Amicus Curiae Brief — Jillian Ostrewich, Petitioner v. Teneshia Hudspeth, in Her Official Capacity as Harris County Clerk, et al.

No. 23-535

In the Supreme Court of the United States

__________________

JILLIAN OSTREWICH,

v.

Petitioner,

TENESHIA HUDSPETH, IN HER OFFICIAL CAPACITY AS

HARRIS COUNTY CLERK, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________________

Brief of Amici Curiae Justice and Freedom

Fund, World Faith Foundation, and The

Rutherford Institute in Support of Petitioner

__________________

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Deborah J. Dewart

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF THE

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

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

I.

THE RIGHTS OF VOTERS ARE

PARAMOUNT — THE RIGHT TO VOTE

AND THE RIGHT TO FREE POLITICAL

EXPRESSION.. . . . . . . . . . . . . . . . . . . . . . . . . 4

II.

THE TEXAS STATUTES ARE CONTENTBASED RESTRICTIONS ON CORE

POLITICAL SPEECH THAT GRANT

EXCESSIVE DISCRETION TO OFFICIALS,

CREATING AN UNREASONABLE RISK OF

VIEWPOINT DISCRIMINATION. . . . . . . . . . 5

A. The statutes’ lack of precision creates an

unacceptable risk of viewpoint

discrimination. . . . . . . . . . . . . . . . . . . . . . . 6

B. The

prohibition

of

viewpoint

discrimination, firmly entrenched in

Supreme Court precedent, is a necessary

component of the Free Speech Clause. . . 13

III.

THE PASSIVE VISUAL EXPRESSION OF

VOTERS IS NOT AN APPROPRIATELY

TARGETED EVIL. . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023). . . . . . . . . . . . . . . . . . . . . 17

Abrams v. United States,

250 U.S. 616 (1919). . . . . . . . . . . . . . . . . . . . 13, 14

Amalgamated Transit Union Local 1015 v. Spokane

Transit Auth.,

929 F.3d 643 (9th Cir. 2019). . . . . . . . . . . . . . . . 10

Am. Freedom Defense Initiative v. Suburban

Mobility Auth. for Regional Transp.,

978 F.3d 481 (6th Cir. 2020). . . . . . . . . . . . . . . . . 9

Anderson v. Celebrezze,

460 U.S. 780 (1983). . . . . . . . . . . . . . . . . . . . 21, 22

Anderson v. Spear,

356 F.3d 651 (6th Cir. 2004). . . . . . . . . . . . . . . . 22

Berner v. Delahanty,

129 F.3d 20 (1st Cir. 1997) . . . . . . . . . . . . . . . . . 19

Bd. of Airport Commissioners v. Jews for Jesus,

482 U.S. 569 (1987). . . . . . . . . . . . . . . . . . . . 11, 18

Buckley v. Valeo,

424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . 5

Burson v. Freeman,

504 U.S. 191 (1992). . . . . . . . . 4, 5, 6, 7, 18, 20, 21

Capen v. Foster,

29 Mass. 485 (1832) . . . . . . . . . . . . . . . . . . . . . . . 4

iii

Carey v. Brown,

447 U.S. 455 (1980). . . . . . . . . . . . . . . . . . . . . . . 16

Center for Investigative Reporting v. Se. Pa. Transp.

Auth., 975 F.3d 300 (3d Cir. 2020) . . . . . . . . . . . 10

City of Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750 (1988). . . . . . . . . . . . . . . . . . . . . . . 13

Cohen v. California,

403 U.S. 15 (1971). . . . . . . . . . . . . . . . . . . . . . 4, 18

Cons. Edison Co. v. Public Serv. Comm’n,

447 U.S. 530 (1980). . . . . . . . . . . . . . . . . . . . . . . . 7

Cox v. La.,

379 U.S. 536 (1965). . . . . . . . . . . . . . . . . . . . . . . . 7

Cressman v. Thompson,

798 F.3d 938 (10th Cir. 2015). . . . . . . . . . . . . . . 17

Emineth v. Jaeger,

901 F. Supp. 2d 1138 (D. N.D. 2012) . . . . . . . . . . 8

Eu v. San Francisco Cty. Democratic Central

Comm., 489 U.S. 214 (1989) . . . . . . . . . . . . . . . . . 5

Frisby v. Schultz,

487 U.S. 474 (1988). . . . . . . . . . . . . . . . . . . . . . . 20

Good News Club v. Milford Central School,

533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . 16

Grayned v. City of Rockford,

408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . 20

Griffin v. Sec’y of Veterans Affairs,

288 F.3d 1309 (Fed. Cir. 2002) . . . . . . . . . . . 12, 19

iv

In re Tam,

808 F.3d 1321 (Fed. Cir. 2015) . . . . . . . . . . . . . . . 8

Iancu v. Brunetti,

139 S. Ct. 2294 (2019). . . . . . . . . . . . . . . . . . . . . 17

Kaplan v. California,

413 U.S. 115 (1973). . . . . . . . . . . . . . . . . . . . . . . 17

Kusper v. Pontikes,

414 U.S. 51 (1973). . . . . . . . . . . . . . . . . . . . . . . . . 6

Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . 16

Matal v. Tam,

582 U.S. 218 (2017). . . . . . . . . . . . . . . . . . 8, 14, 17

Mills v. Alabama,

384 U.S. 214 (1966). . . . . . . . . . . . . . . . . . . . . . . 21

Minn. Voters All. v. Mansky,

138 S. Ct. 1876 (2018). . . . . . . . . 1, 4, 5, 9, 10, 11,

12, 18, 20

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971). . . . . . . . . . . . . . . . . . . . . . . . 5

