we have one can you sunder scow and that case is alliance for open society versus united states agency for international development council good morning honors may it please the court benjamin torrance united states attorney's office of the southern district of new york behalf of the defendants following the supreme court's decision in turning thirteen in this case the policy requirement that's at issue here does not apply to us organizations so that means that every organization every us organization is free to speak however it wishes on matters of prostitution and sex trafficking and there will be no repercussions for its federal funding if it does so the issue is the foreign affiliates yes but i think that the plaintiffs have conceded that as foreign organizations they themselves lack first amendment protection the theory that the plaintiffs are advancing now is that applying the otherwise valid policy requirement to foreign decision incorrectly they've read the supreme court's decision in correct way the supreme court's decision does not hold that foreign affiliates or any foreign organization talked about putting domestic n g o s in a position of and hypocrisy that was the language fairest struck a strong line the starting point of that discussion was that if the policy requirement as a speech restriction is going to be applied to the u s organization that  organizations first amendment rights then the government argued that well we can alleviate that infringement on first amendment rights by allowing them to speak to an affiliate doesn't matter if it's a foreign or domestic affiliate but our solution the government solution was allow them to speak through an affiliate and the supreme court said that won't work it won't work if the affiliate is distinct from the u s organization that has to bear the burden of this policy requirement because then the u s organization isn't truly speaking t first amendment i cannot agree with that that that's what they were talking about what they were talking about is if you have to start with that premise if the policy requirement is applied to a protected organization then the problem of amputation the problem of eviden becomes a problem and defeats the government's proposed solution to that burden on the first amendment right but that's not the case for dealing with here now we don't need to work around to the burden on first amendment rights we don't need i know that way of alleviating that infringement on for us member rights because there is no initial burden on first met rights if the if the hypothetical organization your honor mentions wants to speak about prostitution or sex trafficking they can just do so with no repercussions for their federal funding they can say whatever they want and they can also get the money and that's what distinguishes this case from the supreme court's decision you should rehear we think the supreme court was quite clear about what i was talking about so i and it appears that there we have a disagreement with your own on that well the supreme court i think if you take the paragraphs that it's looking at it starts with that premise and we think that that distinction that saying that the that it's no longer applying to the u s organizations directly and the u s organization can do what they want with their own funds that takes it out of that case and put it squarely in the camp of this court's decisions in planned parenthood and center for reproductive law as well as a similar decision from the d c circuit indicates the memorial and of course what those cases held is that there is no constitutional issue exactly for that same reason because the domestic organization is free to speak its mind on its own dime it's free to say whatever it wants and if you look at the center for reproductive law case the allegations in that case this all sorts of infringements on speech infringements on their ability to advocate to publish to speak to collaborate and and this court said none of that matters because as long as the domestic organization is not subject to that infringement on speech only the foreign organization is subject exactly like in this case then it doesn't matter what all those are because they can speak directly they can use their own phones to say what they want on this matter  opinion in this matter dealt with the application of the policy restriction and domestic  applying the restriction to domestic n g o s but giving them the alternative option of expressing a different view via affiliates and that didn't work and the district court this panel and the supreme court will focus only on the invalidity of applying the policy requirement to domestic and geos we fully agree with that your honor and you can see that from the very first sentence of the supreme court's description of the case where they say the respondents before them are domestic n g o s that are working overseas the plaintiffs say that oh the supreme court must have been focused on foreign organizations because everyone knew that the work being conducted was really foreign affiliates because the work being conducted was overseas but that doesn't follow the supreme court expressly recognize that the domestic n g o s are what were before them and that they were in fact working overseas it's never been in dispute that the work here goes on overseas but there's not a word in the supreme court's opinion about foreign affiliates or the location of anything except in the scribing the case as involving domestic and geos and this judge moore arrow's decision which said that it applies now to f and domestic affiliates the group that the policy requirement is unconstitutional should not apply to foreign organizations whether or not affiliated with a domestic and international he had or were to show cause that it applies to other n g o s beside o s arose for the first