Amicus Curiae Brief — Paul Hunt, Petitioner v. Board of Regents of the University of New Mexico, et al.

No. 19-1225

IN THE

Supreme Court of the United States

___________

PAUL HUNT,

Petitioner,

v.

BOARD OF REGENTS OF THE UNIVERSITY OF

NEW MEXICO, et al.,

___________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

___________

MOTION FOR LEAVE TO FILE BRIEF

AND AMICI CURIAE BRIEF OF FIRST

AMENDMENT SCHOLARS

___________

ANDREW M. GROSSMAN

Counsel of Record

RENEE M. KNUDSEN

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

Counsel for the Amici Curiae

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

Pursuant to Supreme Court Rule 37.2(b), amici curiae law professors dedicated to the study of the First

Amendment (“First Amendment Scholars”) respectfully move for leave to file the accompanying brief in

support of Petitioner. As required under Supreme

Court Rule 37.2(a), all parties were timely notified of

the First Amendment Scholar’s intent to file this

amici brief. Petitioner consented. Respondents did

not.

The First Amendment Scholars’ interest in this case

is the sound and orderly development of First Amendment law, particularly in the educational context. The

First Amendment Scholars have taught courses on

constitutional law or the First Amendment, authored

publications on the First Amendment, and dedicated

significant attention to the study of First Amendment

law.

The accompanying brief explains why the Court’s

cases clearly establish that Petitioner’s political

speech is protected under the Court’s well-established

framework for analyzing core political speech. The

brief further explains that the Court’s student-speech

cases are inapplicable because Petitioner is an adult

graduate student and his off-campus political speech

had no connection to university affairs or anyone affiliated with the university.

2

For the foregoing reasons, the motion should be

granted.

Respectfully submitted,

ANDREW M. GROSSMAN

Counsel of Record

RENEE M. KNUDSEN

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

MAY 2020

No. 19-1225

IN THE

Supreme Court of the United States

___________

PAUL HUNT,

Petitioner,

v.

BOARD OF REGENTS OF THE UNIVERSITY OF

NEW MEXICO, et al.,

___________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

___________

BRIEF FOR FIRST AMENDMENT

SCHOLARS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

___________

ANDREW M. GROSSMAN

Counsel of Record

RENEE M. KNUDSEN

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

Counsel for the Amici Curiae

QUESTION PRESENTED

Whether it is clearly established that the First

Amendment protects a public university student’s offcampus political speech unrelated to university affairs?

ii

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................... 2

ARGUMENT .............................................................. 4

I. The Court’s Cases Clearly Establish that

the First Amendment Protects Core

Political Speech Like Petitioner’s ...................... 5

II. The Court’s Student-Speech Cases Are

Clearly Inapplicable ........................................... 9

CONCLUSION ......................................................... 14

iii

TABLE OF AUTHORITIES

CASES

Ashcroft v. Am. Civil Liberties Union,

535 U.S. 564 (2002) ................................................. 7

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) ................................................. 4

Baumgartner v. United States,

322 U.S. 665 (1944) ................................................. 9

Boos v. Barry, 485 U.S. 312 (1988) ............................ 5

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999) ................................................. 4

Cohen v. California, 403 U.S. 15 (1971) .................... 8

Connick v. Myers, 461 U.S. 138 (1983) ...................... 5

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008) ................................................. 8

FCC v. Pacifica Found., 438 U.S. 726 (1978) ............ 8

Fed. Election Comm’n v. Wisconsin Right To Life,

Inc., 551 U.S. 449 (2007)......................................... 6

Garrison v. Louisiana, 379 U.S. 64 (1964) ................ 5

Healy v. James, 408 U.S. 169 (1972) ................... 3, 11

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ............................................... 5–6

Matal v. Tam, 137 S. Ct. 1744 (2017)........................ 8

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ................................................. 6

Mills v. State of Ala., 384 U.S. 214 (1966) ................ 4

iv

Minnesota Voters All. v. Mansky,

138 S. Ct. 1876 (2018) ............................................. 7

Morse v. Frederick, 551 U.S. 393 (2007)............ 10, 12

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ................................................. 5

