Agency for Int’l Development v. Alliance for Open Society

Summary

Because the foreign affiliates of American nongovernmental organizations possess no First Amendment rights, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act’s limitation on funding organizations with “a policy explicitly opposing prostitution and sex trafficking,” 22 U. S. C. §7631(f), is not unconstitutional as applied to them.

Text

PRELIMINARY PRINT 
Volume 591 U. S. Part 1 
Pages 430–463 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 29, 2020 
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

430 OCTOBER TERM, 2019 
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 traffcking.” 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 Ameri-
can 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 le-
gally distinct foreign affliates. The District Court held that the Gov-
ernment was prohibited from enforcing the requirement against the for-
eign affliates, and the Second Circuit affrmed. 
Held: Because plaintiffs' foreign affliates possess no First Amendment 
rights, applying the Policy Requirement to them is not unconstitutional. 
Two bedrock legal principles lead to this conclusion. As a matter of 
American constitutional law, foreign citizens outside U. S. territory 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 American corporate 
law, separately incorporated organizations are separate legal units with 
distinct legal rights and obligations. See, e. g., Dole Food Co. v. Pat-
rickson, 538 U. S. 468, 474–475. That conclusion corresponds to Con-
gress's historical practice of conditioning funding to foreign organiza-
tions, which helps ensure that U. S. foreign aid serves U. S. interests. 
Plaintiffs' counterarguments are unpersuasive. First, they claim that 
because a foreign affliate'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 affliates. 
First Amendment cases involving speech misattribution between for-
mally distinct speakers, see, e. g., Hurley v. Irish-American Gay, Les-
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574–575, how-
ever, 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 identifed with 
American organizations would deviate from the fundamental principle

Cite as: 591 U. S. 430 (2020) 431 
Opinion of the Court 
that foreign organizations operating abroad do not possess rights under 
the U. S. Constitution and enmesh the courts in diffcult line-drawing 
exercises. Second, plaintiffs assert that the Court's 2013 decision en-
compassed both American organizations and their foreign affliates. 
That decision did not facially invalidate the Act's funding condition, sug-
gest that the First Amendment requires the Government to exempt 
plaintiffs' foreign affliates or other foreign organizations from the Pol-
icy Requirement, or purport to override longstanding constitutional law 
and corporate law principles. Pp. 433–440. 
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., fled a 
concurring opinion, post, p. 440. Breyer, J., fled a dissenting opinion, in 
which Ginsburg and Sotomayor, JJ., joined, post, p. 441. Kagan, J., 
took no part in the consideration or decision of the case. 
Christopher G. Michel argued the cause for petitioners. 
With him on the briefs were Solicitor General Francisco , 
Assistant Attorney General Hunt, Deputy Solicitor General 
Kneedler, Benjamin H. Torrance , and Sharon Swingle. 
David W. Bowker argued the cause for respondents. 
With him on the brief were Catherine M. A. Carroll, David 
A. Stoopler, Kevin M. Lamb , Alex Hemmer , and Emily J. 
Barnet.* 
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, 
*Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and Walter M. Weber 
fled a brief for the American Center for Law and Justice as amicus curiae 
urging reversal. 
Briefs of amici curiae urging affrmance were fled for Adventist Devel-
opment and Relief Agency International by Eugene Volokh, Andrew L. 
Frey, and Cleland B. Welton II; for the Cato Institute by Megan L. Brown, 
Scott B. Wilkens, and Ilya Shapiro; for Current and Former Members of 
Congress by Carter G. Phillips and Tobias S. Loss-Eaton; for Professors 
of Public Health et al. by Jessica Ring Amunson; and for the Washington 
Legal Foundation by Douglas W. Dunham, Cory L. Andrews, and Corbin 
K. Barthold.

432 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Opinion of the Court 
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 nongovernmental 
organizations that combat HIV/AIDS abroad. As relevant 
here, Congress sought to fund only those organizations that 
have, or agree to have, a “policy explicitly opposing prostitu-
tion and sex traffcking.” § 7631(f); see also § 7631(e); 45 
CFR § 89.1 (2019). Congress imposed that condition on 
funding, known as the Policy Requirement, because Con-
gress found that prostitution and sex traffcking “are addi-
tional causes of and factors in the spread of the HIV/AIDS 
epidemic” and that prostitution and sex traffcking “are de-
grading 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 commit-
ment 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 beneft to 
a person on a basis that infringes his constitutionally pro-

