Amicus Curiae Brief — National Religious Broadcasters Noncommercial Music License Committee, Petitioner v. Copyright Royalty Board, et al.

Supreme Court briefMay 13, 2024

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No. 23-927

IN THE

Supreme Court of the United States

NATIONAL RELIGIOUS BROADCASTERS

NONCOMMERCIAL MUSIC LICENSE COMMITTEE,

PETITIONER,

CONGRESS,

RESPONDENTS.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR MEDIA RESEARCH CENTER AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

JUDD E. STONE II

Counsel of Record

CHRISTOPHER D. HILTON

ARI CUENIN

CODY C. COLL

STONE | HILTON PLLC

P.O. Box 150112

Austin, Texas 78715

judd@stonehilton.com

(737) 465-7248

Counsel for Amicus Curiae

QUE STIONS P RES ENTED

The Copyright Royalty Board sets default royalty

rates for webcasting sound recordings. The Board

adopted rates requiring noncommercial religious

webcasters to pay over 18 times the secular National

Public Radio (NPR) webcaster rate to communicate

religious messages to listeners above a 218-average

listener threshold. The D.C. Circuit upheld that disparate burden because the Board treated some secular webcasters as poorly as religious webcasters. The

resulting costs suppress online religious speech.

The D.C. Circuit also affirmed Board departures

from precedent regarding who bears the burden of

proof in 17 U.S.C. § 114(f) rate-setting proceedings

and the evidence required to meet that burden. Its

decision presents the following questions:

1. Whether approving noncommercial rates that

favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act

(RFRA) or the First Amendment.

2. Whether 17 U.S.C. § 114(f)(4)’s bar on considering Webcaster Settlement Act (WSA) agreements

in rate-setting proceedings extends to analyses valuing rates in non-WSA agreements.

3. Whether the Board’s unexplained inversion of

the burden of proof in a 17 U.S.C. § 114(f)(1) rate-setting proceeding—including its unexplained new requirement of expert testimony to meet that burden—

violates the Administrative Procedure Act.

TABL E OF C O NTENTS

PA GE

Questions Presented ....................................................... I

Table of Contents ........................................................... II

Table of Authorities ..................................................... III

Interest of Amicus Curiae .............................................. 1

Summary of Argument ................................................... 1

Argument ......................................................................... 2

I. Freedom of Speech Is a Core American Right

That Ensures a Functioning Free Society. ...... 3

II. The Board’s Content-Based, Tiered System of

Disparate Treatment Impermissibly Disfavors

Religious Speech and Expression. ................... 11

III. This Case Is an Ideal Vehicle to Unify the

Principles Governing Ostensibly Neutral Laws

That Burden First Amendment Rights. ......... 16

Conclusion ...................................................................... 22

III

TABLE OF AU THORITIE S

Page(s)

Cases:

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ....................................................... 21

Bailey v. Drexel Furniture Co.,

259 U.S. 20 (1922) ......................................................... 13

Bridges v. California,

314 U.S. 252 (1941) ......................................................... 9

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) ....................................................... 10

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................................... 10

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ....................................................... 12

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ................................................... 19

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ................................................. 17, 19

Espinoza v. Mt. Dept. of Rev.,

591 U.S. 464 (2020) ....................................................... 12

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ....................................................... 10

Iancu v. Brunetti,

588 U.S. 388 (2019) ....................................................... 11

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................................. 11, 19

Masterpiece Cakeshop, Ltd. v.

Co. Civil Rights Comm’n,

584 U.S. 617 (2018) ....................................................... 10

McCullen v. Coakley,

573 U.S. 464 (2014) ....................................................... 17

NAACP v. Button,

371 U.S. 415 (1963). ........................................................ 9

Palko v. Connecticut,

302 U.S. 319 (1937), overruled on other

grounds by Benton v. Maryland,

395 U.S. 784 (1969) ......................................................... 4

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ....................................................... 17

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ......................................................... 19

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

515 U.S. 819 (1995) ....................................................... 10

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) ......................................................... 9

Sweezy v. New Hampshire,

354 U.S. 234 (1957) ......................................................... 9

Tandon v. Newsom,

593 U.S. 61 (2021) ....................................... 16, 18, 19, 20

Thomas v. Review Bd.,

450 U.S. 707 (1981) ....................................................... 12

Timbs v. Indiana,

139 S. Ct. 682 (2019) ..................................................... 13

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) ....................................................... 17

United States v. Schwimmer,

279 U.S. 644 (1929) ......................................................... 8

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

319 U.S. 624 (1943) ..................................................... 8, 9

Walker v. Tex. Div., Sons of Confederate

Veterans, Inc.,

576 U.S. 200 (2015) ....................................................... 13

Whitney v. California,

274 U.S. 357 (1927), overruled by Brandenburg

v. Ohio, 395 U.S. 444 (1969) ................................... 7, 8, 9

Widmar v. Vincent,

454 U.S. 263 (1981) ....................................................... 10

Wooley v. Maynard,

430 U.S. 705 (1977) ......................................................... 9

Constitutional Provisions, Statutes,

and Rules:

U.S. Const. amend. I .................. 1, 2, 3, 8, 9, 14, 16, 20, 21

5 U.S.C. § 706(2)(B) .......................................................... 20

17 U.S.C. § 803(d)(1) ........................................................ 20

42 U.S.C. §§ 2000bb-2000bb-4 ........................................... 3

37 C.F.R. § 380.32(a) ........................................................ 13

S. Ct. R. 10(c) ...................................................................... 2

Miscellaneous:

@uriberliner, Apr. 17, 2024,

https://twitter.com/uberliner/status/178061052

4411048183?lang=en .................................................... 15

1 Annals of Cong. 731-49 (Aug. 15, 1789) ......................... 6

1 Annals of Cong. 738 (Aug. 15, 1789) .............................. 6

4 Annals of Cong. 934 (1794) ............................................. 6

4 WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND ................................................. 5

84 Fed. Reg. 57,833 (Oct. 29, 2019) ................................. 20

85 Fed. Reg. 11,857 (Feb. 28, 2020) ................................ 20

A CONVERSATION WITH FORMER WIKIMEDIA

CEO, KATHERINE MAHER, June 22, 2021,

https://www.youtube.com/watch?v=yJRPJnVvOU, at 36:37-37:30. ....................................... 14

Arthur Schlesinger, America: Experiment or

Destiny?, 82 AM. HIST. REV. 505 (1977) ...................... 4

Benedict Smith, NPR ignoring stories because

of Left-wing diversity push, editor claims,

THE TELEGRAPH, Apr. 10, 2024,

https://www.telegraph.co.uk/us/news/2024/04/1

0/npr-us-radio-ignoring-stories-left-wingdiversity-push/ .............................................................. 15

Bernard Bailyn, THE IDEOLOGICAL ORIGINS OF

THE AMERICAN REVOLUTION 23 (1972) ....................... 4

VII

Clark W. Gilpen, THE MILLENARIAN PIETY OF

ROGER WILLIAMS 55 (1979) .......................................... 5

CPB FAQ, https://www.cpb.org/faq (last visited

May 8, 2024) .................................................................. 13

David Folkenfilk, CPB Memos Indicate Level of

Monitoring, MORNING EDITION, June 30,

2005, https://www.npr.org/2005/06/30/

4724317/cpb-memos-indicate-level-ofmonitoring ................................................................13-14

Declaration of the Rights of Man and the Citizen

of 1789 art. XI, available at

https://avalon.law.yale.edu/18th_century/

rightsof.asp ..................................................................... 5

House Republicans Open Probe of NPR Amid

Allegations of Political Bias, INSIDE RADIO,

May 1, 2024,

https://www.insideradio.com/free/houserepublicans-open-probe-of-npr-amidallegations-of-political-bias/article_f6f2de2c07fe-11ef-b196-fb7889d2f9d3.html.............................. 16

Howard Husock, The Real Bias at NPR: Story

Selection, NATIONAL REVIEW, Apr. 21, 2024,

https://www.nationalreview.com/2024/04/thereal-bias-at-npr-story-selection/ ................................. 15

James V. Campbell, II, Comment, Freedom of

Speech: Evolution of the Enlightenment

Function, 29 MERCER L. REV. 811 (1978) ............. 7, 11

VIII

Jeffrey A. Dvorkin, Media Bias on NPR—It

Seems Obvious to Some, NPR PUBLIC

EDITOR, June 21, 2005,

https://www.npr.org/sections/publiceditor/2005

/06/21/4712584/media-bias-on-npr-it-seemsobvious-to-some ............................................................ 14

Joe Concha, The Time Has Come: Defund the

Hopelessly Biased NPR, THE HILL, July 22,

2022,

https://thehill.com/opinion/campaign/3551625the-time-has-come-defund-the-hopelesslybiased-npr/ .................................................................... 14

John P. Murphy, Rome at the Constitutional

Convention, 51 CLASSICAL OUTLOOK 112

(1974) ............................................................................... 4

Jonathan Rauch, KINDLY INQUISITORS 46 (1993) .......... 5

Keith Werhan, The Classical Athenian Ancestry

of American Freedom of Speech, 1 SUP. CT.

REV. 293 (2008) ............................................................... 4

Kristi Sweet, Kant on Free Speech: Criticism,

Enlightenment, and the Exercise of Judgment

in the Public Sphere, 29 KANTIAN REV. 61

(2024). .............................................................................. 5

Letter from Sen. Cramer et al. to Katherine

Maher (Apr. 29, 2024), available at

https://senatorkevincramer.app.box.com/s/ona

nzoiim9oo6h46mixszdniek7jk5an ................................ 16

Mary Kay Linge, NPR’s New CEO Katherine

Maher Haunted by Woke, Anti-Trump Tweets

as Veteran Editor Claims Bias, N.Y. POST,

Apr. 13, 2024,

https://nypost.com/2024/04/13/us-news/nprsnew-ceo-katherine-mahers-woke-tweets-ariseas-editor-claims-bias/ ................................................... 14

Peter Wallenstein, Flawed Keepers of the Flame:

The Interpreters of George Mason, 102 VA.

MAG. OF HIST. & BIOGRAPHY 229 (1994) ...................... 6

Resolution of the First Congress Submitting

Twelve Amendments to the Constitution,

available at

https://avalon.law.yale.edu/18th_century/resol

u02.asp ............................................................................. 7

Robert G. Natelson, The Constitution and the

Public Trust, 52 BUFF. L. REV. 1077 (2004) ................ 4

Stuart Leibiger, James Madison and

Amendments to the Constitution, 1787-1789:

“Parchment Barriers,” 59 J.S. HIST. 441

(1993) ........................................................................... 6, 7

THE FEDERALIST No. 34, 1788 WL 448 (A.

Hamilton) ........................................................................ 4

Uri Berliner, I’ve Been at NPR for 25 Years.

