Amicus Curiae Brief — Eugene Mazo, et al., Petitioners v. Tahesha Way, New Jersey Secretary of State, et al.

No. 22-1033

IN THE

___________

EUGENE MAZO, et al.,

Petitioners,

V.

NEW JERSEY SECRETARY OF STATE, et al.,

Respondents.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

__________

BRIEF OF THE LIBERTY JUSTICE CENTER

AND MANHATTAN INSTITUTE AS AMICI

CURIAE SUPPORTING PETITIONERS

__________

Jeffrey M. Schwab

Ilya Shapiro

Counsel of Record

Manhattan Institute

Noelle Daniel

52 Vanderbilt Ave.

LIBERTY JUSTICE CENTER

New York, NY 20017

440 N. Wells Street,

(212) 599-7000

Suite 200

ishapiro@manhattan.

Chicago, Illinois 60654

institute

312-637-2280

jschwab@libertyCounsel for Amici

justicecenter.org

Curiae

May 25, 2023

i

QUESTION PRESENTED

The decision below allows New Jersey to regulate

core political speech at the election’s critical moment,

and to do so on the basis of content and viewpoint

while insulating entrenched political machines from

serious primary challenges. New Jersey allows

candidates in primary elections to engage in political

speech on the ballot via six-word slogans next to their

names. New Jersey was not obligated to allow

candidates to communicate directly with voters at the

very moment they cast their ballots. But having done

so for the express purpose of allowing candidates to

distinguish themselves from their primary opponents,

the state could not dictate content or skew the debate.

Undeterred, the state prohibits candidates from

referencing the name of any individual anywhere in

the world (e.g., “Never Trump” or “Evict Putin From

Ukraine”) or any New Jersey corporation (e.g.,

“Higher Taxes for Merck & JnJ”) absent written

consent. Entrenched political machines have long

exploited this law by using political associations

incorporated in New Jersey to signal which

candidates enjoy machine support in the primary.

Tellingly, New Jersey drops the consent requirement

altogether on the general election ballot. The Third

Circuit upheld this glaring free-speech violation only

by bypassing traditional First Amendment scrutiny in

favor of the amorphous Anderson-Burdick balancing

test.

The question presented is:

Whether a state that permits political candidates

to engage in core political speech on the ballot may

restrict that speech on the basis of content and

viewpoint without satisfying strict scrutiny.

ii

TABLE OF CONTENTS

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

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

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

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

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

I.

This Court has long held that contentbased restrictions on speech are

heavily disfavored. ................................... 3

II.

New Jersey’s election ballot slogan law

is content-based. ....................................... 8

III.

The Third Circuit misapplied this

Court’s content-based speech

jurisprudence and incorrectly found

New Jersey’s election ballot slogan law

was content-neutral. ................................ 9

A. The law is content-based because it

makes determinations based on

specific topics within speech and

places additional burdens on them. ... 9

B. The fact that the law applies to all

candidates does not make it

content or viewpoint neutral. ........... 10

C. The law discriminates based on

viewpoint because it effectively

bars criticism of individuals or New

Jersey corporations. .......................... 12

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

iii

TABLE OF AUTHORITIES

Cases

Ariadna Ramon Baro v. Lake County Federation of

Teachers, Local 504, et al.,

57 F.4th 582 (7th Cir. 2023) ....................................1

Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) ..................................................4

Cantwell v. Connecticut,

310 U.S. 296 (1940) ..................................................7

Carey v. Brown,

447 U.S. 455 (1980) ..................................................4

City of Austin v. Reagan Nat’l Adver. of Austin, LLC,

142 S. Ct. 1464 (2022) ............................ 3, 6, 7, 8, 13

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ....................................................3

Heffron v. Int’l. Soc. For Krishna Consciousness, Inc.,

452 U.S. 640 (1981) ................................................ 13

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ..............................................1

Mazo v. N.J. Sec’y of State,

54 F.4th 124 (3d Cir. 2022) ................ 2, 9, 10, 11, 12

McCullen v. Coakley,

573 U.S. 464 (2014) ............................................ 5, 12

Police Dep’t of Chi. v. Mosley,

408 U.S. 92 (1972) ................................................ 3, 4

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ..................................................4

iv

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ...................... 2, 4, 5, 6, 8, 11, 12

Regan v. Time, Inc.,

468 U.S. 641 (1984) ..................................................4

Tschida v. Motl,

924 F.3d 1297 (2019) ................................................5

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994) ................................................ 12

Vugo, Inc. v. City of New York,

931 F.3d 42 (2d Cir. 2019) .......................................1

Statutes

N.J. Stat. § 19:23-17 ....................................................8

1

INTEREST OF THE AMICI CURIAE1

The Liberty Justice Center is a nonprofit,

nonpartisan, public-interest litigation firm that seeks

to protect economic liberty, private property rights,

free speech, and other fundamental rights. The

Liberty Justice Center pursues its goals through

strategic, precedent-setting litigation to revitalize

constitutional restraints on government power and

protections for individual rights.