Cite as: 591 U. S. 430 (2020) 433 
Opinion of the Court 
tected . . . freedom of speech.” Agency for Int'l Develop-
ment 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 orga-
nizations that receive Leadership Act funds, meaning that 
American organizations can obtain Leadership Act funds 
even if they do not have a policy explicitly opposing prostitu-
tion and sex traffcking. 
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 oppos-
ing prostitution and sex traffcking. Following this Court's 
2013 decision barring the Government from enforcing the 
Policy Requirement against American organizations, plain-
tiffs returned to court, invoking the First Amendment and 
seeking to bar the Government from enforcing the Policy 
Requirement against plaintiffs' legally distinct foreign af-
fliates. The U. S. District Court for the Southern District 
of New York agreed with plaintiffs and prohibited the Gov-
ernment from enforcing the Policy Requirement against 
plaintiffs' foreign affliates. The U. S. Court of Appeals for 
the Second Circuit affrmed. Judge Straub dissented. He 
described as “startling” the proposition that the First 
Amendment could extend to foreign organizations operating 
abroad. 911 F. 3d 104, 112 (2018). The Second Circuit's de-
cision was stayed pending this Court's review, meaning that 
foreign organizations currently 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

434 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Opinion of the Court 
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-Urquidez, 
494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339 
U. S. 763, 784 (1950); United States ex rel. Turner v. Wil-
liams, 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. Cold-
ing, 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 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. Territories—or in “a territory” under the 
“indefnite” and “complete and total control” and “within the 
constant jurisdiction” 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 other-
wise, actions by American military, intelligence, and law en-
forcement personnel against foreign organizations or foreign 
citizens in foreign countries would be constrained by the for-
eign citizens' 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 
*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 irreconcilable 
enemy elements, guerrilla fghters, and `werewolves' could require the

Cite as: 591 U. S. 430 (2020) 435 
Opinion of the Court 
sure, Congress may seek to enact laws that afford foreign 
citizens abroad statutory rights or causes of action against 
misconduct by U. S. Government offcials, or laws that other-
wise regulate the conduct of U. S. offcials abroad. See 
Verdugo-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 “aris-
ing 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 sepa-
rate legal units with distinct legal rights and obligations. 
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. Georgako-
poulos, & E. Gouvin, Corporate Groups §§ 6.01, 6.02, 6.05 
(2020 Supp.). 
Plaintiffs' foreign affliates were incorporated in other 
countries and are legally separate from plaintiffs' American 
organizations. Even though the foreign organizations have 
affliated with the American organizations, the foreign orga-
nizations remain legally distinct from the American organi-
zations. Plaintiffs do not ask this Court to pierce the corpo-
rate veil, nor do they invoke any other relevant exception to 
American Judiciary to assure them freedoms of speech, press, and assem-
bly as in the First Amendment, right to bear arms as in the Second, secu-
rity against `unreasonable' searches and seizures as in the Fourth, as well 
as rights to jury trial as in the Fifth and Sixth Amendments. 
“Such extraterritorial application of organic law would have been so 
signifcant 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 
commentators on our Constitution has even hinted at it.” 339 U. S., at 
784–785.

436 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Opinion of the Court 
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, plain-
tiffs' foreign affliates 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 im-
poses conditions on foreign aid. See 22 U. S. C. §§ 2271, 
2272, 2371, 7110(g)(2). Congress may condition funding on 
a foreign organization's ideological commitments—for exam-
ple, pro-democracy, pro-women's rights, anti-terrorism, pro-
religious freedom, anti-sex traffcking, or the like. Doing so 
helps ensure that U. S. foreign aid serves U. S. interests. 
By contrast, plaintiffs' approach would throw a constitutional 
wrench into American foreign policy. In particular, plain-
tiffs' approach would put Congress in the untenable position 
of either cutting off certain funding programs altogether, or 
instead funding foreign organizations that may not align 
with U. S. values. We see no constitutional justifcation 
for the Federal Judiciary to interfere in that fashion with 
American foreign policy and American aid to foreign 
organizations. 
In short, plaintiffs' foreign affliates 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 affliates' re-
quired statement of policy against prostitution and sex traf-

Cite as: 591 U. S. 430 (2020) 437 
Opinion of the Court 
fcking may be incorrectly attributed to the American orga-
nizations. Therefore, the theory goes, the American organi-
zations themselves possess a First Amendment right against 
imposition of the Policy Requirement on their foreign 
affliates. 
As support, plaintiffs point to First Amendment cases in-
volving speech misattribution between formally distinct 
speakers. See, e. g., Hurley v. Irish-American Gay, Les-
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574– 
575 (1995); Pacifc Gas & Elec. Co. v. Public Util. Comm'n of 
Cal., 475 U. S. 1, 15 (1986) (plurality opinion); cf. PruneYard 
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; Pacifc Gas, 475 U. S., at 15; 
cf. PruneYard, 447 U. S., at 85, 87. Here, by contrast, the 
United States is not forcing plaintiffs to affliate with foreign 
organizations. Plaintiffs are free to choose whether to affl-
iate with foreign organizations and are free to disclaim 
agreement with the foreign affliates' required statement of 
policy. Any alleged misattribution in this case and any ef-
fect on the American organizations' message of neutrality 
toward prostitution stems from their choice to affliate with 
foreign organizations, not from U. S. Government compul-
sion. Because the First Amendment misattribution cases 
are premised on government compulsion to associate with 
another entity, those cases do not apply 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 cor-
porate entity did not prevent a separate affliate from speak-
ing, a point that is not disputed in this case. 
We appreciate that plaintiffs would prefer to affliate with 
foreign organizations that do not oppose prostitution. But

