Amicus Curiae Brief — Cambridge Christian School, Inc., Petitioner v. Florida High School Athletic Association, Inc.

No. 24-1261

In the

Supreme Court of the United States

CAMBRIDGE CHRISTIAN SCHOOL, INC.,

Petitioner,

v.

FLORIDA HIGH SCHOOL

ATHLETIC ASSOCIATION, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

AWAKEN CHURCH

IN SUPPORT OF PETITIONER

Elise M. Engle

Shutts & Bowen LLP

4301 West Boy Scout

Boulevard, Suite 300

Tampa, FL 33609

Thomasina F. Moore

Counsel of Record

Denise M. Harle

Shutts & Bowen LLP

215 South Monroe Street,

Suite 804

Tallahassee, FL 32301

(850) 241-1717

tmoore@shutts.com

Counsel for Amicus Curiae

120517

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

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

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

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

I.

T H E G O V E R N M E N T- S P E E C H

DOCT RIN E DOES NO T A LWAYS

DEFEAT THE FREE EX ERCISE

CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The creation of the government-speech

doctrine to determine whether a

government entity had violated the First

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Appellate judges and constitutional

scholars alike have questioned both the

legitimacy and strict application of the

government-speech doctrine . . . . . . . . . . . . 6

1.

Appellate judges and

const itut iona l schola rs have

questioned leg itimacy of the

government-speech doctrine . . . . . . . . . 6

ii

Table of Contents

Page

2. T h e A p p e l l a t e j u d g e s a n d

const itut iona l schola rs have

questioned the strict application of

the government-speech doctrine . . . . . . 9

II. A BRIGHT-LINE APPLICATION OF THE

GOVERNMENT-SPEECH DOCTRINE

WILL EVENTUALLY ERODE THE

FREE EXERCISE CLAUSE WHEN,

OTHERWISE, PRIVATE RELIGIOUS

EXPRESSION WOULD OFTEN RIGHTLY

PREVAIL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Erosion of the Free Exercise Clause is a

predictable consequence of a bright-line

rule, as seen in the Eleventh Circuit’s

decision below . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The Free Exercise Clause often rightly

prevails over the government-speech

doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kennedy v. Bremerton School District . . 17

Trinity Lutheran Church of Columbia,

Inc. v. Comer . . . . . . . . . . . . . . . . . . . . . . . . . 18

Espinoza v. Montana Department of

Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Carson as next friend of O. C. v.

Makin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

Table of Contents

Page

III. I F T H I S C O U R T G R A N T S

T H E P E T I T ION F OR W R I T

OF CERTIORA RI, A NUMBER

OF P EN DI NG C A S E S W I L L

B E I M PA C T E D B Y T H E

OUTCOME . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Woolard v. Thurmond . . . . . . . . . . . . . . . . . 22

Arroyo-Castro v. Gasper . . . . . . . . . . . . . . . 23

Gabriel Olivier v. City of Brandon . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iv

TABLE OF CITED AUTHORITIES

Cases

Page

Adams v. Maine Mun. Ass’n,

No. 1:10-CV-00258-JAW, 2013 WL 9246553

(D. Me. Feb. 14, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Arroyo-Castro v. Gasper,

3:25-CV-00153 (D. Conn.) . . . . . . . . . . . . . . . . . . . . . . 23

Bd. of Regents of the Univ. of Wis. Sys. v.

Southworth,

529 U.S. 217 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Cambridge Christian Sch. v.

Fla. High Sch. Athletic Assoc., Inc.,

115 F.4th 1266 (11th Cir. 2024) . . . . . . . . . . . . . . 3, 9, 14

Carson as next friend of O. C. v. Makin,

596 U.S. 767 (2022) . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 11, 19

Cohen v. California,

403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Columbia Broad. Sys., Inc. v.

