Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al.

No. 17-965

IN THE

Supreme Court of the United States

_____________________________

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Petitioners,

v.

STATE OF HAWAII, ET AL.,

Respondents.

_____________________________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

_____________________________

BRIEF OF AMICI CURIAE PEN AMERICA AND

OTHERS IN SUPPORT OF RESPONDENTS

_____________________________

Robert D. Balin

Abigail B. Everdell

DAVIS WRIGHT

TREMAINE LLP

1251 Avenue of the

Americas, 21st Fl.

New York, NY 10020

(212) 489-8230

Robert Corn-Revere

Counsel of Record

DAVIS WRIGHT

TREMAINE LLP

1919 Pennsylvania Ave., NW

Ste. 800

Washington, DC 20006

(202) 973-4200

bobcornrevere@dwt.com

Counsel for Amici Curiae

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

I.

INTEREST OF AMICI CURIAE .................... 1

II.

INTRODUCTION AND SUMMARY OF

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

III.

ARGUMENT.................................................... 6

A. The Proclamation Impermissibly Burdens The

First Amendment Rights of Amici and Other U.S.

Citizens to Receive Information ............................. 6

B. Americans Have a First Amendment Right to

Receive Information and Ideas Via In-Person

Interactions ........................................................... 12

C. By Any Standard of Review, the

Proclamation’s Burdens on Free Speech Must be

Found Unconstitutional ....................................... 18

IV.

CONCLUSION .............................................. 21

APPENDIX A .......................................................... A-1

i

TABLE OF AUTHORITIES

Page(s)

Cases

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ................................................21

Edenfield v. Fane,

507 U.S. 761 (1993) ..............................................17

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ..............................................13

Griswold v. Connecticut,

381 U.S. 479 (1965) ..............................................13

Hawaii v. Trump,

878 F.3d 662 (9th Cir. 2017)............................2, 18

Int’l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017),

as amended (May 31, 2017),

as amended (June 15, 2017),

cert. granted, 137 S. Ct. 2080 (2017),

and vacated and remanded sub nom.

Trump v. Int’l Refugee Assistance,

138 S. Ct. 353 (2017)......................................18, 19

Int’l Refugee Assistance Project v. Trump,

265 F. Supp. 3d 570 (D. Md. 2017),

aff’d, 883 F.3d 233 (4th Cir. 2018),

as amended (Feb. 28, 2018) .................................20

ii

Kleindienst v. Mandel,

408 U.S. 753 (1972) ...................................... passim

Martin v. City of Struthers,

319 U.S. 141 (1943) .............................. 5, 13, 15, 16

McCullen v. Coakley,

134 S. Ct. 2518 (2014)..........................................17

Red Lion Broad. Co. v. F.C.C.,

395 U.S. 367 (1969) ..............................................13

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ..............................................15

Stanley v. Georgia,

394 U.S. 557 (1969) ..............................................13

State v. Trump,

265 F. Supp. 3d 1140 (D. Haw. 2017),

aff’d in part, vacated in part,

878 F.3d 662 (9th Cir. 2017),

cert. granted, 138 S. Ct. 923 (2018) .......................9

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council,

Inc.,

425 U.S. 748 (1976) ..............................................14

Whitney v. California,

274 U.S. 357 (1927) ..............................................13

Constitutional Provisions

U.S. CONST. amend. I ........................................ passim

iii

Executive Actions

Presidential Proclamation 9645,

“Enhancing Vetting Capabilities and

Processes for Detecting Attempted

Entry Into the United States by

Terrorists or Other Public-Safety

Threats,”

82 Fed. Reg. 45161 (Sept. 27, 2017) ............ passim

Executive Order No. 13780 .........................................2

Statutes

8 U.S.C. § 1182(f) ........................................................2

Immigration and Nationality Act,

8 U.S.C. § 1101 et seq. ............................................2

Other Authorities

Abdalla Al Omari,

The Vulnerability Series,

http://www.abdallaomari.com/thevuln

erabilityseries ......................................................11

Alexis de Tocqueville, DEMOCRACY IN

AMERICA 11 (Henry Reeve trans.