438 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Opinion of the Court 
Congress required foreign organizations to oppose prostitu-
tion in return for American funding. And plaintiffs cannot 
export their own First Amendment rights to shield foreign 
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 identifed with American organizations—for exam-
ple, those foreign affliates that share similar names, logos, 
and brands with American organizations. According to 
plaintiffs, those “closely identifed” 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 
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 diffcult line-drawing exercises—how closely identi-
fed is close enough?—and leave courts without any princi-
pled basis for making those judgments. We discern no good 
reason to invent a new and legally unmoored exception to 
longstanding principles of American constitutional and cor-
porate law. 
Second, plaintiffs argue that the Court's 2013 decision in 
this case encompassed both plaintiffs' American organiza-
tions and their foreign affliates, 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 organiza-
tion could work through affliates to potentially avoid the 
burdens of the otherwise-unconstitutional application of the

Cite as: 591 U. S. 430 (2020) 439 
Opinion of the Court 
Policy Requirement. But the Court rejected that alterna-
tive, which in essence would have compelled the American 
organizations to affliate with other organizations. The 
Court instead ruled that the Policy Requirement may not 
be applied to plaintiffs' American organizations. Therefore, 
plaintiffs' current affliations 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 affliates or 
other foreign organizations from the Policy Requirement. 
And the Court did not purport to override the longstanding 
constitutional law principle that foreign organizations oper-
ating abroad do not possess constitutional rights, or the ele-
mentary corporate law principle that each corporation is a 
separate legal unit. 
The dissent emphasizes that this case concerns “the First 
Amendment rights of American organizations.” Post, at 441 
(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 vol-
untarily affliated with American organizations. Those for-
eign organizations are legally separate from the American 
organizations. And because foreign organizations operating 
abroad do not possess constitutional rights, those foreign 
organizations do not have a First Amendment right to disre-
gard the Policy Requirement. 
In sum, plaintiffs' foreign affliates are foreign organi-
zations, and foreign organizations operating abroad pos-
sess no rights under the U. S. Constitution. We reverse the

440 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Thomas, J., concurring 
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 deci-
sion of this case. 
Justice Thomas, concurring. 
I agree with the Court that the Policy Requirement does 
not violate the First Amendment as applied to respondents' 
foreign affliates, 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 ), sug-
gests otherwise. See ante, at 439. I write separately to 
note my continued disagreement with AOSI I and to explain 
that the Policy Requirement does not violate the First 
Amendment for a far simpler reason: It does not compel any-
one 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 affrmation 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 require 
those who seek to carry out federally funded programs to 
support the Government's objectives with regard to those 
programs. Ibid. After all, the Constitution itself “im-
pos[es] affrmative ideological commitments prerequisite to 
assisting in the government's work.” Id., at 227. It ex-
cludes viewpoints such as communism and anarchism, stating 
that those engaged in government work must swear an oath 
*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 foreign non-
governmental organizations that combat HIV/AIDS abroad.” Ante, at 432.

Cite as: 591 U. S. 430 (2020) 441 
Breyer, J., dissenting 
to support our Constitution's republican form of government. 
See Art. VI, cl. 3. 
Moreover, the mere conditioning of funds on “ `the affr-
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 affliates, 
see ante, at 436–438, they are not compelled to participate 
in the Leadership Act program. 
The Policy Requirement does not violate the First Amend-
ment, regardless of whether it is applied to respondents, 
respondents' legally distinct foreign affliates, or any other 
organization, foreign or domestic. Because the Court prop-
erly rejects respondents' attempt to extend our erroneous 
precedent, I join its opinion in full. 
Justice Breyer, with whom Justice Ginsburg and Jus-
tice 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

442 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Breyer, J., dissenting 
government-compelled distortion when they speak through 
clearly identifed affliates that have been incorporated over-
seas. The answer to that question, as I see it, is yes. I dis-
sent from the Court's contrary conclusion. 
I 
To understand the issue now before us, one must appreci-
ate how it got here. Given this litigation's lengthy history, 
that requires a rather detailed look at why this dispute frst 
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 multi-
ple continents. Id., at 211. For example, respondents run 
“programs aimed at limiting injection drug use in Uzbeki-
stan, 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 benefcial public policies, and share informa-
tion about best practices in publications and at conferences. 
See ibid.; App. 171, 217, 222, 419. To support these interna-
tional 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, re-
spondents also “receive billions [of dollars] annually in fnan-
cial 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-

Cite as: 591 U. S. 430 (2020) 443 
Breyer, J., dissenting 
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 fghting 
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 traffcking.' ” 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 traffcking.' ” Id., 
at 210 (quoting § 7631(f)). The frst 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 government 
message. Ibid. 
Concerned that “adopting a policy explicitly opposing 
prostitution” could “alienate certain host governments” and 
“mak[e] it more diffcult to work with prostitutes in the fght 
against HIV/AIDS,” respondents sued. Id., at 211. They 
asserted that the Policy Requirement put an unconstitu-
tional 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 funding condi-
tion 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 
operated “as a direct regulation of speech.” Id., at 213. 
Commanding someone to speak a government message