Democratic Nat’l Comm’n,

412 U.S. 94 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v

Cited Authorities

Page

Employment Div. v. Smith,

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Everson v. Board of Ed. of Ewing,

330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Gabriel Olivier v. City of Brandon,

24-993 (U.S.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 25

Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . 2, 13, 14, 17, 21

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Lemon v. Kurtzman,

411 U.S. 192 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Mech v. Sch. Bd. of Palm Beach Cnty.,

806 F.3d 1070 (11th Cir. 2015) . . . . . . . . . . . . . 3, 10, 11

vi

Cited Authorities

Page

Minn. Voters All. v. Mansky,

585 U.S. 1 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

R.J. Reynolds Tobacco Co. v. Bonta,

272 F. Supp. 2d 1085 (E.D. Cal. 2003),

aff’d sub nom. R.J. Reynolds Tobacco Co. v. Shewry,

384 F.3d 1126 (9th Cir. 2004), opinion amended

and superseded on denial of reh’g, 423 F.3d 906

(9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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

515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rust v. Sullivan,

500 U.S. 173 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Shurtleff v. City of Boston,

596 U.S. 243 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

Snyder v. Phelps,

562 U.S. 443 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tinker v. Des Moines Independent

Community School District,

393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

vii

Cited Authorities

Page

Town of Greece, N.Y. v. Galloway,

572 U.S. 565 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) . . . . . . . . . . . . . . . . . . 18, 19, 20, 21

Walker v. Texas Division,

Sons of Confederate Veterans, Inc.,

576 U.S. 200 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

Widmar v. Vincent,

454 U.S. 263 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Woolard v. Thurmond,

Case No. 24-4291 (9th) . . . . . . . . . . . . . . . . . . . . . . . . 22

Woolard v. Thurmond,

No. 2:23-CV-02305-JAM-JDP, 2024 WL 3010899

(E.D. Cal. June 10, 2024) . . . . . . . . . . . . . . . . . . . . 2, 23

Constitutional Provisions

U.S. Const. amend. I . . . . 2-4, 6-8, 9, 12-14, 16-20, 22, 24

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rules

S. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

viii

Cited Authorities

Page

Other Authorities

C l ay C a l ve r t , T h e G o v e r n m e n t Sp e e c h

Doctrine in Walker’s Wake: Early Rifts and

Reverberations on Free Speech, Viewpoint

Discrimination, and Offensive Expression,

25 Wm. & Mary Bill Rts. J. 1239 (2017) . . . . . . . . . . 11

Erwin Chemerinsky, Free Speech, Confederate Flags

and License Plates, Orange County Reg. (June

25, 2015, 3:57 PM), http://www.ocregister.com/

articles/government-668320-texas-license.html

[https://perma.cc/VQ78-DVGW] . . . . . . . . . . . . . . . . . 6

Caroline Mala Corbin, Government Speech and

First Amendment Capture, 107 Va. L. Rev.

Online 224 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mary-Rose Papandrea, The Government Brand,

110 Nw. U. L. Rev. 1195 (2016) . . . . . . . . . . . . . . . . . . . 7

The Rady Shell, The Rady Shell at Jacobs Park: A

New Reason to be Proud of San Diego, https://

www.theshell.org/about/the-rady-shell/ . . . . . . . . . . 15

G. Alex Sinha, The End of Government Speech,

44 Cardozo L. Rev. 1899 (2023) . . . . . . . . . . . . . . . . . . 8

1

INTEREST OF AMICUS CURIAE

Awaken Church (the “Church”) is a non-denominational

congregation founded in 2005. Over the past 20 years, the

Church has expanded from a single location in San Diego,

California, to 11 campuses in five states. This multicampus, multi-generational Church describes itself as “a

church that is fresh, real, powerful, and has at its heart

the great commission to win souls and make disciples of

all nations.”

