Student Press Law Center Amicus Brief SBA List & COAST V. Driehaus

8/12/2019 Student Press Law Center Amicus Brief SBA List & COAST V. Driehaus

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No. 13-193

INTHE

Supreme Court of the United States

ONWRITOFCERTIORARITOTHEUNITEDSTATESCOURT

OFAPPEALSFORTHESIXTHCIRCUIT

BRIEF FORAMICUS CURIAE STUDENT PRESS

LAW CENTER IN SUPPORT OF PETITIONERS

252320

SUSAN B. ANTHONY LIST AND COALITIONOPPOSED TO ADDITIONAL SPENDING AND TAXES,

Petitioners,

V.

STEVEN DRIEHAUS, KIMBERLY ALLISON, DEGEEWILHELM, HELEN BALCOLM, TERRANCECONROY, LYNN GRIMSHAW, JAYME SMOOT,WILLIAM VASIL, PHILIP RICHTER, OHIO

ELECTIONS COMMISSION, AND JON HUSTED,

Respondents.

ADAMH. CHARNESRICHARDD. DIETZ*ELIZABETHL. WINTERSKILPATRICKTOWNSEND& STOCKTONLLP1001 West Fourth Street

Winston-Salem, NC 27101(336) [email protected]

FRANKD. LOMONTESTUDENTPRESSLAWCENTER1101 Wilson Blvd., Suite 1100

Arlington, VA 22209(703) 807-1904

THOMASM. CLYDEKILPATRICKTOWNSEND& STOCKTONLLP1100 Peachtree Street NE,Suite 2800

Atlanta, GA 30309(404) 815-6500

*Counsel of Record

Attorneys for Amicus Curiae


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QUESTIONS PRESENTED

1. To challenge a speech-suppressive law, must a partywhose speech is arguably proscribed prove that authoritieswould certainly and successfully prosecute him, as theSixth Circuit holds, or should the court presume that acredible threat of prosecution exists absent desuetude ora firm commitment by prosecutors not to enforce the law,as seven other Circuits hold?

2. Did the Sixth Circuit err by holding, in directconflict with the Eighth Circuit, that state laws proscribingfalse political speech are not subject to pre-enforcementFirst Amendment review so long as the speaker maintainsthat its speech is true, even if others who enforce the lawmanifestly disagree?


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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST OFAMICUS CURIAE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . .1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I. STANDING AND RIPENESS ARESATISFIED IN FIRST AMENDMENTC A S E S I F T H E P L A I N T I F F S

ALLEGE AN ACTUAL AND WELL-

F O U N D E D F E A R T H A T T H ESPEECH-RESTRICTIVE LAW WILL

BE ENFORCED AGAINST THEM . . . . . . . . . .3

II. THIS COURTS STANDING ANDR I P E N E S S R U L E S F O R P R E -E N F O R C E M E N T F A C I A LC H A L L E N G E S A R E V I T A LT O P R O T E C T I N G S T U D E N T S

FIRST AMENDMENT RIGHTS.. . . . . . . . . . . .5

A. Students are particularly susceptibleto the chilling effects of laws and rules

that restrict protected speech. . . . . . . . . . . .6


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Table of Contents

Page

B. Without broad pre-enforcement standingrules, many student speech lawsuits willbe mooted before final adjudication. . . . . . .10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13


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TABLE OF CITED AUTHORITIES

Page

Cases

Ashcroft v. ACLU,542 U.S. 656 (2004) . . . . . . . . . . . . . . . . . . . . . . . . .3, 10

Babbitt v. United Farm Workers Natl Union,

442 U.S. 289 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . .3, 4

DeFunis v. Odegaard,416 U.S. 312 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

DeJohn v. Temple Univ.,537 F.3d 301 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . .9

Fox v. Bd. of Trs. of the State Univ. of N.Y.,42 F.3d 135 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 10

G.D.M. v. Bd. of Educ. of Ramapo Indian HillsRegl High Sch. Dist.,48 A.3d 378 (N.J. Super. 2012) . . . . . . . . . . . . . . . . . .11