NAACP v. Button,

371 U.S. 415 (1963). . . . . . . . . . . . . . . . . . . . . . . . 6

Ostrewich v. Tatum,

72 F.4th 94 (5th Cir. 2023) . . . . . . . . . 4, 10, 11, 20

Pacific Gas & Electric Co. v. Public Utilities

Comm’n of Cal., 475 U.S. 1 (1986) . . . . . . . . . . . 15

v

Perry Education Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37 (1983) . . . . . . . . . . . . . . . . . . 15

Piarowski v. Ill. Cmty. Coll. Dist. 515,

759 F.2d 625 (7th Cir. 1985). . . . . . . . . . . . . . . . 17

Picray v. Secretary of State,

140 Or. App. 592 (1996) . . . . . . . . . . . . . . . . . . . 18

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972). . . . . . . . . . . . . . . . . . . . . . 5, 15

Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1299 (Fed. Cir. 2008) . . . . . . . . . . . . . . 19

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

505 U.S. 377 (1992). . . . . . . . . . . . . . . . . . . . 15, 16

Regan v. Time, Inc.,

468 U.S. 641 (1984). . . . . . . . . . . . . . . . . . . . . . . 17

Reed v. Town of Gilbert,

576 U.S. 155 (2015). . . . . . . . . . . . . . . . . . . 7, 8, 13

Ridley v. Mass. Bay Trans. Auth.,

390 F.3d 65 (1st Cir. 2004) . . . . . . . . . . . . . . . . . 12

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

515 U.S. 819 (1995). . . . . . . . . . . . . . . . . . . . . 6, 16

Schall v. Martin,

467 U.S. 253 (1984). . . . . . . . . . . . . . . . . . . . . . . . 7

Sistrunk v. City of Strongsville,

99 F.3d 194 (6th Cir. 1996). . . . . . . . . . . . . . . . . 19

Texas v. Johnson,

491 U.S. 397 (1989). . . . . . . . . . . . . . . . . . . . 13, 15

vi

Thomas v. Collins,

323 U.S. 516 (1945). . . . . . . . . . . . . . . . . . . . . . . 11

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

393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . . . . . . 20

Ward v. Rock Against Racism,

491 U.S. 781 (1989). . . . . . . . . . . . . . . . . . . . . . . . 9

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . . . . . 14

White Coat Waste Project v. Greater Richmond

Transit Co., 35 F.4th 179 (4th Cir. 2022) . . . . . 12

White v. City of Sparks,

500 F.3d 953 (9th Cir. 2007) . . . . . . . . . . . . . . . 17

Yick Wo v. Hopkins,

118 U.S. 356 (1886). . . . . . . . . . . . . . . . . . . . . . . . 4

Statutes

Alaska Stat. § 15.56.016(a)(2)(B). . . . . . . . . . . . . . . . 8

Ar. Code Ann. § 7-1-103(a)(9)(A) . . . . . . . . . . . . . . . . 8

Ar. Code Ann. § 16-411(H) . . . . . . . . . . . . . . . . . . . . . 8

Ar. Code Ann. § 16-515(I) . . . . . . . . . . . . . . . . . . . . . 8

Cal. Elec. Code § 319.5. . . . . . . . . . . . . . . . . . . . . . . . 8

Cal. Elec. Code § 18370 . . . . . . . . . . . . . . . . . . . . . . . 8

Colo. Rev. Stat. 1-13-714(1) . . . . . . . . . . . . . . . . . . . . 8

Conn. Gen. Stat. § 9-236(a) . . . . . . . . . . . . . . . . . . . . 8

Kan. Stat. Ann. § 25-2430(a) . . . . . . . . . . . . . . . . . . . 8

vii

Me. Rev. Stat. tit. 21-A, § 682 . . . . . . . . . . . . . . . . . . 8

Mo. Rev. Stat. § 115.637(18) . . . . . . . . . . . . . . . . . . . 8

Mont. Code Ann. § 13-35-211(3) . . . . . . . . . . . . . . . . 8

Nev. Rev. Stat. § 293.740 . . . . . . . . . . . . . . . . . . . . . . 8

N.D. Cent. Code § 16.1-10-06. . . . . . . . . . . . . . . . . . . 8

R.I. Gen. Laws § 17-19-49 . . . . . . . . . . . . . . . . . . . . . 8

TEX. ELEC. CODE § 32.075 . . . . . . . . . . . . . . . . . . . . 10

TEX. ELEC. CODE § 61.003 . . . . . . . . . . . . . . . . . . 3, 11

TEX. ELEC. CODE § 61.003(b)(1) . . . . . . . . . . . . . . . . . 6

TEX. ELEC. CODE § 61.010 . . . . . . . . . . . . . . . . 3, 7, 11

TEX. ELEC. CODE § 85.036 . . . . . . . . . . . . . . . . . . 3, 11

Other Authorities

Lackland H. Bloom, Jr., The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. 20

(2019). . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 17

Richard H. Fallon, Making Sense of Overbreadth,

100 Yale L.J. 853 (1991) . . . . . . . . . . . . . . . . . . . 12

Rebecca M. Fitz, Peering Into Passive

Electioneering: Preserving the Sanctity of our

Polling Places, 58 Idaho L. Rev. 270 (2022). . . . 11

Kimberly J. Tucker, “You Can't Wear That To Vote”:

The Constitutionality of State Laws Prohibiting

the Wearing of Political Message Buttons at

Polling Places, 32 T. Marshall L. Rev. 61 (Fall

2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1

INTEREST OF AMICI CURIAE1

Justice and Freedom Fund (“JFF”), World Faith

Foundation (“WFF”), and The Rutherford Institute, as

amici curiae, respectfully urges this Court to grant the

Petition for Certiorari and reverse the decision of the

Fifth Circuit.