2006), http://www.gutenberg.

org/files/815/815-h/815-h.htm................................4

iv

Benjamin Sutton, Iranian Gallery Drops

Out of AIPAD Photo Fair Over

Trump’s Travel Ban, HYPERALLERGIC

(Mar. 28, 2017),

https://hyperallergic.com/368526/irani

an-gallery-drops-out-of-aipad-photofair-over-trumps-travel-ban ................................10

Boushra Almutawakel,

The Hijab/Veil Series,

http://muslima.globalfundforwomen.or

g/content/hijab-veil-series....................................11

Brief of Amicus Curiae PEN American

Center and Other Organizations In

Support of Respondents, Int’l Refugee

Assistance Project v. Trump, (2017)

(No. 16-1436 and No. 16-1540) .............................3

Cisco, Power of In-Person: The Business

Value of In-Person Collaboration

(White Paper conducted by the

Economist Intelligence Unit) (2012),

available at

https://www.cisco.com/c/dam/global/en

_in/assets/pdfs/45808_Economist_wp1

c_HR.pdf ...............................................................17

Fares Cachoux, BEHANCE,

https://www.behance.net/farescachoux

(last visited Mar. 28, 2018) ..................................11

v

James Madison to W.T. Barry, Aug. 4,

1822, 9 WRITINGS OF JAMES MADISON

103 (G. Hunt ed. 1910),

https://www.loc.gov/resource/mjm.20_0

155_0159/?st=text ..................................................5

Laura Vanderkam, The Science of When

You Need In-Person Communication,

FAST COMPANY (Sept. 30, 2015),

https://www.fastcompany.com/305151

8/the-science -of-when-you-need-inperson-communication.........................................15

Marc Hogan, Here’s What Musicians Hurt

by the Muslim Ban Have to Say to

Trump, PITCHFORK (Jan. 31, 2017),

http://pitchfork.com/thepitch/1428heres-what-musicians-hurt-by-themuslim-ban-have-to-say-to-trump ......................10

PEN America, PEN World Voices

Festival, https://pen.org/world-voicesfestival/ (last visited Sept. 12, 2017) .....................7

Salman Rushdie, The PEN and the

Sword, THE NEW YORK TIMES (Apr. 17,

2005),

https://www.nytimes.com/2005/04/17/b

ooks/review/the-pen-and-thesword.html .............................................................7

vi

Steve Dove, Asghar Farhadi Oscar 2017

Winner Speech Delivered By Anousheh

Ansari, THE OSCARS (Feb. 27, 2017,

6:30am)

http://oscar.go.com/news/winners/asgh

ar-farhadi-oscar-2017-winner-speechdelivered-by-anousheh-ansari ...............................9

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

Susan Adams, Being There, FORBES (Feb.

9, 2011),

https://www.forbes.com/forbes/2011/02

28/travel-teleconferencing-polycomjohn-medina-being-there.html ............................17

vii

I.

INTEREST OF AMICI CURIAE

Amici, described in Appendix A, include a

broad array of organizations working to advance

cultural and artistic exchange in this country.1 Lead

amicus PEN America is a non-profit association of

writers that includes novelists, journalists, editors,

poets, essayists, playwrights, publishers, translators,

agents, and other professionals.

PEN America

stands at the intersection of literature and human

rights to protect open expression in the United

States and worldwide. It champions the freedom to

write, recognizing the power of the word to

transform the world. Its mission is to unite writers

and their allies to celebrate creative expression and

defend the liberties that make it possible, working to

ensure that people everywhere have the freedom to

create literature, to convey information and ideas, to

express their views, and to make it possible for

everyone to access the views, ideas, and literatures

of others. PEN America has approximately 7,000

members and is affiliated with PEN International,

the global writers’ organization with over 100

Centers in Europe, Asia, Africa, Australia, and the

Americas.

In the decision here on review, the Court of

Appeals for the Ninth Circuit affirmed the district

court’s order enjoining the enforcement of Sections

All parties have consented to this amici curiae brief.

Pursuant to this Court’s Rule 37.6, amici affirm that no counsel

for a party authored this brief in whole or in part, and no

person or entity other than amici and their counsel made a

monetary contribution to the preparation or submission of this

brief.

1

1

2(a), (b), (c), (e), (g), and (h) of Presidential

Proclamation 9645, entitled “Enhancing Vetting

Capabilities and Processes for Detecting Attempted

Entry Into the United States by Terrorists or other

Public-Safety Threats” (the “Proclamation”), 82 Fed.

Reg. 45161 (Sept. 27, 2017), which the

Administration promulgated as a replacement for

Executive Order No. 13780 (“EO-2” or the “Second

Order”).

The Ninth Circuit found that the

Proclamation exceeds the authority delegated to the

President under the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1101 et seq., that the

President had not made a legally sufficient finding

that entry of the banned individuals would be

detrimental to U.S. national interests as required to

block entry pursuant to his suspension authority

under 8 U.S.C. § 1182(f), and that the President

lacked a separate source of statutory or

constitutional authority to issue the Proclamation.

Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017).

These findings by the Ninth Circuit should be

affirmed.

But amici further contend that the

Proclamation, like EO-2, also violates the First

Amendment right of Americans to receive

information.