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contravenes the “basic First Amendment principle that `free-
dom of speech prohibits the government from telling people 
what they must say.' ” Ibid. (quoting Rumsfeld v. Forum 
for Academic and Institutional Rights, Inc., 547 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, rather 
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 “Con-
gress intends,” even conditions that “may affect the recipi-
ent's exercise of its First Amendment rights.” AOSI I, 570 
U. S., at 213–214. That is all the frst (and unchallenged) 
Leadership Act condition does by forbidding federal funds 
from being used to promote prostitution or sex traffcking. 
See id., at 217–218. Congress may not, however, “leverage 
funding to regulate speech outside the contours” of the pro-
gram 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 violated re-
spondents' 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 fnancial as-
sistance to refrain from editorializing entirely; they could not 
even “establish [an] `affliate' organizatio[n]” to editorialize

Cite as: 591 U. S. 430 (2020) 445 
Breyer, J., dissenting 
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. 
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 Rep-
resentation 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 nonproft group received tax-exempt status as a 
§ 501(c)(3) organization on the condition that the organization 
not engage in lobbying. AOSI I, 570 U. S., at 215 (citing 
Regan, 461 U. S., at 544). Even though this condition on fed-
eral fnancial assistance affected the nonproft's exercise of 
First Amendment rights, the condition was constitutional be-
cause it “did not prohibit [the nonproft] from lobbying Con-
gress altogether.” 570 U. S., at 215. 
Specifcally, the nonproft in Regan—unlike the broadcast-
ers in League of Women Voters—was permitted to establish 
an affliate 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 nonproft 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 ex-
emption). 570 U. S., at 215. Since requiring the nonproft 
to adopt this “ `dual structure' ” was not “ `unduly burden-
some,' ” the condition in Regan “did not deny the [nonproft] 
a government beneft `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 essen-
tially compelled the nonproft to affliate with other organiza-
tions. See 570 U. S., at 215.

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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 (constitutional). 
570 U. S., at 217. Like the funding condition in League of 
Women Voters, we explained, the Policy Requirement affects 
protected speech outside the scope of the federal program. 
570 U. S., at 218. “By requiring recipients to profess a spe-
cifc belief,” it “goes beyond defning” the program “to defn-
ing the recipient” in the eyes of their global audience. Ibid. 
Respondents cannot “avow [a] belief dictated by” the Gov-
ernment “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 Pol-
icy 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 Government 
suggested a similar “dual-structure” solution to the First 
Amendment problem. Like the nonproft 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 com-
ply with the Policy Requirement), while a legally separate 
affliate 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 specifc belief as its own.” 570 U. S., at 219. 
“If the affliate 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 affliate is more 
clearly identifed with the recipient, the recipient can express

Cite as: 591 U. S. 430 (2020) 447 
Breyer, J., dissenting 
those beliefs only at the price of evident hypocrisy.” Ibid. 
With respect to the latter situation, in other words, compel-
ling a recipient to disavow a message involuntarily uttered 
by its clearly identifed affliate is forced hypocrisy, not free 
speech. See ibid. 
In sum, the Policy Requirement conditioned federal funds 
on an unavoidable and irreversible distortion of respondents' 
protected speech. We therefore held in AOSI I that the Pol-
icy 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 ft `the nature and extent of the constitutional 
violation' ” that we identifed in AOSI I . Hills v. Gau-
treaux, 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 affliates 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 calculus. 
See 106 F. Supp. 3d, at 360–361. Respondents, together with 
their affliates, convey a clear, consistent message to high-
risk populations, government offcials, healthcare profession-
als, prospective employees, and private 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

448 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
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coordinate their collective message. See, e. g., id., at 385– 
386, 404–429. To an outside observer, respondents and their 
affliates are a single, cohesive unit. They speak as one. 
The District Court consequently concluded that imposing 
the Policy Requirement on respondents' affliates—wherever 
they happen to have been incorporated—would force re-
spondents to “expres[s] contrary positions on the same mat-
ter through [their] different organizational components.” 
106 F. Supp. 3d, at 361. To prevent that from happening, 
and in keeping with the principles we set forth in AOSI I, 
the District Court enjoined enforcement of the Policy Re-
quirement against respondents and their clearly identifed 
affliates, including affliates that were incorporated over-
seas. Id., at 363. The District Court thought that remedial 
order necessary to protect respondents' own First Amend-
ment rights—rights that, as American organizations, re-
spondents unquestionably have. Id., at 361. 
The Court of Appeals understood the District Court's 
order that way, too. “The narrow issue before” us, the 
Court of Appeals explained, “is whether applying the Policy 
Requirement to [respondents'] closely aligned foreign affli-
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 affrmed 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 specifc 
question now before us: whether enforcing the Policy Re-
quirement against respondents' clearly identifed foreign af-
fliates 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 precedent 
on which it relied, should decide this case. Just as com-