Justice and Freedom Fund is a California nonprofit, tax-exempt corporation formed on September 24,

1998 to preserve and defend the constitutional liberties

guaranteed to American citizens, through education,

legal advocacy, and other means. JFF’s founder is

James L. Hirsen, who has served as professor of law at

Trinity Law School and Biola University in Southern

California and is the author of New York Times

bestseller, Tales from the Left Coast, and Hollywood

Nation. Mr. Hirsen is a frequent media commentator

who has taught law school courses on constitutional

law. Co-counsel Deborah J. Dewart is the author of

Death of a Christian Nation (2010) and holds a degree

in theology (M.A.R., Westminster Seminary, Escondido,

CA). JFF has made numerous appearances in this

Court as amicus curiae, including a brief supporting

Petitioners in Minn. Voters All. v. Mansky, 138 S. Ct.

1876, 1892 (2018).

1

Counsel of record for all parties received notice at least 10 days

prior to the due date of amici curiae’s intention to file this brief.

Amici curiae certify that no counsel for a party authored this brief

in whole or in part and no person or entity, other than amici

curiae, their members, or their counsel, has made a monetary

contribution to its preparation or submission.

2

World Faith Foundation is a California religious

non-profit, tax-exempt corporation formed to preserve

and defend the customs, beliefs, values, and practices

of religious faith and speech, as guaranteed by the

First Amendment, through education, legal advocacy,

and other means. WFF has an interest in this Petition

because many current political issues are closely

intertwined with religious faith and conscience. WFF

has made several appearances in this Court as amicus

curiae.

The Rutherford Institute is a nonprofit

headquartered in Charlottesville, Virginia. Founded in

1982 by its President, John W. Whitehead, the

Institute provides legal assistance at no charge to

individuals whose constitutional rights have been

threatened or violated and educates the public about

constitutional and human rights issues affecting their

freedoms. The Rutherford Institute works tirelessly to

resist tyranny and threats to freedom by seeking to

ensure that the government abides by the rule of law

and is held accountable when it infringes on the rights

guaranteed by the Constitution and laws of the United

States.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Texas has enacted three content-based statutes

restricting core political speech. TEX. ELEC. CODE

§§ 61.003, 61.010, 85.036. These statutes have serious

flaws and cannot withstand constitutional scrutiny.

First, the rights of voters are the chief reason for

these types of restrictions at the polls. Instead of

protecting voters, Texas infringes their rights, both to

vote and to express themselves in a peaceful, nondisruptive manner.

Second, there is substantial imprecision in these

statutes. Texas sweeps in a considerable amount of

vaguely defined “political” expression. TEX. ELEC. CODE

§ 61.010 limits its application to what appears on the

ballot, but the words “relating to” are wildly imprecise.

TEX. ELEC. CODE §§ 61.003, 85.036 are not even

tethered to matters appearing on the ballot. Such

imprecision grants officials discretion to place

roadblocks in the path of voters who express viewpoints

they dislike. This paves the road to impermissible

viewpoint discrimination.

Finally, this case is about passive, non-verbal

(silent) expression (t-shirts, badges, insignia, emblems),

not active expression or campaigning. There is only a

tenuous link between the Texas regulations and the

intimidation, coercion, and election fraud that polling

place restrictions are designed to prevent.

4

ARGUMENT

I.

THE

RIGHTS

OF

VOTERS

ARE

PARAMOUNT — THE RIGHT TO VOTE

AND THE RIGHT TO FREE POLITICAL

EXPRESSION.

The right to vote is a “fundamental political right,

because preservative of all rights.” Yick Wo v. Hopkins,

118 U.S. 356, 370 (1886). Freedom of expression is

equally important, “especially expression of political

views, [which] ranks near the top of the hierarchy of

constitutional rights.” Cohen v. California, 403 U.S. 15,

24 (1971). Election day regulations serve legitimate

purposes but must always preserve these fundamental

rights and never impede them. Although Texas may

enact “reasonable and uniform regulations” regarding

the “time and mode of exercising” the right to vote, that

“afford[s] no warrant for such an exercise of legislative

power, as, under the pretense and color of regulating,

should subvert or injuriously restrain the right itself.”

Yick Wo v. Hopkins, 118 U.S. at 371, quoting Capen v.

Foster, 29 Mass. 485, 489 (1832).

The Fifth Circuit acknowledged that the Texas

statutes, which prohibit “certain forms of electioneering

and political apparel,” clearly implicate “expression

within the First Amendment’s ambit.” Ostrewich v.

Tatum, 72 F.4th 94, 103 (5th Cir. 2023). This confronts

the state with the “particularly difficult reconciliation”

of the right to vote with the right to political

expression. Ibid. (quoting Mansky, 138 S. Ct. at 1892

(quoting Burson v. Freeman, 504 U.S. 191, 198 (1992))).