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................. 5

Papish v. Board of Curators of the Univ. of

Missouri, 410 U.S. 667 (1973) .................... 3, 11, 12

Porter v. Ascension Parish School Bd.,

393 F.3d 608 (5th Cir. 2004) ................................. 10

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ......... 8

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................. 7

Snyder v. Phelps, 562 U.S. 443 (2011)....................... 8

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................. 6

Texas v. Johnson, 491 U.S. 397 (1989) ...................... 8

Tinker v. Des Moines Indep. Cmty. School Dist.,

393 U.S. 503 (1969) ..................................... 9–10, 13

United States v. Stevens, 559 U.S. 460 (2010) .......... 8

United States v. Williams, 553 U.S. 285 (2008) ........ 6

Virginia v. Black, 538 U.S. 343 (2003) ...................... 5

West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) ......................................... 10–11

v

OTHER AUTHORITIES

Clay Calvert, Professional Standards and the

First Amendment in Higher Education: When

Institutional Academic Freedom Collides with

Student Speech Rights, 91 St. John’s L. Rev. 611

(2017) ..................................................................... 7

Mary-Rose Papandrea, The Free Speech Rights of

University Students, 101 Minn. L. Rev. 1801

(2017) ..................................................................... 6

1

INTEREST OF THE AMICI CURIAE1

Amici are academic scholars who have taught

courses on constitutional law or the First Amendment, authored publications on the First Amendment, and dedicated significant attention to the study

of First Amendment protections. The amici are:

Enrique Armijo, Associate Dean for Academic Affairs and Professor of Law, Elon University School of

Law;

Jane Bambauer, Professor of Law, University of

Arizona;

Derek Bambauer, Professor of Law, University of

Arizona;

Gerard V. Bradley, Professor of Law, Notre Dame

Law School;

George W. Dent, Jr., Schott - van den Eynden Professor of Law Emeritus, Case Western Reserve University School of Law;

Michael R. Dimino, Professor of Law, Widener University Commonwealth Law School;

1 Pursuant to Rule 37.6, counsel for the amici curiae certifies

that no counsel for any party authored this brief in whole or in

part and that no person or entity other than the amici curiae or

their counsel made a monetary contribution intended to fund the

brief’s preparation or submission. All parties were notified of the

amici curiae’s intention to file this brief pursuant to Rule 37.2(a).

Petitioner consented; Respondents did not.

2

Dr. John C. Eastman, Henry Salvatori Professor of

Law & Community Service, and former Dean, Chapman University Fowler School of Law; and Senior Fellow, the Claremont Institute;

Richard W. Garnett, Paul J. Schierl / Fort Howard

Corporation Professor of Law, Director, Notre Dame

Program on Church, State & Society, Concurrent Professor of Political Science, Notre Dame Law School;

Stephen B. Presser, Raoul Berger Professor of Legal History Emeritus, Northwestern University Pritzker School of Law; and

Eugene Volokh, Gary T. Schwartz Distinguished

Professor of Law, UCLA School of Law.

Based on their research and publishing activities,

amici have an interest in the sound and orderly development of First Amendment law, particularly in

the educational context.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The court of appeals applied the wrong constitutional framework and erroneously concluded that

whether a public university student’s off-campus political speech enjoys First Amendment protection is

an “emerging area of constitutional law.” That conclusion was in error, but it reflects a regrettably common

misunderstanding of the application of this Court’s

precedents that ought to be corrected.

This Court’s cases have long recognized that the

First Amendment’s strongest protections attach to political speech like Petitioner’s. His commentary on

3

electoral politics and reproductive rights is plainly

what the Court has termed “core political speech.” Respondents’ punishment of otherwise protected speech

that they regard as “unprofessional” is a contentbased restriction of a sort that tradition has never recognized and that is therefore invalid. Whether Petitioner’s speech was offensive, hurtful, or even vulgar

is irrelevant in the constitutional calculus. Put

simply, it is well established that public officials like

Respondents may not condition participation in a

public program on abandonment of the right to speak

freely in one’s personal life outside of that program.

The Court’s student-speech cases provide no support at all for Respondents’ content-based regulation

of Petitioner’s speech. Indeed, the Court has already

recognized that its precedents “leave no room for the

view that…First Amendment protections should apply with less force on [public university] campuses

than in the community at large.” Healy v. James, 408

U.S. 169, 180 (1972). And it specifically rejected past

attempts by public universities to regulate and punish collegiate speech. Papish v. Board of Curators of

the University of Missouri, 410 U.S. 667, 668–69

(1973). Petitioner’s comments were published offcampus, had no connection to university affairs, and

were not specifically directed at fellow students, professors, or university officials.

