Amicus Curiae Brief — Veronica Price, et al., Petitioners v. City of Chicago, Illinois, et al.

No. 18-1516

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

VERONICA PRICE, ET AL., Petitioners,

v.

CITY OF CHICAGO, ILLINOIS, ET AL., Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________________

Brief Amicus Curiae of

Conservative Legal Defense and Education Fund,

Pro-Life Legal Defense Fund, U.S. Constitutional

Rights Legal Defense Fund, Eleanor McCullen,

California Constitutional Rights Foundation,

Fitzgerald Griffin Foundation, Pass the Salt

Ministries, The Transforming Word Ministries,

Restoring Liberty Action Committee, and Center

for Morality in Support of Petitioners

____________________

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

Attorney for Amicus Curiae

RLAC

STEVEN C. BAILEY

CALIFORNIA CONSTITUTIONAL

RIGHTS FOUNDATION

Attorney for Amicus Curiae

CCRF

*Counsel of Record

HERBERT W. TITUS*

JEREMIAH L. MORGAN

WILLIAM J. OLSON

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

July 8, 2019

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I.

THE CHICAGO ORDINANCE, LIKE THE

COLORADO STATUTE APPROVED IN HILL, IS

INVALID, CONTRARY TO THE LAWS OF NATURE

AND OF NATURE’S GOD . . . . . . . . . . . . . . . . . . . . 3

A. The Jefferson/Madison First Amendment

Divine Law Foundation . . . . . . . . . . . . . . . . 4

B. The Chicago Ordinance Fails to Measure

Up to the Jefferson/Madison Divine

Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. Courts Have a Historic Duty to Identify

and Correct Their Mistakes of Law . . . . . . 10

II. PETITIONERS’ FIRST AMENDMENT CHALLENGE

DESERVES TO BE DECIDED ON ITS MERITS,

UNTAINTED BY THIS COURT’S ABORTION

JURISPRUDENCE.. . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Lawlessness of Roe v. Wade . . . . . . . . 14

B. The Corrosive Effect of Roe v. Wade . . . . . 15

ii

C. A Free Speech Case — Arising in the

Vicinity of an Abortion Clinic . . . . . . . . . . 21

III. THE CHICAGO ORDINANCE IS BUT ONE ASPECT

OF A NEW WAVE OF CENSORSHIP THAT

THREATENS THE REPUBLIC . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Isaiah 1:18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Luke 20:22-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. CONSTITUTION

First Amendment . . . . . . . . . . . . . . . . . . . . . 2, passim

Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . 15

STATUTES

Communications Decency Act, 47 U.S.C. § 230 . . 25

CASES

Box v. Planned Parenthood of Ind. and Kent.,

139 S.Ct. 1780 (2019). . . . . . . . . . . . . . . . . . . . . 2

Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . 12

Gee v. Planned Parenthood of Gulf Coast, 139

S.Ct. 408 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 20

Hill v. Colorado, 530 U.S. 703 (2000) . . . . . 2, passim

Janus v. AFSCME, Council 31, 138 S.Ct. 2448

(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lochner v. New York, 198 U.S. 45 (1905) . . . . . . . 15

Madsen v. Women’s Health Center, 512 U.S.

753 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

McCullen v. Coakley, 573 U.S. 464 (2014) . 3, 18, 19

Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) . . . 3

Reynolds v. United States, 98 U.S. 145 (1879) . . . . 4

Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . 14, 15

Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986) . . . . . . . 16

United States v. Rumely, 345 U.S. 41 (1953) . . . . 23

iv

Whole Woman’s Health v. Hellerstedt, 136

S.Ct. 2292 (2016) . . . . . . . . . . . . . . . . . . . . 19, 20

MISCELLANEOUS

“Antifa anarchy, Portland’s apathy,” Washington

Examiner (July 3, 2019) . . . . . . . . . . . . . . . . . 24

Blackstone, Commentaries on the Laws of

England . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11, 12

F.H. Buckley, “It’s time for a federal civil rights

intervention in Portland,” New York Post

(July 5, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. Garner, et al., The Law of Judicial Precedent

(Thomson/Reuters: 2016). . . . . . . . . . . . . . . . . 11

Thomas Jefferson, A Bill for Establishing

Religious Freedom, Virginia House of

Delegates (1779), reprinted in 5 The

Founders Constitution at 77 (P. Kurland &

R. Lerner, edts.) (Liberty Fund: 1987) . 4, passim

S. Kovach, “Alphabet had more than $70

billion in market cap wiped out, and it says

YouTube is one of the problems,” CNBC

(Apr. 30, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . 25

James Madison, “Memorial and Remonstrance

against Religious Assessments,” (1785) 5

Founders Constitution at 82 . . . . . . . . . . . . . 6, 7

D. McConnell and B. Todd, “Graphic antiabortion ads air on Washington Station,”

CNN Politics (Oct. 27, 2010) . . . . . . . . . . . . . . 23

T. Romm, “Senate Republicans renew their

claims that Facebook, Google and Twitter

censor conservatives,” Washington Post

(Apr. 10, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . 25

v

J. Seibler, “Gov. Cuomo’s Shameless

War on the NRA,” The Heritage Foundation

(Nov. 16, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Virginia Declaration of Rights (1776), 5 The

