Amicus Curiae Brief — Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy

No. 20-255

In the Supreme Court of the United States

__________

MAHANOY AREA SCHOOL DISTRICT,

Petitioner,

v.

B.L., A MINOR, BY AND THROUGH HER FATHER,

LAWRENCE LEVY, AND HER MOTHER, BETTY LOU LEVY,

Respondents.

__________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

BRIEF AMICUS CURIAE OF THE

BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF RESPONDENTS

__________

ERIC S. BAXTER

Counsel of Record

NICHOLAS R. REAVES

DANIEL L. CHEN

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave.

N.W., Suite 400

Washington, D.C. 20006

(202) 955-0095

ebaxter@becketlaw.org

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether allowing public schools to punish students

for off-campus speech the schools deem substantially

disruptive or even socially inappropriate unconstitutionally chills religious speech.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

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

INTEREST OF THE AMICUS CURIAE ................... 1

INTRODUCTION AND SUMMARY

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

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

I. Giving public schools universal jurisdiction

over student speech chills religious speech. ......... 4

A. Petitioner’s rule sweeps far too broadly. ......... 5

B. Petitioner’s rule gives students and

administrators a heckler’s veto to suppress

religious speech. ............................................... 7

C. Religious speech is often targeted for

government censure. ........................................ 9

II. Giving public schools universal jurisdiction

over student speech interferes with the right of

parents to direct the religious upbringing of

their children. ...................................................... 15

A. Parents have the right to direct the

religious upbringing of their children. .......... 16

B. Parental rights do not evaporate when

parents send their children to public

school. ............................................................. 21

C. Applying Tinker to off-campus speech

“unreasonably interferes” with parental

rights. ............................................................. 24

CONCLUSION ........................................................ 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. Battaglia,

779 F.2d 992 (4th Cir. 1985) .................................. 8

A.A. ex rel. Betenbaugh v. Needville

Indep. Sch. Dist.,

611 F.3d 248 (5th Cir. 2010) ................................ 14

Brown v. Entertainment Merchs. Ass’n,

564 U.S. 786 (2011) ........................................ 22, 23

Business Leaders in Christ v.

University of Iowa,

No. 19-1696, 2021 WL 1080556

(8th Cir. Mar. 22, 2021) ................................... 1, 11

C.H. v. Bridgeton Bd. of Educ.,

No. 09-cv-5815, 2010 WL 1644612

(D.N.J. Apr. 22, 2010) .......................................... 10

C.H. ex rel. Z.H. v. Oliva,

226 F.3d 198 (3d Cir. 2000).................................... 1

Cantwell v. Connecticut,

310 U.S. 296 (1940) .............................................. 18

Cheema v. Thompson,

36 F.3d 1102 (9th Cir. 1994) .................................. 1

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993) .............................................. 13

iv

Cohen v. California,

403 U.S. 15 (1971) .................................................. 8

Corporation of the Presiding Bishop of

the Church of Jesus Christ of Latterday Saints v. Amos,

483 U.S. 327 (1987) .............................................. 13

Danville Christian Acad., Inc. v.

Beshear,

141 S. Ct. 527 (2020) ........................................ 2, 21

Employment Div. v. Smith,

494 U.S. 872 (1990) .............................................. 20

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) .......................................... 21

Gonzales v. Mathis Indep. Sch. Dist.,

No. 2:18-cv-43, 2018 WL 6804595

(S.D. Tex. Dec. 27, 2018) ...................................... 14

Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) .............................................. 20

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) .................................................. 8

Griswold v. Connecticut,

381 U.S. 479 (1965) .............................................. 18

Hedges v. Wauconda Cmty. Unit. Sch.

Dist. No. 118,

9 F.3d 1295 (7th Cir. 1993) .................................. 10

v

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .......................................... 2, 28

Hsu v. Roslyn Union Free Sch. Dist. No. 3,

85 F.3d 839 (2d Cir. 1996).................................... 10

InterVarsity Christian Fellowship/USA v.

Board of Governors of Wayne State Univ.,

413 F. Supp. 3d 687 (E.D. Mich. 2019) ............ 1, 11

Islamic Soc’y of Basking Ridge v. Township

of Bernards,

226 F. Supp. 3d 320 (D.N.J. 2016)...................... 13

Keyishian v. Board of Regents of Univ.

of N.Y.,

385 U.S. 589 (1967) .......................................passim

LeBlanc-Sternberg v. Fletcher,

67 F.3d 412 (2d Cir. 1995).................................... 13

Lebovits v. Cuomo,

1:20-cv-01284

(N.D.N.Y. filed Oct. 16, 2020) ................................ 2

Meyer v. Nebraska,

262 U.S. 390 (1923) .............................................. 17

Minersville Sch. Dist. v. Gobitis,

310 U.S. 586, 599 (1940) ...................................... 18

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) ................................ 10

vi

Morse v. Frederick,

551 U.S. 393 (2007) .......................................passim

Moses v. Skandera,

367 P.3d 838 (N.M. 2015)....................................... 2

Moss v. Spartanburg Cnty. Sch. Dist. Seven,

683 F.3d 599 (4th Cir. 2012) .................................. 2

Murdock v. Pennsylvania,

319 U.S. 105 (1943) .............................................. 26

New Jersey v. T.L.O.,

469 U.S. 325 (1985) .............................................. 22

New Mexico Ass’n of Non-public Sch. v.