This case is of interest to Awaken Church because it

involves the intersection of government speech and the

free exercise of religion. In 2022, the Church requested

to rent the Rady Shell—a concert venue owned by the

San Diego Symphony Orchestra Association—for its

Christmas program. Despite the Rady Shell being a place

of public accommodation, its director declined to rent the

venue to the Church, stating, “we have decided we must

pass on this rental and any other potential rentals to

religious organizations.” While the Rady Shell reversed

course and allowed the Church to rent the venue for its

Christmas program, the controversy is a stark reminder

that religious discrimination persists.1

1. Per Rule 37.2, all parties were timely notified of the filing

of this brief. In accordance with Rule 37.6, no counsel for any party

has authored this brief in whole or in part, and no person or entity,

other than amici, their members, or counsel, have made a monetary

contribution to the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

Ever since the early 1990s, when this Court granted

government speech a qualified exemption from First

Amendment scrutiny, lower courts have grappled with

how to apply the resulting rule. Appellate judges and

constitutional scholars alike have questioned both the

legitimacy and strict application of the governmentspeech doctrine. In some courts, like the Eleventh Circuit

below, the doctrine has evolved into a bright-line test that

threatens to gut the Free Exercise Clause whenever the

two collide. But as case after case in this Court has shown,

the mere fact that a government entity is speaking does

not invalidate free-exercise rights or permit religious

discrimination.

Continued application of the government-speech

doctrine as a bright-line rule will eventually lead to

an erosion of First Amendment rights. Such a rule

lacks a limiting principle as it fails to account for the

nuanced interplay between government speech and

private religious expression, which can lead to viewpoint

discrimination. Further, such an approach could lead

to broader consequences, such as converting public

platforms into government speech and excluding religious

viewpoints, thereby undermining pluralism and the

educational value of public religious expression. The Free

Exercise Clause should often prevail over the governmentspeech doctrine, as demonstrated in cases like Kennedy v.

Bremerton School District, where the Court recognized

the complementary purposes of the First Amendment’s

clauses. Finally, a merits ruling by the Court in this case

could have far-reaching implications for pending cases

involving similar issues, such as Woolard v. Thurmond

3

and Gabriel Olivier v. City of Brandon. This Court should

clarify that the government-speech doctrine does not

always defeat a Free Exercise claim, which would provide

necessary guidance and resolution of these issues.

ARGUMENT

I.

THE GOVERNMENT-SPEECH DOCTRINE

DOES NOT ALWAYS DEFEAT THE FREE

EXERCISE CLAUSE.

Below, Cambridge Christian claimed Florida High

School Athletic Association (“FHSA A”) violated its

First Amendment rights of free speech and free exercise

when it denied the school the right to use the stadium

loudspeaker to broadcast a pregame prayer. Cambridge

Christian Sch. v. Fla. High Sch. Athletic Assoc., Inc.,

115 F.4th 1266, 1288 (11th Cir. 2024). In its opinion

below, the Eleventh Circuit acknowledges the history

of the government speech doctrine. Id. To determine

the validity of Cambridge Christian’s claim, the Court

applied a bright-line test, stating that “if the speech at

issue here is government speech, Cambridge Christian’s

free speech claims necessarily fail.” Id. (citing Mech v.

Sch. Bd. of Palm Beach Cnty., 806 F.3d 1070, 1072 (11th

Cir. 2015); Shurtleff v. City of Boston, 596 U.S. 243, 251

(2022)) (emphasis added).

While the Eleventh Circuit’s opinion is generally wellreasoned, it acknowledges that there has emerged a sort of

bright-line rule when it comes to the government-speech

doctrine. To uphold First Amendment rights, this Court

should reject any such test.

4

A.

The creation of the government-speech

doctrine to determine whether a government

entity had violated the First Amendment.

The government speech doctrine is relatively new

in constitutional jurisprudence. A brief review of its

formation is instructive for resolving the issue before

the court. Previously, when determining whether the

government had violated the First Amendment, 2 this

Court would first assess where the violation occurred

and then determine the level of scrutiny to be applied.

See Minn. Voters All. v. Mansky, 585 U.S. 1, 11 (2018)

(identifying the types of forums and corresponding

standards of review). This approach started to shift

in the early 1990s, when the Court began treating the

government’s speech differently. In Rust v. Sullivan, this

Court upheld regulations from the Department of Health

and Human Services that prohibited certain federal funds

from going to programs that counseled or advocated for

abortion, holding that the regulations did not violate the

First Amendment. 500 U.S. 173, 203 (1991). The Court

posited a limit to viewpoint discrimination, explaining

that “[t]o hold that the Government unconstitutionally

discriminates on the basis of viewpoint when it chooses to

fund a program dedicated to advance certain permissible

goals, because the program in advancing those goals

necessarily discourages alternative goals, would render

numerous Government prog rams constitutionally

suspect.” Id. at 194. This deference to the government’s

2. The Free Speech Clause of the First Amendment (U.S.

Const. Amend. I, cl. 2.) restricts government regulation of private

speech and is applied to state governments through the Due

Process Clause of the 14th Amendment (U.S. Const. Amend. XIV).