By preventing our citizens from

receiving

in-person

transmission

of

ideas,

expression,

and

speech,

the

Proclamation

impermissibly burdens the free interchange of

information necessary to the proper functioning of

our democracy. Amicus PEN America – joined by

dozens of other artistic and cultural groups – made

exactly this argument to the Court in the nowmooted challenge to the second temporary travel ban

in EO-2. See Brief of Amicus Curiae PEN American

2

Center and Other Organizations In Support of

Respondents, Int’l Refugee Assistance Project v.

Trump, (2017) (No. 16-1436 and No. 16-1540).

Amici have a vital mission to foster rich

intellectual and artistic discourse in this country,

and that mission is directly impaired by the

Proclamation. Amici therefore urge this Court to

find that the Proclamation violates the First

Amendment’s Free Speech clause, in addition to

constituting an impermissible overreach of the

President’s statutory powers.

II.

INTRODUCTION AND SUMMARY OF

ARGUMENT

For the reasons outlined in Respondents’ brief,

this Court should find that the Proclamation suffers

from the same constitutional infirmities as EO-2, as

held by the Fourth Circuit Court of Appeals, and is,

in fact, a much more acute violation given its

permanence and sweep.

While the principal

Constitutional argument Plaintiffs advance is that

the Proclamation violates the Establishment Clause

of the First Amendment (and Amici concur that it

does), amici contend that the Proclamation also

impermissibly burdens the Free Speech rights of

amici and other U.S. citizens, and should be found

unconstitutional for that independent reason.

The United States is singularly unafraid to

hear voices that have been silenced elsewhere. From

this nation’s founding, visitors from abroad have

regarded our uncharacteristically open society as a

model for the world and for democracy. As Alexis de

3

Tocqueville wrote

governance:

of

our

experiment

in

self-

When the right of every citizen to

cooperate in the government of society

is acknowledged, every citizen must be

presumed to possess the power of

discriminating between the different

opinions of his contemporaries, and of

appreciating the different facts from

which inferences may be drawn.2

Moreover, the United States has always defined

itself as nation of immigrants, built by those seeking

freedom of thought and action. Throughout our

history, we have benefited immeasurably from the

contributions immigrants have made to all spheres

of knowledge and culture in this country. It is no

coincidence – but rather an animating principle –

that refugees have created many of the works that

define what it means to be an American. From the

films of Billy Wilder, the novels of Chinua Achebe,

the political philosophy of Hannah Arendt and the

poetry of Reinaldo Arenas, the contributions of

visitors, immigrants, and refugees to American arts

and letters is knit into the very cultural fabric of our

nation.

The Proclamation threatens this legacy and

upends our deeply American commitment to the free

and fearless exchange of ideas.

The First

Alexis de Tocqueville, DEMOCRACY IN AMERICA 11 (Henry

Reeve trans. 2006), available at http://www.gutenberg.

org/files/815/815-h/815-h.htm.

2

4

Amendment presumes that a free people can and

must choose the ideas they deem worthy of

adherence, rather than receiving a state-mandated

diet of acceptable views. American citizens must be

allowed to engage in in-person dialogue with

nationals from the countries affected by the

Proclamation, experience their work, test their ideas,

and learn first-hand from their perspectives. As the

Supreme Court has repeatedly recognized, the First

Amendment right to free speech is meaningless

without a concomitant right to receive information,

and the latter right must be as zealously protected

as the first. See, e.g., Martin v. City of Struthers, 319

U.S. 141, 143 (1943).

In the words of James

Madison:

A popular

Government,

without

popular information, or the means of

acquiring it, is but a Prologue to a

Farce or a Tragedy; or, perhaps both.

Knowledge

will

forever

govern

ignorance: And a people who mean to

be their own Governors, must arm

themselves with the power which

knowledge gives.

James Madison to W.T. Barry, Aug. 4, 1822, 9

WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910),

available at https://www.loc.gov/resource/mjm.20_

0155_0159/?st=text. This Court has also recognized

that there is no First Amendment substitute for live,

in-person interaction.

Yet the Proclamation

impermissibly restricts the right of Americans to

receive information by preventing our citizens from

hearing and interacting with the ideas and

5

viewpoints of nationals of the targeted countries. By

prohibiting the admission of these nationals without

a bona fide reason and because of religious animus,

the Proclamation hinders the free marketplace of

ideas.

Our civil society depends on the ability of

American arts and literary organizations, museums,

universities, and cultural institutions to receive and

share ideas, and to amplify voices that are being

silenced by repression, civil war, and censorship

abroad. The message that the Proclamation sends

the world is one of retreat from our history as an

open society. The sweeping restriction that the

Proclamation imposes on our citizens’ First

Amendment right to receive information is contrary

to precedent and this country’s ideals. Accordingly,

we urge this Court to find that the Proclamation not

only exceeds the President’s statutory authority, but

also and independently violates the First

Amendment Free Speech rights of U.S. citizens.