Here’s How We Lost America’s Trust, THE

FREE PRESS, Apr. 9, 2024,

https://www.thefp.com/p/npr-editor-how-nprlost-americas-trust ..................................................14-15

Va. Declaration of Rights art. XII, available at

https://avalon.law.yale.edu/18th_century/virgi

nia.asp .......................................................................... 2, 5

William E. Nelson, Reason & Compromise in the

Establishment of the Federal Constitution,

1787-1801, 44 WILLIAM & MARY Q. 458 (1987) ............ 7

INTEREST OF AM IC US CU RIAE 1

As a nonprofit organization dedicated to educating

the public on bias in the media, amicus curiae Media Research Center has a strong interest in promoting the

freedom of speech. That interest is at its apex where, as

here, the disfavored speech is religious speech—speech

that implicates two distinct yet related First Amendment

rights. Amicus therefore respectfully submits this brief

to underscore the importance of this Court’s guidance

where, as here, the government starkly disfavors religious speech.

S U M M A RY O F A RGUM E N T

I. The First Amendment enshrines rights

fundamental to a free society, including rights to speak

and worship freely. As the Framers well understood,

these rights are closely linked, but nowhere closer than

in the principle that the government may favor neither

one speaker nor religion over another. This Court’s First

Amendment jurisprudence has given effect to this

antidiscrimination

principle

requiring

the

government to justify partiality to or against any

viewpoint or religion by showing a compelling interest,

the lack of any viable alternative, and an exceptionally

close fit between the ends chosen and means employed.

II. Here, the Board’s action created a content-based,

tiered rate structure, which imposes a disproportionate

burden on religious expression and, by extension,

All parties’ counsel of record were timely notified via email on

April 29, 2024, of the intent to file this brief under Rule 37.2. Under

Rule 37.6, no counsel for any party authored this brief, in whole or

in part, nor did counsel for any party or either party make a monetary contribution intended to fund this brief in whole or part. No

person or entity other than amicus and counsel for amicus contributed monetarily to this brief’s preparation or submission.

freedom of speech. The Board charges National Public

Radio (“NPR”), a left-wing, secular outlet one royalty

rate; it charges similarly situated religious broadcasters

another, higher rate. This disparate treatment reflects a

viewpoint-based preference that impermissibly distinguishes between secular and religious messages. This

government-backed economic advantage amplifies public concerns about media bias and erodes public confidence in the First Amendment’s guarantees.

III. This case is an ideal vehicle to apply this Court’s

free-exercise jurisprudence in the free-speech context,

holding that the government cannot treat comparable

secular expression more favorably than religious expression, even though it appears to be neutral or generally

applicable. The Court currently evaluates content neutrality differently under those two First Amendment

clauses and, as a result, there is a disparity between how

religious expression is treated under the two doctrines.

This case is a good vehicle to resolve that disparity because applying such unified doctrine is plainly dispositive

and requires no further percolation.

A R GUM EN T

The Court should grant certiorari in this case because it presents fundamental issues of First Amendment jurisprudence and offers an ideal opportunity to

clarify the law. See S. Ct. R. 10(c).

As the Framers knew, freedom of thought and expression are essential to sustaining a free society. See,

e.g., Va. Declaration of Rights art. XII, available at

https://avalon.law.yale.edu/18th_century/virginia.asp.

The right to speak freely was so important to the Framers’ new nation that they placed it second only to the

freedom of religion in the Bill of Rights. U.S. Const.

amend. I. The decision of the Copyright Royalty Board,

which the D.C. Circuit affirmed, violated those principles. The Board created a rate structure that suppresses

free speech. That rate structure, which differentiates between (1) NPR and its affiliates and (2) religious noncommercial webcasters, constitutes a content-based disparate treatment of ideologically divergent speakers. Such

a tiered system, preferring secular expression over religious expression, is unconstitutional. Worse still, such a

system undermines public confidence in the free-speech

protections guaranteed to all citizens.

The Court has already held that the government cannot use ostensibly neutral laws to disproportionally burden First Amendment protected activities. In the context of religious exercise, such laws would trigger strict

scrutiny under both the Religious Freedom Restoration

Act, 42 U.S.C. §§ 2000bb-2000bb-4, and, independently,

the First Amendment itself. The D.C. Circuit decided the

case in a way that would plainly conflict with relevant decisions of this Court’s free-exercise jurisprudence. This

case presents an ideal vehicle to provide much needed

guidance, clearly extending this Court’s protective First

Amendment jurisprudence to the freedom of speech as

well.

I. Freedom of Speech Is a Core American Right

That Ensures a Functioning Free Society.

The freedom to speak, like the freedom to worship

according to one’s religious beliefs, has been central to

American life since the Founding. The Framers unequivocally thought them essential. They had strong historical

reason to believe as much.

The Framers knew, and this Court has recognized,

that these rights ensure a functioning and free society.

Indeed, “freedom of thought and speech . . . is the matrix,

the indispensable condition, of nearly every other form

of freedom.” Palko v. Connecticut, 302 U.S. 319, 327

(1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 794 (1969). For over two hundred

years, this Court has reaffirmed that the government

cannot favor speech based on its content or viewpoint

save for the best of justifications and the narrowest of

circumstances. This constitutional rule is rooted not only

in this Court’s precedents, but in the very concept of free

expression.

