Amicus Curiae Brief — Debra A. Vitagliano, Petitioner v. County of Westchester, New York

i

No. 23-74

In the

Supreme Court of the United States

DEBRA A. VITAGLIANO,

Petitioner,

v.

COUNTY OF WESTCHESTER, NEW YORK,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE CLAREMONT

INSTITUTE’S CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

1628 N. Main St. #289

Salinas, CA 93906

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

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

REASONS FOR GRANTING THE WRIT ..................3

I. The Court Should Grant Review to Protect

Citizens’ Rights to Share Ideas, Even on

Controversial Topics. ........................................ 3

II. This Court Should Grant Review to

Overrule Hill v. Colorado. .............................. 12

CONCLUSION .......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Boos v. Berry,

485 U.S. 312 (1988)................................................ 15

Cornelius v. NAACP Legal Defense and Education

Fund, Inc.,

473 U.S. 788 (1985)................................................ 15

Dobbs v. Jackson Women’s Health Organization,

142 S.Ct. 2228 (2022)............................................. 12

Frisby v. Schultz,

487 U.S. 474 (1984)................................................ 15

Grayned v. City of Rockford,

408 U.S. 104 (1972)................................................ 15

Hague v. CIO,

307 U.S. 496 (1939)................................................ 14

International Society for Krishna Consciousness, Inc.

v. Lee,

505 U.S. 672 (1992)................................................ 15

Kennedy v. Warren,

66 F.4th 1199 (9th Cir. 2023) ....................................2

Lovell v. City of Griffin,

303 U.S. 444 (1938)................................................ 14

McCullen v. Coakley,

573 U.S. 464 (2014)............................................ 1, 13

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995)................................................ 10

Missouri v. Biden,

2023 WL 1335270 (2023) .........................................2

iii

National Institute of Family and Life Advocates v.

Becerra,

138 S.Ct. 2361 (2018)................................... 1, 13, 16

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)..................................................9

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983).................................................. 15

Police Dep’t of City of Chicago v. Mosley,

408 U.S. 92 (1972)............................................ 11, 15

Reed v. Town of Gilbert,

135 S.Ct. 2218 (2015)....................................... 13, 16

Schneider v. State of New Jersey,

308 U.S. 147 (1939)................................................ 14

Snyder v. Phelps,

562 U.S. 443 (2011)) .............................................. 15

Thornhill v. Alabama,

310 U.S. 88 (1940)....................................................6

United States v. Grace,

461 U.S. 171 (1983)................................................ 15

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943).............................................. 1, 4

West Virginia v. Environmental Protection Agency,

142 S.Ct. 2587 (2022)...............................................3

Other Authorities

Agrippa XII, Massachusetts Gazette, reprinted in 5

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Massachusetts No. 2

(John P. Kaminski, et al. eds. 2009) .......................8

Cahn, Edmond, The Firstness of the First

Amendment, 65 Yale L.J. 464 (1956) .................. 4, 9

iv

Candidus II, Independent Chronicle, reprinted in 5

THE DOCUMENTARY HISTORY OF THE RATIFICATION

OF THE CONSTITUTION, Massachusetts No. 2

(John P. Kaminski, et al. eds. 2009) .......................8

Cooley, Thomas, THE GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW, (Little, Brown, & Co. 1880) 5

CREATING THE BILL OF RIGHTS (Helen Veit, et al. eds.

1991) .........................................................................9

Declaration of Rights and Other Amendments, North

Carolina Ratifying Convention (Aug. 1, 1788),

reprinted in 5 THE FOUNDERS’ CONSTITUTION

(Philip B. Kurland & Ralph Lerner eds., 1987) ......8

Franklin, Benjamin, On Freedom of Speech and the

Press, Pennsylvania Gazette, November 17, 1737

(reprinted in 2 THE LIFE AND WRITINGS OF

BENJAMIN FRANKLIN (McCarty & Davis 1840) .......4

George Mason’s Objections, Massachusetts Centinel,

reprinted in 14 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION,

Commentaries on the Constitution No. 2

(John P. Kaminski, et al. eds. 2009) .......................7

History of Congress, February, 1799 ..........................9

Journal of the Continental Congress, 1904 ed., vol. I 6

Kaminski, John P., CITIZEN PAINE (Madison House

2002) .........................................................................5

Letter of George Lee Turberville to Arthur Lee,

reprinted in 8 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, Virginia No. 1