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Breyer, J., dissenting 
pelling a clearly identifed domestic affliate to espouse a 
government message distorts respondents' own protected 
speech, AOSI I, 570 U. S., at 219, so too does compelling a 
clearly identifed foreign affliate to espouse the same gov-
ernment message. Either way, federal funding conditioned 
on that affrmative 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)—confrm 
that commonsense 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 le-
gally separate but clearly identifed affliates, we held, that 
speech is attributed to respondents for First Amendment 
purposes. AOSI I, 570 U. S., at 219. So when the Govern-
ment demands as a condition of federal funding that their 
clearly identifed affliate “espouse a specifc belief as its 
own,” respondents may express a contrary view through 
some other corporate channel only on pain of appearing hyp-
ocritical. 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 affliate'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 affliates receive federal 
funding to fght 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 
government-compelled distortion in the eyes of those foreign

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Breyer, J., dissenting 
audiences, 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 affliates 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 identifed” the affliates 
were with respondents, not the fact that the affliates were 
incorporated as separate legal entities. Ibid. And what 
matters now is once again how “clearly identifed” the affli-
ates are with respondents, not the fact that the affliates 
were incorporated as foreign legal entities. 
The First Amendment question therefore hinges, as it did 
before, on what an objective observer sees, hears, and under-
stands when respondents speak through their foreign affli-
ates. As to that, not even the Government meaningfully 
disputes that respondents and their foreign affliates are 
clearly identifed 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' foreign 
affliates distorts that shared message—and violates re-
spondents' First Amendment rights. So while respondents 
and their clearly identifed foreign affliates may be techni-
cally different entities with respect to such matters as con-
tracts, taxes, and torts, they are constitutionally the same 
speaker when it comes to the protected speech at issue 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 
imposed on a nonproft's § 501(c)(3) organization because the

Cite as: 591 U. S. 430 (2020) 451 
Breyer, J., dissenting 
nonproft could still speak through a separate § 501(c)(4) or-
ganization. See 461 U. S., at 544. Put simply, one speaker 
(the nonproft) could act (and speak) through two legally sep-
arate entities (the § 501(c)(3) and § 501(c)(4) organizations). 
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 broadcast-
ers “make known” their “views on matters of public impor-
tance” by speaking through legally separate “editorializing 
affliate[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 Gov-
ernment'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 frmly entrenched First Amend-
ment principle. See Legal Services Corporation v. Velaz-
quez, 531 U. S. 533, 546 (2001) (observing that organizational 
affliates 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 prob-
lems by allowing “alternative channel[s]” for speakers to ex-
press 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, even if each 
side happens to have been incorporated as a separate legal 
entity. See AOSI I, 570 U. S., at 219.

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A contrary approach would have led to a rather surprising 
result in AOSI I. Assume for a moment that the Policy Re-
quirement simply commanded respondents' clearly identifed 
affliates 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 ironclad 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 discussed below, 
it is equally wrong under our cases involving speech 
misattribution. 
B 
The First Amendment protects speakers from government 
compulsion that is likely to cause an audience to mistake 
someone else's message for the speaker's own views. See, 
e. g., Hurley, 515 U. S., at 572–573; Pacifc 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 mes-
sage conveyed by the parade organizers,” we held in Hurley 
that the order distorted the Veterans Council's protected 
speech. Id., at 572–573. Because GLIB wanted to “carr[y] 
its own banner” with its own message, and because onlookers 
would understand GLIB as “contribut[ing] something to” the 
parade's “common theme,” the order “essentially requir[ed]” 
the Veterans Council “to alter the expressive content of their

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Breyer, J., dissenting 
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 without 
bothering to “isolate an exact message,” yet the First 
Amendment protected its message from government-
compelled distortion all the same. Id., at 569. Respond-
ents in this case have done the Veterans Council one better. 
They have carefully constructed a cogent message and mar-
shaled their clearly identifed foreign affliates to express it 
across the globe. See supra, at 447–448, 450. 
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 
traffcking”) and why respondents don't want to be associ-
ated with it (the message, among other things, purportedly 
“ `stigmatizes one of the very groups whose trust [respond-
ents] must earn to conduct effective HIV/AIDS preven-
tion' ”). 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 defned. 
True, Hurley and our other speech-misattribution cases 
dealt with a speaker complaining about being forced to affl-
iate with someone else's speech, rather than (as here) their 
pre-existing affliate being forced to speak. Cf. ante, at 436– 
437. But that factual distinction makes no constitutional 
difference. From a First Amendment perspective, the lat-
ter 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, 
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

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all the same. By compelling speech from an existing affli-
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 436–437. 
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 recruit-
ers); PruneYard 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 politi-
cally 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 
simply whether the Government has demanded a profession 
of belief that will distort the speaker's message. How the 
Government causes that distortion makes no constitutional 
difference. And as explained, enforcing the Policy Require-