Gooding v. Wilson,405 U.S. 518 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Goss v. Lopez,419 U.S. 565 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Holder v. Humanitarian Law Project,130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . .3

J.S. v. Blue Mountain Sch. Dist.,650 F.3d 915 (3rd Cir. 2011). . . . . . . . . . . . . . . . . . . .6, 4


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Cited Authorities

Page

Statutes and Other Authorities

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . passim

Iowa Code 280.28 (2007) . . . . . . . . . . . . . . . . . . . . . . . . .8

La. Rev. Stat. Ann. 17:416.13 (2013) . . . . . . . . . . . . . . . .8

N.C. Gen. Stat. 14-458.2 (2012). . . . . . . . . . . . . . . . . . . .8

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . .1

Alan Charles Kors & Harvey A. Si lvergate ,The Shadow University: The Betrayal of

Liberty on Americas Campuses5 (1998). . . . . . . . 8-9

Azhar Majeed,Defying the Constitution: The Rise,

Persistence, and Prevalence of Campus Speech Codes, 7 Geo. J.L. & Pub. Poly 481 (2009) . . . . . . . 7, 8

Case Comment, Third Circuit Applies Tinkerto Off-Campus Student Speech.J.S. ex rel.

Snyder v. Blue Mountain School Distr ict,125 Harv. L. Rev. 1064 (2012). . . . . . . . . . . . . . . . . . . .7

Naomi Harlin Goodno, How Public SchoolsCan Constitutionally Halt Cyberbullying,46 Wake Forest L. Rev. 641 (2011). . . . . . . . . . . . . . . .7


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Cited Authorities

Page

State Cyberstalk in g and Cyberharass mentLaws, Natl Conf. of State Legislatures (lastupdated Dec. 5, 2013), available at http://

www.ncsl.org/research/telecommunications-and-information-technology/cyberstalking-

and-cyberharassment-laws.aspx . . . . . . . . . . . . . . . . .8

Tova Wolking, School Administrators as CyberCensors: Cyber Speech and First Amendment

Rights, 23 Berkeley Tech. L.J. 1507 (2008) . . . . .7, 10


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STATEMENT OF INTEREST OFAMICUS CURIAE

The Student Press Law Center (SPLC) is a non-profit, non-partisan organization founded in 1974 withthe mission of promoting youth involvement in civic lifethrough journalism.

SPLC provides free educational materials andworkshops to students across the country about their First

Amendment rights, and its attorneys are the authors ofthe widely used reference text,Law of the Student Press.

SPLC regularly appears in this Court and otherfederal and state appellate courts to provide additionalperspective and context as an advocate with many years ofexperience working directly with students whose rights tospeak on matters of public concern have been suppressedby school or government officials.1

SUMMARY OF ARGUMENT

This Court has long held that plaintiffs need notwait for the government to enforce a speech-restrictivelaw before asserting a facial challenge under the First

Amendment. So long as the plaintiffs allege an actual andwell-founded fear that the law will be enforced againstthem, they have shown the existence of a justiciablecontroversy satisfying this Courts standing and ripenessrequirements.

1. Both Petitioners and Respondents submitted letters to the

Court granting blanket consent to amicus curiaebriefs in thiscase. In accordance with Supreme Court Rule 37.6, amicus statesthat this brief was not authored, in whole or in part, by counsel toa party, and that no monetary contribution to the preparation orsubmission of this brief was made by any person or entity otherthan the amicus or its counsel.


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ARGUMENT

I. STANDING AND RIPENESS ARE SATISFIED

IN FIRST AMENDMENT CASES IF THE

PLAINTIFFS ALLEGE AN ACTUAL AND

WELL-FOUNDED FEAR THAT THE SPEECH-

RESTRICTIVE LAW WILL BE ENFORCED

AGAINST THEM.