Founders Constitution at 70 . . . . . . . . . . . . . . . 7

INTEREST OF THE AMICI CURIAE1

Conservative Legal Defense and Education Fund,

Pro-Life Legal Defense Fund, U.S. Constitutional

Rights Legal Defense Fund, California Constitutional

Rights Foundation, Fitzgerald Griffin Foundation,

Pass the Salt Ministries, and The Transforming Word

Ministries, are nonprofit organizations, exempt from

federal income tax under either section 501(c)(3) or

501(c)(4) of the Internal Revenue Code. Eleanor

McCullen was the plaintiff in McCullen v. Coakley,

573 U.S. 464 (2014), discussed infra. Restoring

Liberty Action Committee and Center for Morality are

educational organizations.

Amici organizations were established, inter alia,

for the purpose of participating in the public policy

process, including conducting research, and informing

and educating the public on the proper construction of

state and federal constitutions, as well as statutes

related to the rights of citizens, and questions related

to human and civil rights secured by law.

Some of these amici filed an amicus brief in this

case in the Seventh Circuit on August 25, 2017.

1

It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to its filing; that no counsel for a party authored this brief in

whole or in part; and that no person other than these amici curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

SUMMARY OF ARGUMENT

The Chicago public sidewalk regulation

constricting the pro-life petitioners’ education and

counseling activities — like the Colorado statute that

it emulates — crosses the jurisdictional line affixed by

the laws of nature and of nature’s God. Although the

Colorado statute was found by this Court in Hill v.

Colorado to meet its judicially contrived doctrine of

“content neutrality,” its decision was, and still is, a

nullity, in conflict with the divinely ordained free

marketplace of ideas, as originally understood by two

great American statesmen — Thomas Jefferson and

John Madison. The Jurisdictional Principle these men

recognized limits the power of all governments, as

reflected in the First Amendment, separating those

duties owed exclusively to the Creator, enforceable

only by reason and conviction, from those duties owed

to civil government, enforceable by force and violence.

The Chicago ordinance is a content-based

restriction on the freedom of speech, and yet was not

decided by the courts below based on this Court’s

traditional First Amendment jurisprudence, but rather

based solely on an outlier decision of this Court, Hill v.

Colorado. In Hill, this Court applied a special set of

jurisprudential principles that repeatedly have been

used in cases which even tangentially involve “the

constitutional right to an abortion” even though “[t]he

Constitution itself is silent on abortion.” Box v.

Planned Parenthood of Ind. and Kent., 139 S.Ct. 1780,

1793 (2019) (Thomas, J., concurring). To prevent a

continuation of this Court’s abortion jurisprudence, it

should grant review of this case and review the

3

Chicago ordinance based on original First Amendment

principles.

The ordinance being challenged in this case is not

unique, but part of a growing wave of actions by

certain government officials designed to suppress

voices of dissent. In some cities, police are directed to

stand down from protecting Americans against groups

like Antifa which employs the techniques of actual

fascists. Yet in the City of Chicago, peaceful, rational

discourse conducted in public places has been

criminalized. With this case, this Court has the duty

to enforce the Jurisdictional Principle, and protect the

People’s right to engage in rational discourse.

ARGUMENT

I.

THE CHICAGO ORDINANCE, LIKE THE

COLORADO STATUTE APPROVED IN HILL,

IS INVALID, CONTRARY TO THE LAWS OF

NATURE AND OF NATURE’S GOD.

The Petition for Certiorari (“Pet.”) persuasively

explains that this Court’s decision in Hill v. Colorado,

530 U.S. 703 (2000), on which the Circuit Court’s

decision was entirely grounded, has been overtaken by,

and is now unreconcilable with McCullen v. Coakley,

134 S.Ct. 2518 (2014) and Reed v. Town of Gilbert, 135

S.Ct. 2218 (2015). See Pet. at 17-22. The Petition also

correctly asserts that the Hill decision was and is an

“outlier” in Supreme Court jurisprudence. See Pet. at

2. However, to understand the violence that the Hill

decision does to rights protected by the First

Amendment, and the manifest injustice done by the

4

Seventh Circuit in relying on that ruling to determine

the constitutionality of the Chicago ordinance, it is

necessary to return to and examine First Principles.

A. The Jefferson/Madison First Amendment

Divine Law Foundation.