III.

ARGUMENT

A.

The

Proclamation

Impermissibly

Burdens The First Amendment Rights of

Amici and Other U.S. Citizens to Receive

Information

Amici are cultural institutions in the United

States whose mission depends on the freedom to

engage in intellectual and cultural exchange.

Amicus PEN America has provided an unparalleled

forum for open expression and exchange of ideas,

inviting writers, artists and dissidents from around

6

the world to speak and debate their views in this

country.3 PEN America gives U.S. citizens the

opportunity to hear voices (often voices of dissent)

that may never have been heard otherwise.4 The

Proclamation jeopardizes this vital mission by

banning Americans from experiencing first-hand the

work of nationals from the affected countries, to hear

their perspectives in face-to-face communications,

and to ask what is happening in their countries of

origin, and why.

3 Among other conferences, PEN America hosts the PEN World

Voices Festival, founded by Salman Rushdie, Esther Allen, and

Michael Roberts after the events of September 11, 2001, “with

the aim of broadening channels of dialogue between the United

States and the world.” PEN America, PEN World Voices

Festival, https://pen.org/world-voices-festival/ (last visited Sept.

12, 2017). Since its founding, the annual World Voices Festival

has hosted more than 1,500 writers from 118 countries who

participate in a weeklong series of events and discussions with

a focus on human rights issues.

4 Reflecting on the 48th International PEN Congress of 1986, a

weeklong gathering of writers from around the world, Salman

Rushdie wrote:

In those last years of the cold war, it was

important for us all to hear Eastern European

writers like Danilo Kiš and Czesław Miłosz,

György Konrád and Ryszard Kapuściński,

setting their visions against the visionless

Soviet regime. Omar Cabezas, Nicaragua’s

deputy interior minister at the time, who had

just published a memoir of his life as a

Sandinista guerrilla, and Mahmoud Darwish,

the Palestinian poet, were there to articulate

views not often heard on American platforms[.]

Salman Rushdie, The PEN and the Sword, THE NEW YORK

TIMES (Apr. 17, 2005), available at https://www.nytimes.com/

2005/04/17/books/review/the-pen-and-the-sword.html.

7

Unlike its predecessor, the Proclamation is a

permanent restriction on travel by some or all

nationals from Iran, Libya, Somalia, Syria, Yemen,

Chad, North Korea, and Venezuela. Specifically, the

ban prohibits entry to the United States of all

immigrants from each affected country, save

Venezuela (where the prohibitions on immigration

extend to a limited number of government officials

and their immediate family members).

The

Proclamation also broadly prohibits non-immigrant

travel to varying degrees, ranging from a complete

bar to all entry (for Syrian or North Korean

nationals) to a suspension of issuance of any

business or tourist visas (for Chadian and Libyan

nationals). In the limited cases where travel may be

permitted, prospective entrants under various types

of visas would be subjected to enhanced scrutiny

beyond existing vetting procedures. In imposing

these sweeping limitations, the Proclamation sends a

clear message to U.S. organizations and citizens:

Efforts to bring over artists and thinkers from the

affected countries to engage in cultural exchange –

even on a temporary basis – will be frustrated.5

5 Iranian filmmaker Asghar Farhadi’s film The Salesman won

the Oscar for Best Foreign Language Film at the 2017

Academy Awards. However, Farhadi did not attend the

Academy Awards that year because of the EO-1 travel ban then

in force (entry would also have been blocked under the

Proclamation’s ban on most non-immigrant entry by Iranian

nationals). Farhadi’s Oscar acceptance speech, which was

given by Iranian-American CEO Anousheh Ansari, read in

part:

I’m sorry I’m not with you tonight. My absence

is out of respect for the people in my country

and those of [the] other six [affected] nations . . .

Filmmakers can turn their cameras to capture

8

Indeed, respondent Hawaii in this very action

presented evidence that the Proclamation would

negatively impact efforts by the University of Hawaii

to fulfill its “recruitment, educational programming,

and educational mission” – and indeed prior travel

bans have already impeded that mission by forcing

the cancellation of a speaking engagement by a

Syrian journalist and a lecture series involving a

Syrian national. See State v. Trump, 265 F. Supp.

3d 1140, 1149 (D. Haw. 2017), aff’d in part, vacated

in part, 878 F.3d 662 (9th Cir. 2017), cert.

granted, 138 S. Ct. 923 (2018); Joint Appendix at 314

(Decl. of Nandita Sharma ¶¶ 4–9).

The effects of the Proclamation and its

predecessor travel bans upon Americans’ access to

vital cross-cultural exchange are already being felt.

