate—and if not, not); Regan, 461 U. S., at 544(similar); Rust, 500 U. S., at 196–198 (similar); Velazquez,
531 U. S., at 546–547 (similar). And these precedents fur-
ther establish that merely requiring speakers to work
through affiliates is “not unduly burdensome” and can
therefore cure, rather than create, First Amendment con-
cerns. Regan, 461 U. S., at 545, n. 6. Contra, ante, at 8
(suggesting that such a requirement would be unconstitu-
tional). Small wonder the majority can muster only two
context-specific and statute-specific cases—one addressing
the Foreign Sovereign Immunities Act, the other involving
the Racketeer Influence and Corrupt Organizations Act—
as affirmative support for its conclusion that corporate for-
malities somehow control the First Amendment question
before us. See ante, at 5 (citing Dole Food Co. v. Patrickson,
538 U. S. 468 (2003), and Cedric Kushner Promotions, Ltd.
v. King, 533 U. S. 158 (2001)).
The majority also attempts to distinguish the facts before
us now from the facts that were before us last time. It as-
serts that, in contrast to the affiliations we addressed in
AOSI I, respondents’ “current affiliations with foreign or-
ganizations are their own choice.” Ante, at 8. There are two
problems with this. First, the description is not accurate.
Foreign governments—and increasingly, the U. S. Govern-
ment—often require respondents to work through foreign
22 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR
OPEN SOCIETY INT’L, INC.
BREYER, J., dissenting
affiliates. See, e.g., App. 368, 373–375. Second, even if re-
spondents’ associations with foreign affiliates were volun-
tary, it would not solve the First Amendment problem.
In Wooley, for example, it was the drivers’ choice to own
a car, but that did not mean they could be compelled to con-
vey the Government’s message on their car’s license plate.
See 430 U. S., at 717. And in Hurley, as explained, the Gov-
ernment would have violated the parade organizers’ First
Amendment rights just the same if it had compelled speech
from a previously invited marcher, whether human, ani-
mal, or droid. See supra, at 13–14. Can the majority really
mean to suggest otherwise, simply because the parade or-
ganizers’ decision to invite the marcher in the first place
was “their own choice”?
C
The majority also makes two practical arguments, but
neither justifies the First Amendment costs of its decision.
The majority first says that a ruling in respondents’ favor
would disrupt American foreign policy by requiring the
Government to fund “organizations that may not align with
U. S. values.” Ante, at 6. We dismissed this same concern
in AOSI I. The Policy Requirement, we explained, does not
merely help the Government “enlist the assistance of those
with whom it already agrees.” AOSI I, 570 U. S., at 218. It
pressures funding recipients “to adopt a particular belief.”
Ibid. (emphasis added). All that is at stake here, in other
words, is whether the Government may leverage the power
of the purse to win converts to its cause. That bare desire
to regulate protected speech is far from any foreign policy
interest that could conceivably overcome a speaker’s
First Amendment right to convey its message free from
government-compelled distortion. Cf. New York Times Co.
v. United States, 403 U. S. 713 (1971) (per curiam).
The majority also fears that determining whether Gov-
ernment action creates a risk of speech misattribution (and
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BREYER, J., dissenting
with it speech distortion) is a “legally unmoored” standard
rife with “difficult line-drawing exercises.” Ante, at 8. But
we have drawn just this kind of line many times. See, e.g.,
PruneYard, 447 U. S., at 87 (holding that “views expressed
by members of the public” in a privately owned shopping
mall “will not likely be identified with those of the owner”);
Hurley, 515 U. S., at 572 (holding that a marcher’s message
will likely be attributed to the parade organizer’s, since
“every participating unit” in a parade “affects the [overall]
message”); FAIR, 547 U. S., at 65 (holding that nothing
about having military recruiters on campus “suggests that
law schools agree with any speech by recruiters”). I should
think that the price of making difficult judgment calls is
well worth paying to protect First Amendment rights. See
McCutcheon v. Federal Election Comm’n, 572 U. S. 185, 209
(2014); Lloyd Corp. v. Tanner, 407 U. S. 551, 570 (1972).
And “on the facts presented in this case,” at any rate, “the
answer is clear.” Id., at 570. Enforcing the Policy Require-
ment violates respondents’ First Amendment rights, just as
it did before.
* * *
The Court today concludes that respondents’ foreign af-
filiates “do not have a First Amendment right to disregard
the Policy Requirement.” Ante, at 9. Respondents have
never argued otherwise. Rather, throughout this litigation
they have asserted their own First Amendment right to
speak their mind, rather than the Government’s message.
Here, respondents claim First Amendment protection when
they speak through foreign affiliates to address audiences
abroad. By denying respondents that protection, I fear the
Court’s decision will seriously impede the countless Ameri-
can speakers who communicate overseas in a similar way.
That weakens the marketplace of ideas at a time when the
value of that marketplace for Americans, and for others,
reaches well beyond our shores. With respect, I dissent.