A. The idea that the individual should be free to think

and speak publicly as his conscience dictates extends

back to ancient Athens, where citizens counted the right

to speak freely as “most treasured” and “a cornerstone

of [their] democracy.” Keith Werhan, The Classical

Athenian Ancestry of American Freedom of Speech, 1

SUP. CT. REV. 293, 296 (2008). The Framers were familiar with the rights of citizens in antiquity. See generally

John P. Murphy, Rome at the Constitutional Convention, 51 CLASSICAL OUTLOOK 112 (1974); see also Arthur

Schlesinger, America: Experiment or Destiny?, 82 AM.

HIST. REV. 505, 507-08 (1977); THE FEDERALIST No. 34,

1788 WL 448, at *1 (A. Hamilton). After all, “knowledge

of classical authors was universal among colonists with

any degree of education.” Bernard Bailyn, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 23

(1972).

These ancient ideas carried forward through the Enlightenment’s thought leaders, who informed and invigorated the Framers. Schlesinger, supra, at 507-08; Robert G. Natelson, The Constitution and the Public Trust,

52 BUFF. L. REV. 1077, 1095-1101 (2004). Seventeenthcentury authors believed that free men had the right to

“speak their minds” and that a just government would

recognize that they possessed the “liberty to speak forth

his mind and judgment.” Clark W. Gilpen, THE MILLENARIAN PIETY OF ROGER WILLIAMS 55 (1979). This free-

dom was essential because, as Locke put it, “first, no one

has the final say on what is true, and second, no one has

any personal or superior authority in determining what

is or is not the truth.” Jonathan Rauch, KINDLY INQUISITORS 46 (1993) (discussing Locke’s epistemology and political philosophy). And Immanuel Kant believed that

freedom to speak and write ensured two objectives of a

free society: the search for greater and more perfect justice, and the enlightenment of the populace. Kristi

Sweet, Kant on Free Speech: Criticism, Enlightenment,

and the Exercise of Judgment in the Public Sphere, 29

KANTIAN REV. 61, 61-62 (2024).

By the time of the Founding generation, the concept

of free speech had begun to solidify in Europe and America. Although certainly not a free speech absolutist, even

Sir William Blackstone said “[e]very free man has an undoubted right to lay what sentiments he pleases before

the public.” 4 WILLIAM BLACKSTONE, COMMENTARIES

ON THE LAWS OF ENGLAND, *15. Therefore, Blackstone

believed, “[t]he liberty of the press is indeed essential to

the nature of a free state.” Id. Further, George Mason’s

Virginia Declaration of Rights held forth that “the freedom of the press is one of the great bulwarks of liberty,

and can never be restrained but by despotic governments.” Va. Declaration of Rights art. XII, available at

https://avalon.law.yale.edu/18th_century/virginia.asp.

And the post-revolutionary French government declared

that “[t]he free communication of ideas and opinions is

one of the most precious of the rights of man.” Declaration of the Rights of Man and the Citizen of 1789 art. XI,

available

https://avalon.law.yale.edu/18th_century/rightsof.asp.

When it came time to ratify the Constitution, two figures emerged as leaders for the introduction of the Bill

of Rights. James Madison, drafter and Father of the

Constitution, was deeply opposed to further amendments, and he agreed to the Bill of Rights only to ensure

the adoption of the Constitution and the unification of the

American States. Peter Wallenstein, Flawed Keepers of

the Flame: The Interpreters of George Mason, 102 VA.

MAG. OF HIST. & BIOGRAPHY 229, 259 (1994). George Mason, on the other hand, at first fully committed to the creation of a new government, opposed the Constitution by

the end of the Convention and refused to sign it. Id. at

238. Mason did, however, by his conscientious dissent,

force the adoption of the Bill of Rights, id. at 256, 259,

and Madison, reticent though he was, promised his support for the Amendments to his deeply antifederalist,

Virginian constituents, Stuart Leibiger, James Madison

and Amendments to the Constitution, 1787-1789:

“Parchment Barriers,” 59 J.S. HIST. 441, 441 (1993).

But Madison eventually came to believe that the enumeration of certain rights would protect the new Nation

from unjust popular majorities and would “substitute for

several features of government that he had vainly sought

to include in the Constitution.” Id. at 442. Madison urged

the adoption of “simple, acknowledged principles, the

ratification [of which] will meet with but little difficulty.”

1 Annals of Cong. 738 (Aug. 15, 1789). He would later express that “the censorial power is in the people over the

government, and not in the government over the people.” 4 Annals of Cong. 934 (1794). This simple idea was

so widely adopted as essential and foundational that

there was hardly any debate over it. 1 Annals of

Cong. 731-49 (Aug. 15, 1789).

After the Federalists and Antifederalists debated,

they coalesced around the provisions now found in the

Bill of Rights. See Leibiger, supra, at 443-44. Only

through the freedom to dissent and to speak freely on

matters of opinion, political philosophy, and governmental theory did this great triumph of compromise occur.

Cf. William E. Nelson, Reason & Compromise in the Establishment of the Federal Constitution, 1787-1801, 44

WILLIAM & MARY Q. 458, 476-77 (1987). Ultimately, the

Framers provided that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I.

The Framers followed Mason’s amendments “in order to

prevent misconstruction or abuse of [the Constitution’s]

powers.” Resolution of the First Congress Submitting

Twelve Amendments to the Constitution, available at

https://avalon.law.yale.edu/18th_century/resolu02.asp.

But equally important, that text was deliberately chosen

to “extend[] the ground of public confidence in the Government.” Id.