Cite as: 591 U. S. 430 (2020) 455 
Breyer, J., dissenting 
ment against respondents' clearly identifed foreign affliates 
would plainly distort respondents' message. See supra, 
at 447–448, 450. 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 affliates to reach audiences 
overseas. It is easy to understand why. 
Many American news networks operate through clearly 
identifed foreign affliates when speaking abroad. Viewers 
attribute that speech to an American speaker: the network. 
That is the whole point of using clearly identifed foreign 
affliates. For example, CNN speaks to audiences in the 
Philippines, Brazil, Indonesia, and other countries using for-
eign affliates, usually styled as CNN Philippines, CNN Bra-
zil, 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. Hernán-
dez v. Mesa, 589 U. S. 93 (2020) (Hernández II ). Or to com-
pel CNN Mexico to run a different story, perhaps one 
produced by Government personnel, that praises American 
policy at the border? 
We should be highly skeptical. If the Government com-
mandeered CNN's clearly identifed foreign affliate in these 
or similar ways, whether by monetary pressure or some 
other means, CNN should have constitutional recourse. 
Some critical foreign policy interests might complicate the 
First Amendment calculus—say, a wartime need to keep 
future battle plans secret. But nothing like that is 
present here. And it is diffcult to accept the notion that 
the First Amendment permits the Government to suppress,

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compel, or otherwise distort any and all American speech 
transmitted abroad through a clearly identifed foreign 
affliate. 
III 
The upshot is: (1) The messages at issue here belong 
to American speakers; (2) clearly identifed foreign affliates 
are a critical means of conveying those messages overseas; 
and (3) enforcing the Policy Requirement against those 
affiliates distorts respondents' own protected speech— 
and thus violates respondents' own First Amendment 
rights. 
The majority justifes its contrary result on three main 
grounds, two of which it says are “bedrock principles” of 
American law. See ante, at 433–436, 438–439. I do not fnd 
these arguments persuasive. 
A 
The frst “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 433. That sweep-
ing 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 organizations. 
This case concerns the constitutional rights of American or-
ganizations. Every respondent here is—and has always 
been—American. AOSI I, 570 U. S., at 210; see also Brief 
for Petitioners 7, 19 (acknowledging as much). No foreign 
entities are party to this case, and respondents have never 
claimed that the Policy Requirement violates anyone'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 identifed foreign affliates to reach audiences over-

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Breyer, J., dissenting 
seas. See supra, at 448. Whether the foreign affliates 
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 asser-
tion about the extraterritorial reach of our Constitution does 
not refect the current state of the law. The idea that for-
eign 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 protection 
under the Constitution. Or one might say that the matter 
is undecided. But this Court has studiously avoided estab-
lishing an absolute rule that forecloses that protection in all 
circumstances. 
In Hernández v. Mesa, 582 U. S. 548 (2017) ( per curiam ) 
(Hernández I), for example, we specifcally declined to decide 
the “sensitive” question whether, on the facts then before 
us, a Mexican citizen standing on Mexican soil had Fourth 
Amendment rights—precisely because the answer to that ex-
traterritoriality question “may have consequences that are 
far reaching.” Id., at 554. Hernández later came to this 
Court again, and we decided the case on alternative grounds. 
See Hernández II, 589 U. S., at 113–114. Were the majori-
ty's categorical rule of (non)extraterritoriality etched in 
stone, we could have disposed of Hernández the frst time 
around in a few short sentences. 
Nor do the cases that the majority cites support an absolute 
rule. See ante, at 434. The exhaustive review of our prece-
dents that we conducted in Boumediene v. Bush, 553 U. S. 723 
(2008), pointed to the opposite conclusion. In 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 constitu-
tional 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 434, 435, and n. 
(quoting Eisentrager at length). Its “constricted reading”

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of Eisentrager and our other precedents is not the law. See 
Boumediene, 553 U. S., at 764; see also, e. g., Neuman, Under-
standing Global Due Process, 23 Geo. Immigration L. J. 365, 
400 (2009) (describing our cases as rejecting any absolute 
view). 
The law, we confrmed 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 territory. 
See ante, at 434. 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 ffth vote for re-
jecting a foreign citizen's claim to constitutional protection 
on foreign soil outside U. S. control because “[t]he conditions 
and considerations of this case would make adherence to the 
Fourth Amendment's warrant requirement impracticable 
and anomalous” (emphasis added)). Our precedents reject 
absolutism. Indeed, even our most sweeping statements 
about foreign citizens' (lack of) constitutional 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” this country “has no con-
stitutional rights regarding his application” (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 diffcult to imagine. Long-term 
permanent residents are “foreign citizens.” Does the Con-
stitution therefore allow American offcials to assault them