5

point of view resulted in Rust becoming the catalyst for

today’s “government-speech doctrine.” 3

Later, in Walker v. Texas Division, Sons of Confederate

Veterans, Inc., this Court articulated the modern

government-speech doctrine, establishing a three-part

test: (1) whether the forum in which the speech occurs has

historically been used for government speech, (2) whether

the public would interpret the speech as being conveyed

by the government, and (3) whether the government has

maintained control over speech. 576 U.S. 200, 201 (2015).

And although the Court’s jurisprudence has indicated

that the government-speech doctrine is necessary for the

government to function,4 being necessary does not mean

government-speech should go unfettered.

3. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541

(2001) (“The Court in Rust did not place explicit reliance on the

rationale that the counseling activities of the doctors under Title

X amounted to governmental speech; when interpreting the

holding in later cases, however, we have explained Rust on this

understanding.”); Pleasant Grove City, Utah v. Summum, 555

U.S. 460, 481 (2009) (Stevens, J. concurring) (listing Rust among

the Court’s “decisions relying on the recently minted government

speech doctrine”).

4. See Pleasant Grove City, 555 U.S. at 467-68 (“A government

entity has the right to ‘speak for itself.’ ‘[I]t is entitled to say what

it wishes,’ and to select the views that it wants to express. Indeed,

it is not easy to imagine how government could function if it lacked

this freedom.”) ((citations omitted) (first quoting Bd. of Regents of

the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000); and

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

515 U.S. 819, 833 (1995)); see also Nat’l Endowment for the Arts

v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring) (“It is

the very business of government to favor and disfavor points of

view....”).

6

B. Appellate judges and constitutional scholars

alike have questioned both the legitimacy and

strict application of the government-speech

doctrine.

1.

Appellate judges and constitutional

scholars have questioned legitimacy of the

government-speech doctrine.

Since the first appearance of the government-speech

doctrine, constitutional scholars have questioned the

extent to which the doctrine should be applied—and some

even go as far as to question its validity. In response to the

test articulated in Walker v. Texas, Erwin Chemerinsky,

Dean of University of California Berkley Law, expressed

concern about the need for a limiting principle:

[T]here is much that is troubling about the

[C]ourt’s approach. If license plates are

government speech, and the government can

say whatever it wants, does this mean the

government can put any message it wants on

license plates and require that people have that

on their cars? What if the government wants

to put a message that abortion is murder or

a message to vote Republican? The [C]ourt’s

approach says that when the government is the

speaker, it cannot be challenged for violating

the speech clause of the First Amendment. 5

5. Erwin Chemerinsky, Free Speech, Confederate Flags and

License Plates, Orange County Reg. (June 25, 2015, 3:57 PM),

http://www.ocregister.com/articles/government-668320-texaslicense.html [https://perma.cc/VQ78-DVGW].

7

Other scholars have expressed similar sentiments.

Mary-Rose Papandrea, the Judge John J. Parker

Distinguished Professor of Law and Associate Dean for

Academic Affairs at the University of North Carolina

School of Law, wrote that Walker “takes the Court’s

growing deference to government institutional actors and

puts it on steroids, allowing the government to disfavor

private speech in the name of protecting its image.”6

Likewise, Caroline Mala Corbin, Professor of Law at

University of Miami School of Law, voiced concern that

“contested speech will be categorized as government

speech, giving the government the ability to eliminate

competing viewpoints entirely.” 7

Other scholars go further. G. Alex Sinha, a Professor

of Law at the Maurice A. Deane School of Law at Hofstra

University, has called for the eradication of the government

speech doctrine:

Recall the puzzle before the Court: how to

accommodate the fact that the government

does, and must, endorse various propositions,

often by clearing the field for its message and

channeling that message through private

citizens or private media. In other words,

the Court needed a way to account for the

inevitable failure of the government always and

forever to remain viewpoint neutral in how its

conduct affects private speech. That is a First

6. Mary-Rose Papandrea, The Government Brand, 110 Nw.

U. L. Rev. 1195, 1197 (2016).

7. Caroline Mala Corbin, Government Speech and First

Amendment Capture, 107 Va . L. Rev. Online 224, 232 (2021).

8

Amendment problem in the sense that the Court

has made viewpoint neutrality an important

concept in First Amendment jurisprudence,

but it is not a First Amendment problem per

se: there is nothing in the First Amendment

that demands the government itself remain

viewpoint neutral always, everywhere, come

what may. We need not actually exempt

the government from First A mendment

scrutiny when it speaks. We only need to

mold First Amendment jurisprudence around

the communicative demands of governance.

More specifically, we need to relax the Court’s

historic insistence that restrictions on private

expression remain viewpoint neutral, but only in

contexts where such restrictions follow directly

from the government’s own (appropriate)

expressive activity. 8

As recently as 2022, Justice Alito has proposed using a

different test for government speech:

I would resolve this case using a different method

for determining whether the government is

speaking. In my view, the minimum conditions

that must be met for expression to count as

“government speech” can be identified by

considering the definition of “government

speech” and the rationale for the governmentspeech doctrine. Under the resulting view,

government speech occurs if—but only if—a

8. G. Alex Sinha, T he End of G overnment S peech , 44

Cardozo L. Rev. 1899, 1929–30 (2023) (internal citations omitted).

9

government purposefully expresses a message

of its own through persons authorized to speak

on its behalf, and in doing so, does not rely on a

means that abridges private speech.

Shurtleff v. City of Boston, 596 U.S. 243, 267 (2022) (Alito,

J., concurring).

These criticisms reveal a concern among jurists

and legal scholars that the current government-speech

doctrine is not conducive to producing results that comport

with the First Amendment.

2.

The Appellate judges and constitutional

scholars have questioned the strict

application of the government-speech

doctrine.

The Eleventh Circuit’s opinion acknowledges that

there has emerged a sort of bright-line rule when it comes

to the government-speech doctrine. As the Eleventh

Circuit explains, “the government’s own speech cannot

support a claim that the government has interfered with

a private individual’s free exercise rights.” Cambridge

Christian Sch., 115 F.4th at 1296 (emphasis added). 9

9. The Eleventh Circuit includes a string of binding cases

holding that the government’s speech is immune from treading

on free exercise rights, including: Columbia Broad. Sys., Inc. v.

Democratic Nat’l Comm’n, 412 U.S. 94, 139 n.7, (1973) (Stewart,

J., concurring) (“Government is not restrained by the First

Amendment from controlling its own expression.”); Johanns

v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005) (“[T]he

Government’s own speech ... is exempt from First Amendment

scrutiny.”).

10

Setting aside the perceived fallacies of the doctrine itself,

the problem with the Eleventh Circuit applying a brightline rule is that it—like other courts and constitutional

scholars—has previously admitted that the governmentspeech doctrine is not clear.10

For example, in Mech v. School Board of Palm Beach

County, Florida, the Eleventh Circuit examined whether

the school board violated Mr. Mech’s constitutional rights

when three schools removed banners for his tutoring

business from the fences after discovering the listed

address was the same as his pornography business. 806

F.3d 1070 (11th Cir. 2015). Judge William Pryor wrote for

the majority that “[t]he Supreme Court has not articulated

a precise test for separating government speech from

private speech.” Id. at 1074. The first line of the opinion

summarizes the legal quandary and its anticipated

consequences: “The Supreme Court once predicted that ‘[t]

here may be situations in which it is difficult to tell whether

a government entity is speaking on its own behalf or is

providing a forum for private speech.’ This appeal presents

one of those situations.” Id. at 1071 (quoting Pleasant

Grove City v. Summum, 555 U.S. 460, 470 (2009)).