(John P. Kaminski, et al. eds. 2009) .......................8

Letter of Thomas Jefferson to James Madison,

reprinted in 8 THE DOCUMENTARY HISTORY OF THE

v

RATIFICATION OF THE CONSTITUTION, Virginia No. 1

(John P. Kaminski, et al. eds. 2009) .......................8

Madison, James, On Property, Mar. 29, 1792 ........ 4, 6

Needles, Edward, AN HISTORICAL MEMOIR OF THE

PENNSYLVANIA SOCIETY FOR PROMOTING THE

ABOLITION OF SLAVERY (Merrihew and Thompson

1848) .........................................................................7

New York Ratification of Constitution (July 26,

1788), reprinted in 5 The Founders’ Constitution

(Philip B. Kurland & Ralph Lerner, eds. 1987) ......8

Richardson, Katelynn, Stanford Admin Eggs

Students On As They Shout Down, Heckle Federal

Judge During Talk, Daily Caller News

Foundation, March 10, 2023 ...................................3

Shapero, Julia, Former NYT columnist Bari Weiss

releases ‘Twitter Files Part Two’, The Hill,

December 8, 2022.....................................................2

The Dissent of the Minority of the Convention,

reprinted in 2 THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, Pennsylvania

(John P. Kaminski, et al. eds. 2009) .......................8

The Liberator, vol. 1, issue 1, January 1, 1831 (image

available at http://fair-use.org/theliberator/1831/01/01/the-liberator-01-01.pdf) .........7

Thorpe, Francis N., THE FEDERAL AND STATE

CONSTITUTIONS (William S Hein 1993) ...................6

Virginia Ratification Debates reprinted in 10 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION, Virginia No. 3 (John P.

Kaminski, et al. eds. 2009) ......................................8

vi

Wulfsohn, Joseph A., Twitter Files Part 6 reveals

FBI’s ties to tech giant: “As if it were a subsidiary”,

Fox News, December 16, 2022 ................................2

1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the natural

right of freedom of speech. The Center has previously

appeared before this Court as counsel of record or amicus curiae in several cases addressing these issues, including 303 Creative LLC v. Elenis, 143 S.Ct. 2298

(2023); National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361 (2018) (NIFLA); and

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

few.

SUMMARY OF ARGUMENT

In West Virginia Board of Education v. Barnette,

319 U.S. 624, 642 (1943), this Court described as a

“fixed star in our constitutional constellation” the precept that “no official, high or petty, can prescribe what

shall be orthodox … in … matters of opinion. Since

the decision in Hill v Colorado, 530 U.S. 703 (2000),

that star seems to be setting. Hill allowed a state to

prohibit sharing of ideas on the topic of abortion with

women traveling to and from an abortion clinic. In the

decades since that decision, government and private

actors have become more brazen in their attempts to

shut down disfavored speech.

1 All parties were notified of the filing of this brief more than 10

days prior to filing. In accordance with Rule 37.6, counsel affirms

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

part and that no person or entity other than amicus made a monetary contribution to fund the preparation and submission of this

brief.

2

Government officials pressure social media outlets

to suppress ideas and even truthful information that

runs counter to the government-backed narrative.

Reporters Matt Taibbi, Michael Shellenberger, and

Bari Weiss, who were given access to the “Twitter

Files,” have written about how government officials

pressured Twitter to suppress unwanted viewpoints

and even deplatform some speakers. See, e.g., Julia

Shapero, Former NYT columnist Bari Weiss releases

‘Twitter Files Part Two’, The Hill, December 8, 20222;

Joseph A. Wulfsohn, Twitter Files Part 6 reveals FBI’s

ties to tech giant: “As if it were a subsidiary”, Fox

News, December 16, 20223. United States Senator

Elizabeth Warren used her office to pressure Amazon

to suppress a book backed by current presidential candidate Robert Kenney, Jr. that was critical of government policies concerning Covid-19. Kennedy v. Warren, 66 F.4th 1199, 1204 (9th Cir. 2023). The current

administration continues to work with Facebook to

suppress unwanted points of view. Missouri v. Biden,

2023 WL 1335270 at *2 (2023). Apparently, those in

power believe that they have the authority to decree

what shall be orthodox opinion and what information

can and cannot be shared.