As this Court repeatedly has acknowledged, thegovernment can suppress protected speech withoutactually prosecuting its citizens or otherwise taking actionagainst them.See, e.g.,Ashcroft v. ACLU, 542 U.S. 656,67071 (2004); Virginia v. American Booksellers Assn,

Inc., 484 U.S. 383, 393 (1988). It does so through lawsthat instill the fear of enforcement, thereby silencingthose who might otherwise speak. The result is self-censorship; a harm that can be realized even without anactual prosecution. American Booksellers Assn, 484U.S. at 393.

To prevent the government from compelling citizensto self-censor, this Court has long permitted plaintiffsto challenge laws on First Amendment grounds beforeanyactual enforcement by the government (and, in fact, beforethey even engage in the desired speech). SeeHolder v.

Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010);American Booksellers Assn, 484 U.S. at 393;Babbitt v.United Farm Workers Natl Union, 442 U.S. 289, 30103(1979).

This rule reflects the importance of the FirstAmendment and the unique concern that the mereexistence of speech-restrictive laws can have a chilling


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effect on citizens free speech and expression. As thisCourt has explained, First Amendment rights aredelicate and vulnerable, as well as supremely preciousin our society. The threat of sanctions may deter theirexercise almost as potently as the actual application ofsanctions. NAACP v. Button, 371 U.S. 415, 433 (1963);see also United States v. Alvarez, 132 S. Ct. 2537, 2548(2012) (The mere potential for the exercise of [thepower to restrict speech] casts a chill, a chill the First

Amendment cannot permit if free speech, thought, anddiscourse are to remain a foundation of our freedom.);Gooding v. Wilson, 405 U.S. 518, 521 (1972) ([P]ersons

whose expression is constitutionally protected may wellrefrain from exercising their rights for fear of criminalsanctions provided by a statute susceptible of applicationto protected expression.).

As a result, to satisfy standing and ripeness concernsin First Amendment cases, this Court has required onlythat plaintiffs have alleged an actual and well-founded

fear that the law will be enforced against them.AmericanBooksellers Assn, 484 U.S. at 393. That allegation issufficient to establish the risk of chilling effects andself-censorship and thus create a justiciable controversyunder the First Amendment. Id. at 393. Importantly,the government cannot defeat standing in this type ofpre-enforcement challenge simply by asserting that theplaintiffs ultimately would not have been prosecuted fortheir speech. To eliminate the danger of self-censorship,and thus eliminate the justiciable issue, the governmentmust disavow the law altogether. Id.; Babbitt, 442 U.S.

at 302.


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The Sixth Circuits holding below departed fromthis long-standing and straightforward doctrine, insteadapplying a lengthy, convoluted analysis that considered thelikelihood that an enforcement action would be broughtagainst Petitioners for their speech. (Pet. App. 6a-18a.)The Court should reject that analysis and reaffirm thatstanding and ripeness principles are satisfied in a facialFirst Amendment challenge to a speech-restrictive law ifthe plaintiffs allege an actual, well-founded fear that the

law will be enforced against them and the governmentrefuses to disavow the challenged law. American

Booksellers Assn, 484 U.S. at 393.

II. THIS COURTS STANDING AND RIPENESS

RULES FOR PRE-ENFORCEMENT FACIAL

CHALLENGES ARE VITAL TO PROTECTING

STUDENTS FIRST AMENDMENT RIGHTS.

This Courts First Amendment standing and ripenessprecedent is vital to ensuring that students can exercise

their First Amendment rights to speak on matters ofpublic concern. Students operate under special First

Amendment rules that, in the school setting, are lessrobust than those of ordinary citizens. In Tinker v.

Des Moines Independent School District, 393 U.S. 503(1969), this Court held that students do not shed theirconstitutional rights to freedom of speech or expression atthe schoolhouse gate.Id. at 506. Nevertheless, the Courtpermitted school officials to suppress or punish studentspeech that would materially and substantially interfere

with the operation of the school.Id. at 509.