Moses,

137 S. Ct. 2325 (2017) ............................................ 2

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

140 S. Ct. 2049 (2020) ................................ 2, 16, 22

Pierce v. Society of the Sisters of the Holy

Names of Jesus & Mary,

268 U.S. 510 (1925) ............................ 17, 21, 23, 25

Prince v. Massachusetts,

321 U.S. 158 (1944) .............................................. 18

Quilloin v. Walcott,

434 U.S. 246 (1978) .............................................. 17

Roberts v. United States Jaycees,

468 U.S. 609 (1984) .............................................. 28

vii

Roe v. San Jose Unified Sch. Dist. Bd.,

No. 20-cv-02798, 2021 WL 292035

(N.D. Cal. Jan. 28, 2021) ...................................... 12

Shelton v. Tucker,

364 U.S. 479 (1960) ................................................ 5

J.S. ex rel. Snyder v. Blue Mountain

Sch. Dist.,

650 F.3d 915 (3d Cir. 2011).................................... 5

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................ 8

Stanley v. Illinois,

405 U.S. 645 (1972) .............................................. 20

Stately v. Indian Cmty. Sch. of

Milwaukee, Inc.,

351 F. Supp. 2d 858 (E.D. Wis. 2004) .................. 14

Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly,

309 F.3d 144 (3d Cir. 2002).................................. 13

Thomas v. Collins,

323 U.S. 516 (1945) .............................................. 28

Tinker v. Des Moines Indep. Cmty. Sch.

Dist.,

393 U.S. 503 (1969) .......................................passim

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

137 S. Ct. 2012 (2017) ............................................ 6

viii

Troxel v. Granville,

530 U.S. 57 (2000) .......................................... 17, 26

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ................................................ 9

Uzuegbunam v. Preczewski,

No. 19-968, 2021 WL 850106

(Mar. 8, 2021) ....................................................... 10

Watson v. City of Memphis,

373 U.S. 526 (1963) ................................................ 8

West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .................................. 18, 23, 25

Wisconsin v. Yoder,

406 U.S. 205 (1972) .......................................passim

Other Authorities

Declaration on Christian Education,

Gravissimum Educationis § 3 (1965) .................. 16

The First Presidency and Council of the

Twelve Apostles of the Church of

Jesus Christ of Latter-day Saints,

The Family: A Proclamation to the

World (1995) ......................................................... 16

Luke W. Goodrich & Rachel N. Busick,

Sex, Drugs, and Eagle Feathers: An

Empirical Study of Federal Religious

Freedom Cases, 48 Seton Hall L. Rev.

353 (2018) ............................................................. 12

INTEREST OF THE AMICUS CURIAE 1

The Becket Fund for Religious Liberty is a nonprofit, nonpartisan law firm that protects the free expression of all religious faiths. Becket has represented

agnostics, Buddhists, Christians, Hindus, Jains, Jews,

Muslims, Santeros, Sikhs, and Zoroastrians, among

others, in lawsuits across the country and around the

world.

Becket frequently represents students seeking to

vindicate their constitutional rights against government overreach. In C.H. ex rel. Z.H. v. Oliva, Becket

represented Zachary Hood, a first-grade student who

was told by his teacher that he could not share a story

from his favorite book with his classmates solely because of its religious message. 226 F.3d 198 (3d Cir.

2000). Similarly, Becket represented Amandeep

Singh, a ninth-grade honors student who was reprimanded and suspended indefinitely for bringing his

kirpan—a ceremonial religious item worn by members

of the Sikh faith—to school. After Becket’s intervention, the school district dropped its objection to Amandeep’s religious practice. See Cheema v. Thompson, 36

F.3d 1102 (9th Cir. 1994). And Becket has frequently

represented students excluded from public forums on

campus. See, e.g., Business Leaders in Christ v. University of Iowa, No. 19-1696, 2021 WL 1080556 (8th

Cir. Mar. 22, 2021); InterVarsity Christian Fellowship/USA v. Board of Governors of Wayne State Univ.,

413 F. Supp. 3d 687 (E.D. Mich. 2019).

1

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. All parties

have consented to the filing of this brief.

2

Central to religious liberty is the right of parents to

direct the religious upbringing of their children. Accordingly, Becket frequently argues in support of protecting religious education and the right of parents to

direct the religious upbringing of their children. See,

e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020); Danville Christian Acad., Inc.

v. Beshear, 141 S. Ct. 527 (2020) (amicus); Lebovits v.

Cuomo, 1:20-cv-01284 (N.D.N.Y. filed Oct. 16, 2020);

Moses v. Skandera, 367 P.3d 838 (N.M. 2015), cert.

granted, judgment vacated sub nom. New Mexico

Ass’n of Non-public Sch. v. Moses, 137 S. Ct. 2325

(2017); Moss v. Spartanburg Cnty. Sch. Dist. Seven,

683 F.3d 599 (4th Cir.), cert. denied, 568 U.S. 1011

(2012); Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 565 U.S. 171 (2012).

Becket submits this brief to explain how the rule

advanced by Petitioner—giving public school administrators the power to police student speech whenever

and wherever it occurs—would chill students’ religious

expression and restrict parental rights.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner seeks universal jurisdiction to police student speech—even if it occurs on a weekend, off campus, and is shared solely with the speaker’s friends.

Petitioner then argues that it can use this authority to

punish any student speech that will “materially and

substantially disrupt” the school environment or that

is “socially [in]appropriate.” But such a vague standard would expose all student speech—including religious speech and expression—to the school’s close

scrutiny. This is already a concern for religious students speaking on campus, as some lower courts have

3

watered down Tinker’s built-in protections for private

student speech on public school campuses. But, applied off campus, Petitioner’s rule would severely impair core First Amendment rights by chilling students’

religious speech and interfering with parents’ right to

direct the religious upbringing of their children.

Unpopular or minority religious beliefs are often

targets of government discrimination and hostility—

and this frequently carries over to public schools. Examples abound of public school administrators treating certain religious beliefs not only as different or unusual, but as disruptive and offensive. This hostility

often results from misperceptions and misunderstandings. But there is a significant risk that even well-intentioned attempts by school administrators to review

off-campus student speech under Tinker’s materialdisruption standard (or worse, the “socially appropriate behavior” standard) may be manipulated to chill or

suppress students’ private, off-campus, religious

speech.