Speakers at college campuses, and even law

schools, are regularly shouted down by protestors who

want to prevent the speakers from sharing their ideas.

In one recent episode, a Fifth Circuit Judge Kyle Duncan was prevented from speaking at a law school by

2 https://thehill.com/policy/technology/3768087-former-nyt-col-

umnist-bari-weiss-releases-twitter-files-part-two/ (last visited

August 22, 2023).

3 https://www.foxnews.com/media/twitter-files-part-6-revealsfbis-ties-tech-giant (last visited August 22, 2023).

3

protestors. An official from the law school intervened

on behalf of the protestors! Katelynn Richardson,

Stanford Admin Eggs Students On As They Shout

Down, Heckle Federal Judge During Talk, Daily

Caller News Foundation, March 10, 2023.4

The First Amendment was intended to protect

speech that challenged the listener – speech intended

to change the listener’s mind. The Westchester ordinance and the law upheld in Hill are examples of government intervening to change the terms of the debate – to decree what opinions will be allowed. This

Court should grant review to overrule Hill and to once

again set the natural right of freedom of speech as a

fixed star of our constitutional constellation.

REASONS FOR GRANTING THE WRIT

I.

The Court Should Grant Review to Protect

Citizens’ Rights to Share Ideas, Even on

Controversial Topics.

Westchester County does not want pro-life advocates speaking to women going to and from abortion

clinics.5 The county did not seek to prevent intimidation, harassment, or even physical interference with

access to the clinic. Instead, the county bars communication – it suppresses speech that it dislikes.

Westchester County, however, cannot forbid discussion of alternatives to abortion simply because it

4 https://dailycaller.com/2023/03/10/federal-judge-censured-dei-

dean-law-students-stanford/ (last visited August 22, 2023).

5 The County appears to be preparing a temporary repeal of the

ordinance, apparently to deny this Court an opportunity for review. However, voluntary cessation does not moot a case. West

Virginia v. Environmental Protection Agency, 142 S.Ct. 2587,

2607 (2022).

4

wishes to promote abortion or even to promote the

commercial interests of abortion providers. There is

no exception in the First Amendment to protect others

from controversial speech in a public forum. The First

Amendment preserves the natural right to liberty of

conscience. That right to one’s own opinions, and to

share those opinions with others to sway them to your

point of view. James Madison, On Property, Mar. 29,

1792 (Papers 14:266-68) (“A man has a property in his

opinions and the free communication of them.”).

Without this right, the people lose their status as sovereign and officials in power “can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion.” West Virginia Board of Education

v. Barnette, 319 U.S. at 642.

The founding generation rejected the idea that

government officials should have such power. They

clearly recognized that freedom to communicate opinions is a fundamental pillar of a free government that,

when “taken away, the constitution of a free society is

dissolved.” Benjamin Franklin, On Freedom of Speech

and the Press, Pennsylvania Gazette, November 17,

1737 (reprinted in 2 THE LIFE AND WRITINGS OF BENJAMIN FRANKLIN (McCarty & Davis 1840) at 431).

Thomas Paine argued that “thinking, speaking,

forming and giving opinions” are among the natural

rights held by people. Edmond Cahn, The Firstness of

the First Amendment, 65 Yale L.J. 464, 472 (1956).

Congress and the states agreed. The First Amendment does not “grant” freedom of speech. The text

speaks about a right that already exists and prohibits

Congress from enacting laws that might abridge that

freedom. U.S. Const. Amend. I. (That prohibition extends to state and local governments. Gitlow v. New

5

York, 268 U.S. 652, 666 (1925).) As Thomas Cooley

notes, the First Amendment’s guaranty of free speech

“undertakes to give no rights, but it recognizes the

rights mentioned as something known, understood,

and existing.” Thomas Cooley, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW, (Little, Brown, & Co.

1880) at 272.

A sample of the speech activity at the time of the

founding helps define the breadth of the freedom of

speech recognized in the First Amendment. Thomas

Paine, of course, is the most famous example of the

pamphleteers during the time leading up to the revolution. His pamphlet Common Sense urged his fellow

citizens to take direct action against the Crown. John

P. Kaminski, CITIZEN PAINE (Madison House 2002) at

7.