[T]o compel a man to furnish contributions of

money for the propagation of opinions which

he disbelieves and abhors, is sinful and

tyrannical.2

This famous Jeffersonian aphorism has been cited

to, as well as cited by, this Court on innumerable

occasions. Most recently, Justice Alito relied on these

words twice to shore up this Court’s decision to

overrule a 41-year-old Supreme Court precedent that

permitted government-imposed union dues on public

workers. See Janus v. AFSCME, Council 31, 138 S.Ct.

2448, 2464 (2019). But in both instances Jefferson was

cast by Justice Alito only to play a supporting role,

seconding the Court’s own recent precedents (id. at

2464) and taking his place with nameless “others

[who] expressed similar views.” Id. at 2471, n.8.

However, as this Court first acknowledged in Reynolds

v. United States, 98 U.S. 145 (1879), Thomas Jefferson

and James Madison virtually wrote the script for the

freedom of religion, as it appears in the First

Amendment, condemning laws that compel speech —

2

Thomas Jefferson, A Bill for Establishing Religious Freedom,

Virginia House of Delegates (1779), reprinted in 5 The Founders

Constitution at 77 (P. Kurland & R. Lerner, edts.) (Liberty Fund:

1987).

5

religious or otherwise — as both “sinful and

tyrannical.”

Thus, the Jefferson 1779 Bill for

Establishing Religious Freedom and the Virginia

Assembly’s 1785 Statute of the same name applied not

just to matters of religious doctrine and faith, but to

the entire “field of opinion.”

5 Founders

Constitution at 77, 84-85.

From the principles penned by the author of our

nation’s Declaration of Independence, both the

freedom of speech and the free exercise of religion that

the First Amendment was designed to protect were

understood to rest on the same principle — the

freedom of the mind. And that freedom, Jefferson

proclaimed to be of divine origin:

Whereas Almighty God hath created the mind

free; that all attempts to influence it by

temporal punishments or burthens, or by civil

incapacitations ... are a departure from the

plan of the Holy author of our religion, who

being Lord both of body and mind, yet chose

not to propagate it by coercions on either, as

was in his Almighty power to do.... [Id. at 84.]

This is a powerful statement. First, Jefferson

invokes the law of the Creator. And second, he

exposits a divine moral and political constraint on any

ruler who would be of the mind to use force to

establish political hegemony by thought-control. As

Madison observed in his Memorial and Remonstrance,

the People not only would suffer because of the

wickedness of a tyrant, but they would violate their

duty to God to be free:

6

This right is in its nature an unalienable right.

It is unalienable, because the opinions of men,

depending only on the evidence contemplated

by their own minds cannot follow the dictates

of other men: It is unalienable also, because

what is here a right towards men, is a duty

towards the Creator. [James Madison,

“Memorial and Remonstrance against

Religious Assessments,” (1785) 5 Founders

Constitution at 82.]

Furthermore, Madison insisted that this was more

than an abstract and theoretical proposition, but an

inescapable reality of man’s dependent place in God’s

world.3 Madison’s insight is a compelling one:

Before any man can be considered as a

member of Civil Society, he must be considered

as a subject of the Governour of the Universe:

And if a member of Civil Society, who enters

into any subordinate Association, must always

do it with a reservation of his duty to the

General Authority; much more must every

man who becomes a member of any particular

Civil Society, do it with a saving of his

allegiance to the Universal Sovereign. [Id.]

From these truths, Madison derived this working

postulate: “[I]n matters of Religion, no mans right is

abridged by the institution of Civil Society [in] that

3

“Man, considered as a creature, must necessarily be subject to

the laws of his creator, for he is entirely a dependent being.” I

Blackstone’s Commentaries on the Laws of England at 39.

7

Religion is wholly exempt from its cognizance.” Id. In

the words of Jefferson’s Preamble to his Bill,

“Almighty God hath created the mind free, and

manifested his Supreme will that free it shall remain,

by making it altogether insusceptible of restraint.” Id.

at 77. Or, in the words of the Holy Author of our

religion, man’s duty is divided between that which

belongs to Caesar, subject to his coercive power, and

that which belongs to God, subject to reason alone. See

Luke 20:22-26. To Jefferson, this jurisdictional line of

liberty was supported and confirmed by history: “the

impious presumption of legislators and rulers, civil as

well as ecclesiastical, who, being themselves but

fallible and uninspired men, have assumed dominion

over the faith of others, setting up their own opinions

and modes of thinking, as the only true and

infallible....” 5 Founders Constitution at 77. For

Madison, this same jurisdictional line had already

been constitutionally acknowledged by the adoption of

the principled working definition of religion in Article

I, Section 16 of the 1776 Virginia Declaration of

Rights:

That Religion, or the duty which we owe to our

Creator, and the manner of discharging it, can

be directed only by reason and conviction, not

by force or violence....