time in approximately twenty fourteen twenty fifteen after the supreme court had heard this case that when you all began decorating in whatever exchanges with then take in as to whether or not the policy requirement should be impose on foreign angio including foreign affiliates first time it was raised in any court was in the fall of two thousand and fourteen right that's correct so that so that that issue is before us but in a totally different context as had been in the prior to say sheetal context it's absolutely right and this court actually made that clear in its prior decision when it distinguished one of the cases we rely on today the moral as saying that case involved foreign organizations in this case only involves domestic organizations so this court was explicit that it was only considering domestic organizations as was the supreme court there's just d we don't think it did and to reach that conclusion would not only require that the court overruled that the supreme court effectively over ruled that decision and this court's two decisions to the same effect but it would really effectively require the court to say that decision in this case overruled the very bedrock of saying that foreign of organizations don't get first member protection because that's the practical effect of the district court's ruling all they have to do any foreign organization all it has to do to obtain first amendment protection is form some affiliation however that's the fine then there's a huge line drawing problem here too in terms of how to define what's clearly identified and who is an affiliate but all they have to do fit within whatever the definition is and then they're suddenly protected by the first amendment and everything that is affiliated with them they can't just start out by themselves to be generous i don't think that any well i think i don't see any barrier to that if the court were to announce a rule that of all the it needs it's affiliated with some and all they have to do is say ok now we're affiliated they can make a phone call and say we'd like to form an affiliation with ok so there's there's there's just nothing in the district courts rule that would prevent that thank you may please the court my name is david appearing on behalf of plaintiffs a pelleas dozens of n g o s that fight hiv aids overseas as the panel was aware the supreme court struck down the policy requirement as unconstitutional because of the first amendment violations that lies as it applies to this and is it correct that is absolutely correct your honor our case is all about the rights of domestic n g o s and the violations of those rights when the government attempts to impose this policy requirement on on those u s organizations and on their affiliates the context is now totally different in the entirety of the litigation leading up to and through the supreme court's  was the following and you tell me if i'm wrong a domestic n g o against which and clued you or your clients against which the policy requirement was being imposed the speech was clearly being altered by the policy requirement that the government offered an alternative create affiliates through which you can do what you would like everyone including the supreme court said that will not do you may not impose the restriction on the domestic and geo is that correct what i have said up to this point that's correct your honor and and and then the circumstance changed when you all began debating after the supreme court rule whether or not the requirement may be imposed upon foreign n g o s your honor that was raised  supreme court at the supreme court justice kennedy says because let me give some background we had put into the record all the information about how our organizations operate which is they have clearly identified affiliates in all of the places where they fight this disease all over the world in for some organizations like care it's in twenty eight different countries for others like pathfinder it's eighteen but you get the idea they're fighting in this disease in the toughest places through their foreign affiliates that's in the way that the if inviting or writing or speaking that's irrelevant but in the same position so so through foreign affiliates and what we said is the government solution does not work here for two reasons one this policy requirement cannot be cabined it can't be confined courting because with you the court absolutely agre and to as a practice you cannot impose the restriction as a practical matter restriction fell so you all can take the money and say whatever you'd like to say i'm to get to your point which is i get to the point of why it is that the restriction can't be imposed upon foreign n g o s so the government said here now today that this was never raised well it's raised in all the declarations and at oral argument at the supreme court justice kennedy says i have the same concerns that justice ginsburg expressed about the difficulty of simply creating structures in foreign countries justice ginsburg says but you know that getting an ngo a new and geo recognised in dozens of foreign countries is no simple thing to accomplish i mean to take a concrete example look what happened about a year and a half ago in egypt when the u o s were indicted for criminal for not complying with the permit requirements of that country and we went on to argue we went on to our what does that have to do with the united states government offering its money to a foreign entity for use in a foreign land but imposing some restriction on it they have they do not have their own constitutional rights and you now have the right because the restriction has been removed from you so your honor here we can be guided by the reasoning of the supreme court and i think now what well you're on a let me get you can't point to any language in the court's opinion