The Tennessee statute in Burson restricted a particular

class of speakers—campaign workers, not voters. This

5

Court upheld the statute, focusing on the “fraud, voter

intimidation, confusion, and general disorder that had

plagued polling places in the past” and concluding that

a “campaign-free zone outside the polls” protected the

right to vote. Mansky, 138 S. Ct. at 1886; see Burson,

504 U.S. at 200-204. But when the state limits a voter’s

silent display of expression on personal clothing, it does

little to serve these purposes.

II.

THE TEXAS STATUTES ARE CONTENTBASED RESTRICTIONS ON CORE

POLITICAL SPEECH THAT GRANT

EXCESSIVE DISCRETION TO OFFICIALS,

CREATING AN UNREASONABLE RISK OF

VIEWPOINT DISCRIMINATION.

The government may not restrict speech because of

“its message, its ideas, its subject matter, or its

content.” Police Department of Chicago v. Mosley, 408

U.S. 92, 95 (1972). Political speech is unquestionably at

the core of the First Amendment. “[T]he First

Amendment ‘has its fullest and most urgent

application’ to speech uttered during a campaign for

political office.” Eu v. San Francisco Cty. Democratic

Central Comm., 489 U.S. 214, 223 (1989) (quoting

Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).

“[D]iscussion of public issues and debate on the

qualifications of candidates are integral to the

operation of the system of government established by

our Constitution.” Buckley v. Valeo, 424 U.S. 1, 14

(1976).

The Texas statutes “implicate[] . . . central concerns

in our First Amendment jurisprudence,” through their

“regulation of political speech . . . based on the content

6

of the speech.” Burson, 504 U.S. at 196 (emphasis

added). The discretion that officials must exercise in

this context opens the door to viewpoint discrimination,

“an egregious form of content discrimination.”

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

U.S. 819, 829 (1995).

A. The statutes’ lack of precision creates

an unacceptable risk of viewpoint

discrimination.

In today’s politically polarized atmosphere, it is

especially important that legislators guard against

overstepping constitutional bounds. “Precision of

regulation must be the touchstone in an area so closely

touching our most precious freedoms.” NAACP v.

Button, 371 U.S. 415, 438 (1963). The Texas statutes

illustrate the imprecision that characterizes many

state laws regulating speech at the polls. They sweep

in benign, passive expression that poses no threat.

Instead of choosing “a less drastic way of satisfying its

legitimate interests,” Texas has enacted “a legislative

scheme that broadly stifles the exercise of fundamental

personal liberties.” Kusper v. Pontikes, 414 U.S. 51, 5859 (1973).

Texas broadly defines “electioneering” to include the

“posting, use, or distribution of political signs or

literature.” TEX. ELEC. CODE § 61.003(b)(1). The section

entitled “Wearing Name Tag or Badge in Polling

Place,” is not much better. Although the words

“appearing on the ballot” add clarity, the words

“relating to” are elusive, as shown by the t-shirt

involved in this case.

7

(a) . . . [A] person may not wear a badge,

insignia, emblem, or other similar

communicative device relating to a candidate,

measure, or political party appearing on the

ballot, or to the conduct of the election, in the

polling place or within 100 feet of any outside

door through which a voter may enter the

building in which the polling place is located.

TEX. ELEC. CODE § 61.010 (emphasis added).

The Texas statutes are content-based because they

only prohibit “political signs or literature” and wearing

of items “relating to a candidate, measure, or political

party appearing on the ballot.” The statutes apply

facially to all viewpoints but censure “an entire topic,”

political speech. Cons. Edison Co. v. Public Serv.

Comm’n, 447 U.S. 530, 537 (1980); Burson, 504 U.S. at

197; Reed v. Town of Gilbert, 576 U.S. 155, 169 (2015).

Without adequate guardrails to prevent the abuse of

discretion, such regulations may lead to viewpoint

discrimination.

This Court has long held it is “clearly

unconstitutional” to empower government officials “to

engage in invidious discrimination among persons or

groups” through statutes granting them broad

discretion to selectively enforce the law. Cox v. La., 379

U.S. 536, 557-558 (1965). “A principle underlying many

of our prior decisions in various doctrinal settings is

that government officials may not be accorded

unfettered discretion in making decisions that impinge

upon fundamental rights.” Schall v. Martin, 467 U.S.

253, 306–307 (1984) (Marshall, J., dissenting). This

principle is particularly relevant to content-based

8

regulations. In Reed v. Town of Gilbert, this Court

observed the possibility of “a Sign Code compliance

manager who disliked the Church’s substantive

teachings deploying the Sign Code to make it more

difficult for the Church to inform the public of the

location of its services.” 576 U.S. at 167-168. The

trademark provision this Court invalidated in Matal v.

Tam gave the government carte blanche to render a

“moral judgment[] based solely and indisputably on its

moral judgment[] about the mark[‘s] expressive

content.” In re Tam, 808 F.3d 1321, 1338 (Fed. Cir.

2015). Here, Texas empowers election officials to deny

the fundamental right to vote to prospective voters

whose outward apparel displays a disfavored political

view.

Some states use broad terms like “political” or

“campaign” but restrict the reach of their statutes to

the candidates, political parties, and measures that are

on the ballot.2 These criteria help curb the potential for

unbridled discretion. Indeed, the Texas restriction

concerning what voters may wear prohibits items

“relating to” a matter on the ballot. But is that

sufficiently precise?

2

Alaska Stat. § 15.56.016(a)(2)(B) (“political”); Ar. Code Ann. § 7-1103(a)(9)(A) (“campaign”); Ar. Code Ann. §§ 16-411(H), 16-515(I);

Cal. Elec. Code §§ 18370, 319.5; Colo. Rev. Stat. 1-13-714(1); Conn.