[5 Founders

Constitution at 70.]

Thus, Madison began his Memorial and Remonstrance

with the fundamental proposition that Religion, so

defined in the Virginia Constitution, marked a

jurisdictional line between two kinds of duties, (a)

those outside the authority of the civil government,

8

belonging exclusively to God and enforceable only by

“reason and conviction,” and (b) those within the

lawful orbit of civil power to impose by “force or

violence.” This jurisdictional divide is absolute, as

Jefferson’s famous line illustrates when read along

with his lesser-known follow-up:

That even the forcing him to support this or

that teacher of his own religious persuasion, is

depriving him of the comfortable of giving his

contributions to the particular pastor whose

morals he would make his pattern.

[5

Founders Constitution at 77.]

Summing up, Madison reminded the readers of his

Remonstrance that the civil magistrate may not

employ a duty owed exclusively to God as an “engine of

Civil policy” which is what the Chicago ordinance in

this case, and the Colorado statute approved in Hill

after which the Chicago scheme is patterned, both do.

See Pet. 3-5, 14-22.

B. The Chicago Ordinance Fails to Measure

Up to the Jefferson/Madison Divine

Foundation.

[O]ur civil rights have no dependence on our

religious opinions, any more than on our

opinions in physicks or geometry.4

4

5 Founders Constitution at 77.

9

These words from Jefferson’s Preamble to his Bill

for religious freedom, although not as catchy as the

more famous admonition against compelling opinions,

are of equal import — they concern entry into, and

participation in, a divinely created and orchestrated

free marketplace of ideas.

First of all, Jefferson denounced the practice of:

proscribing any citizen as unworthy the

publick confidence, by laying upon him an

incapacity of being called to offices of trust and

emolument, unless he profess or renounce this

or that religious opinion.... [5 Founders

Constitution at 77.]

Rather, Jefferson averred, participation in the

exchange of opinions was one of those “privileges and

advantages to which, in common with his fellow

citizens he has a natural right....” Id.

Second, Jefferson acknowledged “[t]hat the

opinions of men are not the object of civil government,

nor under its jurisdiction” and therefore:

to suffer the civil Magistrate to intrude his

powers into the field of opinion, and to restrain

the profession or propagation of principles on

supposition of their ill tendency, is a

dangerous fallacy, which at once destroys all

religious liberty; because he being of course

Judge of that tendency will make his own

opinions the rule of judgment, and approve or

10

condemn the sentiments of others only as they

shall square with, or differ from his own. [Id.]

Thus, Jefferson insisted, “it is time enough for the

rightful purposes of civil government for its officers to

interfere when principles break out into overt acts

against peace and good order.” Id. The litany of

actions allegedly taken over a six-year period by the

Chicago police to bring into submission the Petitioners’

pro-life witness illustrate that this limitation upon the

powers of the city has been breached. See Price v. City

of Chicago, 2017 U.S. Dist. LEXIS 519*; 2017 WL

36444 at *5-*13. (N.D. Ill. 2017). As the Seventh

Circuit observed, the Chicago ordinance:

By its terms ... regulates speech undertaken

“for the purpose of ... engaging in protest,

education, or counseling.”

And divining

purpose clearly requires enforcement

authorities “to examine the content of the

message that is conveyed.” [Price v. City of

Chicago, 915 F.3d 1107, 1118 (7th Cir. 2019)

(citation omitted).]

C. Courts Have a Historic Duty to Identify

and Correct Their Mistakes of Law.

The Seventh Circuit withheld granting legal relief

solely because it is only this Court that has the power

to overrule its own decision in Hill v. Colorado, which

upheld an almost identical statute. Petitioners rely on

Justice Kennedy’s charge that the Hill Court “deviated

from ‘more than a half century of well-established

First Amendment principles’ by ‘approv[ing] a law

11

which bars a private citizen from passing a message,

in a peaceful manner and on a profound moral issue,

to a fellow citizen on a public sidewalk.’” Pet. at 2-3.

Thus, the Seventh Circuit concluded that Hill is

“incompatible with current First Amendment doctrine”

of this Court, “McCullen and Reed hav[ing] deeply

shaken Hill’s foundation.” Id. at 1117 and 1119.

Nevertheless, the Seventh Circuit decided that, while

this Court has “deeply unsettled Hill, it has not

overruled the decision. So it remains binding on us.

The plaintiffs must seek relief in the High Court.” Id.

at 1119. Although the Seventh Circuit clearly had no

power to overrule Hill, today’s operative rule is that

Hill, even if wrongly decided, is nevertheless

“absolutely binding [,] the only question [being] how to

apply that rule to the facts of the current case.” See B.

Garner, et al., The Law of Judicial Precedent at 155

(Thomson/Reuters: 2016).