Expanding the jurisdiction of public-school administrators to sanction speech made in public, in a house

of worship, or even at home also infringes on the right

of parents to direct the religious upbringing of their

children. For numerous faith traditions, religious education is a sacred duty entrusted primarily to a child’s

parents. Reflecting the importance of this religious

practice, the Court has protected parental rights for

over 100 years.

Crucial to protecting parental rights is ensuring

that government actors do not usurp the role of parents in teaching their children religious, moral, and

civic values outside the school environment. But giving public school authorities universal jurisdiction

4

over student speech would elevate the judgment of

government actors over that of parents and impose

government oversight on the intimate relationship of

parent and child. When parents teach their children

the faith, evangelize publicly with them, or even engage in religious worship, Petitioner’s rule would allow

public school authorities to sift through students’ (or

even parents’) speech and decide whether any of it

could be deemed sufficiently “disruptive.” This gives

public schools far greater coercive power over their

students than Tinker allows and discourages parents

from teaching their children unfamiliar (or unpopular)

religious beliefs for fear of government sanction.

B.L.’s speech was juvenile and crude, but the Constitution protects the speech of both Billy Graham and

Howard Stern. This is a feature, not a bug. The Founders did not trust the government—or even federal

courts—to distinguish between worthless and valuable speech. To protect one, courts must allow both.

ARGUMENT

I. Giving public schools universal jurisdiction

over student speech chills religious speech.

Petitioner views government control over student

speech as the “default” position. Pet’r Br. 13. But this

gets the Constitution and case law exactly backward;

schools can regulate on-campus student speech only

because of the unique nature of the school environment—and even then, this Court has been careful to

limit government interference with a students’ First

Amendment rights. Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 512 (1969) (“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”)

5

(quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960));

Morse v. Frederick, 551 U.S. 393, 415 (2007) (Alito, J.,

concurring) (allowing public schools to ban on-campus

speech advocating illegal drug use is “at the far

reaches of what the First Amendment permits”). Instead, the constitutional baseline is one of freedom—

freedom to speak without government censure and

freedom of religious expression.

A. Petitioner’s rule sweeps far too broadly.

Petitioner claims universal jurisdiction over its

students—to police their speech regardless of where

and when it is made. See Resp. Br. 1 (“Petitioner’s only

limitation * * * is no limit at all.”). This threatens core

First Amendment activity. Applying Petitioner’s proposed expansive rule to all student speech and expression “give[s] school administrators the power to quash

student expression deemed crude or offensive—which

far too easily metastasizes into the power to censor

valuable speech and legitimate criticism.” Pet. App.

42a. And it “raises the specter of officials asserting the

power to regulate ‘any student speech that interferes

with [the] school’s educational mission,’ a power that

‘can easily be manipulated in dangerous ways.’” Pet.

App. 30a. See J.S. ex rel. Snyder v. Blue Mountain Sch.

Dist., 650 F.3d 915, 939 (3d Cir. 2011) (en banc)

(Smith, J., concurring) (“Applying Tinker to off-campus speech would * * * empower schools to regulate

students’ expressive activity no matter where it takes

place, when it occurs, or what subject matter it involves.”).

As this Court has explained, “First Amendment

freedoms need breathing space to survive.” Keyishian

v. Board of Regents of Univ. of N.Y., 385 U.S. 589, 603604 (1967). The decision below struck this balance—

6

protecting off-campus student speech under standard

First Amendment principles, while still ensuring that

public schools can adequately address any conduct or

speech on campus under Tinker. Pet. App. 34a (schools

can punish speech “that meets Tinker’s standards—no

matter how that disruption was provoked”); Morse,

551 U.S. at 424-425 (Alito, J., concurring) (identifying

“the physical safety of students” as a “special characteristic” which gives school officials “greater authority

to” control speech and actions within the school environment).

Protecting a private sphere—a breathing space—

free from government intrusion is crucial because “the

threat of sanctions may deter almost as potently as the

actual application of sanctions.” Keyishian, 385 U.S. at

603-604. When the government claims the broad authority to sift through a student’s private, off-campus

speech to determine whether it disrupts the school environment, students must “guess what conduct or utterance may” result in school sanction, imposing a

dangerous “chilling effect upon the exercise of vital

First Amendment rights.” Ibid.; Pet. App. 33a (“To enjoy the free speech rights to which they are entitled,

students must be able to determine when they are subject to schools’ authority and when not.”). See also

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2022 (2017) (The Free Exercise Clause

prohibits “indirect coercion or penalties on the free exercise of religion, not just outright prohibition.”).

7

B. Petitioner’s rule gives students and

administrators a heckler’s veto to

suppress religious speech.

Petitioner advocates for a rule that would allow

public schools to “address speech” made by students

regardless of where it occurs if that speech is deemed

socially unacceptable or if it “materially disrupts classwork or involves substantial disorder[.]” Pet’r Br. 19,

22; Pet. App. 16a (“The School District principally defends its actions based on its power ‘to enforce socially

acceptable behavior.’”). But this dramatic expansion of

Tinker would perversely incentivize students who may

dislike a classmate’s off-campus speech to manufacture a disturbance on campus in response to that

speech. See Pet. App. 32a (“[A]ny effect on the school

environment will depend on others’ choices and reactions.”). Overblown reactions, fabricated classroom

disruptions, or even overt religious hostility could all

be used to censure unpopular religious speech. Worse,

if this happens even once, public school administrators

may then be “justified” in preemptively silencing offcampus religious speech by citing past student reactions and the possibility of future disruption.

But we need not merely speculate about these concerns. In this case, a fellow student (who was not an

original recipient of B.L.’s “snap”) brought B.L.’s private speech into the school environment. Pet. App. 5a

(“One of B.L.’s teammates took a screenshot of her first

snap and sent it to one of MAHS’s two cheerleading

coaches.”); Resp. Br. 4. The reaction of fellow students

was then used to justify B.L.’s suspension from the

team. Pet. App. 6a.