Such speech was not protected under British rule.

Paine thus chose to publish Common Sense anonymously in its first printing. See id. Paine’s work was

influential. Another of Paine’s pamphlets, Crisis

(“These are the times that try men’s souls”), from The

American Crisis series, was read aloud to the troops

to inspire them as they prepared to attack Trenton.

Id. at 11. That influence, however, is what made

Paine’s work dangerous to the British and was why

they were anxious to stop his pamphleteering.

With these and other restrictions on speech fresh

in their memories, the framers set out to draft their

first state constitutions even in the midst of the war.

These constitution writers were careful to set out express protections for speech.

6

The impulse to protect the right of the people to

share their opinions with each other was nearly universal in the colonies. In 1776, North Carolina and

Virginia both issued Declarations of Rights protecting

freedom of the press. Francis N. Thorpe, 5 THE FEDERAL AND STATE CONSTITUTIONS (William S Hein

1993) at 2788 (North Carolina) (hereafter Thorpe); 7

Thorpe at 3814 (Virginia). Both documents identified

this freedom as one of the “great bulwarks of liberty.”

Maryland’s Constitution of 1776, Georgia’s constitution of 1777, and South Carolina’s constitution of 1778

all protected liberty of the press. 3 Thorpe at 1690

(Maryland); 2 Thorpe at 785 (Georgia); 6 Thorpe at

3257 (South Carolina). Vermont’s constitution of 1777

protected the people’s right to freedom of speech, writing, and publishing. 6 Thorpe at 3741. As other states

wrote their constitutions they too included protections

for what Madison called “property in [our] opinions

and the free communication of them.” James Madison, On Property, supra.

An example of the importance of these rights to

the founding generation is in the letter that the Continental Congress sent to the “Inhabitants of Quebec”

in 1774. That letter listed freedom of the press as one

of the five great freedoms because it facilitated “ready

communication of thoughts between subjects.” Journal of the Continental Congress, 1904 ed., vol. I, pp.

104, 108 quoted in Thornhill v. Alabama, 310 U.S. 88,

102 (1940).

The revolution against the Crown was not the

only topic of controversy that generated pamphlets in

this period. Abolition of slavery was a topic that divided the nation in the late 1700’s and that would

7

send the nation into civil war in the 1800’s. The Pennsylvania Abolition Society, formed in 1775, was one

organization that pushed its views on others. Edward

Needles, AN HISTORICAL MEMOIR OF THE PENNSYLVANIA SOCIETY FOR PROMOTING THE ABOLITION OF SLAVERY (Merrihew and Thompson 1848) at 14. The Society and other abolitionists during this period engaged

in legal actions, published books against slavery, circulated petitions, and distributed pamphlets. See id.

at 17-18. The focus of their efforts was to convince

their fellow citizens of the inherent evils of slavery. In

their own way, the abolitionists were an early example of a right to life organization, promoting the view

that we are equal in the eyes of our Creator and entitled to life and liberty.

The arguments offered by the abolitionist were

designed to capture the attention of their fellow citizens. In the words of William Garrison, in his antislavery newspaper, “The Liberator”, “I do not wish to

think, or speak, or write, with moderation … I am in

earnest – I will not equivocate – I will not excuse – I

will not retreat a single inch – AND I WILL BE

HEARD.” The Liberator, vol. 1, issue 1, January 1,

1831 (image available at http://fair-use.org/the-liberator/1831/01/01/the-liberator-01-01.pdf).

Notwithstanding the controversial nature of

speech activity in the latter half of the 18th Century,

the founders were steadfast in their commitment to

protect speech rights. The failure to include a free

speech guaranty in the new Constitution was one of

the omissions that led many to argue against ratification. E.g., George Mason’s Objections, Massachusetts

Centinel, reprinted in 14 The Documentary History of

the Ratification of the Constitution at 149-50; Letter

8

of George Lee Turberville to Arthur Lee, reprinted in 8

The Documentary History of the Ratification of the

Constitution at 128; Letter of Thomas Jefferson to

James Madison, reprinted in 8 The Documentary History of the Ratification of the Constitution at 250-51;

Candidus II, Independent Chronicle, reprinted in 5

The Documentary History of the Ratification of the

Constitution at 498; Agrippa XII, Massachusetts Gazette, reprinted in 5 The Documentary History of the

Ratification of the Constitution at 722.