ops or absolutely we can what the what the court said what the court said at two three three one and two three three two is that this policy requirement cannot be cabin to a foreign affiliate sorry to an affiliate to an affiliate recognizing that all the affiliates are overseas it cannot be cabined because the problem is when the organizations are quote clearly identified with each other as in care standing here and care standing here they literally share the same name the same identity the same brand the same mission with the courts that is when that is the case you have the problem when you impose the policy requirement on that affiliate regardless of where it's located whether it's tanzania bangladesh india or new jersey when you impose it on an affiliate you have the problem what the court said is eviden organization can work exactly is exactly and when they said you cannot have your right taken away by requiring you to make this policy statement you of all of that well that but that's just not john earl is if i'm wrong tell me if i'm wrong about this your honor if i may on this go ahead on this question we are not talking about a cause of action for first amendment violation arising from the imposition of this policy requirement on foreign affiliates that's not what's happening here we have the supreme court striking down a statute because of injuries to our clients and the district court fashioning a remedy for that file ation and the remedy must solve not only the violations but according to this court in cooper the harm the violations plus the harm and the harm eisley all of that happen precisely all of that happened in planned parenthood and in c u r l p if i have the initials correct as the as the as the government and the court supreme court both recognize planned parenthood did not involve compelled speech did not involve clearly identified organizations planned parenthood is us organizations attempting to bootstrap rights on to foreign organizations that have no affiliation independent let you explain to me why you believe that this requirement that the government is advocating for while aids  overseas that is care talking and the government recognized it in its affiliate guidelines when it said well when when we want to impose that when we want to impose the policy requirement on organizations anyone who says anything different we're going to require separation and different identity because otherwise there's an upstream attribution problem from the affiliate from what the government said when the shoe was on the other foot is we have to have you separate from your affiliates because if you're not separate if you don't have separate names and separate legal organization in the u s and care organization overseas the attribution is direct and what the court realized is you can't make people speak out of two sides of their mouth without hurting the u s organization  addressed that so the supreme court said we're sorry u s government what you've proposed to fix these constitutional violations is no fix at all because the injury remains in eviden all we're saying here and the injury to the u s organization the injury to the u s organization remains because of the problem of evident apocryphally that's all of that was to eliminate the requirement on the domestic organization so from that point forward they could not impose that requirement on the domestic organisation it was free to take the money and say whatever it wanted to as was the case in the two prior second circuit cases indeed your own enhance your now justice sotomayor recognise that when she wrote the second case and said planned parenthood was still roll still the law and even if the harm was more manifest which i suggest you don't make that quite clear here planned parenthood was still good law what what what did she say to change that well planned parenthood deals with an entirely different issue which is can you risk richt a totally independent foreign organization from doing certain things without that but let me let me know how independent your organisations are indeed your papers all full of descriptions such as the affiliates are far and incorporated they are legally separate and then you rely on brand in logo so that ad bada a foreign entity can take united states dollars and refuse to adopt whatever vocalized conditions the united states government cares to impose beat because they can say well we are somehow affiliated with the united states entity and they want to say something different no no your honor your honor and the supreme court understood all of these facts when it struck down the policy requirement as unconstitutional it did not say that they were looking at the domestic organisation not the foreign entity all they were looking at of having an opposite case they were looking at the foreign entities when they describe the harm the concern is in writing to that effect well because i think the supreme court understood that it doesn't matter where the affiliate is located the facts before them and yes that whether or not the requirement could be imposed on a domestic organization they said that can't be done and it can't be done by the guidelines which your colleagues were offering at that time your honor there isn't a single to mastic affiliate in the factual record not one even if it wasn't the reasoning is the same when care speaks and care speaks the attribution is plain and care and care the relationship this a corporate entity no of course not they're separate how i'm sorry not in the record yes yes yes it is in the record your honor let me point you to the record where members incorporated separately in and then it lists whole lists of foreign countries through which care operates and does its work and the problem here is for between your clients and to foreign affiliate these are part of a corporate