10. Courts beyond the Eleventh Circuit have acknowledged

the confusing nature of the government-speech doctrine. See R.J.

Reynolds Tobacco Co. v. Bonta, 272 F. Supp. 2d 1085, 1101 (E.D.

Cal. 2003), aff’d sub nom. R.J. Reynolds Tobacco Co. v. Shewry, 384

F.3d 1126 (9th Cir. 2004), opinion amended and superseded on denial

of reh’g, 423 F.3d 906 (9th Cir. 2005) (“I cannot acknowledge the

doctrine, however, without also expressing my serious reservations

about its undefined and open-ended nature.”); Adams v. Maine Mun.

Ass’n, No. 1:10-CV-00258-JAW, 2013 WL 9246553, at *16 (D. Me.

Feb. 14, 2013) (“Although the government speech doctrine is now

securely fixed as part of First Amendment jurisprudence, it is still

comparatively new and undeveloped.”).

11

Clay Calvert, Professor of Law and Brechner Eminent

Scholar Emeritus at the University of Florida Levin

College of Law, has commented on the impact of applying

the government-speech doctrine as a bright-line rule in

Mech:

If the government speech doctrine was cast

aside, such speaker-based discrimination would

be blatantly unconstitutional after the United

States Supreme Court’s ruling in Citizens

United v. Federal Election Commission.11

There, Justice Anthony Kennedy emphasized

for the majority that “the Government may

commit a constitutional wrong when by law

it identifies certain preferred speakers.” He

elaborated that “[t]he Government may not ...

deprive the public of the right and privilege

to determine for itself what speech and

speakers are worthy of consideration. The First

Amendment protects speech and speaker, and

the ideas that flow from each.”12

Over the years, several Justices have warned against

applying the government-speech doctrine as a brightline rule. Justice Stevens expressed a desire to limit the

government-speech doctrine, in his concurrence to the

Summum opinion—with Justice Ginsberg joining—where

11. 558 U.S. 310 (2010).

12. Clay Calvert, The Government Speech Doctrine in Walker’s

Wake: Early Rifts and Reverberations on Free Speech, Viewpoint

Discrimination, and Offensive Expression, 25 Wm. & M ary Bill

Rts. J. 1239, 1270 (2017).

12

he wrote that “[u]nlike other decisions relying on the

government speech doctrine, our decision in this case

excuses no retaliation for, or coercion of, private speech....

For even if the Free Speech Clause neither restricts nor

protects government speech, government speakers are

bound by the Constitution’s other proscriptions, including

those supplied by the Establishment and Equal Protection

Clauses.” 555 U.S. at 481-82 (Stevens, J., concurring).

The apprehension among members of this Court is

well founded. Bright-line rules are generally disfavored

across the board, and this Court has been rejecting

their application in the First Amendment context for

decades. In Cohen v. California, for example, Justice

John Harlan wrote for the majority, rejecting bright-line

rules distinguishing “offensive conduct” from protected

expression and emphasizing the value of nuance and

context. 403 U.S. 15, 25 (1971) (“Against this perception

of the constitutional policies involved, we discern certain

more particularized considerations ...”). Justice Abe

Fortas explained in Tinker v. Des Moines Independent

Community School District, that “undifferentiated fear

or apprehension of disturbance is not enough to overcome

the right to freedom of expression,” rejecting the brightline rule that students lose their First Amendment rights

by setting foot in school, and introducing a contextual test

based on material interference and substantial disruption.

393 U.S. 503, 508 (1969). Similarly, in FCC v. Pacifica

Foundation, this Court declined to set a bright-line rule

about indecent speech, choosing instead a narrow, factspecific holding. 438 U.S. 726 (1978). There, Justice John

Paul Stevens wrote for the majority: “It is appropriate, in

conclusion, to emphasize the narrowness of our holding....

The Commission’s decision rested entirely on a nuisance

13

rationale under which context is all-important. The

concept requires consideration of a host of variables.” Id.

at 750.