A number of state ratifying conventions proposed

amendments to the new Constitution to cure this

omission. Virginia proposed a declaration of rights

that included a right of the people “to freedom of

speech, and of writing and publishing their sentiments.” Virginia Ratification Debates reprinted in 10

The Documentary History of the Ratification of the

Constitution at 1553. North Carolina proposed a similar amendment. Declaration of Rights and Other

Amendments, North Carolina Ratifying Convention

(Aug. 1, 1788), reprinted in 5 The Founders’ Constitution at 18. New York’s convention proposed amendment to secure the rights of assembly, petition, and

freedom of the press. New York Ratification of Constitution, 26 July 1788, Elliot 1:327--31, reprinted in 5

The Founders’ Constitution, supra at 12. The Pennsylvania convention produced a minority report putting forth proposed amendments including a declaration that the people had “a right to freedom of speech.”

The Dissent of the Minority of the Convention, reprinted in 2 The Documentary History of the Ratification of the Constitution.

Madison ultimately promised to propose a Bill of

Rights in the first Congress. CREATING THE BILL OF

9

RIGHTS (Helen Veit, et al. eds. 1991) at xii. Although

Madison argued that a Bill of Rights provision protecting speech rights would not itself stop Congress

from violating those rights, Jefferson reminded him

that such a guaranty in the Constitution provided the

judiciary the power it needed to enforce the freedom.

Madison repeated this rationale as he rose to present

the proposed amendments to the House of Representatives. The Firstness of the First Amendment, supra,

at 467-68.

Congress quickly tested this limit on their power

with the enactment of the Sedition Act. The question

for the new country was whether the free speech and

press guarantees only protected against prior restraint, as was the case in England, or whether they

guaranteed the type of liberty envisioned by Madison

and others who argued for a freedom to share ideas

with fellow citizens.

In the Sedition Act of 1798 Congress outlawed

publication of “false, scandalous, and malicious writings against the Government, with intent to stir up

sedition.” The supporters of the law argued that it

was needed to carry out “the power vested by the Constitution in the Government.” History of Congress,

February 1799 at 2988. Opponents rejected that justification as one not countenanced by the First

Amendment. In an earlier debate over the nature of

constitutional power, Madison noted “‘If we advert to

the nature of Republican Government, we shall find

that the censorial power is in the people over the Government, and not in the Government over the people.’

4 ANNALS OF CONGRESS, p. 934 (1794).” New York

Times Co. v. Sullivan, 376 U.S. 254, 275 (1964).

10

The Virginia Resolutions of 1798 also condemned

the act as the exercise of “‘a power not delegated by

the Constitution, but, on the contrary, expressly and

positively forbidden by one of the amendments

thereto.’” Id. at 274. The particular evil in the Sedition Act, according to the Virginia General Assembly,

was that it was “‘levelled [sic] against the right of

freely examining public characters and measures, and

of free communication among the people thereon.’” Id.

The Sedition Act expired by its own terms in 1801

and the new Congress refused to extend or reenact the

prohibitions. For his part, Jefferson pardoned those

convicted and fines were reimbursed by an act of Congress based on Congress’ view that the Sedition Act

was unconstitutional. Id. at 276.

This Court in New York Times Co., noted that

“[a]lthough the Sedition Act was never tested in this

Court, the attack upon its validity has carried the day

in the court of history.” Id. More important than the

“court of history,” is the apparent political judgment

at the time that the enactment was inconsistent with

the Constitution. Where one Congress attempted to

insulate itself from criticism, the subsequent Congress immediately recognized that attempt as contrary to the First Amendment. Congress and the

President did not merely allow the law to lapse—they

took affirmative action to undo its effects through repayment of fines and pardons. This is the clearest indication we have of that the people intended the First

Amendment’s speech and press clauses to be much

broader than a simple bar on prior restraints. See

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360

(1995) (Thomas, J. concurring) (evidence of original

11

understanding of the Constitution can be found in the

“practices and beliefs held by the Founders”).