federation there is a federation called care international care us as a member of that federation as are all of the care organizations separately incorporated overseas and the problem and i want i want to get this out your honor because i think it may change your thinking as a factual matter the way care fights this disease and this is true of many many many of our clients is that when money comes into the us organization that money gets distributed out to a network of foreign affiliates so that they can fight the disease on the ground in these countries if what the government says is right and from our view they're related gating arguments they made in the supreme court if what they say is right we care u s gets that money and gives it to its affiliates to fight the disease overseas they're going to have to live with those affiliates taking the pledge and generating evident hypocrisy for the u s organization that is precisely what the supreme court said cannot happen it's not a solution to the first amendment harm when you do that to a us organization and the supreme court didn't say that it mattered if it was domestic or foreign because it doesn't matter as a matter of the reasoning it doesn't matter because of the imputation problem the attribution problem and the idea that this policy requirement cannot be cabined th requiring organizations to take a pledge affirming a belief as their own and espousing in adopting that belief as their own and refraining from doing anything to the contrary or saying anything to the contrary that's an extraordinary law and the supreme court struck it down as unconstitutional it appears on its face now i don't know how the government can claw back a law that is struck that struck down by the supreme court on its face arguing now for the first time that there is some lawful application of this law that is specifically in their petition in their petition to the supreme court they said this is a facial invalidation that what this court did was facial and they argue a facial case in the supreme court and now they're coming back having lost to say wait wait it's not facial we want to to be as applied we want to rewrite the law  absolutely we want to do it let it go that's no no we want to litigate it as applied they got certain ranted as facial mind about we're not the supreme court did the supreme court made this decision o s taking the money from the united states in this program the context we have now is that total freedom on your part but your suggestion that the government may not impose on foreign entities with no constitutional rights the government's view before it gives those foreign entities money because it's possible or maybe is that there is some kind of facial connection with a us entity which wants to espouse a different position in some circumstances even though it's no longer required your honor there is what it comes down to there is not total freedom from these u s organizations are holding in your favor we're not asking for a holding from this court on some independent constitutional ground all we're saying is the remedy fashioned here for the unconstitutional law in light of violations of our first amendment rights that remedy must address according to this court and cooper both violations and harms the government c at page twenty nine and thirty pages twenty nine thirty of it's brief it concedes harm what it says is the harm is incidental not not in this case of not it as in the meaning of minor but as in the meaning of secondary what it says is never mind the harm it's secondary we have to what we're going to end so in closing that in closing without this injunction these us organizations will not have a remedy that protects against violations and harm identified by the supreme court thank you counsel you reserve three minutes for a bottle thank you your honor the supreme court addressed in two thousand and thirteen an effort to solve a first amendment problem to affiliate with affiliates that's not correct because we weren't talking about specific actual organizations we were talking about a mechanism that's all there's no foreign affiliates are the only affiliates it's burned out of this record and spread out his record but they're not the only but they're not the only affiliates that fall within that regulatory mechanism the mechanism that's expressed in the code of federal regulations and in published guidance from the agency is that regulation is what we were defending that regulation appl whether it's born or domestic and yes the supreme court said it won't work whether or not the affiliate used to solve the first amendment problem is foreign or domestic but that first amendment problem that underlies that discussion no longer exists and that's why the supreme court's opinion simply does not govern this case they are free to speak their mind their freedom filling it with whomever they want they are free to say whatever they want about prostitution or sex trafficking they're free to spend their own money and if they don't like being affiliated with an organization that says something different they have the choice as this court said and planned parenthood they have the choice to one say that organization doesn't speak for us or to fund that organization with their own money and then only then that organization will no longer have to bear the burden of the policy requirement that will escape anything to do with the evidence but when that spring court talks about heaven and hypocrisy they're not talking about the harm they were and that's not the first amendment harmon issue what they were describing is the reason our alternative failed not the first amendment harm the rejection of our defense to a different first amendment har and that's why it's distinguishable that's why we asked this court to vacate the injunction thank thank you everyone