Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc.
Opinion of the Court
*2085In 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.
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 prostitution and sex trafficking." § 7631(f) ; see also § 7631(e) ;
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 commitment 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 challenged 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 protected ... freedom of speech."
*2086Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. ,
But as has been the case since 2003, foreign organizations that receive Leadership Act funds remain subject to the Policy Requirement and still must have a policy explicitly opposing prostitution and sex trafficking. Following this Court's 2013 decision barring the Government from enforcing the Policy Requirement against American organizations, plaintiffs returned to court, invoking the First Amendment and seeking to bar the Government from enforcing 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 Requirement against plaintiffs' foreign affiliates. The U. S. Court of Appeals for the Second Circuit affirmed. Judge Straub dissented. He described as "startling" the proposition that the First Amendment could extend to foreign organizations operating abroad.
We granted certiorari, 589 U. S. ----,
First , it is long settled as a matter of American constitutional 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 ,
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 ,
Second , it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations. See Dole Food Co. v. Patrickson ,
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 organizations remain legally distinct from the American organizations. Plaintiffs do not ask this Court to pierce the corporate veil, nor do they invoke any other relevant exception 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 regarding American foreign aid. The United States supplies more foreign aid than any other nation in the world. Cong. Research 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
In short, plaintiffs' foreign affiliates are foreign organizations, 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' required statement of policy against prostitution and sex trafficking may be incorrectly attributed to the American organizations. Therefore, the theory goes, the American organizations themselves possess a First Amendment right against imposition of the Policy Requirement on their foreign affiliates.
As support, plaintiffs point to First Amendment cases involving speech misattribution between formally distinct speakers. See, e.g. , Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston , Inc.,
In support of their misattribution argument, plaintiffs also cite Regan v. Taxation With Representation of Wash. ,
We appreciate that plaintiffs would prefer to affiliate with foreign organizations that do not oppose prostitution. But Congress required foreign organizations to oppose prostitution 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 emphasize that the Court could narrowly decide to protect the free speech rights of only those foreign organizations that are closely identified with American *2089organizations-for example, those foreign affiliates that share similar names, logos, and brands with American organizations. According to plaintiffs, those "closely identified" scenarios greatly increase 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, plaintiffs' proposed line-drawing among foreign organizations would blur a clear rule of American law: Foreign organizations 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 exception 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 organizations 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 organization could work through affiliates to potentially avoid the burdens of the otherwise-unconstitutional application of the Policy Requirement. But the Court rejected that alternative, which in essence would have compelled the American 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 facially 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 operating abroad do not possess constitutional rights, or the elementary 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 2090 (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 organizations 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 American organizations. And because foreign organizations operating abroad do not possess constitutional rights, those foreign organizations do not have a First Amendment right to disregard the Policy Requirement.
In sum, plaintiffs' foreign affiliates are foreign organizations, 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 decision of this case.
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. ,
Concurring Opinion
*2090I 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. ,
In AOSI I , the Court erred by holding that the Policy Requirement violated respondents' First Amendment rights by conditioning their receipt of Leadership Act
Moreover, the mere conditioning of funds on " 'the affirmation of a belief' " tied to the purpose of a government program involves "no compulsion at all." AOSI I ,
The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respondents, respondents' legally distinct foreign affiliates, or any other organization, foreign or domestic. Because the Court properly rejects respondents' attempt to extend our erroneous precedent, I join its opinion in full.
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 Amendment rights of foreign organizations. It is about-and has always been about-the First Amendment rights of American 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 Development v. Alliance for Open Society Int'l, Inc. ,
This time, the question is whether the American organizations 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.
I
To understand the issue now before us, one must appreciate 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,
One of respondents' primary sources of federal funding is the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.
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.' "
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.
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 Requirement would plainly violate the First Amendment" if it operated "as a direct regulation of speech." Id ., at 213,
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 "Congress intends," even conditions that "may affect the recipient's exercise of its First Amendment rights." AOSI I ,
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 program.
As an example of what the Government may not do, we pointed to our decision FCC v. League of Women Voters of Cal. ,
Just the opposite was true in Regan v. Taxation With Representation of Wash. ,
Specifically, the nonprofit in Regan -unlike the broadcasters in League of Women Voters -was permitted to establish an affiliate to carry on its lobbying activities as a § 501(c)(4) organization. AOSI I ,
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).
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 nonprofit in Regan , the Government noted, respondents could act (and speak) through two corporate entities: One organization could receive Leadership Act funds on respondents' behalf (and comply with the Policy Requirement), while a legally separate affiliate could communicate respondents' preferred message (and not receive Leadership Act funds)-or vice versa. AOSI I ,
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."
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 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 ,
The District Court, like our Court, recognized that respondents' 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.
In the District Court's view, those corporate formalities did not meaningfully change the First Amendment calculus. See
The District Court consequently concluded that imposing the Policy Requirement on respondents' affiliates-wherever they happen to have been incorporated-would force respondents to "expres[s] contrary positions on the same matter through [their] different organizational components."
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 affiliates violates [respondents'] own First Amendment rights."