B. Just as the Framers understood free speech to be

the cornerstone supporting all other rights, so too has

this Court placed philosophical primacy on promoting

free speech. These time-honored concepts endured

through the early years of the Nation and, when later

tested, became central to this Court’s precedents. See

James V. Campbell, II, Comment, Freedom of Speech:

Evolution of the Enlightenment Function, 29 MERCER

L. REV. 811, 811-14 (1978). Although not the first freespeech case, Justice Brandeis’s concurrence to Whitney

v. California, 274 U.S. 357, 372-80 (1927), overruled by

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), is perhaps one of the best-known early writings on the subject.

In it, Justice Brandeis laid the foundation for the Court’s

future speech jurisprudence. And he set the tone for the

Court’s view of the First Amendment by emphasizing

the importance of the Framers’ intent and the philosophical context they imparted to the Constitution.

Justice Brandeis explained that the revolutionary

generation “believed that the final end of the state was

to make men free to develop their faculties, and that in

its government the deliberative forces should prevail

over the arbitrary.” Id. at 375. The freedom to speak and

think was indispensable to the pursuit of truth because it

“affords ordinarily adequate protection against the dissemination of noxious doctrine.” Id. A state of repression

was to be avoided because “repression breeds hate; [and]

that hate menaces stable government.” Id. The Constitution thus “eschew[s] silence coerced by law.” Id. at 37576.

Justice Brandeis’s exposition informed his colleagues’ First Amendment writings and those that would

come in the following century. Justice Holmes’s now-famous dissent echoes to this day: “if there is any principle

of the Constitution that more imperatively calls for attachment than any other it is the principle of

free thought—not free thought for those who agree with

us but freedom for the thought that we hate.” United

States v. Schwimmer, 279 U.S. 644, 654-55 (1929). And as

Justice Jackson said, “if there is any fixed star in our constitutional constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.” W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943).

Nevertheless, as Justice Brandeis acknowledged

nearly 100 years ago, the right of free speech, although

fundamental, has never been absolute—there are

circumstances under which the government may limit

expression. Whitney, 274 U.S. at 373. The Framers knew

“that the path of safety lies in the opportunity to discuss

freely supposed grievances and proposed remedies; and

that the fitting remedy for evil counsels is good ones.” Id.

at 375. As Justice Brandeis believed, “[i]f there be time

to expose through discussion the falsehood and fallacies,

to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Id. at 377. Thus, limits on free speech have long been imposed only “to protect the state from destruction or from

serious injury, political, economic or moral.” Id. at 373.

The Court then developed Justice Brandeis’s concurrence into a “working principle.” Bridges v. California,

314 U.S. 252, 263 (1941). Freedom of speech would be

“susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully

protect.” Barnette, 319 U.S. at 639. Such a standard was

understood as a form of “strict scrutiny.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

Eventually, the Court began describing this standard as

requiring a “compelling” state or governmental interest

in restricting any First Amendment liberty. Sweezy v.

New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter,

J., concurring). The Court also began to apply this strict

scrutiny to other sensitive areas of liberty, especially

those enumerated in the First Amendment. See NAACP

v. Button, 371 U.S. 415, 438 (1963).

As the “strict scrutiny” concept developed, the

Court’s precedents made clear that, in addition to requiring a compelling governmental interest, courts should

view restrictions on speech “in the light of less drastic

means for achieving the same basic purpose.” Wooley v.

Maynard, 430 U.S. 705, 716-17 (1977). Thus, the

government’s burden has historically included a necessary showing that its restrictive law is “closely drawn to

avoid unnecessary abridgment.” First Nat’l Bank of

Boston v. Bellotti, 435 U.S. 765, 786 (1978) (quoting

Buckley v. Valeo, 424 U.S. 1, 25 (1976)).

These standards, coupled with the primacy of religious activity and expression granted in the Free Exercise Clause, ultimately solidified into a now-familiar rule.

In order to justify discriminatory exclusion from

a public forum based on the religious content of a

group’s intended speech, the [government]

must . . . satisfy the standard of review appropriate to content-based exclusions. It must show that

its regulation is necessary to serve a compelling

state interest and that it is narrowly drawn to

achieve that end.

Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).

As the Court continued to develop this constitutional

rule, the Court’s commands became clearer. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

828 (1995) (“It is axiomatic that the government may not

regulate speech based on its substantive content or the

message it conveys.”). In private speech, the government

may not favor one speaker over another. Id. And the imposition of “financial burdens on certain speakers, based

on the content of their expressions” is forbidden. Id. It

“makes no difference” to the Constitution whether the

government is regulating the creation, distribution, or

consumption of speech. Masterpiece Cakeshop, Ltd. v.

Co. Civil Rights Comm’n, 584 U.S. 617, 658 (2018)

(Thomas, J., concurring in part) (citing Brown v. Entm’t

Merchs. Ass’n, 564 U.S. 786, 792 n.1 (2011)).

This Court’s strict rule, which finds its philosophical

roots deep in the aforementioned historical debate and

the evolution of human thought, Campbell, supra, at 81114, holds that “[v]iewpoint discrimination doom[s] the

[law enacting it],” Iancu v. Brunetti, 588 U.S. 388, 393

(2019). Whether examined under the Free Exercise

Clause or the Free Speech Clause, the question is the

same: does the governmental restriction serve a compelling interest, and is it narrowly tailored to that end? See

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 532

(2022). If not, the law fails. As the Court recently explained, “[t]hese Clauses work in tandem.” Id. at 523.

Both are “a natural outgrowth of the framers’ distrust of

government attempts to regulate religion and suppress

dissent.” Id. at 524.

II. The Board’s Content-Based, Tiered System of

Disparate Treatment Impermissibly Disfavors

Religious Speech and Expression.