In Jeffersonian times, judicial precedents did not

enjoy such high standing. “The law,” wrote Sir

William Blackstone, “and the opinion of the judge are

not always convertible terms, or one and the same

thing; since it sometimes may happen that the judge

may mistake the law.” I Blackstone’s Commentaries

on the Laws of England at 71. Thus, Blackstone

continued, “decisions of courts of justice are the

evidence of what is common law.” Id. To be sure, such

written decisions are, Blackstone contended, the best

evidence of the law and therefore:

it is not in the breast of any subsequent judge

to alter or vary from, according to his private

12

sentiments: he being sworn to determine, not

according to his own private judgment, but

according to the known laws and customs of

the land; not delegated to pronounce a new

law, but to maintain and expound the old one.

[Id. at 69.]

There is, Blackstone announced, only one exception:

“where the former determination is most evidently

contrary to reason, much more if it be contrary to the

divine law.” Id. at 69-70. But even then, Blackstone

maintained that:

the subsequent judges do not pretend to make a

new law, but to vindicate the old one from

misrepresentation. For if it be found that the

former decision is manifestly absurd or unjust, it

is declared, not that such a sentence was bad law,

but that it was not law. [Id. at 70 (emphasis

added).]

According to Blackstone’s principles, then, Hill is

not just “incompatible” with this Court’s “First

Amendment doctrine,” but it was — and it still is — a

nullity, unworthy of any precedential effect

whatsoever. Contrast the Blackstone view with the

following: “When considering whether to reexamine a

prior erroneous holding, we must balance the

importance of having constitutional questions decided

against the importance of having them decided right.”

Citizens United v. Federal Election Commission, 558

U.S. 310, 378 (2010) (Roberts, C.J., concurring).

Pragmatic notions of this sort would have no place in

the divinely established free marketplace of Thomas

13

Jefferson, who closed the Preamble of his Statute for

Religious Freedom with these immortal words:

[T]ruth is great and will prevail if left to

herself; that she is the proper and sufficient

antagonist to errour, and has nothing to fear

from the conflict, unless by human

interposition, disarmed of her natural

weapons, free argument and debate; errours

ceasing to be dangerous when it is permitted

freely to contradict them.... [5 Founders

Constitution at 77.]

II. PETITIONERS’

FIRST

AMENDMENT

CHALLENGE DESERVES TO BE DECIDED

ON ITS MERITS, UNTAINTED BY THIS

COURT’S ABORTION JURISPRUDENCE.

When courts fail to enforce the Jurisdictional

Principle embodied in the Freedom of Speech and

Religion discussed in Section I, supra, compromises

inevitably will follow which trample on the freedom of

the mind. Once it allows the Jurisdictional Principle

to be breached, this Court must select which

constraints on individual freedom it allows, and which

it finds offensive — making decisions that can only be

seen as political and sociological, not judicial.

No matter better illustrates the consequences of

the politicization of this Court than its abortion

jurisprudence. From the moment this Court created a

right to abortion out of whole cloth, it has bent the

principles of law to bow in service to Roe, a decision

sometimes described by politicians as a “super-

14

precedent.” As discussed infra, this Court has become

partial, deciding cases that involve abortion differently

from cases which do not. This mistake should not be

repeated in deciding the case now before the Court.

A. The Lawlessness of Roe v. Wade.

The refusal to apply established principles of law

to abortion cases did not arise after Roe — it began

with Roe, and the judiciary’s campaign to elevate the

non-enumerated “right” to abortion over even

enumerated rights, rewriting the Constitution in the

process.

The slippery slope on which the Court embarked

was forecasted from the beginning.

Justice

Rehnquist’s dissent in Roe v. Wade, 410 U.S. 113

(1973), cataloged a remarkable list of precedents

trampled by the majority on its way to imposing

abortion on demand on the States, including:

(i) allowing a plaintiff to seek the vindication

of the constitutional rights of others;

(ii) deciding hypothetical issues not raised by

the plaintiff;

(iii) formulating a rule of constitutional law

broader than required;

(iv) creation of a new, atextual right of

“privacy”;

(v) transporting the “compelling state interest”

test from the Equal Protection Clause to the

Due Process Clause;

15

(vi) returning to Justice Peckham’s view of

substantive due process expressed in Lochner

v. New York, 198 U.S. 45, 74 (1905);

(vii) finding a right to an abortion “‘so rooted in

the traditions and conscience of our people as

to be ranked as fundamental,’” despite the fact

that a majority of the States had restrictions

on abortion for at least a century;

(viii) finding a right within the scope of the

Fourteenth Amendment that was “apparently

completely unknown to the drafters of the

Amendment”;

(ix) finding a right within the scope of the

Fourteenth Amendment that the drafters

never intended; and

(x) striking down the Texas law in toto, rather

than finding the statute unconstitutional as

applied, even though the Court conceded that

at later periods of pregnancy Texas might

impose limitations on abortion. See Roe at

171-78 (Rehnquist, J., dissenting).