The Manhattan Institute is a nonprofit public

policy research foundation whose mission is to develop

and disseminate new ideas that foster economic choice

and individual responsibility. To that end, it has

historically sponsored scholarship supporting the rule

of law and opposing government overreach, including

in the marketplace of ideas.

This case particularly interests amici because the

freedom of speech is a core value vital to a free society.

To that end, the Liberty Justice Center has long

represented clients seeking to protect their First

Amendment rights before this Court. See, e.g., Janus

v. AFSCME, 138 S. Ct. 2448 (2018); Vugo, Inc. v. City

of New York, 931 F.3d 42 (2d Cir. 2019), petition for

cert. denied No. 19-792 (April 27, 2020); Ariadna

Ramon Baro v. Lake County Federation of Teachers,

Local 504, et al., 57 F.4th 582 (7th Cir. 2023), petition

for cert. filed No. 22-1096 (May 8, 2023).

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than amici funded its

preparation or submission. All parties received notice of amici’s

intention to file this brief at least 10 days prior to the due date.

2

SUMMARY OF ARGUMENT

The Third Circuit greatly confused and misapplied

this Court’s First Amendment content-based speech

jurisprudence here by misclassifying a content-based

law as content neutral. Mazo v. N.J. Sec’y of State, 54

F.4th 124, 124 (3d Cir. 2022); App. 39. The New Jersey

law in question allows a candidate running for office

to create a slogan containing up to six words next to

his or her name on the election ballot. N.J. Stat. §

19:23-17; App. 2. But for primary elections, if the

candidate wants to include the name of an individual

or New Jersey corporation in the slogan, the candidate

must first obtain the permission of that individual or

corporation. N.J. Stat. § 19:23-25.1; App. 5.

In a singular paragraph, the court below deemed

the consent requirement content neutral because it

“applies to all slogans” and after a regulator reads the

slogan “to determine whether the consent

requirement applies, the communicative content of

the slogan ceases to be relevant.” Mazo, 54 F.4th at

149; App. 39.

Contrary to the lower court’s conclusion, the New

Jersey law is content based for at least two reasons:

First, the law discriminates on the basis of content

because it adds an additional burden for certain

speakers based on their specific “topic discussed or the

idea or message expressed,” Reed v. Town of Gilbert,

576 U.S. 155, 163 (2015), in particular, slogans that

“discuss” individuals or New Jersey corporations.

Second, the law is content (and viewpoint) based in its

application because it serves the “impermissible

purpose” of regulating content by suppressing

criticism of individuals and New Jersey corporations.

3

City of Austin v. Reagan Nat’l Adver. of Austin, LLC,

142 S. Ct. 1464, 1475 (2022).

The Court should intervene and correct the Third

Circuit’s detrimental mistake. Without the such an

intervention, the Court’s content-based speech

jurisprudence could be profoundly confused and

rewritten as lower courts continue to misapply Reed

and City of Austin. If this holding is allowed to stand,

New Jersey voters will be deprived of honest and

complete slogans from the candidates on the election

ballot.

ARGUMENT

I.

This Court has long held that contentbased restrictions on speech are heavily

disfavored.

The content-discrimination principle serves as one

of the most important concepts in this Court’s First

Amendment jurisprudence. It reflects that “above all

else, the First Amendment means that government

has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.”

Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972).

Such “content-based speech restrictions are especially

likely to be improper attempts to value some forms of

speech over others, [and] are particularly susceptible

to being used by the government to distort public

debate.” City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994)

(O'Connor, J., concurring). They are therefore

“presumptively invalid.” R. A. V. v. St. Paul, 505 U.S.

377, 382 (1992) (citations omitted).

In Police Department of the City of Chicago v.