Here, the Board created a content-based, tiered rate

structure that required religious broadcasters to pay far

more than NPR stations to communicate with an audience above a mere 218 people. That result forces religious broadcasters to pay royalty rates 18 times higher

than those to which NPR will be subject. The Board’s actions impose a disproportionate burden on religious expression and, by extension, freedom of speech.

NPR and its affiliates who received comparatively

better treatment represent one side of the ideological

coin. The religious broadcasters burdened by the

Board’s determination represent the other. The former

are granted substantially lower royalty rates, while the

latter and their message are substantially burdened in

comparison. This disparate treatment reflects viewpointbased discrimination that impermissibly distinguishes

between secular and religious speakers. The discrimination is particularly troubling because secular NPR public

broadcasting wields a government-backed economic advantage over religious broadcasters. That result not only

amplifies concerns about media bias but erodes the confidence in constitutional guarantees that the Framers

understood as essential for a free society.

A. As petitioner explains, the religious broadcasters

it represents will pay royalty rates 18 times higher than

those NPR will be subjected to. Pet. 9-10. For example,

a religious broadcaster playing 15 songs per hour to

1,000 listeners will incur a $257,000 per year royalty cost.

NPR will incur only $18,000 for the same use. Id. at 10.

Said differently, the Board gave NPR a 93% discount

over the rate given to religious broadcasters. And the

record shows that religious broadcasters are the only

group meaningfully affected by these rates. Id. at 9 (citing D.C. Cir. J.A.1363-64 & n.312, 18467-47).

Of course, this extreme differential in economic advantage, imposed by an arm of the federal government,

constitutes a substantial burden. See Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 719-20 (2014). As this

Court has recognized, imposing disparate financial burdens on expressing varying viewpoints “penalizes” the

decision to express that viewpoint and puts “substantial

pressure” on a speaker to modify or silence his message.

See Espinoza v. Mt. Dept. of Rev., 591 U.S. 464, 486

(2020); Thomas v. Review Bd., 450 U.S. 707, 718 (1981).

As petitioner and others have articulated, that is exactly

the case here: religious webcasters face a choice to carry

a disproportionate financial burden or cease their protected expression. That this choice flows from the

Board’s rate structure should come as no surprise. The

chilling power of fees and fines to suppress speech and

other activities undesirable to the governing status quo

has long been recognized. “Excessive fines can be used,

for example, to retaliate against or chill the speech of political enemies.” Timbs v. Indiana, 139 S. Ct. 682, 689

(2019). And, of course, any number of government-imposed charges can “discourag[e activities] by making

their continuance onerous.” Bailey v. Drexel Furniture

Co., 259 U.S. 20, 38 (1922).

B. The effect of such disparate treatment—and the

attendant viewpoint discrimination—is particularly clear

in this case. As noted above, the NPR rate is nominally

18 times lower than the rate that religious broadcasters

must pay. But in practice, NPR and its affiliates, the relevant comparator group, pay nothing for the right to use

copyrighted recordings. NPR receives public funding:

the Corporation for Public Broadcasting (CPB) will pay

all of the royalty costs for NPR and its affiliates, Pet. 10

(citing 37 C.F.R. § 380.32(a); D.C. Cir. J.A.926), and the

CPB, in turn, receives its funding from the federal government. CPB FAQ, https://www.cpb.org/faq (last visited May 8, 2024). This is not speech by the government

to “express itself”—the American public simply foots the

bill. Walker v. Tex. Div., Sons of Confederate Veterans,

Inc., 576 U.S. 200, 208 (2015). In contrast, the religious

broadcasters do not rely on such funding and must pay

for their own royalty fees. Thus, an NPR station’s rate is

effectively zero—meaning that religious broadcasters

must pay an infinitely higher rate in practice.

At the same time, NPR and its affiliates express a

viewpoint that is starkly secular and liberal, in contrast

to the religious and largely conservative broadcasters

that petitioner represents. To give one example, NPR

has pushed back against even the CPB’s attempts to encourage balance in reporting. See David Folkenfilk, CPB

Memos Indicate Level of Monitoring, MORNING EDITION,

June

30,

2005,

https://www.npr.org/2005/06/30/4724317/cpb-memos-indicate-level-of-monitoring; Jeffrey A. Dvorkin, Media

Bias on NPR—It Seems Obvious to Some, NPR PUBLIC

EDITOR, June 21, 2005, https://www.npr.org/sections/publiceditor/2005/06/21/4712584/media-bias-onnpr-it-seems-obvious-to-some (asserting that fitting the

“liberal journalism” mold “results in the best of American journalism”).

Charges of left-wing bias in NPR’s reporting and editorializing have prompted widespread public scrutiny.

Commentators have lamented for years that “anyone

who’s listened to NPR for more than five minutes

scarcely needs to be convinced of its extreme liberal

bias.” Joe Concha, The Time Has Come: Defund the

Hopelessly Biased NPR, THE HILL, July 22, 2022,

https://thehill.com/opinion/campaign/3551625-the-timehas-come-defund-the-hopelessly-biased-npr/. And the

newly appointed CEO of NPR publicly lambasts conservative figures and causes. Mary Kay Linge, NPR’s

New CEO Katherine Maher Haunted by Woke, AntiTrump Tweets as Veteran Editor Claims Bias, N.Y.