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In the years since Tinker, courts have struggled todraw a clear line between student speech that substantiallyinterferes with school operation and speech that, whilecontroversial or inflammatory, remains solidly protectedeven for students. Compare Kowalski v. Berkeley Cnty.

Sch., 652 F.3d 565, 57374 (4th Cir. 2011) (holding thatthe First Amendment was not violated when student

was punished for speech on her MySpace page ridiculinganother student), and Wynar v. Douglas Cnty. Sch. Dist.,

728 F.3d 1062, 107072 (9th Cir. 2013) (holding that theFirst Amendment was not violated when student waspunished for violent content on MySpace page and ininstant messages), with J.S. v. Blue Mountain Sch. Dist.,650 F.3d 915, 92831 (3rd Cir. 2011) (en banc) (holdingthat the First Amendment was violated when student

was suspended for creating offensive MySpace page abouthis school principal). As explained below, this Courtslong-standing First Amendment standing and ripenessprecedent are vital to protecting student speech in lightof the Tinkerstandard and the special nature of speech

in the school setting.

A. Students are particularly susceptible to the

chilling effects of laws and rules that restrict

protected speech.

Students are surrounded by authoritarian figures.Their school activities are monitored and often recordedand they can be subjected to serious punishment by schoolofficialsanything less than a 10-day suspensionwithlittle, if any, adjudicative process. See Goss v. Lopez,

419 U.S. 565 (1975). These aspects of school life createan atmosphere where many students are reluctantto challenge authority. This, in turn, makes studentsparticularly vulnerable to having their speech chilled


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by laws that restrict protected speech. Case Comment,Third Circuit Applies Tinker to Off-Campus Student

Speech.J.S. ex rel. Snyder v. Blue Mountain SchoolDistrict, 125 Harv. L. Rev. 1064, 1070 (2012) (noting thatschool discipline by necessity involves relatively informalproceedings, which can be arbitrary and unfair, and thatstudents may be reluctant to push boundaries when theirrights are unclear and might also legitimately fearinformal reprisals if they seek to challenge school officials

in court); Azhar Majeed,Defying the Constitution: TheRise, Persistence, and Prevalence of Campus SpeechCodes, 7 Geo. J.L. & Pub. Poly 481, 499503 (2009)(discussing the enhanced chilling effects of speechcodes on college campuses); Tova Wolking, School

Administrators as Cyber Censors: Cyber Speech and FirstAmendment Rights, 23 Berkeley Tech. L.J. 1507, 152829(2008) (discussing the special circumstances present inthe school setting which make the chilling effect of speechrestrictions particularly dangerous).

Furthermore, students increasingly communicate andshare ideas through the internet and social media, wherethose ideas can be accessed by millions of people aroundthe world.See J.S., 650 F.3d at 940 (noting the everywhereat once nature of the internet); Wynar, 728 F.3d at 1064(students are instant messaging, texting, emailing,Twittering, Tumblring, and otherwise communicatingelectronically). Schools and government officialshave responded to these changing means of studentcommunication with aggressive and at times dubiouslyconstitutional laws and school rules. See Naomi Harlin

Goodno,How Public Schools Can Constitutionally HaltCyberbullying, 46 Wake Forest L. Rev. 641, 64142 (2011)(discussing schools attempts to address cyberbullyingissues).


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For example, states across the nation have begunenacting laws aimed at prohibiting the harassment ofother students or teachers both in the classroom and on theinternet.See State Cyberstalking and Cyberharassment

Laws, Natl Conf. of State Legislatures (last updatedDec. 5, 2013), available at http://www.ncsl.org/research/telecommunications-and-information-technology/cyberstalking-and-cyberharassment-laws.aspx (providinga summary chart of state cyberharassment laws). These

laws often are exceedingly broad, reaching not just pettyschoolhouse bullying but also controversial political andsocial topics at the heart of the First Amendment. See,e.g., Iowa Code 280.28 (2007) (defining harassment asany electronic, written, verbal, or physical act or conducttoward a student which is based on any actual or perceivedtrait or characteristic of the student including politicalparty preference or political belief); La. Rev. Stat.