To take but a few examples: Due to predecessor

travel bans, Tehran’s Ag Galierie announced last

year that it had been forced to withdraw from the

2018 Association of International Photography Art

Dealers (AIPAD) show in New York, where it had

planned to exhibit the work of Iranian photographer

Bahman Jalali documenting the Iran-Iraq war from

1980 through 1988.6

And because of the

shared human qualities and break stereotypes

of various nationalities and religions. They

create empathy between “us” and “others,” an

empathy which we need today more than ever.

Steve Dove, Asghar Farhadi Oscar 2017 Winner Speech

Delivered By Anousheh Ansari, THE OSCARS (Feb. 27, 2017,

6:30am) http://oscar.go.com/news/winners/asghar-farhadi-oscar2017-winner-speech-delivered-by-anousheh-ansari.

6 See Benjamin Sutton, Iranian Gallery Drops Out of AIPAD

Photo Fair Over Trump’s Travel Ban, HYPERALLERGIC (Mar. 28,

9

Proclamation’s sweeping ban on nearly all travel to

the United States by Iranian nationals, Ag Galierie

would be barred from sending its Iranian

representatives and artists to future art fairs to

interact with this country’s artists, curators, dealers,

and collectors. Likewise, legendary Syrian musician

Omar Souleyman, who fled Syria for Turkey in 2011

after the onset of the civil war and has since

performed at the 2013 Nobel Peace Prize Concert,

expressed concern last year that he would be unable

to perform at future engagements in the United

States7 – and indeed, under the Proclamation, U.S.

citizens would be indefinitely deprived of any further

opportunity to experience Mr. Souleyman’s live

performances in this country.

There are many other artists, writers, and

dissidents whose work explores the conditions of life

in the banned countries, but whose invaluable

perspectives would, under the Proclamation, never

be fully understood, appreciated, or tested by U.S.

citizens in the unique conditions of an in-person

interaction. These include, as a small sampling:

Syrian designer Fares Cachoux, whose minimalist

posters tell the story of the Syrian revolution8;

Abdalla Al Omari, a Syrian refugee living in

Belgium whose images of world leaders (including

2017), https://hyperallergic.com/368526/iranian-gallery-dropsout-of-aipad-photo-fair-over-trumps-travel-ban.

7 See Marc Hogan, Here’s What Musicians Hurt by the Muslim

Ban Have to Say to Trump, PITCHFORK (Jan. 31, 2017),

http://pitchfork.com/thepitch/1428-heres-what-musicians-hurtby-the-muslim-ban-have-to-say-to-trump.

8 See Fares Cachoux, BEHANCE, https://www.behance.net/

farescachoux (last visited Mar. 28, 2018).

10

Bashar al-Assad) as refugees are a stark reminder of

the gap between policymakers and the people whose

lives are in their hands9; and Yemeni photographer

Boushra Almutawakel, whose portraits explore the

experience of Muslim women.10 The Proclamation

indefinitely bars these individuals and countless

others from traveling to the United States without

regard for the valuable contributions they could

make to political, intellectual, and artistic discourse

in this country. Because of the Proclamation, U.S.

citizens are deprived of the opportunity to fully

inform themselves of current conditions in the

banned countries, and the manner in which those

conditions are reflected in art and discourse.

In the short time they have existed, the

Proclamation and its predecessor bans have directly

and adversely burdened the First Amendment rights

of Amici and other U.S. citizens to receive

information through face-to-face interactions. But

beyond this, these policies more generally and

perniciously deplete the richness of our country’s

cultural wellspring.

Historically, refugees,

immigrants and foreign visitors have contributed to

every facet of American life, creating celebrated

works of arts and letters and helping to define our

country’s identity.11

America has traditionally

9 See Abdalla Al Omari, The Vulnerability Series, available at

http://www.abdallaomari.com/thevulnerabilityseries.

10 See Boushra Almutawakel, The Hijab/Veil Series, available

at

http://muslima.globalfundforwomen.org/content/hijab-veilseries.

11 Refugees and immigrants who have shaped American

cultural and political life are too numerous to name, and

include such luminaries as Albert Einstein, Hannah Arendt,

11

welcomed writers, thinkers, and others whose works

bear witness to state repression, so that we can

better understand and value our own freedoms.

With the Proclamation, its predecessor executive

orders, and the clear message of exclusion and

religious animus they all send, we risk abandoning

our identity as a nation of immigrants, and our role

as a global defender of the right to free expression.

B.

Americans Have a First Amendment

Right to Receive Information and Ideas

Via In-Person Interactions

For three-quarters of a century, the Supreme

Court has recognized that the First Amendment

protects not only the freedom to speak, but also the

corollary freedom to receive ideas and information,

ensuring that “the State may not, consistently with

the spirit of the First Amendment, contract the

spectrum of available knowledge.”

Griswold v.