Cite as: 591 U. S. 430 (2020) 459 
Breyer, J., dissenting 
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 matter, 
often protest when Presidents travel overseas. Does that 
mean Secret Service agents can, consistent with our Consti-
tution, seriously injure peaceful protestors abroad without 
any justifcation? 
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 affliates lack 
First Amendment rights of their own while acting abroad. 
See ante, at 433–434. If in spite of everything else, the ma-
jority considers this point material to its decision, all that 
need be said is: “We accept respondents' concession and pro-
ceed 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 interpre-
tation. Washington State Grange v. Washington State Re-
publican Party, 552 U. S. 442, 450 (2008); see also, e. g., Lyng 
v. Northwest Indian Cemetery Protective Assn., 485 U. S. 
439, 445 (1988); Three Affliated Tribes of Fort Berthold Res-
ervation 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

460 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Breyer, J., dissenting 
legal units with distinct legal rights and obligations.” Ante, 
at 435. Sometimes true, sometimes not. This baseline rule 
gives way in many contexts, and our First Amendment prec-
edents (including AOSI I ) refute any suggestion that a work-
aday principle of corporate law somehow resolves the consti-
tutional issue here in dispute. 
As the majority acknowledges, corporate law itself permits 
courts to pierce or otherwise disregard the corporate veil in 
a variety of circumstances. See ante, at 435–436. 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 reaffrmed 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). And these are far from the only relevant 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 determinative”). 
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 
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 affliates may be attributed to respondents 
if the affliates are “clearly identifed” with respondents); 
League of Women Voters, 468 U. S., at 400 (observing that 
funding conditions that restrict speech can survive constitu-
tional scrutiny if the speaker may “make known its views 
on matters of public importance through” a legally separate

Cite as: 591 U. S. 430 (2020) 461 
Breyer, J., dissenting 
affliate—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 further establish 
that merely requiring speakers to work through affliates is 
“not unduly burdensome” and can therefore cure, rather than 
create, First Amendment concerns. Regan, 461 U. S., at 
545, n. 6. Contra, ante, at 438–439 (suggesting that such a 
requirement would be unconstitutional). Small wonder the 
majority can muster only two context-specifc and statute-
specifc cases—one addressing the Foreign Sovereign Im-
munities Act, the other involving the Racketeer Infuenced 
and Corrupt Organizations Act—as affrmative support for 
its conclusion that corporate formalities somehow control the 
First Amendment question before us. See ante, at 435 (cit-
ing Dole Food Co. v. Patrickson, 538 U. S. 468 (2003), and Ce-
dric 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 affliations we addressed in 
AOSI I, respondents' “current affliations with foreign orga-
nizations are their own choice.” Ante, at 439. There are 
two problems with this. First, the description is not accu-
rate. Foreign governments—and increasingly, the U. S. 
Government—often require respondents to work through 
foreign affliates. See, e. g., App. 368, 373–375. Second, 
even if respondents' associations with foreign affliates were 
voluntary, 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, animal, 
or droid. See supra, at 453–454. Can the majority really 
mean to suggest otherwise, simply because the parade orga-

462 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE 
FOR OPEN SOCIETY INT'L, INC. 
Breyer, J., dissenting 
nizers' decision to invite the marcher in the frst place was 
“their own choice”? 
C 
The majority also makes two practical arguments, but nei-
ther justifes the First Amendment costs of its decision. 
The majority frst says that a ruling in respondents' favor 
would disrupt American foreign policy by requiring the Gov-
ernment to fund “organizations that may not align with U. S. 
values.” Ante, at 436. 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 Govern-
ment action creates a risk of speech misattribution (and with 
it speech distortion) is a “legally unmoored” standard rife 
with “diffcult line-drawing exercises.” Ante, at 438. 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 identifed 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 diffcult judgment calls is well

Cite as: 591 U. S. 430 (2020) 463 
Breyer, J., dissenting 
worth paying to protect First Amendment rights. See Mc-
Cutcheon 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 Requirement vi-
olates respondents' First Amendment rights, just as it did 
before. 
* * * 
The Court today concludes that respondents' foreign affl-
iates “do not have a First Amendment right to disregard 
the Policy Requirement.” Ante, at 439. 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 affliates 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.

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 591 U. S. Part 1 Pages 430–463 OFFICIAL REPORTS OF THE SUPREME COURT June 29, 2020 NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington…

• #2

  American organizations themselves possess a First Amendment right against the Policy Requirement's imposition on their foreign affliates. First Amendment cases involving speech misattribution between for- mally distinct speakers, see, e. g., Hurley v. Irish-American Gay, Les- bian and Bisexual Group of Boston, Inc…

• #3

  opment and Relief Agency International by Eugene Volokh, Andrew L. Frey, and Cleland B. Welton II; for the Cato Institute by Megan L. Brown, Scott B. Wilkens, and Ilya Shapiro; for Current and Former Members of Congress by Carter G. Phillips and Tobias S. Loss-Eaton; for Professors of Public Health et al. by Jessi…

• #4

  principle that the Government “may not deny a beneft to a person on a basis that infringes his constitutionally pro- Cite as: 591 U. S. 430 (2020) 433 Opinion of the Court tected . . . freedom of speech.” Agency for Int'l Develop- ment v. Alliance for Open Society Int'l, Inc., 570 U. S. 205, 214 (2013) (internal…