B. The Corrosive Effect of Roe v. Wade.

Over a 33-year period, Supreme Court opinions by

three current Supreme Court Justices (Justices

Thomas, Roberts, and Alito) and five past Justices

(Chief Justices Burger and Rehnquist, and Justices

O’Connor, Scalia, and Kennedy) have all observed that

the presence of abortion in a case has seriously

distorted the application of general principles of law.

The cases discussed infra provide ample proof of the

risk that a First Amendment case such as that now

before the Court could be decided surreptitiously as an

16

abortion rights case, rather than properly according to

First Amendment principles.

1. Three months before Justice Scalia joined the

court, Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747 (1986),

was decided. In dissent, Justice O’Connor and thenJustice Rehnquist charged that:

“the Court

prematurely decide[d] serious constitutional questions

on an inadequate record, in contravention of settled

principles of constitutional adjudication and

procedural fairness.” Id. at 815 (O’Connor, J.,

dissenting). These justices described the problem that

had developed during the 13 short years since Roe was

decided.

This Court’s abortion decisions have already

worked a major distortion in the Court’s

constitutional jurisprudence.

Today’s

decision goes further, and makes it painfully

clear that no legal rule or doctrine is safe from

ad hoc nullification by this Court when an

occasion for its application arises in a case

involving state regulation of abortion....

[Thornburgh at 814 (O’Connor, J., dissenting)

(citation omitted) (emphasis added).]

2. In Madsen v. Women’s Health Center, 512 U.S.

753 (1994), Justice Scalia took the lead in a dissent

joined by Justices Kennedy and Thomas.

The entire injunction in this case departs so

far from the established course of our

jurisprudence that in any other context it

17

would have been regarded as a candidate for

summary reversal. But the context here is

abortion.... Today the ad hoc nullification

machine claims its latest, greatest, and most

surprising victim: the First Amendment. [Id.

at 785 (Scalia, J., dissenting) (emphasis

added).]

3. In the case principally relied on by both courts

below, Hill v. Colorado, 530 U.S. 703 (2000), a dissent

by Justice Scalia, joined by Justice Thomas, criticized

the abandonment of established legal principles

whenever abortion is involved:

What is before us ... is a speech regulation

directed against the opponents of abortion, and

it therefore enjoys the benefit of the “ad hoc

nullification machine” that the Court has

set in motion to push aside whatever doctrines

of constitutional law stand in the way of that

highly favored practice.... Because, like the

rest of our abortion jurisprudence, today’s

decision is in stark contradiction of the

constitutional principles we apply in all other

contexts, I dissent. [Id. at 741-42 (Scalia, J.,

dissenting) (emphasis added).]

Also dissenting, Justice Kennedy expanded on

Justice Scalia’s analysis, using the boldest terms,

stating:

The Court’s holding contradicts more than

a half century of well-established First

Amendment principles. For the first

18

time, the Court approves a law which bars a

private citizen from passing a message, in a

peaceful manner and on a profound moral

issue, to a fellow citizen on a public sidewalk.

If from this time forward the Court repeats its

grave errors of analysis, we shall have no

longer the proud tradition of free and open

discourse in a public forum. [Id. at 765

(Kennedy, J., dissenting) (emphasis added).]

Justice Kennedy continued his dissent, discussing

recent Supreme Court abortion cases:

So committed is the Court to its course

that it denies these protesters, in the face of

what they consider to be one of life’s gravest

moral crises, even the opportunity to try to

offer a fellow citizen a little pamphlet, a

handheld paper seeking to reach a higher

law. I dissent. [Id. at 792 (Kennedy, J.,

dissenting) (emphasis added).]

4. In a case brought by one of these amici, Eleanor

McCullen, McCullen v. Coakley, 573 U.S. 464 (2014),

this Court struck down a “bubble zone” law for being

insufficiently tailored, but did not find it to be in

violation of the content neutrality principle. Justice

Kennedy joined Justices Scalia and Thomas in

criticizing the notion of a special set of rules for

abortion-related cases. Concurring with the judgment,

Justice Scalia observed:

Today’s opinion carries forward this Court’s

practice of giving abortion-rights

19

advocates a pass when it comes to

suppressing the free-speech rights of their

opponents. There is an entirely separate,

abridged edition of the First Amendment

applicable to speech against abortion. [Id. at

497 (Scalia, J., concurring) (emphasis added).]

In a separate dissent, Justice Alito explained his

view of the Massachusetts statute: “[s]peech in favor

of the clinic and its work by employees and agents is

permitted; speech criticizing the clinic and its work is

a crime. This is blatant viewpoint discrimination.” Id.

at 512 (Alito, J., dissenting).