Connecticut, 381 U.S. 479, 482 (1965); see also

Leo Strauss, Bertolt Brecht, Thomas Mann, Marlene Dietrich,

Jacob Riis, Elie Wiesel, Vladimir Nabokov, Isabel Allende,

Czesław Miłosz, Reinaldo Arenas, Nuruddin Farah, Milos

Forman, Yaa Gyasi, Masha Gessen, Gary Shteyngart, Viet

Thanh Nguyen, Khaled Mattawa, Henry Kissinger, Zbigniew

Brzezinski, Madeline Albright, Ilhan Omar (the first SomaliAmerican woman to be elected to a state legislature), Ted Cruz,

and Elaine Chao. No less than fourteen individuals on the

foregoing list came to this country as refugees. Under a

blanket, nationality-based travel ban comparable to the

Proclamation, those individuals – who include refugees from

extremism in forms such as German national socialism (Albert

Einstein, Hannah Arendt, Henry Kissinger) and totalitarian

communism (Vladimir Nabokov, Madeline Albright, Reinaldo

Arenas) – would not have been allowed entry.

12

Martin, 319 U.S. at 143. The principle animating

our constitutional guarantee of free speech – that

“the power of reason as applied through public

discussion” can “free men from the bondage of

irrational fears,” Whitney v. California, 274 U.S. 357,

375-76 (1927) (Brandeis, J., concurring) – is

rendered meaningless without a robust pool of

knowledge to inform speakers and drive intellectual,

artistic, and political discourse. Thus, while the

First Amendment operates by limiting government

restrictions on speech, its mandate is far broader:

“It is the purpose of the First Amendment to

preserve an uninhibited marketplace of ideas in

which truth will ultimately prevail.” Red Lion

Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969).

Recognizing that, in order to be “free,” speech

must be not only uninhibited but also fully informed,

this Court has enshrined a constitutional “right to

receive [information],” and has reiterated that right

wherever it has been challenged. See Martin, 319

U.S. at 143. See also Stanley v. Georgia, 394 U.S.

557, 564 (1969) (“[i]t is now well established that the

[First Amendment] protects the right to receive

information and ideas”); First Nat. Bank of Boston v.

Bellotti, 435 U.S. 765, 783 (1978) (“[T]he First

Amendment goes beyond protection of the press and

the self-expression of individuals to prohibit

government from limiting the stock of information

from which members of the public may draw.”);

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 756 (1976)

(“Freedom of speech presupposes a willing speaker.

But where a speaker exists . . . the protection

afforded is to the communication, to its source and to

13

its recipients both”).

Indeed, in the decision

referenced repeatedly in challenges to the previous

iterations of this travel ban, Kleindienst v. Mandel,

408 U.S. 753, 765 (1972), which concerned the visa

application of Belgian journalist and intellectual

Ernest Mandel, this Court explicitly recognized that

in denying Mandel’s visa application, the

government had burdened the First Amendment

rights of those who sought to hear him lecture in the

United States. The majority opinion only found this

burden on the right to receive information

permissible because Mandel’s visa application had

been denied for a “facially legitimate and bona fide”

reason (that Mandel had violated the terms of an

earlier visa). Id. at 770. In his dissent, Justice

Marshall elaborated on the vital free speech rights to

which the majority had alluded:

The freedom to speak and the freedom

to hear are inseparable; they are two

sides of the same coin. But the coin

itself is the process of thought and

discussion. The activity of speakers

becoming

listeners

and

listeners

becoming speakers in the vital

interchange of thought is the “means

indispensable to the discovery and

spread of political truth.”

Id. at 775-76 (Marshall, J. dissenting) (quoting

Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). In

short, this Court has long recognized that, even in

the sphere of immigration policy, any law that

restricts the pool of knowledge available to United

14

States citizens directly implicates their freedom of

speech.

The right to receive information is not mediaagnostic; each medium – written, spoken,

interactive – provides unique and valuable

contributions to the quality of a communication.

See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S.

546, 557 (1975) (“Each medium of expression, of

course, must be assessed for First Amendment

purposes by standards suited to it”). In-person

interactions – which permit free, improvised

exchange of thoughts and reactions, observation of

facial expressions, body language, and gestures, and

the tailoring of one’s message to the mood or energy

of the recipients – carry a value that cannot be

replicated by any other form of speech or

expression.12 This Court recognized the distinctive

First Amendment value of face-to-face interactions

in Martin v. City of Struthers (concerning the doorto-door distribution of literature by a Jehovah’s

Witness), holding that the “widespread use of this

method of communication by many groups espousing

various causes at[t]ests its major importance.” 319

U.S. at 145. Indeed, the truism that there is no

substitute for live, face-to-face exchange of

information and ideas finds voice in the explicit

constitutional right of assembly, which is set out

See Laura Vanderkam, The Science of When You Need InPerson Communication, FAST COMPANY (Sept. 30, 2015),

available at https://www.fastcompany.com/3051518/the-science

-of-when-you-need-in-person-communication (citing extensive

research supporting the unique and positive social value of

face-to-face interaction).