That the Court has approved restrictions on grade

school and high school students’ speech so as to maintain classroom discipline does not license state officials to regulate an adult student’s off-campus political advocacy. The error of the court below in holding

otherwise works a wholesale deprivation of the rights

4

of professional students. It demands correction, but,

more important than that, the limits of the Court’s

student-speech cases require reinforcement.

The Court has recognized its obligation “to be vigilant” and “guard against undue hindrances to political conversations and the exchange of ideas.” See

Buckley v. Am. Constitutional Law Found., Inc., 525

U.S. 182, 192 (1999). To that end, the Petition should

be granted.

ARGUMENT

This Court has steadfastly recognized that “[w]hatever differences may exist about interpretations of the

First Amendment, there is practically universal

agreement that a major purpose of that Amendment

was to protect the free discussion of governmental affairs. This of course includes discussions of candidates…and all such matters relating to political processes.” Mills v. State of Ala., 384 U.S. 214, 218–19

(1966); see also Ashcroft v. Free Speech Coal., 535 U.S.

234, 245 (2002) (“It is also well established that

speech may not be prohibited because it concerns subjects offending our sensibilities.”).

The court below derogated from that well-established principle when it held that the right of adult

students to speak freely off-campus is an “emerging”

area of law subject to no definitive standard. The law,

however, is clear that Petitioner’s political speech enjoys the First Amendment’s strongest protection and

that the Court’s student-speech cases do not authorize states to establish roving commissions to police

5

university students’ off-campus speech for its “professional” quality. Because too many courts have misunderstood these principles, the Court’s intervention is

required to state them plainly and further clarify the

controlling nature of its political-speech cases in this

context.

I.

The Court’s Cases Clearly Establish that

the First Amendment Protects Core

Political Speech Like Petitioner’s

This is a political speech case, and the Court’s cases

clearly establish that core political speech is protected. Repeatedly, the Court has “reaffirmed that

speech on public issues occupies the ‘highest rung of

the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick v. Myers, 461

U.S. 138, 145 (1983) (citing NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 913 (1982)).

To begin, political speech is protected. The Court

has consistently held that “political speech [is] at the

core of what the First Amendment is designed to protect.” Virginia v. Black, 538 U.S. 343, 365 (2003); Boos

v. Barry, 485 U.S. 312, 318 (1988) (same). Political

speech is at the zenith of First Amendment protection

because “speech concerning public affairs is more

than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74–75

(1964). The right to free speech reflects our “profound

national commitment to the principle that debate on

public issues should be uninhibited, robust, and wideopen” even when “vehement, caustic, and sometimes

unpleasant[].” New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964); see also Hustler Magazine, Inc.

6

v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the

First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions

on matters of public interest and concern.”). Because

political speech is entitled to the highest protection,

“the First Amendment requires…err[ing] on the side

of protecting political speech rather than suppressing

it.” Fed. Election Comm’n v. Wisconsin Right To Life,

Inc., 551 U.S. 449, 457 (2007).

The comments for which Petitioner was sanctioned

are obviously core political speech. Petitioner spoke

out on electoral politics and the politics and morality

of reproductive rights. Lest there be any doubt, these

are topics that the Court has specifically identified as

falling within the category of “core political speech.”

See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S.

149, 168 (2014) (recognizing that speech on abortion

is “core political speech”); McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 347 (1995) (recognizing that

speech on candidates, elections, and governmental affairs is “core political speech”). That is clearly established.

Equally well established is the general invalidity of

novel content-based restrictions on protected speech

like Respondents’ blanket prohibition on “unprofessional” speech by its students.2 The stated purpose of

2 Restricting “unprofessional” speech is also excessively vague

and “so standardless that it authorizes or encourages seriously

discriminatory enforcement.” United States v. Williams, 553

U.S. 285, 304 (2008); see also Mary-Rose Papandrea, The Free

Speech Rights of University Students, 101 Minn. L. Rev. 1801,

1803 (2017) (“[P]ublic colleges and universities are increasingly

7

Respondents’ “Respectful Campus Policy” is to “foster

an environment that reflects courtesy, civility, and respectful communication because such an environment

promotes learning, research, and productivity.”

Pet.App.3. To further that purpose, the Respectful

Campus Policy prohibits, as relevant here, “unduly

inflammatory statements or unduly personal attacks,

or [speech that] harass[es] others.” Pet.App.5.