Ann. 17:416.13 (2013) (defining bullying as including[w]ritten, electronic, or verbal communications includingbut not limited to calling names . . . or spreading untrue

rumors); N.C. Gen. Stat. 14-458.2 (2012) (imposingcriminal penalties on certain online behaviors if done [w]ith the intent to intimidate or torment a school employee,including the online posting of a school officials photo orthe posting of a school officials personal information).

And even in stat es wit hout such laws, schoolofficials frequently seek to suppress or punish speechby students on important social issues that are viewedas too controversial or offensive. See Majeed, supra, at50103 (discussing the use of speech codes by universities

to suppress unfavorable speech and creating a sense ofentitlement among students to be free from offensiveor disagreeable speech); Alan Charles Kors & Harvey


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A. Silvergate, The Shadow University: The Betrayalof Liberty on Americas Campuses5 (1998) (discussingthe suppression of disagreeable speech by universities,including through the use of speech codes to prohibitspeech that offends).

The pre-enforcement facial challenge has been anindispensible tool in overturning excessively broadenactments penalizing speech that campus decision-

makers subjectively deem inappropriate. See, e.g., Saxev. State College Area Sch. Dist., 240 F.3d 200, 203 (3d Cir.2001) (entertaining facial challenge brought by studentsand parent volunteer who asserted that they feared thatthey were likely to be punished and enjoining enforcementof school district harassment policy that prohibited,among many other things derogatory comments ornegative comments);DeJohn v. Temple Univ., 537 F.3d301, 305 (3d Cir. 2008) (entertaining facial challengebrought by college student who, while he had not beenthreatened with discipline under a harassment policy

that the court ultimately enjoined as unconstitutionallyoverbroad, asserted that he felt inhibited in expressinghis opinions in class concerning women in combat and

women in the military).

Without the ability to bring pre-enforcement, facialchallenges to these speech restrictions, many students

wil l simply forgo their First Amendment rights. Nomatter how strong their beliefs, few students will exposethemselves to school disciplinetarnishing their schoolrecord and threatening their college and job prospectsin

the hope that the legal system might later vindicate them.Instead, students will simply stay silentresulting inthe compelled self-censorship that this Courts precedent


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has long condemned. SeeAshcroft, 542 U.S. at 67071.The Court should avoid this damaging consequence byreaffirming its traditional, broad view of standing andripeness in First Amendment cases.

B. Without broad pre-enforcement standing rules,

many student speech lawsuits will be mooted

before final adjudication.

First Amendment challenges involving student speechalso face another unique hurdle: mootness. It is commonfor students challenging a restriction on school speech tograduate while the lawsuit is pending, thereby mootingthe First Amendment claim.See, e.g., Lane v. Simon,495 F.3d 1182, 118687 (10th Cir. 2007) (students First

Amendment challenge to actions of school became mootwhen the students graduated because the school can nolonger impinge upon plaintiffs exercise of freedom of thepress);Fox v. Board of Trs. of the State Univ. of N.Y., 42F.3d 135, 140 (2d Cir. 1994) (This court has consistently

held that students declaratory and injunctive claimsagainst the universities that they attend are mooted bythe graduation of the students.); Wolking, supra, at1529 (A school official acts as both prosecutor and judge

when he moves against student expression because theshort duration of most sanctions makes the promise of

judicial review an empty one.) (internal quotations andalterations omitted).

Without robust pre-en forcement standing andripeness rules, this mootness problem will make many

student speech laws virtually unchallengeable. Indeed,under the Sixth Circuits view of standing and ripeness,students would need to wait at least until the school


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disciplinary process beginsand possibly until thatprocess concludesbefore bringing suit. For high schoolstudents in particular, this delay would prevent manyFirst Amendment claims from being fully adjudicatedbefore graduation.