12

15

separately and distinctly from the rights to speak

and publish. U.S. CONST. amend. I.

Technological

advancements

in

remote

communications do not provide a constitutionally

sufficient alternative to live, in-person exchanges.

In Mandel, the majority rejected the government’s

argument that “technological developments” could

provide a substitute for physical presence, citing the

“particular qualities inherent in sustained, face-toface debate, discussion and questioning.” 408 U.S. at

765. Justice Marshall elaborated on this principle:

The availability to appellees of

Mandel’s books and taped lectures is no

substitute

for

live,

face-to-face

discussion and debate, just as the

availability to us of briefs and exhibits

does not supplant the essential place of

oral argument in this Court’s work.

Id. at 776 n. 2 (Marshall, J., dissenting). While

Mandel was decided some time ago, recent advances

in technology do not undercut this Court’s prescient

recognition that remote communication (whether via

email, video chat, or tweet) is no substitute for live

academic conferences or lectures – much less for live

concerts, plays, and other performances.

This

recognition is exemplified by our courts’ continuing

emphasis on in-person hearings, trials, and appellate

arguments. If anything, advances in technology

have only thrown into sharp relief the inimitable

16

qualities of live, face-to-face interaction.13 Indeed,

since Mandel, this Court has consistently continued

to acknowledge that government bans on in-person

interactions violate the First Amendment. See e.g.,

McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014).

(“When the government makes it more difficult to

engage in [‘one-on-one communication’], it imposes

an especially significant First Amendment burden.”);

Edenfield v. Fane, 507 U.S. 761, 766 (1993) (law

prohibiting “direct, in-person, uninvited solicitation”

by

certified

public

accountants

was

unconstitutionally overbroad).

There is simply no substitute for in-person

conversation, debate, gathering, or live performance.

American citizens have a constitutional right – and

duty – to engage in robust intellectual and artistic

discourse.

The Proclamation, by effectively

preventing citizens of the affected countries from

presenting their knowledge and viewpoints in the

United States (subject only to very limited

exceptions), places an unjustifiable burden on the

A Forbes article from 2011 cited the “growing pile of data

from psychologists, biologists and computer scientists” showing

that even the most advanced form of teleconferencing cannot

replicate the unique benefits of an in-person interaction. Susan

Adams, Being There, FORBES (Feb. 9, 2011), available at

https://www.forbes.com/forbes/2011/0228/travelteleconferencing-polycom-john-medina-being-there.html.

See

also Cisco, Power of In-Person: The Business Value of InPerson Collaboration (White Paper conducted by the Economist

Intelligence Unit) (2012), available at https://www.cisco.com/

c/dam/global/en_in/assets/pdfs/45808_Economist_wp1c_HR.pdf.

13

17

First Amendment right of U.S. citizens to receive

information and exchange ideas.14

C.

By Any Standard of Review, the

Proclamation’s Burdens on Free Speech

Must be Found Unconstitutional

The Ninth Circuit’s decision here on review

declined to consider whether the Proclamation

violates the U.S. Constitution, finding it unnecessary

to consider this alternate ground. Hawaii v. Trump,

878 F.3d at 702. Should the Court reach this

question, however, it should follow the reasoning of

the Fourth Circuit Court of Appeals when it

considered EO-2 and find that the Proclamation does

indeed violate the Establishment Clause. See Int’l

Refugee Assistance Project (“IRAP”) v. Trump, 857

F.3d 554, 591 (4th Cir. 2017), as amended (May 31,

2017), as amended (June 15, 2017), cert. granted, 137

S. Ct. 2080 (2017), and vacated and remanded sub

nom. Trump v. Int'l Refugee Assistance, 138 S. Ct.

353 (2017). Moreover, amici contend that the Court

should find further that the Proclamation violates

the First Amendment’s Free Speech clause.

In enjoining EO-2, the predecessor ban to the

Proclamation, the Fourth Circuit Court of Appeals

found that EO-2 was enacted with an “anti-Muslim

14 This burden on the First Amendment right of all Americans

to engage in in-person interchanges with nationals from the

banned countries is impermissibly onerous regardless of

whether a foreign national meets the “bona fide relationship”

test applied by the court below to define the scope of its

injunction. See Hawaii v. Trump, 878 F.3d 662, 673 (9th Cir.

2017), cert. granted, 138 S. Ct. 923 (2018).