The First Amendment prohibits government

from attempting to silence citizens, especially on matters of controversy. The people of the new nation understood the scope of controversial matters on which

people would share their opinions. They nonetheless

insisted on including a prohibition on “abridging freedom of speech” in their new Constitution.

In this case, Westchester County has rejected liberties the founders included in the Constitution. The

County prohibits sidewalk counselors from approaching women going to and from an abortion clinic, an

area traditionally open to free speech, in order to censor those who wish to discuss alternatives to abortion.

The whole purpose of this ordinance is to suppress not

only a particular viewpoint (promoting life for the unborn child), but also information about the effects of

abortion procedures on the mother. The County has

taken a side in this debate and means to censor those

that disagree. But this Court has held: “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 City of Chicago v. Mosley, 408 U.S. 92, 95

(1972).

Westchester County has no power under the Constitution to silence all that oppose the county’s view

on abortion. Like the City of Chicago in Mosley, the

county seeks to silence opposing speakers and messages in area traditionally held open to free speech activities. As this Court noted in Mosley, however, gov-

12

ernment may not “select which issues are worth discussing or debating” and may not censor speech based

on its content. Id. at 96.

This Court should grant review to rule that even

with regard to abortion, government may not choose

which opinions and messages may be spoken.

II.

This Court Should Grant Review to Overrule Hill v. Colorado.

Recent decisions of this Court place Hill in serious tension with the Court’s jurisprudence on “content-based” regulations. The statute at issue in Hill

prohibited approaching a woman within one hundred

feet of an abortion clinic for the purpose of education,

counseling, protest, or handing out literature. This

law, like the regulation in this case, was designed to

silence sidewalk counselors who oppose abortion.

Hill, 530 U.S. at 720. The Court reasoned that the

regulation was content neutral even if the state had

to assess the motive of the person approaching a

woman (i.e., what the content of that speech might be)

to determine whether the law was violated. Id. at 721.

As Justice Scalia (joined by Justice Thomas) in

dissent noted, the Colorado law was clearly a speech

regulation “directed against the opponents of abortion.” Id. at 741 (Scalia, J., dissenting). For his part,

Justice Kennedy noted that the analysis in Hill “contradicts more than a half century of well-established

First Amendment principles.” Id. at 765 (Kenndy, J.,

dissenting).

This Court in Dobbs v. Jackson Women’s Health

Organization, cited Hill as an example of how the

Court’s abortion jurisprudence had “distorted First

Amendment doctrines.” 142 S.Ct. 2228, 2276 (2022).

13

That distortion is described in the dissenting opinion

of Justice Scalia to the decision in Hill. There, he

noted that a regulation “directed against the opponents of abortion … enjoys the benefit of the ‘ad hoc

nullification machine’” to dispose of any “doctrines of

constitutional law stand in the way of that highly favored practice” of abortion. Hill, 530 U.S. at 732

(Scalia, J., dissenting). In a later decision, Justice

Scalia, joined by Justices Thomas and Kennedy, noted

that the Court had created “an entirely separate,

abridged edition of the First Amendment applicable to

speech against abortion.” McCullen, 573 U.S. at 497

(Scalia, J., dissenting).

The Hill Court’s departure from First Amendment principles has only become more pronounced

with this Court’s analysis of content neutrality in

other laws (i.e., ones that do not involve abortion). For

instance, in Reed v. Town of Gilbert, 576 U.S. 155

(2015), this Court ruled that “regulation of speech is

content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 163. The content regulated in Reed

was temporary directional signs. Here, as in Hill, the

content is “counseling” and “education.” This is a regulation of speech based on its communicative content

because it cannot be justified “without reference to the

content” of the speech. Id. at 164. As this Court explained, a regulation “targeted at specific subject matter is content based even if it does not discriminate

among viewpoints.” Id. at 169. Here, however, it is

quite clear that the regulation is aimed precisely at

the content of the speech. As Justice Kennedy observed in relation to the California law challenged in

NIFLA, “viewpoint discrimination is inherent in the

design and structure” of the challenged regulation.

14

See NIFLA, 138 S.Ct. at 2379 (Kennedy, J., concurring). The analysis in Hill simply cannot be reconciled

with the analysis of the later decisions in Reed and

NIFLA.