Mosley, the plaintiff challenged a law that allowed

“peaceful labor picketing” but prohibited all other

4

picketing around schools. 408 U.S. at 92. The Court

found that the ordinance made an impermissible

distinction based on content of picketers’ message by

“select[ing] which issues are worthy discussing or

debating in public facilities.” Id. at 96. Eight years

later, the Court struck down a similar law that also

prohibited non-labor picketing. Carey v. Brown, 447

U.S. 455, 470 (1980). The Court determined that

content-based restrictions are generally prohibited

and may only be allowed if they pass strict scrutiny,

meaning that there must be a “state interest” that is

“compelling” and “narrowly drawn” to serve that

interest if “no adequate alternatives exist[.]” Id. at

465. Under the First Amendment, the general rule is

that “[r]egulations which permit the Government to

discriminate on the basis of the content of the message

cannot be tolerated under the First Amendment.”

Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984); see

also, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382

(1992) (declaring “[c]ontent-based regulations . . .

presumptively invalid”); Ark. Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 234 (1987) (striking down a

content-based tax on magazines).

The Court articulated its current First

Amendment test for determining whether restrictions

on speech are content-based in Reed v. Town of

Gilbert, striking down a sign ordinance that treated

ideological signs more favorably than political signs,

which were treated more favorably than “Temporary

Directional Signs Relating to a Qualifying Event.” 576

U.S. at 159–161. Ideological signs could be displayed

with no time limit, while political signs were allowed

up to 60 days before a primary election and 15 days

after a general election. Id. Temporary directional

5

signs could be displayed no more than 12 hours before

an event and only one hour after said event. Id.

The Court reaffirmed that, for purposes of First

Amendment review, a court should deem a speechrestrictive law content-based, and thus presumptively

unconstitutional, if the law “‘on its face’ draws

distinctions based on the message a speaker conveys.”

Id. at 163 (quoting Sorrell v. IMS Health Inc., 564 U.S.

552, 563–64 (2011)). Such laws “may be justified only

if the government proves that they are narrowly

tailored to serve compelling state interests.” Id. at

163.

Reed set forth a two-step analysis to determine

whether a restriction is content based and thus

subject to strict scrutiny. First, if a law’s text “draws

distinctions based on the message a speaker conveys,”

then strict scrutiny applies. Id. at 163. Content-based

laws receive this high scrutiny regardless of the

government’s “benign motive, content-neutral

justification, or lack of animus toward the ideas.” Id.

at 165 (cleaned up). A court may begin the inquiry into

whether a restriction is content based by considering

whether the law “requires authorities to examine the

contents of the message to see if a violation has

occurred.” Tschida v. Motl, 924 F.3d 1297, 1303

(2019); see also McCullen v. Coakley, 573 U.S. 464, 479

(2014).

The second step becomes necessary only if the

law’s text makes no reference to content, making it

content-neutral on its face. Under the second inquiry,

the Court determines whether the law is content

based on its “purpose and justification.” Reed, 576

U.S. at 166. If a law is content-neutral on its face, but

was adopted because the government sought to

6

suppress the message expressed, it is content-based in

its application. Id.

The Court’s most recent case to consider contentbased restrictions on speech further explained how

courts should apply Reed. City of Austin, 142 S. Ct. at

1464. To protect “aesthetic value,” the City of Austin’s

outdoor sign code distinguished between on-premises

and off-premises signs, “specially regulat[ing] the

latter.” Id. at 1469. In a lawsuit brought by two

billboard operators, the Court determined that the

sign code was not content based because it did not

“single out any topic or subject matter for differential

treatment” and enforcement of the sign code had

nothing to do with the sign’s “substantive message.”

Id. at 1472.

The Court explained that, notwithstanding Reed,

some restrictions on speech that require evaluation of

a type of speech may sometimes “nonetheless remain

content neutral.” Id. at 1473. The Court gave two

examples. First are typical “time, place, or manner”

restrictions, such as those allowing only quiet

expressions of speech after 11pm in residential areas.

Id. at 1473. The Court found Austin’s sign code to be

that sort of regulation: it looked to a sign’s content

only for the purpose of determining where it could be

located. Id. at 1475. The Court found the restriction

“agnostic as to content” because its sole purpose was

to draw “neutral, location-based lines.” Id. at 1471.

Second, the Court stated that a law could allow

the government to examine speech to decipher its

purpose or function but nonetheless be content

neutral. This includes regulations of solicitation. Id.

The First Amendment allows States “to regulate the

time and manner of solicitation generally.” Id.