The option of a viable pre-enforcement facialchallenge is especially important in the school settingbecause so many students school experiences are

unique, irreplaceable, and insufficiently redressedby money damages alone. For example, New Jerseystudents successfully brought a facial challenge to enjoinenforcement of an unconstitutionally overbroad schoolboard rule that purported to give the school districtauthority to remove any student from extracurricularactivities for any unlawful behavior anywhere, even off-campus during summer vacation and even in violation ofnon-criminal municipal codes. G.D.M. v. Bd. of Educ. of

Ramapo Indian Hills Regl High Sch. Dist., 48 A.3d 378(N.J. Super. 2012). Because the regulation successfully

challenged in G.D.M. gave school decisionmakersessentially standardless discretion to punish or not topunish, no student would have been able to surmount thecertainty hurdle to establish standing applied by theSixth Circuit below. The only plaintiff with standing underthe decision below would be a student actually disqualifiedfrom extracurricular participation. It demands too muchto say that a student must undertake the life-alteringconsequences of being a sacrificial plaintiffforfeitingathletic or artistic participation that could be decisivein earning a ticket to collegeto overturn a chillingly

overbroad policy. And, by the time the student engages inthat disfavored speech and ultimately is disqualified fromextracurricular school activities, there may not be time


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to secure a final adjudication on the First Amendmentissue before the case is mooted by graduation, leavingthe law intact.

In addition, the ephemeral nature of many school rulesrenders pre-enforcement challenges all the more necessary.School policies are changed easily and often, allowingschool administrators to circumvent legal challenges tothose rules. Although the voluntary cessation doctrine

should protect against this behavior, this protection isnot absolute.See Univ. of Cincinnati Chapter of Young

Ams. for Liberty v. Williams, No. 1:12-cv-155, 2012 WL2160969, at *2 n.1 (W.D. Ohio June 12, 2012) (discussing the

voluntary cessation doctrine). Schools can formally adoptrevised rules and regulations, see Sossamon v. Texas,131 S. Ct. 1651, 1670 (2011) (Sotomayor, J., dissenting)([prison] officials may change the policy while litigationis pending The fact of voluntary cessation may allowsome of these claims [challenging the policy] to go forward,but many will nonetheless be dismissed as moot), or

other intervening events, such as the students graduation,may otherwise moot the issue, see DeFunis v. Odegaard,416 U.S. 312, 318 (1974) (students challenge to law schoolsadmission procedures was mooted by fact that student

was guaranteed to be permitted to graduate). Further,if the Sixth Circuits holding were followed, the voluntarycessation doctrine would fail to protect students who wereexcluded from court in the first place on the basis that theschool had voluntarily decided not to fully enforce therule at issue before the lawsuit began. See supra, at 11(under the Sixth Circuits standard, students would need

to wait at least until schools disciplinary process is begunbefore bringing suit).


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In sum, this Courts traditional rules governingstanding and ripeness in First Amendment cases arenecessary to provide meaningful opportunities forstudents to defend their free speech rights. The Courtshould reject the Sixth Circuits holding below andreaffirm that standing and ripeness principles aresatisfied in a facial First Amendment challenge if theplaintiffs allege an actual, well-founded fear that the law

will be enforced against them and the government refuses

to disavow the challenged law.

CONCLUSION

For the reasons stated above, this Court shouldreverse the decision below.

Respectfully submitted,

ADAMH. CHARNESRICHARDD. DIETZ*

ELIZABETHL. WINTERSKILPATRICKTOWNSEND& STOCKTONLLP1001 West Fourth Street

Winston-Salem, NC 27101(336) [email protected]

FRANKD. LOMONTESTUDENTPRESSLAWCENTER

1101 Wilson Blvd., Suite 1100Arlington, VA 22209(703) 807-1904

THOMASM. CLYDEKILPATRICKTOWNSEND& STOCKTONLLP1100 Peachtree Street NE,Suite 2800

Atlanta, GA 30309(404) 815-6500

*Counsel of Record

Attorneys for Amicus Curiae

Documents

Student Press Law Center Amicus Brief SBA List & COAST V. Driehaus