Gen. Stat. § 9-236(a); Kan. Stat. Ann. § 25-2430(a) (“campaign”);

Me. Rev. Stat. tit. 21-A, § 682 (“campaign); Rev. Stat. Mo.

§ 115.637(18); Mont. Code Ann. § 13-35-211(3); Nev. Rev. Stat.

§ 293.740; N.D. Cent. Code § 16.1-10-06 (prior version of this

statute was found too broad in Emineth v. Jaeger, 901 F. Supp. 2d

1138 (D. N.D. 2012)); R.I. Gen. Laws § 17-19-49 (“political”).

9

A bare term like “political,” without a limiting

definition or other guidance, is highly susceptible to

improper discretion. An extreme example that

illustrates the danger is a “made-for-litigation

definition” of the word as “any advocacy of a position of

any politicized issue.” Am. Freedom Defense Initiative

v. Suburban Mobility Auth. for Regional Transp., 978

F.3d 481, 495 (6th Cir. 2020). One official defined

“politicized” as an issue on which “society is fractured

. . . and factions of society have taken up positions on it

that are not in agreement.” Id. at 496. Such issues

abound, and many are unrelated to government or

politics.

In Mansky, this Court did not require “perfect

clarity and precise guidance.” Mansky, 138 S. Ct. at

1890, quoting Ward v. Rock Against Racism, 491 U.S.

781, 794 (1989). “[S]ome degree of discretion” is

required for enforcement but it “must be guided by

objective, workable standards,” not “an election judge’s

own politics.” Mansky, 138 S. Ct. at 1890. The

“unmoored use” of the word “political,” when combined

with the “haphazard interpretations” found in official

guidance, failed to provide a “sensible basis for

distinguishing what may come in from what must stay

out.” Id. at 1888. The Minnesota statute did not define

“political” when it prohibited voters from wearing a

“political badge, political button, or other political

insignia,” although “the word can be expansive” and

even a button or shirt urging others to vote would fit.

Ibid. The Court also concluded it would be

unreasonable to require election judges “to maintain a

mental index of the platforms and positions of every

10

candidate and party on the ballot” to determine what

is permissible for voters. Id. at 1889.

The risk of arbitrary application, resulting in

viewpoint discrimination, easily results where a

restriction lacks structure and clear policies. Center for

Investigative Reporting v. Se. Pa. Transp. Auth., 975

F.3d 300, 316–317 (3d Cir. 2020) (policy banning

certain ads on buses “susceptible to erratic application”

in the “absence of guidelines cabining SEPTA’s General

Counsel’s discretion in determining what constitutes a

political advertisement”). In this case, the ballot

included an initiative about firefighter pay, and

Petitioner Ostrewich wore a t-shirt that displayed the

union logo and the words “Houston Fire Fighters” but

did not mention the ballot measure. She was not

allowed to vote until she turned her shirt inside out.

Other voters wore t-shirts expressly supporting the

ballot initiative. Ostrewich, 72 F.4th at 98. But the day

after Ostrewich voted, election workers were advised

that “only yellow firefighter t-shirts explicitly

promoting Prop B needed to be covered up,” while

shirts like the one Ostrewich had worn were

permissible. Id. at 99. In Texas, the presiding election

judge has “absolute discretion” when enforcing

electioneering laws at the polls. Id. at 100-101

(emphasis added); TEX. ELEC. CODE § 32.075. Absolute

discretion is dangerous. See, e.g., Amalgamated Transit

Union Local 1015 v. Spokane Transit Auth., 929 F.3d

643, 654 (9th Cir. 2019) (STA’s CEO was “final

arbitrator” as to what constitutes “public issue”

advertising, but “her standard seemed entirely driven

by what she believe[d] would reflect badly on STA”).

The law must provide “objective, workable standards”

11

to pass constitutional muster. Mansky, 138 S. Ct. at

1891.

The district court upheld TEX. ELEC. CODE § 61.010,

which is limited to apparel related to a candidate,

measure, or political party “appearing on the ballot”

and invalidated the two “electioneering statutes,” TEX.

ELEC. CODE §§ 61.003, 85.036, reasoning that these

sections “contain no such limiting principle.” Ostrewich,

72 F.4th at 103. But do any of the three statutes

sufficiently limit the discretion of officials?

The words “relating to” are a “vague limiting

construction” that “give [election] officials alone the

power to decide in the first instance whether a given

activity” is “related to” a matter on the ballot. Bd. of

Airport Commissioners v. Jews for Jesus, 482 U.S. 569,

576 (1987). Is the union logo on Ostrewich’s shirt

“related to” the ballot measure concerning firefighter

pay? Would an opponent of the measure show up at the

polls wearing this shirt? Such lack of clarity “compel[s]

the speaker to hedge and trim” (Thomas v. Collins, 323

U.S. 516, 535 (1945)), perhaps by wearing plain

clothing with no messages, lettering, pictures, or

anything else that might disclose a specific viewpoint.

It can be “a difficult inquiry to precisely define the

point where showing support for a movement”—here,

the Houston Fire Fighters—”is synonymous with

endorsing a candidate or issue on the ballot.” Rebecca

M. Fitz, Peering Into Passive Electioneering: Preserving

the Sanctity of our Polling Places, 58 Idaho L. Rev. 270,

285-286 (2022).