More recently, the Court declined to adopt a brightline rule that would remove constitutional protections from

certain categories of private speech. When considering

whether the First Amendment protects Westboro Baptist

Church’s protests near a military funeral, Chief Justice

Roberts wrote for the Court: “Speech is powerful. It can

stir people to action, move them to tears of both joy and

sorrow, and—as it did here—inflict great pain.... [W]

e cannot react to that pain by punishing the speaker.”

Snyder v. Phelps, 562 U.S. 443, 460-61 (2011). Thus, this

Court then rejected attempts to create a bright-line

ban on hurtful or outrageous speech, confirming broad

protection for unwelcome expression in public spaces. Id.

And, while Lemon v. Kurtzman, 411 U.S. 192 (1973), was

an attempt to establish a bright-line rule Establishment

Clause analysis, this Court eventually rejected that rule

in favor of the more flexible rule in Kennedy v. Bremerton

School District, 597 U.S. 507 (2022).

14

II. A BRIGHT-LIN E A PPLICATION OF THE

GOVERNMENT-SPEECH DOCTRINE WILL

EVENTUALLY ERODE THE FREE EXERCISE

CL AUSE W HEN, OTHERWISE, PRIVATE

RELIGIOUS EXPRESSION WOULD OFTEN

RIGHTLY PREVAIL.

A.

Erosion of the Free Exercise Clause is a

predictable consequence of a bright-line rule,

as seen in the Eleventh Circuit’s decision below.

The Free Exercise Clause guarantees “first and

foremost, the right to believe and profess whatever

religious doctrine one desires.” Employment Div. v.

Smith, 494 U.S. 872, 877 (1990). “The Clause protects

not only the right to harbor religious beliefs inwardly

and secretly,” but “perhaps its most important work” is

“protecting the ability of those who hold religious beliefs

of all kinds to live out their faiths in daily life through

“the performance of (or abstention from) physical acts.”

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524

(2022). This clause often overlaps in practice with the Free

Speech Clause, and “[t]hese Clauses work in tandem.” Id.

at 523. Application of these principles require a nuanced,

“contextual” approach. Tinker, 393 U.S. at 508.

While the Eleventh Circuit rightfully recognized

these principles, it found that because it determined

FHSAA had engaged in government speech, Cambridge

Christian’s free exercise claims necessarily failed.

Cambridge Christian, 115 F. 4th at 1296. This bright-line

application of the government-speech doctrine resulted in

depriving Cambridge Christian of its First Amendment

rights. Several other predictable consequences of this

15

decision, if left to stand, will negatively impact the way

religious organizations and individuals express their faith

in public settings, degrading the Free Exercise Clause.

First, it would convert use of a PA system—a platform

for speech—to a declaration of governmental beliefs. This

could have broader-reaching consequences. For example,

next time Awaken Church seeks to use a public commodity

like the Rady Shell13 for its annual Christmas program,

it could be met with renewed opposition because such use

of the public property could temporarily transform it into

a vessel for religious speech. But, not unlike the school

grants and vouchers considered in this Court’s recent free

exercise cases, opening PA access to the public means that

certain members of the public can’t be excluded based

on their religious status. FHSAA tries to sidestep this

by insisting that the PA system is strictly controlled for

government speech only. But when all sorts of optional

and ancillary messages are allowed to be broadcast

before, during, and after the football game, the forum

starts to take on a public character. FHSAA should have

maintained religious neutrality, not by excluding religion

entirely, but by allowing equal access to this public

platform for all viewpoints. And while FHSAA may argue

the point is moot, in “court the association maintained

that the prayer would have constituted government

endorsement but shifted away from its Establishment

Clause reasoning, arguing instead that the prayer was

government speech.” Pet. at pg. i.

13. The Rady Shell “serves as a public center for all of San

Diego” and was “[m]ade possible by an agreement between the

San Diego Symphony and the Unified Port of San Diego. The Rady

Shell at Jacobs Park: A New Reason to be Proud of San Diego,

https://www.theshell.org/about/the-rady-shell/.