7

(quoting Cantwell v. Connecticut, 310 U.S. 296, 306–

307 (1940)). Even so, seemingly content-neutral

regulations may not contain a discriminatory contentbased “function or purpose.” City of Austin, 142 S. Ct.

at 1474. Though not “always” content based, function

and purpose distinctions can perpetuate less obvious

forms of discrimination. Id.

The sign ordinance in City of Austin was

consequently determined to be a location-based

restriction, and because it made only neutral

determinations, it was content neutral on its face. Id.

at 1473, 1475. But the Court remanded the case for

the lower court to determine whether the regulation

contained an “impermissible purpose” that would

render it content based. Id. at 1475.

City of Austin solidified that restrictions are

content based if they “discriminate based on topic,

subject matter, or viewpoint.” City of Austin, 142 S.

Ct. at 1473. Such provisions “single out any topic or

subject matter for differential treatment.” Id. at 1472.

After Reed and City of Austin, the test for

determining whether a law is content-based is

twofold. First, a court must determine whether the

regulation is content-based on its face. A regulation is

facially content based only if its text discriminates on

the basis of particular content—namely, “topic or

subject matter.” City of Austin, 142 S. Ct. at 1472. If

the regulation is looking at content simply to make

neutral determinations—such as permissible time,

place, and manner restrictions—then the law may be

content-neutral on its face. Id. at 1475

But the analysis does not end there. If the

government has an “impermissible purpose or

8

justification” then the regulation is likely content

based. Id. at 1475. Essentially, “regulation of speech

cannot escape classification as facially content based

simply by swapping an obvious subject-matter

distinction for a ‘function or purpose’ proxy that

achieves the same result.” Id. at 1474. Such a contentbased purpose will require the application of strict

scrutiny.

II.

New Jersey’s election ballot slogan law is

content-based.

Here, New Jersey law allows primary candidates

to put a slogan of up to six words next to their names

to distinguish themselves from others on the ballot.

N.J. Stat. § 19:23-17; App. 2. But the law imposes an

additional requirement for those who would like to

reference individuals or New Jersey corporations in

their slogan: they must obtain the consent of each

individual or corporation. Id. Thus, whether the

consent requirement applies depends on the specific

content of a candidate’s slogan.

Under Reed and City of Austin, the law is facially

content based because it applies to a particular “topic

discussed or the idea or message expressed,” Reed,

576 U.S. at 163—namely, slogans that “discuss”

individuals or New Jersey corporations. And even if a

court were to deem the law facially content neutral, it

would still be content based in its application because

it serves the “impermissible purpose” of suppressing

criticism of individuals and New Jersey corporations.

City of Austin, 142 S. Ct. at 1475.

This law is not analogous to one banning

solicitation. Although the government may restrict

the times and places where solicitation may occur, it

9

may not allow some groups to solicit without

restrictions while imposing additional requirements

for groups who, say, mention political figures in their

solicitation. Cf. id. This latter scenario is analogous to

the New Jersey rule challenged here. The challenged

provision does not regulate whether or where a slogan

may appear but rather addresses the content of the

ballot slogan: if it contains certain places or people,

the state imposes a burden.

III.

The Third Circuit misapplied this Court’s

content-based speech jurisprudence and

incorrectly found New Jersey’s election

ballot slogan law was content-neutral.

The Third Circuit erred when it determined that

this law does not impose a content-based restriction

on speech.

A. The law is content-based because it

makes determinations based on specific

topics

within

speech

and

places

additional burdens on them.

First, the Third Circuit erred by inventing a new

exception to the general rule against content-based

restrictions on speech—and then it misapplied that

new exception.

In determining whether New Jersey’s rule is

content based, the Third Circuit first noted the two

types of restrictions that City of Austin identified as

not subject to heightened First Amendment scrutiny:

solicitation ordinances and time, place, and manner

restrictions. Mazo, 54 F.4th at 149; App. 39. Because

New Jersey’s rule does not fit into either of those

categories, the Third Circuit invented a “third

10

category of permissible neutral line-drawing,” which

makes determinations based on “extrinsic features

unrelated to the message conveyed.” Id. That category

has no basis in this Court’s precedents; the Third

Circuit made it up out of thin air.

Moreover, New Jersey’s law does not even fit into

the Third Circuit’s new category. New Jersey’s speech

restriction is not based on some “extrinsic feature”—

to the contrary, it examines—and selectively imposes

a burden based on—what is said in a candidate’s sixword slogan. Mazo, 54 F.4th at 149; App. 39.