8

The First Amendment forbids this “heckler’s veto”

of unpopular speech. “[C]onstitutional rights may not

be denied simply because of hostility to their assertion

or exercise.” Watson v. City of Memphis, 373 U.S. 526,

535 (1963). Indeed, courts have long recognized the

“heckler’s veto” as “one of the most persistent and insidious threats to first amendment rights.” Berger v.

Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985).

Allowing public school officials to silence off-campus speech that may be “perceived” to be offensive, see

Pet’r Br. 17, would “effectively empower a majority to

silence dissidents simply as a matter of personal predilections,” Cohen v. California, 403 U.S. 15, 21 (1971);

accord Snyder v. Phelps, 562 U.S. 443, 448 (2011). And

this rule against heckler’s vetoes applies fully to religious speech. Good News Club v. Milford Cent. Sch.,

533 U.S. 98, 119 (2001) (rejecting “a modified heckler’s

veto, in which a group’s religious activity can be proscribed on the basis of what” others “might misperceive”).

For a similar reason, this Court in Morse rejected

“the broader rule [advanced by petitioner]

that * * * speech is proscribable because it is plainly

‘offensive.’” Morse, 551 U.S. at 409. As this Court explained, such a rule “stretches” the precedent “too far,”

as “much political and religious speech might be perceived as offensive to some.” Ibid. See id. at 423 (Alito,

J., concurring) (“[A] license to suppress speech on political and social issues based on disagreement with

the viewpoint expressed * * * strikes at the very heart

of the First Amendment.”).

9

And especially pernicious is the combination of

broad, vague government authority, supra Part I.A,

with the heckler’s veto. When students are unsure

what speech may subject them to censure, and when

they know that the actions of third parties beyond

their control could turn their private, off-campus

speech into a material disruption if taken on campus,

students will simply self-censor. Cf. Tinker, 393 U.S.

at 513 (“Freedom of expression would not truly exist if

the right could be exercised only in an area that a benevolent government has provided as a safe haven for

crackpots.”).

C. Religious speech is often targeted for government censure.

Religious speech and expression are often targets

of government sanction. Examples abound of publicschool administrators and other government officials

suppressing religious speech or discriminating against

religious speakers. School administrators frequently

sanction students for private, non-disruptive religious

speech on campus—despite Tinker’s express protections for such speech. And there is nothing to suggest

that this unconstitutional behavior will change when

school administrators are given even broader authority to sift through private student conversations. To

the contrary, this Court has recognized the “inherent

risk” that unchecked government power may be used

“not to advance a legitimate regulatory goal, but to

suppress unpopular ideas or information.” Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

10

For example, some public-school officials have

“lump[ed] religious speech with obscenity and libel for

outright prohibition.” Hedges v. Wauconda Cmty.

Unit. Sch. Dist. No. 118, 9 F.3d 1295, 1297 (7th Cir.

1993) (school policy prohibited the distribution of religious materials, as well as obscene or libelous materials, that occurred near but outside school grounds).

Others have equated students’ attempts to share their

religious beliefs as rising to the level of “fighting

words.” Uzuegbunam v. Preczewski, No. 19-968, 2021

WL 850106, at *3 (Mar. 8, 2021). And still others have

thought it appropriate to call law enforcement when

elementary school students invited their peers to attend a church play and shared pencils inscribed with

the phrase, “Jesus loves me this I know for the Bible

tells me so.” Morgan v. Swanson, 659 F.3d 359, 397

(5th Cir. 2011) (en banc). This despite much of the supposedly controversial activity occurring “after school

hours” and “outside of the school.” Id. at 398.

Public school officials have even argued that recognizing a Christian student group on campus would

mean that public schools “lose the power to combat

bias and discrimination,” such that schools would become “balkanized” and “hate-filled.” Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 867, 871 (2d Cir.

1996) (public school argued that permitting Christian

club to meet on campus “would be disruptive to the educational mission of the school”). See also C.H. v.

Bridgeton Bd. of Educ., No. 09-cv-5815, 2010 WL

1644612, at *7-8 (D.N.J. Apr. 22, 2010) (describing as

“unfounded fear-mongering” public school’s argument

that allowing a religious student to wear a pro-life

11

armband would force it to permit gang-affiliated clothing); Business Leaders in Christ v. University of Iowa,

No. 19-1696, 2021 WL 1080556, at *9-13 (8th Cir. Mar.

22, 2021) (public university officials accused student

group of discrimination and denied access to campus

because student group required its leaders to sign a

statement of faith); Mot. to Dismiss at 17, InterVarsity

Christian Fellowship/USA v. Board of Governors of

Wayne State Univ., No. 18-cv-231 (E.D. Mich. May 7,

2018), ECF No. 18 (public school officials excluded religious student organization, saying its religious leadership requirements would “make second-class citizens of students who refuse to accept” those standards).

And, in similar incidents, two public school districts paid monetary damages to students after

wrongly sanctioning their religious speech and expression. In Dominguez, a high school student alleged that

public school administrators confiscated his Bible and

suspended him for sharing his faith during free time.

Compl. at ¶¶ 19-30, Dominguez v. Grossmont Union

High Sch. No. 11-cv-587, (S.D. Cal. Mar. 24, 2011),

ECF No. 1. And in R.H., a middle school student alleged he was repeatedly suspended by public school

administrators because he wore his rosary as an expression of his Christian faith. Compl. at ¶¶ 19-20,

R.H. v. Schenectady City Sch. Dist., No. 10-cv-640,

(N.D.N.Y. June 1, 2010), ECF No. 1. In both cases, the

school districts paid monetary damages to the

wronged students.

12

An even more recent example confirms both the

danger of a heckler’s veto and the proclivity of some

public school administrators to mischaracterize religious beliefs as hateful or offensive. In California, a

public school teacher displayed a Christian student

group’s leadership statement in his classroom with the

caption, “I am deeply saddened that a club on * * *

campus asks its members to affirm these statements.”