Whether or not such a prohibition might pass muster on campus, see infra § II (explaining that it would

not), applied as a blanket prohibition to all of a student’s expressive activities it does not. “It is axiomatic

that the government may not regulate speech based

on its substantive content or the message it conveys.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 828 (1995); see also Ashcroft v. Am. Civil

Liberties Union, 535 U.S. 564, 573 (2002) (“[T]he First

Amendment means that government has no power to

restrict expression because of its message, its ideas,

its subject matter, or its content.”).

The Court has only ever permitted content-based

restrictions “in a few limited areas” and has “never

punishing students for their speech when it is deemed inconsistent with vague ‘professionalism’ standards.”); Clay Calvert,

Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides with

Student Speech Rights, 91 St. John’s L. Rev. 611, 650 (2017)

(“The notion of arbitrary and biased enforcement, of course, taps

into concerns about the pretextual use of professional standards

to stifle student expression.”); Minnesota Voters All. v. Mansky,

138 S. Ct. 1876, 1888 (2018) (holding that “the unmoored use of

the term ‘political’” allowed for arbitrary enforcement of a statute restricting speech and requiring “a more discernable approach”).

8

included a freedom to disregard these traditional limitations.” United States v. Stevens, 559 U.S. 460, 468

(2010) (recognizing that these categories include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct). Respondents’ restriction

on “unprofessional” speech stands far outside the traditional categories of speech regulation and is therefore invalid. Id.; see also R.A.V. v. City of St. Paul, 505

U.S. 377, 382 (1992); Davis v. Fed. Election Comm’n,

554 U.S. 724, 744 n.8 (2008) (recognizing that “it

would be dangerous for the Government to regulate

core political speech for the asserted purpose of improving that speech”).

Indeed, the Court’s cases have specifically disapproved restrictions on “inflammatory” speech like the

one here. It is a “bedrock First Amendment principle”

that “[s]peech may not be banned on the ground that

it expresses ideas that offend.” Matal v. Tam, 137 S.

Ct. 1744, 1751 (2017); see also Texas v. Johnson, 491

U.S. 397, 414 (1989). Even blatantly hurtful speech is

protected, such as yelling “Thank God for Dead Soldiers” outside the funeral of a soldier or proclaiming

that “God Hates Fags.” Snyder v. Phelps, 562 U.S.

443, 454 (2011). “As a Nation we have chosen a different course—to protect even hurtful speech on public

issues to ensure that we do not stifle public debate.”

Id. at 461. “[T]hat society may find speech offensive is

not a sufficient reason for suppressing it.” FCC v.

Pacifica Found., 438 U.S. 726, 745 (1978).

Likewise, government has no license to ban speech

because it is vulgar. See Cohen v. California, 403 U.S.

15, 25 (1971) (holding that wearing a jacket with the

9

words “F--- the Draft” to express opposition to the Vietnam War and the draft was protected speech).

Speech infused with expletives may be “distasteful”

but “the Constitution leaves matters of taste and style

[] largely to the individual” because “one man’s vulgarity is another’s lyric.” Id.; see also Baumgartner v.

United States, 322 U.S. 665, 673–74 (1944) (“One of

the prerogatives of American citizenship is the right

to criticize public men and measures—and that…[includes] the freedom to speak foolishly and without

moderation.”).

In sum, the Court’s cases clearly establish that Respondents’ content-based restriction cannot be lawfully applied to Petitioner’s political advocacy.

II. The Court’s Student-Speech Cases Are

Clearly Inapplicable

The court below erred when it applied this Court’s

cases authorizing regulation of grade school and high

school students’ speech to maintain classroom discipline to an adult’s off-campus speech. Nothing in the

Court’s First Amendment precedents suggests that

adult university students like Petitioner may be

forced, as a condition of enrolling in a public university, to trade away their cherished First Amendment

right to speak freely in their personal lives.

First, the Court’s “schoolhouse gate” speech cases

provide no basis to restrict speech that is entirely removed from schooling. The competing value that the

Court has recognized to justify some regulation of student speech that would otherwise be protected is the

need “to prescribe and control conduct in the schools.”

Tinker v. Des Moines Indep. Cmty. School Dist., 393

10

U.S. 503, 507 (1969). The Court has gone so far as to

permit regulation of student speech to that end at an

approved school event, where “[t]eachers and administrators were interspersed among the students and

charged with supervising them.” Morse v. Frederick,

551 U.S. 393, 401 (2007). And it has recognized that

speech uttered outside the schoolhouse gate and

school events that nonetheless concerns school affairs

and makes its way onto school grounds plumbs “the

outer boundaries as to when courts should apply

school-speech precedents.” Id. (citing Porter v. Ascension Parish School Bd., 393 F.3d 608, 615, n.22 (5th

Cir. 2004)).