18

religious purpose” – as evidenced by unmistakable

anti-Muslim rhetoric and statements of intent to ban

Muslims from entering the United States by thencandidate Trump15 – and was therefore not “facially

legitimate and bona fide.” IRAP v. Trump, 857 F.3d

at 591.

Notwithstanding the administration’s

attempt to validate, post hoc, its disproportionate

and intentional focus on Muslim-majority countries

by now adding North Korea and a narrow category of

Venezuelan nationals, the Proclamation was

transparently enacted for the same illegitimate and

bad-faith purpose as the prior travel bans. As such,

the Court is not limited to the deferential standard

of review set forth by Mandel (see 408 U.S. at 770),

15 In finding that EO-2 was enacted for an improper purpose,

the Fourth Circuit court cited

ample evidence that national security is not the

true reason for EO-2, including, among other

things, then-candidate Trump’s numerous

campaign statements expressing animus

towards the Islamic faith; his proposal to ban

Muslims from entering the United States; his

subsequent explanation that he would

effectuate this ban by targeting “territories”

instead of Muslims directly; the issuance of EO1, which targeted certain majority-Muslim

nations and included a preference for religious

minorities; an advisor’s statement that the

President had asked him to find a way to ban

Muslims in a legal way; and the issuance of EO2, which resembles EO-1 and which President

Trump and his advisors described as having the

same policy goals as EO-1.

IRAP v. Trump, 857 F.3d at 591. These circumstances apply

equally to the Proclamation, which was enacted against the

same backdrop, betraying its improper and discriminatory

purpose.

19

and may engage in a searching constitutional

inquiry into whether the Proclamation violates the

U.S. Constitution’s Bill of Rights.

Amici agree with Respondents that the

Proclamation violates the First Amendment’s

Establishment Clause. See Resp. Br. at 61-76.

Moreover, for the reasons stated above, amici

contend that the Proclamation also burdens the Free

Speech rights guaranteed under that Amendment.

Regardless of the standard of review applied, this

burden is constitutionally impermissible.

In a

separate challenge to the Proclamation, the Federal

District Court for the District of Maryland, in a

decision affirmed by the Fourth Circuit Court of

Appeals, characterized the Proclamation as

“the inextricable re-animation of the twice-enjoined

Muslim ban,” whose “primary purpose” was to target

and exclude Muslims on the basis of their religion.

Int’l Refugee Assistance Project v. Trump, 265 F.

Supp. 3d 570, 628 (D. Md. 2017), aff’d, 883 F.3d 233

(4th Cir. 2018), as amended (Feb. 28, 2018). Under

these circumstances, the government can make no

claim to even a rational basis underlying the

Proclamation.

But even if the Proclamation had some

legitimate justification, and assuming that it could

even be defined as a content-neutral law (a

categorization of which amici are deeply skeptical),

the Proclamation would still not pass constitutional

muster because it suppresses too much speech. The

Proclamation operates to foreclose Americans’ access

to an entire channel of communication – in-person

interaction – with nationals of the targeted

20

countries, and thus impermissibly burdens First

Amendment free speech rights. City of Ladue v.

Gilleo, 512 U.S. 43, 55 (1994) (“Our prior decisions

have voiced particular concern with laws that

foreclose an entire medium of expression . . . .

Although [such] prohibitions . . . may be completely

free of content or viewpoint discrimination, . . . by

eliminating a common means of speaking, such

measures can suppress too much speech.”).

In its overbreadth, the Proclamation cuts off

access to whole swaths of information that we, as

citizens, are entitled to hear and consider in

exercising self-government.

Only an informed

citizenry can properly judge its government’s policies

and actions, and our citizenry cannot be fully

informed without an opportunity to engage in faceto-face interactions with nationals from the

countries targeted by the Proclamation. In the

words of Albert Einstein, “[i]n these unfinished

things, people understand one another with

difficulty unless talking face to face.”16

IV.

CONCLUSION

For the foregoing reasons, the Court should

find that Presidential Proclamation 9645 – the

permanent

implementation

of

the

Trump

Administration’s twice-enjoined Muslim travel ban –

violates the First Amendment’s Free Speech

guarantee.

As quoted by Justice Marshall in his Mandel dissent, 408

U.S. at 776 n. 2 (quoting from Developments in the LawThe

National Security Interest and Civil Liberties, 85 Harv. L. Rev.

1130, 1154 (1972)).

16

21

Respectfully submitted,

Robert Corn-Revere

Counsel of Record

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Ave., NW

Ste. 800

Washington, DC 20006

(202) 973-4200

bobcornrevere@dwt.com

Robert D. Balin

Abigail B. Everdell

DAVIS WRIGHT TREMAINE LLP

1251 Ave. of the Americas, 21st Fl.

New York, NY 10020

(212) 489-8230

Counsel for Amici

March 30, 2018

22