5. In Whole Woman’s Health v. Hellerstedt, 136

S.Ct. 2292 (2016), Justice Thomas quoted from an

earlier Justice Scalia dissent, concluding that the

majority decision striking down Texas’ health

restrictions on abortion clinics and doctors:

exemplifies the Court’s troubling tendency “to

bend the rules when any effort to limit

abortion, or even to speak in opposition to

abortion, is at issue.” Stenberg v. Carhart, 530

U.S. 914 (2000) (Scalia, J., dissenting). [Whole

Woman’s Health at 2321 (Thomas, J.,

dissenting) (emphasis added).]

Of course, this observation was made by Justice

Thomas who, like Justice Scalia, has repeatedly

asserted his fundamental “oppos[ition] to the Court’s

abortion jurisprudence.” Id. at 2324. But the same

criticism also has come from several other justices as

well. Justice Alito, joined by Chief Justice Roberts

20

(and Justice Thomas), also addressed this issue,

stating:

As a court of law, we have an obligation to

apply [legal] rules in a neutral fashion in all

cases, regardless of the subject of the suit.

If anything, when a case involves a

controversial issue, we should be especially

careful to be scrupulously neutral in

applying such rules. [Id. (Alito, J., dissenting)

(emphasis added).]

Hence, the Alito dissent concluded that the Court was:

determined to strike down two provisions

of a new Texas abortion statute in all of their

applications, [and] the Court simply

disregards basic rules that apply in all

other cases.... When we decide cases on

particularly controversial issues, we should

take special care to apply settled procedural

rules in a neutral manner. The Court has not

done that here. [Id. at 2330, 2353 (emphasis

added).]

6. Gee v. Planned Parenthood of Gulf Coast, 139

S.Ct. 408 (2018), addressed whether there are certain

private rights of action under the Medicaid Act. The

Court denied certiorari, and Justice Thomas surmised

that “it has something to do with the fact that some

respondents in these cases are named ‘Planned

Parenthood.’” Id. at 410. Justice Thomas dissented

because “the question presented has nothing to do with

abortion,” (id.) yet what could be called an “abortion

21

derangement syndrome” prevented the Court from

doing its duty. As Justice Thomas explained, “[s]ome

tenuous connection to a politically fraught issue does

not justify abdicating our judicial duty. If anything,

neutrally applying the law is all the more important

when political issues are in the background.” Id.

C. A Free Speech Case — Arising in the

Vicinity of an Abortion Clinic.

To set the stage for the question it presents to this

Court for review, the Petition describes the statute

being challenged: “Chicago has made it a crime for a

speaker to approach within eight feet of another

person ‘for the purpose of passing a leaflet or handbill,

displaying a sign to, or engaging in oral protest,

education, or counseling,’ without express consent.”

Pet. at i. Throughout the litigation of this case,

Petitioners grounded their challenge to this ordinance

in long-standing First Amendment principles and

precedents. Thus, Petitioners have presented to this

Court a classic First Amendment challenge to a

municipal restriction on speech and pamphleteering.

The Petition then describes the geographic area

where the ordinance applies: “within 50 feet of the

entrance to an abortion clinic or other medical facility.”

Id. With the words “abortion clinic,” what had been a

simple issue becomes clouded by politics and the risk

that this case could be decided not as a First

Amendment case, but as an abortion case. And, the

recent history, discussed supra, demonstrates there is

good reason to be concerned.

22

The question presented in this case is a classic

First Amendment issue. The context of the restriction

on speech is the vicinity of an abortion clinic, but that

does not transform it into an abortion rights case. If

this Court views and decides this case according to

traditional First Amendment principles, it will put to

rest the concern expressed by Justice Scalia in his Hill

dissent two decades ago.

Having deprived abortion opponents of the

political right to persuade the electorate

that abortion should be restricted by law, the

Court today continues and expands its assault

upon their individual right to persuade

women contemplating abortion that what they

are doing is wrong. [Hill at 741-42 (Scalia, J.,

dissenting) (emphasis added).]

III. THE CHICAGO ORDINANCE IS BUT ONE

ASPECT OF A NEW WAVE OF CENSORSHIP

THAT THREATENS THE REPUBLIC.

The moral principle often attributed to Voltaire —

“I disapprove of what you say, but I will defend to the

death your right to say it” — is being challenged with

increasing frequency. The politicians who authored

the Chicago ordinance under review have taken the

polar opposite approach: “I disapprove of what you

say, and I will use whatever power I have to stop you

from saying it.” These Chicago politicians are part of

a new wave of censorship which is foreign to the

American experience.

23

This new wave is certainly not historically liberal.