POST, Apr. 13, 2024, https://nypost.com/2024/04/13/usnews/nprs-new-ceo-katherine-mahers-woke-tweetsarise-as-editor-claims-bias/. Indeed, Ms. Maher has

called the First Amendment a “tricky” obstacle to her

objective of eliminating “bad information.” A CONVERSATION WITH FORMER WIKIMEDIA CEO, KATHERINE MAHER,

June

22,

2021,

https://www.youtube.com/watch?v=y-JRPJnVvOU, at

36:37-37:30.

The charges of NPR’s bias against religious and conservative ideas came to a head last month. Uri Berliner,

a long-time NPR editor, recently published his “findings

and conclusions” exposing alleged biases at NPR. Uri

Berliner, I’ve Been at NPR for 25 Years. Here’s How We

Lost America’s Trust, THE FREE PRESS, Apr. 9, 2024,

https://www.thefp.com/p/npr-editor-how-npr-lost-americas-trust. In his resignation letter, Mr. Berliner wrote,

“I cannot work in a newsroom where I am disparaged by

a new CEO whose divisive views confirm the very problems at NPR I cite in my Free Press essay.” @uriberliner, Apr. 17, 2024, https://twitter.com/uberliner/status/1780610524411048183?lang=en. According to Mr.

Berliner, the NPR leadership has lost all viewpoint diversity and has become consumed by race and identity

politics. Benedict Smith, NPR ignoring stories because

of Left-wing diversity push, editor claims, THE TELEApr.

10,

2024,

https://www.teleGRAPH,

graph.co.uk/us/news/2024/04/10/npr-us-radio-ignoringstories-left-wing-diversity-push/.

Indeed, by merely selecting what stories are covered,

NPR influences “what issues are at the center of our politics.” Howard Husock, The Real Bias at NPR: Story Selection, NATIONAL REVIEW,

Apr. 21,

2024,

https://www.nationalreview.com/2024/04/the-real-biasat-npr-story-selection/. “This is how NPR has come to

understand its taxpayer-supported mission. On any

given day, the stories of NPR and those, for instance, of

Fox News can seem to be reports from different Americas . . . Moreover, the same events can be reported with

sharply different emphases.” Id. Howard Husock, a senior fellow at the American Enterprise Institute, explains

that “[a]ll such decisions as to what to cover and what

about it to emphasize are effectively efforts to set the national cultural and political agenda,” which “is the real

media bias.” Id.

The charges against NPR’s bias have become so loud

that they triggered a recent congressional oversight

inquiry. House Republicans Open Probe of NPR Amid

Allegations of Political Bias, INSIDE RADIO, May 1,

2024, https://www.insideradio.com/free/house-republicans-open-probe-of-npr-amid-allegations-of-politicalbias/article_f6f2de2c-07fe-11ef-b196-fb7889d2f9d3.html.

And they have prompted an open letter published by

seven United States Senators denouncing NPR for

“pursu[ing] a narrative-driven approach rather than evidence-based journalism.” Letter from Sen. Cramer et

al. to Katherine Maher (Apr. 29, 2024), available at

https://senatorkevincramer.app.box.com/s/onanzoiim9oo6h46mixszdniek7jk5an.

Right or wrong, these charges of bias show the fragile

relationship between government funding and trust in

the media. Of course, NPR is free to espouse a certain

viewpoint—but the government is not free to prefer that

viewpoint over others through a discriminatory rate

structure. When, as here, the government burdens conservative and religious voices, that result merely fuels

the perception of government-funded favoritism of NPR.

The tiered, content-based rate structure based on that

preference cannot be viewed as anything other than

viewpoint discrimination in violation of the First Amendment. The Court should thus grant certiorari and reverse the D.C. Circuit to remove any suggestion of a government preference for left-leaning, secular media.

III. This Case Is an Ideal Vehicle to Unify the

Principles Governing Ostensibly Neutral Laws

That Burden First Amendment Rights.

This case further presents an ideal vehicle to apply

the reasoning of Tandon v. Newsom, 593 U.S. 61 (2021),

and similar free-exercise cases to determine whether a

law impermissibly treats comparable secular expression

more favorably than religious expression, even though it

appears to be neutral or generally applicable. The

Court’s jurisprudence in the Free Speech and Free Exercise Clauses make clear that an apparently facially

neutral law is not always so. The Court, however, evaluates content neutrality differently under the two clauses

and, as a result, there is a disparity between how religious expression is treated under the two doctrines.

A. In the free-speech context, this Court has explained that “a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.” McCullen v. Coakley, 573

U.S. 464, 480 (2014). Rather, “a regulation that serves

purposes unrelated to the content of expression is

deemed neutral, even if it has an incidental effect on

some speakers or messages but not others.” Id. (cleaned

up). However, regulating speech by subject matter and

by “function or purpose” are both “distinctions drawn

based on the message a speaker conveys.” Reed v. Town

of Gilbert, 576 U.S. 155, 163-64 (2015).

The Free Exercise Clause, on the other hand, “extends beyond facial discrimination,” to prohibit “subtle

departures from neutrality” and “covert suppression

of . . . religious beliefs.” Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (citations

omitted). “[R]eligious gerrymanders” therefore violate

the Constitution. Id. Thus, the Court’s precedents have

demanded a more exacting inquiry into the effects of a

law allegedly in violation of the Free Exercise Clause

than under the Free Speech Clause. While a law may not

“impose special disabilities on the basis of religio[n],”

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

582 U.S. 449, 461 (2017), it may have an “incidental effect

on [religious] speakers . . . but not others,” McCullen,

573 U.S. at 480. This Court has clarified that, under the

Free Exercise Clause, a law is subject to the highest

scrutiny “whenever [it] treat[s] any comparable secular

activity more favorably than religious exercise.” Tandon, 593 U.S. at 62. And, applying a disproportionateburden analysis, the Court has made clear that this rule

cannot be avoided by pointing out that “some comparable

secular businesses or other activities [are treated] as

poorly as or even less favorably than the religious exercise at issue.” Id.