12

Nonpublic forum standard. Courts have applied

a “reasonableness” standard to nonpublic forum

restrictions, demanding more than a rational basis yet

not requiring the narrow tailoring or compelling

interest needed for strict scrutiny. White Coat Waste

Project v. Greater Richmond Transit Co., 35 F.4th 179,

198 (4th Cir. 2022). The reasons need only be

“permissible.” Mansky, 138 S. Ct. at 1886. But as in

Mansky, “even a reasonable end must not be pursued

by unreasonable means.” White Coat Waste 35 F.4th at

199 (“the State must be able to articulate some sensible

basis for distinguishing what may come in from what

must stay out,” citing Mansky, 138 S. Ct. at 1888). In

White Coast Waste, Richmond Transit’s policy banning

political ads violated the First Amendment because it

had “no formal definition” of “political” and “no written

guidelines.” 35 F.4th at 198.

In a nonpublic forum, discretion “must be upheld so

long as it is reasonable in light of the characteristic

nature and function of that forum.” Ridley v. Mass. Bay

Trans. Auth., 390 F.3d 65, 97 (1st Cir. 2004) (internal

quotation marks omitted). Selectivity and discretionary

access are “defining characteristics” of a nonpublic

forum. Griffin v. Sec’y of Veterans Affairs, 288 F.3d

1309, 1323-24 (Fed. Cir. 2002). But viewpoint

discrimination is impermissible in any forum, and

“[w]hen a statute sweeps more broadly than is

warranted by the evil at which it aims, a concern arises

that the legislature . . . has created an excessively

capacious cloak of administrative or prosecutorial

discretion, under which discriminatory enforcement

may be hidden.” Richard H. Fallon, Making Sense of

Overbreadth, 100 Yale L.J. 853, 884 (1991).

13

B. The

prohibition

of

viewpoint

discrimination, firmly entrenched in

Supreme Court precedent, is a

necessary component of the Free Speech

Clause.

Viewpoint discrimination is a critical component of

the analysis in this case. “If there is a bedrock principle

underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive

or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414

(1989). Even when the government’s motives are

innocent—as they may be in this case—there is a

residual danger of censorship in facially content-based

statutes because “future government officials may one

day wield such statutes to suppress disfavored speech.”

Reed v. Town of Gilbert, 576 U.S. at 167. An imprecise

policy not only risks viewpoint discrimination, but

“intimidates [voters] into censoring their own speech,

even if the discretion and power are never actually

abused.” City of Lakewood v. Plain Dealer Pub. Co., 486

U.S. 750, 757 (1988).

History demonstrates this Court’s growing

affirmation that the government must zealously guard

against even the subtle viewpoint discrimination that

might occur through restrictions of voters’ apparel at

the polls. A century ago, this Court affirmed a

conviction under the Espionage Act, which criminalized

publication of “disloyal, scurrilous and abusive

language” about the United States when the country

was at war. Abrams v. United States, 250 U.S. 616, 624

(1919). If that case came before the Court today, no

14

doubt “the statute itself would be invalidated as patent

viewpoint discrimination.” Bloom, The Rise of the

Viewpoint-Discrimination Principle, 72 SMU L. Rev. F.

at 21. After Abrams, the Court shifted gears in

Barnette, “a forerunner of the more recent viewpointdiscrimination principle.” Ibid; see West Virginia State

Board of Education v. Barnette, 319 U.S. 624 (1943).

Barnette’s often-quoted “fixed star” passage was

informed by “the fear of government manipulation of

the marketplace of ideas.” Lackland H. Bloom, Jr., The

Rise of the Viewpoint-Discrimination Principle, 72

SMU L. Rev. F. 20, 21 (2019). Justice Kennedy echoed

the thought: “The danger of viewpoint discrimination

is that the government is attempting to remove certain

ideas or perspectives from a broader debate. . . . To

permit viewpoint discrimination . . . is to permit

Government censorship.” Matal v. Tam, 582 U.S. 218,

252 (2017) (Kennedy, J., concurring). Justice Kennedy’s

comments “explain why viewpoint discrimination is

particularly inconsistent with free speech values.”

Bloom, The Rise of the Viewpoint-Discrimination

Principle, 72 SMU L. Rev. F. at 36.

Since Barnette, courts have further refined the

concept of viewpoint discrimination. In Cohen v.

California, Justice Harlan warned that “governments

might soon seize upon the censorship of particular

words as a convenient guise for banning the expression

of unpopular views.” 403 U.S. at 26; see Bloom, The

Rise of the Viewpoint-Discrimination Principle, 72

SMU L. Rev. F. at 22. A year later this Court affirmed

that “government has no power to restrict expression

because of its message, its ideas, its subject matter, or

15

its content” and “must afford all points of view an equal

opportunity to be heard.” Mosley, 408 U.S. at 95-96.

Further development occurred in the 1980's. Both

the majority and dissent in Perry Education Ass’n v.

Perry Local Educators’ Ass’n agreed that viewpoint

discrimination is impermissible, with the dissent

explaining that such discrimination “is censorship in

its purest form and government regulation that

discriminates among viewpoints threatens the

continued vitality of ‘free speech.’” 460 U.S. 37, 62

(1983) (Brennan, J., dissenting). It became apparent

that the Court considered viewpoint regulation an

“even more serious threat” to speech than “mere

content discrimination.” Bloom, The Rise of the

Viewpoint-Discrimination Principle, 72 SMU L. Rev. F.

at 23. Three years later, the Court struck down a

viewpoint-based regulation based on coerced

association with the views of other speakers. Pacific

Gas & Electric Co. v. Public Utilities Comm’n of Cal.,

475 U.S. 1, 20-21 (1986) (plurality opinion). At the end

of this decade, the Court affirmed the prohibition of

viewpoint discrimination as a “bedrock principle

underlying the First Amendment.” Texas v. Johnson,

491 U.S. at 414 (striking down Texas statute that made

it a crime to desecrate a venerated object, including a

state or national flag).