Well beyond those “outer boundaries” is speech like

Petitioner’s that occurs off-campus and is unrelated

to school affairs. When Petitioner authored and published his Facebook post, he was not on campus. He

was not participating in any school-sponsored extracurricular activity. He did not take advantage of any

online forum sponsored by the school. Instead, like so

many millions of Americans do every day without government reprisal, he posted his thoughts on political

affairs to his own personal Facebook page. Pet.App.4.

And he had nothing to say in that post about his university and its affairs or any particular classmates,

nor did he say anything that could be taken as a

threat of violence.

By applying their “Respectful Campus Policy” to Petitioner’s speech, Respondents were not acting at all

to “prescribe and control conduct in the schools,”

Tinker, 393 U.S. at 507, but instead to “prescribe

what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd.

11

of Ed. v. Barnette, 319 U.S. 624, 642 (1943). That is,

of course, forbidden. Id.

Second, even had Petitioner made his Facebook post

from campus or handed it out on flyers to those traversing the school green, that would not alter the result

because the Petitioner is an adult university student,

not a child. As the Court observed in Healy v. James,

“The college classroom with its surrounding environs

is peculiarly the ‘marketplace of ideas.” 408 U.S. 169,

180 (1972). For that reason, “[t]he precedents of this

Court leave no room for the view that…First Amendment protections should apply with less force on college campuses than in the community at large. Quite

to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than in the

community of American schools.” Id. at 180. Thus, Respondents had no more authority to sanction Petitioner for his Facebook post than the local police

would have to arrest any other citizen for airing her

political and moral views by publishing them online.

At this late date, it cannot be seriously disputed

that this principle is clearly established. In addition

to Healy, Papish v. Board of Curators of the University

of Missouri held that a public university violated a

graduate student’s First Amendment speech rights

when it expelled her for publishing, on campus, a

newspaper featuring vulgar and offensive contents.

410 U.S. 667, 668–69 (1973). The rule it applied could

not be clearer or more clearly applicable here: “the

mere dissemination of ideas—no matter how offensive

to good taste—on a state university campus may not

be shut off in the name alone of ‘conventions of de-

12

cency.’” Id. at 670. The university, the Court held, violated the First Amendment when it punished the

student “because of the disapproved content of the

newspaper rather than the time, place, or manner of

its distribution.” Id. (emphasis added). It was the dissenters in Papish who believed the First Amendment

had less force when it came to “rules which govern

conduct on the campus of a state university.” Id. at

672 (Burger, C.J., dissenting); see also id. at 677

(Rehnquist, J., dissenting) (urging different standards for when a student may “be expelled from the

University” based on speech than for when a student

may “be criminally prosecuted” for the same speech).

But the majority held to the contrary, expressly concluding that “the First Amendment leaves no room for

the operation of a dual standard in the academic community with respect to the content of speech.” Id. at

671.

The only difference between Papish and the present

case is that Respondents deem Petitioner’s speech

“unprofessional” rather than “indecent.” Id. at 667.

But creative variation in the jargon of speech regulation is no basis to circumvent constitutional command.

Third, the Court has recognized that even schoolchildren have the right to engage in “political and religious speech [that] might be perceived as offensive

to some.” Morse, 551 U.S. at 409. Restricting such

speech requires more on the part of officials “than a

mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular view-

13

point.” Tinker, 393 U.S. at 509. Yet avoiding unpleasantness is the core of Respondents’ “Respectful Campus Policy.”

Fourth and finally, even the relatively permissive

Tinker standard—applicable to schoolchildren, not

adults—only permits prohibition of otherwise protected speech that stands to “materially and substantially disrupt the work and discipline of the school.”

393 U.S. at 513. Political invective outside of the

classroom or a school event simply does not fit the bill.

In sum, if it is not clearly established that public

university officials may not punish adult graduate

students for their off-campus political speech, one

would struggle to imagine what is properly considered

established First Amendment law. Yet the decision

below reflects evident confusion on what should be a

basic, unassailable point. For that reason, this Court’s

review is warranted to make clear that it has already

made itself clear.

14

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

ANDREW M. GROSSMAN

Counsel of Record

RENEE M. KNUDSEN

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

MAY 2020