Roe v. San Jose Unified Sch. Dist. Bd., No. 20-cv02798, 2021 WL 292035, at *1 (N.D. Cal. Jan. 28,

2021). The Christian student group’s members then

faced “harassment” from students and teachers, including another teacher who “‘encouraged and participated in demonstrations’ against” the Christian group.

Id. at *3-4.

Shortly thereafter, the school derecognized the

group, which caused other public schools in the same

school district to take similar action. Roe, 2021 WL

292035 at *3-4. But, at the same time, the school recognized a Satanic Temple Club and allegedly failed to

sanction that group’s members after they disrupted

the Christian group’s meetings and “disparag[ed] their

religious beliefs.” Id. at *4; Ibid. (citing additional examples of student and teacher behavior “calculated to

harass”).

This danger of government hostility is particularly

acute for speakers with unfamiliar religious beliefs.

Cf. Luke W. Goodrich & Rachel N. Busick, Sex, Drugs,

and Eagle Feathers: An Empirical Study of Federal

Religious Freedom Cases, 48 Seton Hall L. Rev. 353,

400 (2018) (finding that a disproportionate share of

13

RFRA cases involve small religious minorities). Minority religions often are unfamiliar to public officials and

judges, and lack the political or financial clout to defend against confusion over their beliefs and practices.

See Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.

327, 336 (1987) (a religious “organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission”).

Religious minorities are thus particularly susceptible to suffering unfair restrictions on their faith. See,

e.g., Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 521 (1993) (rejecting a law that

deliberately targeted only Santeria beliefs); Tenafly

Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144,

153 (3d Cir. 2002), cert. denied, 539 U.S. 942 (2003)

(striking down an ordinance enacted out of “fear” that

“Orthodox Jews [would] move to Tenafly” and “take

over”; one resident “voiced his ‘serious concern’ that

‘Ultra-Orthodox’ Jews might ‘stone [] cars that drive

down the streets on the Sabbath.’”); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431 (2d Cir. 1995) (addressing a case of “animosity toward Orthodox Jews as

a group” where citizens had incorporated a village and

stated that “‘the reason [for] forming this village is to

keep people like you [i.e., Orthodox Jews] out of this

neighborhood’”); Islamic Soc’y of Basking Ridge v.

Township of Bernards, 226 F. Supp. 3d 320, 327-328

(D.N.J. 2016) (documenting destruction of property,

government hostility, and false accusations regarding

Islamic beliefs and practices following proposal to

build a Mosque in the community).

14

And public school administrators are no exception.

See, e.g., A.A. ex rel. Betenbaugh v. Needville Indep.

Sch. Dist., 611 F.3d 248, 260-261 (5th Cir. 2010)

(school district questioned the religious necessity of

Native American student’s belief in “keep[ing his] hair

long and in braids as a tenet of [his] sincere religious

beliefs”); Gonzales v. Mathis Indep. Sch. Dist., No.

2:18-cv-43, 2018 WL 6804595, at *4 (S.D. Tex. Dec. 27,

2018) (school district argued that plaintiff’s traditional

religious promesa (promise) was not “religious” because it was “not an established tenet of their Catholic

faith”); cf. Stately v. Indian Cmty. Sch. of Milwaukee,

Inc., 351 F. Supp. 2d 858, 862, 869 (E.D. Wis. 2004)

(recognizing the “conceptual difficulties” posed by Native American religious beliefs to “conventional western-religious thought”).

*

*

*

Petitioner asks this Court for sweeping authority

to police all student speech, while gesturing at “[o]ther

legal principles” which could be used to stop schools

from engaging in viewpoint discrimination. Pet’r Br.

11. But Petitioner fails to account for the chilling effect

caused by applying Tinker (or Petitioner’s other, even

more restrictive, suggested standards) to all student

speech. Many students, fearing school sanction, will

simply remain silent. And Petitioner ignores the

reams of evidence confirming that government officials are not deterred from engaging in religious discrimination by “[o]ther legal principles”—principles

which can be notoriously difficult to enforce even when

15

evidence of discrimination is overt, and which are almost impossible to police when public school administrators engage in covert discrimination or rely on pretextual claims of classroom disruption to silence unpopular speakers.

This Court should therefore reaffirm Tinker’s narrow holding and limited applicability. Tinker never

claimed to address off-campus student speech, and instead closely circumscribes government authority

even on campus. Public school administrators may not

punish student speech “to avoid the discomfort and unpleasantness that always accompany an unpopular

viewpoint,” or even “upon an urgent wish to avoid the

controversy which might result from the expression.”

Tinker, 393 U.S. at 509-510. These are much-needed

limits on public schools’ authority and make clear that

“[i]n the absence of a specific showing of constitutionally valid reasons to regulate their speech, students

are entitled to freedom of expression of their views.”

Id. at 511.

II. Giving public schools universal jurisdiction

over student speech interferes with the right

of parents to direct the religious upbringing

of their children.

This Court has long recognized and protected the

parental right to direct the religious education of one’s

children. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972)

(“Pierce stands as a charter of the rights of parents to

direct the religious upbringing of their children.”).

This right is not forfeited when parents send their children to public schools; instead, public school adminis-

16

trators—as government actors subject to the Constitution—are limited in their authority to sanction private

student speech even on campus.

But extending Tinker to cover all student speech

would correspondingly expand the coercive authority

of public school administrators at the expense of parental rights. And the looming threat of sanctions for

“disruptive” speech—a vague standard which could

easily be manipulated to punish religious speech—will

discourage parents from teaching their children religious beliefs that are today unpopular or easily misunderstood.

A. Parents have the right to direct the

religious upbringing of their children.

Many religious traditions entrust parents with primary responsibility for educating their children in the

faith. In Judaism, parents are principally responsible

for teaching their children the Torah. See Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,

2065 (2020); see also Deuteronomy 6:6-7 (“And be it

that these laws which I command unto you today, you

shall teach them diligently to your children.”). Catholicism teaches that “[i]t is particularly in the Christian

family * * * that children should be taught from their

early years to have a knowledge of God.” Declaration

on Christian Education, Gravissimum Educationis § 3

(1965). And the Church of Jesus Christ of Latter-day

Saints confirms that “[p]arents have a sacred duty to

rear their children in love and righteousness, to provide for their physical and spiritual needs, and to

teach them to * * * observe the commandments of

God[.]” The First Presidency and Council of the Twelve

Apostles of The Church of Jesus Christ of Latter-day

17

Saints, The Family: A Proclamation to the World

(1995).