II
The road has been long, but we have arrived at the specific question now before *2095us: 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 precedent on which it relied, should decide this case. Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents' own protected speech, AOSI I ,
Properly understood, our speech misattribution cases-in particular Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston , Inc.,
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 Amendment purposes. AOSI I ,
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 government-compelled distortion in the eyes of those foreign audiences, as well as listeners here at home.
True, respondents' international mission sometimes requires that they convey their message through affiliates incorporated 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 incorporated as separate legal entities.
The First Amendment question therefore hinges, as it did before, on what an objective observer sees, hears, and understands when respondents speak through their foreign affiliates. As to that, not even the Government meaningfully 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 *2096same. Their message is the same. Leveraging Congress' spending power to demand speech from respondents' foreign affiliates distorts that shared message-and violates respondents' First Amendment rights. So while respondents 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 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 certain protected speech (lobbying) that the federal tax code imposed on a nonprofit's § 501(c)(3) organization because the nonprofit could still speak through a separate § 501(c)(4) organization. See
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 broadcasters "make known" their "views on matters of public importance" by speaking through legally separate "editorializing affiliate[s]."
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 ,
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 ,
A contrary approach would have led to a rather surprising result in AOSI I . Assume for a moment that the Policy Requirement simply commanded respondents' clearly identified affiliates to speak-the kind of "direct regulation of speech" that we said "would plainly violate the First Amendment,"
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 ,
Consider our unanimous decision in Hurley . In that case, a group called the South Boston Allied War Veterans Council organized a parade.
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.
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
True, Hurley and our other speech misattribution cases dealt with a speaker complaining about being forced to affiliate with someone else's speech, rather than (as here) their pre-existing affiliate being forced to speak. Cf. ante , at 2087 - 2088. 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 Veterans 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 all the same. By compelling speech from an existing affiliate (or all of them), that order would have required, even more brazenly, that the Veterans Council "alter *2098the expressive content of their parade" in violation of the Veterans Council's First Amendment rights.
There is a reason why, until today, we had not confronted a case like the one just described. Cf. ante , at 2087 - 2088. Requiring someone to host another person's speech is often a perfectly legitimate thing for the Government to do. See, e.g. , FAIR ,
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 Requirement against respondents' clearly identified foreign affiliates would plainly distort respondents' message. See supra , at 2094 - 2095, 2095 - 2096. That violates respondents' First Amendment 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. ----,
We should be highly skeptical. If the Government commandeered CNN's clearly identified foreign affiliate in these or similar ways, whether by monetary pressure *2099or 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 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 affiliate.
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 affiliates 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 2086 - 2088, 2089. I do not find these arguments 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 2086. 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 organizations. This case concerns the constitutional rights of American organizations. Every respondent here is-and has always been- American. AOSI I ,
Even taken on its own terms, the majority's blanket assertion 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 protection under the Constitution. Or one might say that the matter is undecided. But this Court has studiously avoided establishing an absolute rule that forecloses that protection in all circumstances.
In Hernández v. Mesa , 582 U. S. ----,
Nor do the cases that the majority cites support an absolute rule. See ante , at 2086. The exhaustive review of our precedents that we conducted in Boumediene v. Bush ,
The law, we confirmed in Boumediene , is that constitutional "questions of extraterritoriality turn on objective factors and practical concerns" present in a given case, "not formalism" of the sort the majority invokes today.
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 Constitution 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 admission 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 Constitution, seriously injure peaceful protestors abroad without any justification?
We have never purported to give a single "bedrock" answer 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 *2101not 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 2086. 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 interpretation. Washington State Grange v. Washington State Republican Party ,
B
The majority's second supposedly "bedrock principle" is that "separately incorporated organizations are separate legal units with distinct legal rights and obligations." Ante , at 2087. 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 permits courts to pierce or otherwise disregard the corporate veil in a variety of circumstances. See ante , at 2087. 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. ,
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 corporate lines in the First Amendment context-including in our previous opinion in this very case. See AOSI I ,
*2102Rust ,
The majority also attempts to distinguish the facts before us now from the facts that were before us last time. It asserts that, in contrast to the affiliations we addressed in AOSI I , respondents' "current affiliations with foreign organizations are their own choice." Ante , at 2089. There are two problems with this. First, the description is not accurate. Foreign governments-and increasingly, the U. S. Government-often require respondents to work through foreign affiliates. See, e.g. , App. 368, 373-375. Second, even if respondents' associations with foreign affiliates 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 convey the Government's message on their car's license plate. See
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 2088. 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 ,
The majority also fears that determining whether Government action creates a risk of speech misattribution (and with it speech distortion) is a "legally unmoored" standard rife with "difficult line-drawing exercises." Ante , at 2089. But we have *2103drawn just this kind of line many times. See, e.g. , PruneYard ,
* * *
The Court today concludes that respondents' foreign affiliates "do not have a First Amendment right to disregard the Policy Requirement." Ante , at 2089. 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 American 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.
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 fighters, and 'werewolves' could require 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 Amendments.
"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 comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell ,
As the Court explains, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act),
Reference
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