Nonetheless, the Third Circuit held the rule to be

content neutral because, “[o]nce a regulator has read

a slogan to determine whether the consent

requirement applies, the communicative content of

the slogan ceases to be relevant.” Id. That makes no

sense: “the communicative content ceases to be

relevant” only after the state determines whether a

candidate’s slogan is subject to an additional burden

based on its content. Slogans that do not mention a

candidate or a New Jersey corporation are

automatically approved; those that do mention an

individual or New Jersey corporation are not

approved unless the candidate obtains consent.

B. The fact that the law applies to all

candidates does not make it content or

viewpoint neutral.

Next, the Third Circuit wrongly found the law to

be permissible because it is “nondiscriminatory and

applies equally to all candidates.” Mazo, 54 F.4th at

146; App. 32. But a restriction that applies equally to

11

all speakers can still discriminate based on content. A

law that prohibits speaking certain words or

viewpoints is no less offensive to the First

Amendment because it equally prohibits everyone

from saying them.

The Third Circuit’s justification confuses political

neutrality with general content and viewpoint

neutrality. The Third Circuit claims the statute

applies to “all slogans,” and “only matters to

determine whether the consent requirement applies

at all.” Mazo, 54 F.4th at 149; App. 39. But “a speech

regulation targeted at specific subject matter is

content-based even if it does not discriminate among

viewpoints within that subject matter.” Reed, 576 U.S.

at 169. Thus, for example, “a law banning the use of

sound trucks for political speech—and only political

speech—would be a content-based regulation, even if

it imposed no limits on the political viewpoints that

could be expressed.” Id. Here, similarly, it does not

matter that all candidates, Republican and Democrat,

are subject to the restriction; it is nonetheless contentbased because it restricts speech based on what a

candidate says.

12

C. The

law

discriminates

based

on

viewpoint because it effectively bars

criticism of individuals or New Jersey

corporations.

Finally, the Third Circuit ignored the fact that,

even if New Jersey’s rule were content neutral on its

face, it would still, in practice, discriminate based on

viewpoint. And “[g]overnment discrimination among

viewpoints—or the regulation of speech based on the

specific motivating ideology or the opinion or

perspective of the speaker—is [an especially] blatant

and egregious form of content discrimination.” Reed,

576 U.S. at 168 (cleaned up).

The Third Circuit concluded that New Jersey’s

rule does not discriminate on the basis of viewpoint

because it applies to both “support or criticism” by the

candidate. Mazo, 54 F.4th at 150; App. 40. But “even

a regulation neutral on its face may be content based

if its manifest purpose is to regulate speech.” Turner

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

New Jersey’s law could have no purpose but to

suppress criticism of individuals and New Jersey

corporations—and that certainly is its effect in

practice. Given a choice, few people or corporations

would agree to allow a slogan critical of them to

appear on the ballot. This does more than

“disproportionately affect[] speech on certain topics.”

Mazo, 54 F.4th at 150 (quoting McCullen, 573 U.S. at

480); App. 40. It acts as a blanket ban on criticism, as

though the law simply prohibited such statements

directly.

This Court has found laws that limit solicitation

are acceptable because they “do not inherently

13

present ‘the potential for becoming a means of

suppressing a particular view.’” City of Austin, 142 S.

Ct. at 1473 (quoting Heffron v. Int’l. Soc. For Krishna

Consciousness, Inc., 452 U.S. 640, 649 (1981)). Here,

in contrast, the statute does present a strong potential

for—and in practice effects—suppression of criticism

of an individual or a New Jersey corporation. The law

therefore discriminates not only on the basis of

content, but also on the basis of viewpoint.

CONCLUSION

If the Third Circuit’s decision is allowed to stand,

candidates in New Jersey will be deprived of their

right to free speech in a context where that right

matters most: elections. The Third Circuit’s newfound

exception to the rule against content-based speech

restrictions would open the floodgates to further such

restrictions on speech and encourage courts to make

further exceptions.

The petition for certiorari should be granted.

Respectfully submitted,

14

Jeffrey Schwab

Counsel of Record

Noelle Daniel

LIBERTY JUSTICE CENTER

440 N. Wells Street,

Suite 200

Chicago, Illinois 60654

(312) 637-2280

jschwab@libertyjusticecenter.org

Ilya Shapiro

Manhattan Institute

52 Vanderbilt Ave.

New York, NY 20017

(212) 599-7000

ishapiro@manhattan.

institute

May 25, 2023