This religious obligation has been protected by the

Court for close to 100 years. See Troxel v. Granville,

530 U.S. 57, 65 (2000) (parental rights are “perhaps

the oldest of the fundamental liberty interests recognized by this Court”); Quilloin v. Walcott, 434 U.S.

246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child

is constitutionally protected.”). The earliest cases establishing this right were decided before the Religion

Clauses were incorporated against the states. Meyer v.

Nebraska concerned parents penalized for sending

their children to a Lutheran parochial school, where

the children learned the German language in violation

of Nebraska law. 262 U.S. 390, 397 (1923). In ruling

against this regulation of a religious school, the Court

concluded that “[w]hile this court has not attempted to

define with exactness the liberty thus guaranteed * * *

[w]ithout doubt, it denotes not merely freedom from

bodily restraint but also the right of the individual to

* * * establish a home and bring up children.” Id. at

399.

Similarly, in Pierce v. Society of the Sisters of the

Holy Names of Jesus & Mary, the Court confronted an

Oregon law that effectively outlawed private religious

education in the state, including for the Catholic

school plaintiff. 268 U.S. 510 (1925). The Court held

that the law “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing

and education of children under their control.” Id. at

534-535. The Court also rejected “any general power of

the state to standardize its children,” confirming instead that a “child is not the mere creature of the

18

state” and that his education is primarily entrusted to

“those who nurture him.” Ibid.

After the Free Exercise Clause was incorporated

against the states in Cantwell v. Connecticut, 310 U.S.

296 (1940), this Court began treating Meyer and Pierce

as First Amendment decisions. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 165-166 (1944) (describing

Pierce and Meyer as vindicating “[t]he rights of children to exercise their religion, and of parents to give

them religious training and to encourage them in the

practice of religious belief”); Griswold v. Connecticut,

381 U.S. 479, 482 (1965) (discussing Meyer and Pierce).

Even Gobitis—a dark spot on this Court’s long history of protecting religious exercise—recognized that

parental rights were an important means of counteracting the government’s coercive influence on public

school students. Gobitis wrongly permitted public

schools to force Jehovah’s Witness students to salute

the American flag even though doing so violated their

sincere religious beliefs. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599 (1940), overruled by West Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

And Gobitis did not deny the purpose of the government’s coercive actions: “What the school authorities

are really asserting is the right to awaken in the

child’s mind considerations as to the significance of the

flag contrary to those implanted by the parent.” Gobitis, 310 U.S. at 599. (emphasis added).

But even this miserly approach to religious freedom acknowledged the importance of parental rights

outside the school environment. As the Court went on

to explain, a “vital aspect of religious toleration” consisted of ensuring that parents remained “unmolested”

19

in their ability to “counteract by their own persuasiveness the wisdom” of the public school’s inculcation of

patriotic values:

In such an attempt [to coerce adherence

to patriotic values] the state is normally

at a disadvantage in competing with the

parent’s authority, so long—and this is

the vital aspect of religious toleration—

as parents are unmolested in their right

to counteract by their own persuasiveness the wisdom and rightness of those

loyalties which the state’s educational

system is seeking to promote.

Ibid. Thus, even at its lowest ebb, this Court affirmed

the importance of protecting, “unmolested,” parental

authority outside the school environment as a check

on government coercion in public schools.

Yoder also stands firmly in the tradition of protecting parental religious education, but, as it came after

incorporation, the Court relied on the Free Exercise

Clause. In Yoder, the Court vindicated the right of the

Old Order Amish to educate their children 2 in continuous contact with their “community, physically and

emotionally, during the crucial and formative adolescent period of life,” 406 U.S. at 211—even when that

meant noncompliance with Wisconsin’s compulsory

education laws. As the Court explained, “the values of

Yoder makes clear that this Court rested its decision on parents’ First Amendment right to provide religious education for

their children: “Contrary to the suggestion of the dissenting opinion of Mr. Justice Douglas, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents.” 406 U.S. at 230-231.

2

20

parental direction of the religious upbringing and education of their children in their early and formative

years have a high place in our society.” Id. at 213-214.

See also Stanley v. Illinois, 405 U.S. 645, 651 (1972)

(“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”).

Where Amish parents sought to remove their children

from school before the age of 16, the Court reasoned

that any “speculative gain[s]” from an additional year

or two of schooling could not “justify the severe interference with religious freedom such additional compulsory attendance would entail.” Yoder, 406 U.S. at

207, 227.

Yoder also imposed heightened scrutiny on the government’s actions. Despite acknowledging that universal education is certainly an important governmental

interest, the Court explained that “only those interests

of the highest order and those not otherwise served

can overbalance legitimate claims to the free exercise

of religion.” Yoder, 406 U.S. at 215.

Employment Division v. Smith did not eliminate or

even purport to eliminate Yoder’s protective rule as

applied to religious education. In fact, it expressly put

to one side claims regarding “the right of parents * * *

to direct the education of their children,” recognizing

that these claims still receive heightened scrutiny. 494

U.S. 872, 881 (1990). And in doing so, it cited both

Yoder and Pierce. Ibid.