While a substantial burden on religion enacted by a

neutrally worded law is thus subject to strict scrutiny, an

artfully drafted law that imposes a disproportionate burden on the expression of a particular viewpoint has not

typically triggered the same level of scrutiny. The

Court’s precedents limit the inquiry under the Free

Speech Clause through the “incidental effect” rule. Thus,

an arguably view-point or content-based law may fall

through the cracks only because it doesn’t discriminate

enough or because the disproportionate effect is not

drastic enough.

The Court should resolve this dilemma by applying

the logic of Tandon and similar cases. As noted above,

many laws that appear neutral are not. A law that treats

a comparable expression of one ideology more favorably

than expression of another ideology violates the Free

Speech Clause. Such a holding would not eviscerate the

incidental effect rule, which grants governments leeway

to regulate non-speech in a way that burdens speech. Rather, it would supplement that rule by requiring courts

to look beyond the incidental nature of the burden to ask

whether that burden disproportionately affects expression of a particular ideology and therefore constitutes

view-point discrimination. Only this Court’s intervention

can provide the necessary guidance in analyzing these

burdens. E.g. Church of Lukumi, 508 U.S. at 533-35.

For example, in his dissent in Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2609-15 (2020), Justice Kavanaugh outlined four categories of laws that

might be examined in the Free Exercise context. These

four categories could be restated for the Free Speech

context as:

(1) laws that expressly discriminate against [a

particular viewpoint]; (2) laws that expressly favor [a particular viewpoint]; (3) laws that do not

classify on the basis of [a viewpoint] but apply to

[all viewpoints] alike; and (4) laws that expressly

treat [an expression of a particular viewpoint]

equally to some [contrary expressions] but better

or worse than other [contrary expressions].

Id. at 2610 (Kavanaugh, J., dissenting).

For those laws that reside in the fourth category, the

government must have a “sufficient justification” for

treating one viewpoint differently—i.e. it must pass the

required degree of scrutiny. Tandon, 593 U.S. at 62; Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S.

14, 29 (2020) (Kavanaugh, J., concurring). And, as this

Court has made clear, viewpoint discrimination is subject to the highest scrutiny. Kennedy, 597 U.S. at 532.

B. This case presents an ideal vehicle to eliminate

that disparity. Here there can be no question that the

Board’s determination would fall within Justice Kavanaugh’s fourth category of prohibited regulations. It

treats religious noncommercial broadcasters—who espouse and express a particular ideology—worse than

some secular noncommercial broadcasters—who espouse and express a contrary, or at least different, ideology. The court of appeals erred by failing to address, and

therefore implicitly by rejecting, petitioner’s free-speech

arguments. If nothing else, under principles discussed

above, the Board’s determination should be vacated as

“contrary to a constitutional right.” 5 U.S.C. § 706(2)(B).

The Board’s rate structure impermissibly treats one

viewpoint (the religious one) less favorably than a comparable secular activity. Tandon, 529 U.S. at 62.

That some secular voices are treated as badly as religious ones provides no justification for respondents. Id.

The court of appeals said that because the Board

properly disregarded the NPR Agreement as a benchmark, there was no evidence of disparate treatment or of

a burden on religious expression. But that is plainly

wrong: the record reflects the rates set forth in the

Board’s determination and the rates contained in the

NPR Agreement were published in the federal register

in both proposed and final forms. 84 Fed. Reg. 57,833

(Oct. 29, 2019); 85 Fed. Reg. 11,857 (Feb. 28, 2020). The

court of appeals could have readily examined the burden

on the religious broadcasters’ expression and determined that secular viewpoints were treated better. Without a compelling governmental interest to protect, then,

the Board cannot justify setting discriminatory rates.

This Court should grant certiorari to set aside the

Board’s determination as unlawful.

This case is an exceedingly good vehicle for the Court

to develop its First Amendment jurisprudence in this

media-licensing context. The issues in this case are not

susceptible to further percolation: the D.C. Circuit possesses exclusive jurisdiction over respondents. 17 U.S.C.

§ 803(d)(1). Moreover, the Court’s role is never more important than in interpreting and protecting the fundamental freedoms from which the American way of governance, life, and moral leadership grow. The Court has

done so throughout the last 100 years, has done so recently, and should do so again. See 303 Creative LLC v.

Elenis, 600 U.S. 570, 584-87 (2023). In addition to the

free-exercise arguments capably presented by petitioner

and others, this case’s free-speech implications amplify

the need for this Court’s review.

Ultimately, the Court has long hewed to the Framers’

intent as expressed in the Free Speech Clause. And the

Court has sought to apply that Clause as informed by the

philosophy underpinning the Framers’ belief in free

speech. But the rule applied to determine whether a law

impermissibly burdens religion under the Free Exercise

Clause is currently different from the one applied to determine whether that same law impermissibly engages

in viewpoint discrimination in violation of the Free

Speech Clause. There is no principled reason for that disparity to persist. This Court should grant certiorari to

reconcile these bodies of First Amendment jurisprudence and provide much-needed clarity.

C O NCL U SI O N

The Court should grant a writ of certiorari and reverse the judgment of the court of appeals.

Respectfully submitted.

MAY 2024