Justice Scalia authored a key decision in the early

1990’s striking down a Minnesota ordinance that

criminalized placing a symbol on private property that

“arouses anger, alarm or resentment in others on the

basis of race, color, creed, religion or gender.” R.A.V. v.

City of St. Paul, 505 U.S. 377, 380 (1992) (burning

16

cross). At that point, this Court considered “the antiviewpoint-discrimination principle . . . so important to

free speech jurisprudence that it applied even to speech

that was otherwise excluded from First Amendment

protection.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 25,

citing R.A.V., 505 U.S. at 384-385. The ruling defined

viewpoint discrimination as “hostility—or

favoritism—towards the underlying message

expressed” (id. at 385 (citing Carey v. Brown, 447 U.S.

455 (1980)), effectively placing the principle “at the

very heart of serious free speech protection.” Bloom,

The Rise of the Viewpoint-Discrimination Principle, 72

SMU L. Rev. F. at 25. As Justice Scalia observed, the

government may not “license one side of a debate to

fight free style, while requiring the other to follow

Marquis of Queensberry rules.” R.A.V., 505 U.S. at

392. States must heed this caution when crafting

restrictions at the polls and empowering officials to

enforce them.

During this same time frame, this Court held that

the government may not discriminate against speech

solely because of its religious perspective. See, e.g.,

Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384, 394 (1993) (policy for use of school

premises could not exclude film series based on its

religious perspective); Rosenberger, 515 U.S. at 829

(invalidating university regulation that prohibited

reimbursement of expenses to student newspaper that

“primarily promotes or manifests a particular belief in

or about a deity or an ultimate reality”); Good News

Club v. Milford Central School, 533 U.S. 98, 112 (2001)

(striking down regulation that discriminated against

17

religious speech). This Petition does not implicate

religious speech, but religious convictions are often

relevant to voting decisions, and unbridled discretion

could allow officials to discriminate against religious

viewpoints.

In recent years, Matal “is the Court’s most

important decision in the anti-viewpoint-discrimination

line of cases.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 29.

Shortly after Matal, striking down the Lanham Act’s

prohibition of “disparaging” trademarks, the Court

struck down a provision forbidding “immoral or

scandalous” marks because the ban “disfavors certain

ideas.” Iancu v. Brunetti. 139 S. Ct. 2294, 2297 (2019).

The Court’s approach “indicated that governmental

viewpoint discrimination is a per se violation of the

First Amendment.” Bloom, The Rise of the ViewpointDiscrimination Principle, 72 SMU L. Rev. F. at 33.

III.

THE PASSIVE VISUAL EXPRESSION OF

VOTERS IS NOT AN APPROPRIATELY

TARGETED EVIL.

The First Amendment extends beyond the literal

spoken word to a wide variety of silent, visual

expression.3 This case is about passive, non-verbal,

3

See, e.g., Kaplan v. California, 413 U.S. 115, 119-20 (1973)

(paintings, drawings, engravings); Regan v. Time, Inc., 468 U.S. 641,

648 (1984) (photographs); Piarowski v. Ill. Cmty. Coll. Dist. 515, 759

F.2d 625, 628 (7th Cir. 1985) (“art for art’s sake”); White v. City of

Sparks, 500 F.3d 953, 955-56 (9th Cir. 2007) (original artwork);

Cressman v. Thompson, 798 F.3d 938, 952 (10th Cir. 2015) (paintings,

drawings, original artwork); Matal v. Tam, 582 U.S. 218 (trademark);

303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) (websites).

18

visual expression (badge, insignia, emblem, clothing),

not the active expression at issue in Burson, an early

seminal case involving campaign restrictions near the

polls. Polling places are a unique environment. While

some restrictions on active campaigning may be needed

to preserve an orderly process for voters, the broad ban

Texas imposes on political apparel tends to imperil the

rights of voters rather than protecting those rights.

There is only a tenuous link between the Texas

statutes and the intimidation, coercion, and election

fraud that past polling restrictions were designed to

prevent. “The silent expression of political opinion is

not coercive.” Picray v. Secretary of State, 140 Or. App.

592, 600 (1996).

Clothing is a passive, visual means of

communication protected by the First Amendment. See

Cohen v. California, 403 U.S. 15 (t-shirt containing

offensive expletive). This Court’s past decisions have

noted the “nondisruptive” nature of expressive apparel,

even in more mundane settings. Mansky, 138 S. Ct. at

1887, citing Jews for Jesus, Inc., 482 U.S. at 576. One

of the reasons this Court struck down the sweeping

First Amendment activity ban in Jews for Jesus is that

it would reach considerable non-disruptive speech,

including “the wearing of campaign buttons or symbolic

clothing”—a ban that could not be justified even in a

nonpublic forum. Id. at 575. And just as “[t]he line

between airport-related speech and nonairport-related

speech” was “at best, murky” in that case (id. at 576),

the line between “political” and non-political is like a

line in the sand on a windy day.