This Court’s decisions since Smith have only reinforced that Smith did not alter Yoder. For example, in

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 431 (2006), this Court cited

21

Yoder favorably, explaining that the case “permitted

an exemption for Amish children from a compulsory

school attendance law,” despite the State’s “paramount” interest in education. And, just last Term, Espinoza reaffirmed as an “‘enduring American tradition’ * * * the rights of parents to direct ‘the religious

upbringing’ of their children.” Espinoza v. Montana

Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020) (quoting

Yoder, 406 U.S. at 213-214, 232). This provided the

foundation for the Court’s determination that Montana’s no-aid provision not only harmed religious

schools, but also “penalize[d]” the families who chose

to send their children to those schools by infringing on

the constitutionally-protected parental “choice” of religious education. Ibid. (citing Pierce, 268 U.S. at 534535). As this Court explained, any restriction on the

free exercise of religious schools “burdens not only religious schools but also the families whose children attend or hope to attend them.” Ibid. See also id. at 2284

(Breyer, J., dissenting) (“[T]he Free Exercise Clause

draws upon a history that places great value upon the

freedom of parents to teach their children the tenets of

their faith.”); Danville Christian Acad., Inc. v.

Beshear, 141 S. Ct. 527, 528 (2020) (per curiam) (citing

Pierce and Yoder).

B. Parental rights do not evaporate when

parents send their children to public

school.

Many religious parents either cannot afford to or

(for any number of reasons) choose not to send their

children to religious schools. See Morse, 551 U.S. at

424 (Alito, J., concurring) (“Most parents, realistically,

have no choice but to send their children to a public

school.”). These parents do not relinquish the right to

22

direct their children’s religious education. This Court’s

precedents instead closely circumscribe the authority

of public schools, limiting the extent to which they may

impose (even undeniably laudable) civic, religious, or

moral values on students.

When parents choose to send their children to religious schools, they delegate some of their parental authority to these private, religious institutions to instruct their children. And these schools (as private entities) are not subject to the constitutional constraints

of the First Amendment. They therefore may seek to

impart religious knowledge, inculcate religious faith,

and even discipline students for speech undermining

their educational mission. Our Lady of Guadalupe,

140 S. Ct. at 2064 (“[E]ducating young people in their

faith, inculcating its teachings, and training them to

live their faith are responsibilities that lie at the very

core of the mission of a private religious school.”).

But public schools are different. First, public

schools do not stand in loco parentis. This Court has

already confirmed that public schools are government

actors constrained by the Constitution. See New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) (“In carrying out

searches and other disciplinary functions pursuant to

such policies, school officials act as representatives of

the State, not merely as surrogates for the parents.”).

As T.L.O. explained, the argument that schools exercise parental rights “is in tension with contemporary

reality and the teachings of this Court,” which make

clear that public school administrators are “subject to

the commands of the First Amendment.” Ibid. See

Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786,

795 n.3 (2011) (noting “absence of any precedent for

state control, uninvited by the parents, over a child’s

23

speech and religion”); Morse, 551 U.S. at 424 (Alito, J.,

concurring) (“It is a dangerous fiction to pretend that

parents simply delegate their authority—including

their authority to determine what their children may

say and hear—to public school authorities.”).

Second, absent the ability to send one’s children to

a private school, attendance is compulsory. Many parents therefore have no choice but to send their children

to government-run schools—regardless of whether

they agree with the values or beliefs of the school’s educators. See Morse, 551 U.S. at 424 (Alito, J., concurring).

Third, our nation is religiously diverse. Parents

teach their children different (and often conflicting) religious beliefs and civic values. Therefore, as a practical matter, there is no way that public schools can inculcate only shared or “least common denominator”

values and beliefs. See Barnette, 319 U.S. at 637 (“Free

public education * * * will not be partisan or enemy of

any class, creed, party, or faction.”).

For these reasons, whenever public schools seek to

“unreasonably interfere[] with the liberty of parents

and guardians to direct the upbringing and education

of children under their control,” the schools’ actions

are subject to heightened constitutional scrutiny as

government actors exercising government authority.

Pierce, 268 U.S. at 534-535; Yoder, 406 U.S. at 213214, 227 (finding unconstitutional government’s “severe interference with” the “parental direction of the

religious upbringing and education of their children.”);

Brown, 564 U.S. at 795 n.3 (“In the absence of any

precedent for state control, uninvited by the parents,

over a child’s speech and religion * * * and in the absence of any justification for such control that would

24

satisfy strict scrutiny, those laws must be unconstitutional.”).

C. Applying Tinker to off-campus speech

“unreasonably interferes” with parental

rights.

Because government interference with parental

rights is subject to heightened scrutiny, Petitioner

must come forward with a sufficiently important interest to justify the universal policing of student speech.

Pet. App. 16a. Cf. Morse, 551 U.S. at 407 (“deterring

drug use by schoolchildren is an ‘important—indeed,

perhaps compelling’ interest.”). When children are

within the schoolhouse gate—and public schools’ authority is at its zenith, id. at 424 (Alito, J., concurring)—this Court has given school administrators

greater constitutional latitude. But even here, the

guardrails remain firmly in place. See Tinker, 393 U.S.

at 506-507 (discussing Meyer, Pierce, and Barnette).

Tinker balanced respect for constitutional rights, id. at

511 (“Students in school as well as out of school are

‘persons’ under our Constitution.”), with the need for

school officials “to prescribe and control conduct in the

schools,” id. at 507 (emphasis added). And Tinker did

not mince words when circumscribing this authority:

[S]tate-operated schools may not be enclaves of totalitarianism. School officials

do not possess absolute authority over

their students. * * * In our system, students may not be regarded as closed-circuit recipients of only that which the

State chooses to communicate. They may

not be confined to the expression of those

sentiments that are officially approved.

In the absence of a specific showing of

25

constitutionally valid reasons to regulate

their speech, students are entitled to freedom of expression of their views.

Id. at 511 (emphasis added). Tinker’s rule is thus defensible because of the public school’s “constitutionally

valid” need to create a safe educational environment

within the schoolhouse gate. Ibid.

But this narrow interest does not support Petitioner’s significant expansion of Tinker. See supra I.A.

To the contrary, Petitioner’s rule “unreasonably interfere[s]” with the liberty of parents to direct the religious education of their children in several meaningful

ways. Pierce, 268 U.S. at 534.

