David Bowker participated in a remarkable week in US Supreme Court history, joining a small group of lawyers to present the first-ever oral arguments by phone as the justices began to hear cases remotely due to the COVID-19 pandemic.
The May 5, 2020 oral arguments involving Mr. Bowker, a WilmerHale partner, arose from a 2013 Supreme Court case, Agency for International Development v. Alliance for Open Society International Inc., which he also argued. In that earlier case, the Court ruled in favor of WilmerHale’s clients, a group of public health organizations based in the United States that have objected to taking an anti-prostitution pledge the government imposes as a condition for receiving federal money to fight HIV/AIDS on the ground that it impedes life-saving work these organizations do throughout the world. The Court held in 2013 that the pledge “violates the First Amendment and cannot be sustained.”
The issue now before the Court is whether the government may nevertheless require foreign affiliates of these domestic organizations to take the pledge even when the affiliate looks and speaks as one with its counterpart in the US. The lower courts agreed that in that situation the domestic organization’s First Amendment rights are no less violated because the affiliate’s pledge will be imputed to its US counterpart.
“The undisputed record shows that the US respondents themselves suffer First Amendment harms when the policy requirement is imposed on their foreign affiliate,” said Mr. Bowker, whose oral argument by phone on Tuesday was the second in the Court’s history. “Respondents and their affiliates share a name, brand, logo, mission, and voice. They speak as one, make speech and policy decisions together, and are indistinguishable to the public.
“As a result, the First Amendment rights of US respondents are violated here in two ways: first by a speech compulsion that is attributed to them,” Mr. Bowker told the justices. “When CARE in Kenya takes the pledge, its affirmation of belief is attributed to CARE in the United States, thus putting words in the mouth of the US entity.
“The second violation is from a speech restriction,” he said. “Under regulations that prohibit any CARE entity from contradicting the pledge, even on its own time and dime, thus making it impossible for CARE US to disavow CARE Kenya’s pledge without engaging in doublespeak and losing US funding for its global network.”
Mr. Bowker’s argument and the case received wide coverage. The New York Times, Washington Post, NPR’s All Things Considered program, and Law360 were among the media outlets that covered the oral arguments.
Of the extraordinary experience of presenting his argument to the justices over the phone, Mr. Bowker said: ”It’s a very different experience from arguing in the courtroom. Part of it is the structure, in which they pose questions one at a time, in order of seniority, as opposed to the rapid-fire approach in the courtroom. It felt a bit like stepping to the plate to face a single ace pitcher in nine consecutive innings, rather than a 1-on-9 racquetball match with the ball moving around the court in so many different directions. The other big difference is not being at counsel’s table with the rest of the WilmerHale team, including my fellow Partner Catherine Carroll and two Counsels, Kevin Lamb and David Stoopler, who helped lead our wonderful team. I’ll never forget celebrating with them over video right after the argument … and then having our clients all join in!”
Mr. Bowker discussed how he and his legal team prepared for the argument and the actual argument itself with National Law Journal’s Supreme Court reporter Marcia Coyle on Law.com’s Legal Speak podcast. An audio recording of the argument is available on C-SPAN.org and on the Court’s website. A written transcript is also available.