19

Some lower courts have concluded that political

expression on clothing or accessories could be restricted

under narrowly defined circumstances, depending on

the place, the government’s role, and whether other

legal rights are implicated:

• Courtroom - Berner v. Delahanty, 129 F.3d 20,

27 (1st Cir. 1997) (upholding trial judge’s order

for attorney to remove political button in the

courtroom, which must be an absolutely fair and

neutral environment)

• Political Rally - Sistrunk v. City of Strongsville,

99 F.3d 194 (6th Cir. 1996) (upholding ban on

wearing pins for opposing candidate [Clinton] at

a political rally [Bush]) (implicates rights of

association)

• VA Medical Centers - Preminger v. Sec’y of

Veterans Affairs, 517 F.3d 1299, 1314 (Fed. Cir.

2008) (rejecting unbridled discretion challenge to

ban on “demonstrations” at VA Medical Centers

in light of the need “to maintain a place of

healing and rehabilitation for veterans”)

• National Cemeteries - Griffin, 288 F.3d at 13241325 (veterans denied right to display

Confederate flag in national cemetery because

the government had reasonable discretion to

ensure preservation of the commemorative

functions of national cemeteries) (implicates

government speech)

But regardless of whether those four decisions are

correct, the circumstances involved in those cases are

far removed from the ban on politically themed clothing

20

at stake in this case. This Court has warned that a

complete ban on a species of communication, “can be

narrowly tailored . . . only if each activity within the

proscription’s scope is an appropriately targeted evil.”

Frisby v. Schultz, 487 U.S. 474, 485 (1988) (upholding

residential picketing ordinance) (emphasis added).

Unlike the ordinance in Grayned v. City of Rockford,

408 U.S. 104 (1972), which punished only disruptive

conduct around schools in session, Texas punishes

passive, peaceful expression without any evidence of

disruption, coercion, undue influence, intimidation,

fraud, or similar results. This is contrary to “our

system, [where] undifferentiated fear or apprehension

of disturbance is not enough to overcome the right to

freedom of expression.” Tinker v. Des Moines Indep.

Comm. School Dist., 393 U.S. 503, 508 (1969). Just as

the students in Tinker did not surrender their First

Amendment rights at the school gate, “voters do not

surrender such rights at the polling room door.”

Kimberly J. Tucker, “You Can’t Wear That To Vote”:

The Constitutionality of State Laws Prohibiting the

Wearing of Political Message Buttons at Polling Places,

32 T. Marshall L. Rev. 61, 81 (Fall 2006) (emphasis

added).

Citing Burson, the Fifth Circuit described the

“bedlam” at polling places in the nineteenth century.

“America’s early elections were not a very pleasant

spectacle for voters.” Ostrewich, 72 F.4th at 97 (cleaned

up); Burson, 504 U.S. at 202. Voters were intimated by

“sham battles” where crowds gathered “to heckle and

harass voters who appeared to be supporting the other

side.” Ostrewich, 72 F.4th at 97; Burson, 504 U.S. at

202; Mansky, 138 S. Ct. at 1882-83. But banning

21

disruptive conduct is far removed from banning a

voter’s clothing.

This Court has noted various state interests

advanced to justify campaign-free zones in areas

immediately surrounding the polls: “the right of . . .

citizens to vote freely for the candidates” (Burson, 504

U.S. at 198); “the right to vote in an election conducted

with integrity and reliability” (id. at 199); “protecting

voters from confusion and undue influence” (id.);

“preventing voter intimidation and election fraud” (id.

at 206); “protect[ing] the integrity and reliability of the

electoral process itself” (Anderson v. Celebrezze, 460

U.S. 780, 788, n. 9 (1983) (collecting cases));

“maintain[ing] peace, order, and decorum” at the polls

(Mills v. Alabama, 384 U.S. 214, 218 (1966)). These are

all designed to serve the voters and protect their right

to vote freely and peacefully when they go to the polls.

Voters also have the right to be fully informed as they

cast their ballots. But while elections should be

conducted in an orderly manner, the state lacks a

legitimate interest in insulating voters from all

Election Day campaigning or banning apparel that

poses no threat to order. Mills v. Alabama, 384 U.S. at

219 (overturning conviction of newspaper editor who

violated ban on election day editorial endorsements).

The state’s interests are subservient to the rights of

voters.

The legitimate state interests described in past

cases have only a tenuous connection to the passive

speech of voters. Silent visual expression is not an

appropriately targeted evil. It is hardly disruptive to

the election process for a voter to quietly approach the

22

ballot box wearing a shirt or button an official deems

“political,” according to a nebulous state standard.

Even in pursuit of legitimate interests, the state may

not unnecessarily restrict constitutionally protected

liberties. Anderson v. Celebrezze, 460 U.S. at 806. The

constitutional violation is even more egregious where

the state pursues illegitimate interests. See Anderson

v. Spear, 356 F.3d 651, 658 (6th Cir. 2004) (500-foot

buffer zone around polling places was facially

overbroad where the evidence suggested the

government intended to cut off all electioneering

speech rather than to prevent voter intimidation and

corruption).

CONCLUSION

This Court should grant the Petition for Certiorari

and declare all three of the Texas statutes

unconstitutional.

23

Respectfully submitted,

James L. Hirsen

Counsel of Record

505 S. Villa Real Drive

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

Deborah J. Dewart

Attorney at Law

111 Magnolia Lane

Hubert, NC 28539

(910) 326-4554

lawyerdeborah@outlook.com

Counsel for Amici Curiae