First, it greatly increases the coercive, conforming

pressure schools can bring to bear on students with

out-of-step beliefs or values. As this Court has recognized, public schools can exert pressure to influence

student behavior, expression, and even belief. See

Yoder, 406 U.S. at 211 (public school education can put

“pressure to conform to the styles, manners, and ways

of the peer group” and takes students “away from their

community, physically and emotionally”); Barnette,

319 U.S. at 641 (noting the dangers inherent in “public

educational officials” possessing power to “compel

youth to * * * embrac[e]” certain beliefs). It is therefore

crucial that this coercive government power is appropriately limited. But expanding Tinker to cover offcampus speech ignores this Court’s prior limited justification for intruding into the private sphere and

threatens to override parental rights by subjecting

students to constant government oversight. See Resp.

Br. 1.

26

This will be most harmful and intrusive for children raised in unpopular or minority religious traditions, as they and their parents will face the greatest

pressure to conform to the values and beliefs approved

and endorsed by school administrators. See Morse, 551

U.S. at 423 (Alito, J., concurring); Troxel, 530 U.S. at

72-73 (“[T]he Due Process Clause does not permit a

State to infringe on the fundamental right of parents

to make child rearing decisions simply because a state

judge believes a ‘better’ decision could be made.”).

For Jehovah’s Witnesses, sharing their faith with

others through public, often door-to-door, evangelization is an important part of their religious exercise.

See Acts 5:42; 20:20 (spreading the Gospel “from house

to house”). But for several decades in the early 1900s,

the literature they shared was considered “provocative, abusive, and ill-mannered.” Murdock v. Pennsylvania, 319 U.S. 105, 115-116 (1943). Imagine if a public school administrator could have punished Jehovah’s Witness students for their “provocative” weekend evangelizing. As this Court rightly pointed out, if

the government could sanction speakers because their

belief or ideas were unpopular, “there would [be]

forged a ready instrument for the suppression of the

faith which any minority cherishes but which does not

happen to be in favor.” Id. at 116.

Second, the threat of punishment from an overly

zealous school administrator can deter parents from

providing their children with religious education. See

Keyishian, 385 U.S. at 604 (“When one must guess

what conduct or utterance may lose him his position,

one necessarily will steer far wider of the unlawful

zone.”) (cleaned up). When all other students and

teachers are potential informants, parents will rightly

27

be concerned that what they teach or even explain to

their children could inadvertently (or surreptitiously)

be shared with a school administrator who deems their

beliefs out of step, outdated, or even offensive. Pet.

App. 49a-50a (Petitioner’s rule would “allow school

children to serve as Thought Police—reporting every

profanity uttered—for the District”); supra Part I.B.

Many religious beliefs are nuanced, complex, and

easy to misunderstand. Supra Part I.C. Children—especially young children—may not be tactful communicators. But parents should not worry that exposing

their children to even difficult religious teachings will

open them or their children to school sanction when a

child seeks to share, question, or discuss their religious beliefs with friends. See Pet’r Br. 18-19

(“[A]dults may be punished for off-campus speech that

disrupts the school.”). Explaining to your child how the

Eucharist is Jesus Christ’s “body and blood,” why the

Catholic Church does not support same-sex marriage,

or what Islam’s teachings regarding Jihad mean for a

Muslim living in America today are difficult enough

without government officials looking over parents’

shoulders—ready to punish “disruptive” speech. See

Pet’r Br. 30 (acknowledging that “drawing the line between merely offensive and substantially disruptive

speech requires close judgment calls”).

And Petitioner’s rule is especially pernicious today—when COVID-19 has pushed more religious worship, religious fellowship, and religious evangelization

online. Students may participate in online religious

services by reading passages from religious texts, students may share stories about their faith or their conversion online, students may blog about their faith, or

28

students may seek to evangelize online. Other students may then bring this online speech to campus,

potentially subjecting the speaker to school sanction

for core First Amendment activity.

The antidote to this government intrusion is, as the

Court has already recognized, the strengthening of the

Constitution’s protection of a private sphere of individual liberty free from government interference. Keyishian, 385 U.S. at 604. Instead of treating government control as the baseline, the correct approach recognizes that government intervention is the exception—permitted only in compelling circumstances.

The private sphere thus acts as a “constitutional shelter” from “unjustified interference by the State” and

helps protect parental rights. Roberts v. United States

Jaycees, 468 U.S. 609, 618-619 (1984); Pet’r Br. 19-23.

See Hosanna-Tabor, 565 U.S. at 199 (Alito, J., concurring) (explaining that the “private sphere within

which religious bodies are free to govern themselves in

accordance with their own beliefs” “has often served as

a shield against oppressive civil laws”).

*

*

*

B.L.’s snap was “crude, rude, and juvenile,” Pet.

App. 42a, but our Constitution does not protect the

freedom of speech solely because our “forefathers expected * * * that its exercise always would be wise,

temperate, or useful.” Thomas v. Collins, 323 U.S. 516,

545 (1945) (Jackson, J., concurring). Quite the opposite: “The very purpose of the First Amendment is to

foreclose public authority from assuming a guardianship of the public mind.” Ibid. There is no other way to

guarantee that government censorship doesn’t sweep

too far, swallowing the good with the bad.

29

The dangers of holding otherwise are readily apparent. “The Nation’s future depends upon leaders

trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.” Keyishian, 385 U.S. at 603

(cleaned up). And, as the Third Circuit below concluded, “by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more

enduring version of respect for civility and the ‘hazardous freedom’ that is our national treasure and ‘the basis of our national strength.’” Pet. App. 42a.

CONCLUSION

The Court should affirm the decision below.

Respectfully submitted.

ERIC S. BAXTER

Counsel of Record

NICHOLAS R. REAVES

DANIEL L. CHEN

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. N.W.,

Suite 400

Washington, D.C. 20006

(202) 955-0095

ebaxter@becketlaw.org

Counsel for Amicus Curiae

MARCH 2021