Liberal paragon Justice Douglas revered what he

called the “market place of ideas,” eager to protect

“tracts [which] may be the essence of wisdom to some;

to others their point of view and philosophy may be

anathema.” United States v. Rumely, 345 U.S. 41, 56

(1953) (Douglas, J., concurring). This new wave

certainly has no appeal to those who embrace the God

of the Bible, who could have coerced servitude, but

rather encourages rational discourse and decision

making: “Come now, and let us reason together, saith

the Lord....” Isaiah 1:18.

Although the scope of the First Amendment with

respect to political issues has been called into question

on innumerable occasions in the history of our country,

what before were exceptions to the rule are becoming

the norm. Consider, for example, how the pro-life

message in America is being suppressed. Pro-life

activists are prevented by FCC-licensed and

government-regulated broadcast and cable outlets

from airing paid television commercials which reveal

in graphic detail what actually happens during an

abortion. The only exception is ads run by candidates

for office whose commercials may only be rejected for

copyright infringement or defamatory content.5 Until

stopped by this Court, pro-abortion legislators in

California required pro-life crisis pregnancy centers to

5

See D. McConnell and B. Todd, “Graphic anti-abortion ads air on

Washington stations,” CNN Politics (Oct. 27, 2010).

24

disseminate the state’s pro-abortion message which is

antithetical to their own.6

Police are widely reported to be given “standdown” orders by politicians in certain cities, allowing

violent groups like Antifa to attack those with whom

they disagree. Recently, police failed to intervene

when a member of what might be called the

alternative press reporting on Antifa, Andy Ngo, was

beaten on the streets of Portland.7 A New York Post

columnist reported:

The antifa slogan in Portland is “we own the

streets.” And they do. The city has let it

happen. Last October, they blocked a street

and threatened drivers and passers-by who

wanted to get through. A few months before

that, they beat up a Bernie Sanders supporter

who was carrying an American flag.... They

will also have the backing of prominent

apologists in the liberal establishment,

including Minnesota Attorney General Keith

Ellison, who endorsed the antifa handbook,

6

Some of these amici filed an amicus brief (Apr. 20, 2017)

protesting this requirement at the petition stage in National

Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361

(2019), and another amicus brief (Jan. 16, 2018) at the merits

stage.

7

See “Antifa anarchy, Portland’s apathy,” Washington Examiner

(July 3, 2019).

25

and CNN’s Don Lemon, who said in defense of

the group that ‘no organization is perfect.’”8

Social media providers like YouTube, which was

designed to appeal to those who distrust the

establishment press, increasingly make decisions

against their apparent financial self-interest by

shutting down dissenting voices as providing “fake

news.”9 Commercial businesses have been granted

broad immunity from even non-constitutional claims

by Section 230 of the Communications Decency Act, 47

U.S.C. § 230, precisly to encourage free discussion on

their platforms, but nevertheless have chosen to demonetize, de-platform, and otherwise restrict access to

what they alone determine to constitute undefined

“hate speech” in a completely arbitrary and opaque

manner.10 Banks and financial institutions are

pressured by politicians to refuse to provide services to

political organizations, including the National Rifle

Association, which they brand as dangerous.11

8

F.H. Buckley, “It’s time for a federal civil rights intervention in

Portland,” New York Post (July 5, 2019).

9

See S. Kovach, “Alphabet had more than $70 billion in market

cap wiped out, and it’s blaming YouTube,” CNBC (Apr. 30, 2019).

10

See T. Romm, “Senate Republicans renew their claims that

Facebook, Google and Twitter censor conservatives,” Washington

Post (Apr. 10, 2019).

11

See J. Seibler, “Gov. Cuomo’s Shameless War on the NRA,” The

Heritage Foundation (Nov. 16, 2018).

26

When government or its agents shut down debate,

they stop up the outlets for expressions of frustration

and anger, causing dangerous pressure to build up

within the society. The government is no longer seen

as an honest broker, committed to protecting the

rights of all, but akin to a criminal enterprise being

run by a band of rogues determined to do whatever

may be necessary to maintain themselves in positions

of power. While government may be able to suppress

dissent for a time, eventually the People burst their

restraints. Thus, historically, such suppression of

views fails, and does not end well for anyone. In

considering the Petition for Certiorari now before it,

this Court has the opportunity to reestablish Logos by

protecting the marketplace of ideas from government

coercion, to the benefit of everyone.

CONCLUSION

For the reasons stated above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

JOSEPH W. MILLER

RESTORING LIBERTY

ACTION COMMITTEE

Attorney for Amicus Curiae

RLAC

STEVEN C. BAILEY

CALIFORNIA CONSTITUTIONAL

RIGHTS FOUNDATION

Attorney for Amicus Curiae

CCRF

HERBERT W. TITUS*

JEREMIAH L. MORGAN

WILLIAM J. OLSON

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

July 8, 2019