Hill stands as an outlier on the issue of speech in

a traditional public forum. As noted below, this Court

has consistently held that public sidewalks are open

to speech activities that do not obstruct traffic. Further, this Court has consistently rejected attempts to

ban speech in “special areas” of an otherwise open

public sidewalk. In light of Hill’s inconsistency with

these cases and its inconsistency with the purpose of

the free speech guaranty, this Court should overrule

Hill.

Prior to Hill, this Court had long recognized that

the public sidewalks were held open for speech activity subject only to regulation to ensure that traffic was

not impeded. Schneider v. State of New Jersey, 308

U.S. 147, 160 (1939). Prior to Schneider, the Court

ruled that cities could not require a permit to distribute literature on the city streets. Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938). These rulings were

joined by the decision in Hague v. CIO, 307 U.S. 496

(1939), where a fractured Court held that the Free

Speech guaranty protected speech activities in public

parks and city streets. In his lead plurality opinion

Justice Roberts noted: “Wherever the title of streets

and parks may rest, they have immemorially been

held in trust for the use of the public and, time out of

mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing

public questions.” Id. at 515 (opinion of Roberts, J.).

This Court has repeatedly cited this observation of

15

Justice Roberts as a truism of American constitutional law. See, e.g., International Society for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992);

Cornelius v. NAACP Legal Defense and Education

Fund, Inc., 473 U.S. 788, 802 (1985); Frisby v. Schultz,

487 U.S. 474, 481 (1984); United States v. Grace, 461

U.S. 171, 177 (1983); Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Even when the sidewalk or street fronted a “sensitive area,” this Court has upheld speech activities on

the public areas traditionally open to speech. Thus,

while excessive noise in front of schools could be prohibited, peaceful picketing could not.

Compare

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)

with Mosley, 408 U.S. at 100. Similarly, a city might

prohibit picketing on the sidewalk in front of a single

house but, as a general matter, the sidewalks of even

residential neighborhoods are part of the traditional

public forum open to free speech activities. Frisby v.

Schultz, 487 U.S. at 482-84.

Sidewalks in front of foreign embassies are not off

limits to free speech activity. Boos v. Berry, 485 U.S.

312, 329 (1988). Even the sidewalk in front of this

Court is open to picketers and speakers. United

States v. Grace, 461 U.S. at 176-80. As this Court

noted in Grace, public sidewalks are part of the public

forum and attempts to withdraw them from that forum are “presumptively impermissible.” Id. at 180.

Even the most sensitive areas do not qualify as

No Free Speech Zones. In Snyder v. Phelps, 562 U.S.

443 (2011), this Court struck down a tort judgment

against Westboro Baptist Church for its display of

particularly offensive signs on a public street outside

of a funeral for a fallen soldier. Id. at 457.

16

Hill simply does not fit in, neatly or otherwise,

with this Court’s prior decisions rejecting speech restrictions on public sidewalks. As Justice Scalia noted

in his dissenting opinion in Hill, the only possible way

to explain the decision is to say it is about abortion,

and the Court’s decisions on that sensitive subject

stand “in stark contradiction of the constitutional

principles [the Court applies] in other contexts.” Hill,

530 U.S. at 742 (Scalia, J. dissenting).

In Reed, this Court noted “a separate and additional category of laws that, though facially content

neutral, will be considered content-based regulations

of speech: laws that cannot be “justified without reference to the content of the regulated speech.” Id. at

164; see NIFLA, 138 S.Ct. at 2371 (2018). The

Westchester ordinance at issue in this case is just

such a law – it can only be justified by the speech it

seeks to prohibit. Yet under Hill, such a law would be

characterized as content neutral.

There is no basis in the original understanding of

the free speech guaranty, however, for an “abortion”

exception, or indeed any similar subject matter exception. This Court should grant the petition and overrule Hill.

17

CONCLUSION

It is time to return the natural right of freedom of

speech to its place as a fixed star in our constitutional

constellation. This Court should grant review to overrule its decision contrary to the principle in Hill v. Colorado.

August 2023

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Constitutional Counsel Group

1628 N. Main St. #289

Salinas, CA 93906

(916) 601-1916

atcaso@ccg1776.com

Counsel for Amicus Curiae