• #5

  494 U. S. 259, 265–275 (1990); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950); United States ex rel. Turner v. Wil- liams, 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 …

• #6

  § 2680(k) (Federal Tort Claims Act's exception for torts “aris- ing 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 sepa- rate legal units with distinct legal r…

• #7

  President in the legislative process, Congress sometimes im- poses conditions on foreign aid. See 22 U. S. C. §§ 2271, 2272, 2371, 7110(g)(2). Congress may condition funding on a foreign organization's ideological commitments—for exam- ple, pro-democracy, pro-women's rights, anti-terrorism, pro- religious freedom…

• #8

  agreement with the foreign affliates' required statement of policy. Any alleged misattribution in this case and any ef- fect on the American organizations' message of neutrality toward prostitution stems from their choice to affliate with foreign organizations, not from U. S. Government compul- sion. Because the …

• #9

  longstanding principles of American constitutional and cor- porate law. Second, plaintiffs argue that the Court's 2013 decision in this case encompassed both plaintiffs' American organiza- tions and their foreign affliates, meaning that, in plaintiffs' view, the Court has already resolved the issue before us. Th…

• #10

  In sum, plaintiffs' foreign affliates are foreign organi- zations, and foreign organizations operating abroad pos- sess no rights under the U. S. Constitution. We reverse the 440 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT'L, INC. Thomas, J., concurring judgment of the U. S. Court of Appeals f…

• #11

  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 affliates, see ante, at 436…

• #12

  overseas.” Id., at 210. Their lifesaving work spans multi- ple continents. Id., at 211. For example, respondents run “programs aimed at limiting injection drug use in Uzbeki- stan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HIV transmission in Kenya, and promoting safer sex prac- tices in India.” Ibid…

• #13

  against HIV/AIDS,” respondents sued. Id., at 211. They asserted that the Policy Requirement put an unconstitu- tional 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 funding condi- tion violated respond…

• #14

  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 fnancial as- sistance to refrain from editorializing entirely; they could not even “establish [an] `a…

• #15

  446 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT'L, INC. Breyer, J., dissenting 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 (constitutional). 570 U. S., at 217. Like the funding co…

• #16

  by its clearly identifed affliate is forced hypocrisy, not free speech. See ibid. In sum, the Policy Requirement conditioned federal funds on an unavoidable and irreversible distortion of respondents' protected speech. We therefore held in AOSI I that the Pol- icy Requirement “violates the First Amendment and can…

• #17

  the District Court enjoined enforcement of the Policy Re- quirement against respondents and their clearly identifed affliates, including affliates that were incorporated over- seas. Id., at 363. The District Court thought that remedial order necessary to protect respondents' own First Amend- ment rights—rights th…

• #18

  clearly identifed affliate “espouse a specifc belief as its own,” respondents may express a contrary view through some other corporate channel only on pain of appearing hyp- ocritical. Ibid. Leveraging Congress' Article I spending power to distort respondents' protected speech in this way therefore violates respo…

• #19

  and their clearly identifed foreign affliates may be techni- cally different entities with respect to such matters as con- tracts, taxes, and torts, they are constitutionally the same speaker when it comes to the protected speech at issue in this case. This two-entities-one-speaker principle is an established pa…

• #20

  a similarly sensible result: The Government may not require you to speak out of both sides of your mouth, even if each side happens to have been incorporated as a separate legal entity. See AOSI I, 570 U. S., at 219. 452 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT'L, INC. Breyer, J., dissentin…

• #21

  apparent. In Hurley, the Veterans Council had merely “combin[ed] multifarious voices” of disparate groups without bothering to “isolate an exact message,” yet the First Amendment protected its message from government- compelled distortion all the same. Id., at 569. Respond- ents in this case have done the Veteran…

• #22

  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 rig…

• #23

  zil, 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 coveri…

• #24

  been—American. AOSI I, 570 U. S., at 210; see also Brief for Petitioners 7, 19 (acknowledging as much). No foreign entities are party to this case, and respondents have never claimed that the Policy Requirement violates anyone's First Amendment rights apart from their own. Both the District Court and the Court of…

• #25

  U. S., at 762. This is to say, we rejected the position that the majority propounds today. See ante, at 434, 435, and n. (quoting Eisentrager at length). Its “constricted reading” 458 A GENCY FOR INT'L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT'L, INC. Breyer, J., dissenting of Eisentrager and our other preced…

• #26

  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 matter, often protest wh…

• #27

  a variety of circumstances. See ante, at 435–436. 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 …

• #28

  its conclusion that corporate formalities somehow control the First Amendment question before us. See ante, at 435 (cit- ing Dole Food Co. v. Patrickson, 538 U. S. 468 (2003), and Ce- dric Kushner Promotions, Ltd. v. King, 533 U. S. 158 (2001)). The majority also attempts to distinguish the facts before us now fr…

• #29

  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 Govern- ment action creates a risk of speech mis…