16

Second, it would send a message that some student

groups can express opinions or lead activities while other

groups can’t. It likewise allows the government to decide

that religious viewpoints are less welcome or less protected

than secular ones. FHSAA had the opportunity to foster a

climate of free expression without necessarily endorsing

religion. Instead, it allowed for public expression of

other private content, such as advertisements and music,

but specifically excluded religious expression. Rather

than suppressing religious voices to supposedly avoid

controversy, FHSAA could have promoted pluralism,

allowing for diversity of voices.

Third, the decision below’s bright-line rule would fail

to recognize the educational value in permitting public

prayer.14 Permitting public expressions of different faiths

teaches students how to engage in civil discourse, navigate

differences in a pluralistic society, and understand the

role of faith in public life. These valuable lessons will stay

with students long after they leave the football field and

bleachers.

14. The Court recognized the value of permitting public

prayer in Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014).

In that case, the Court acknowledged “[t]hat the First Congress

provided for the appointment of chaplains only days after approving

language for the First Amendment demonstrates that the Framers

considered legislative prayer a benign acknowledgment of

religion’s role in society.” Id. at 576. The Court held that legislative

prayers do not violate this tradition and are therefore acceptable

under the First Amendment. Id. at 584.

17

B. The Free Exercise Clause often rightly prevails

over the government-speech doctrine.

While government speech can at times weaken

the Free Exercise Clause, it can’t defeat it. Coercion

and endorsement still matter. Even when speech is

government-owned, it can violate the Free Exercise

Clause or the Establishment Clause, as this Court has

recognized in a series of cases.

Kennedy v. Bremerton School District

Kennedy v. Bremerton School District is factually

akin to this case. 597 U.S. 507 (2022). Joseph A. Kennedy,

a high-school football coach, would take a knee following

each game at the 50-yard line—and pray. Id. at 514-15.

Coach Kennedy started the practice on his own, but

eventually, most of the team was praying alongside Coach

Kennedy. Id. At 515.

Coach Kennedy engaged in this practice for over seven

years. Id. Then, the school district told him to stop, citing

concerns about violating the Establishment Clause. Id. at

515-16. Coach Kennedy continued to pray, and the school

district responded by placing him on administrative leave

and not renewing his contract. Id. at 519-20.

Coach Kennedy filed suit against the school district.

Id. at 520-21. While the school district argued Coach

Kennedy’s rights to religious exercise and free speech

must yield to the school district’s interest in avoiding an

Establishment Clause violation, id. at 509-10, this Court

acknowledged that “[a] natural reading of [the First

Amendment] would seem to suggest the Clauses have

18

‘complementary’ purposes, not warring ones where one

Clause is always sure to prevail over the others,” id. at

533 (citing Everson v. Board of Ed. of Ewing, 330 U.S. 1,

13, 15 (1947)).

Ultimately, this Court held that the school district

violated Coach Kennedy’s free-exercise and free-speech

rights by disciplining him for his private prayer on the

public football field. And, this Court held that Coach

Kennedy’s conduct was private speech—not government

speech. Id. at 544.

Trinity Lutheran Church of Columbia, Inc. v. Comer

Even in cases not directly involving government

speech per se, this Court has held that individuals’ freeexercise rights do not give way to a state’s expressed

First Amendment concern for advancing certain religious

viewpoints. In Trinity Lutheran Church of Columbia,

Inc. v. Comer, a church-operated preschool and daycare

center challenged the denial of its application for a

competitively-awarded grant due to a policy of denying

grants to religiously affiliated applicants. 582 U.S. 449

(2017). This Court cited a previous opinion considering

the same policy: “the state interest asserted here—in

achieving greater separation of church and State than is

already ensured under the Establishment Clause of the

Federal Constitution—is limited by the Free Exercise

Clause.” Id. at 466 (quoting Widmar v. Vincent, 454 U.S.

263, 276 (1981)). Further, this Court held that the Free

Exercise Clause “protects religious observers against

unequal treatment” and against “laws that target the

religious for ‘special disabilities’ based on their ‘religious

status.’” Id. (citing Church of Lukumi Babalu Aye, Inc.

v. Hialeah, 508 U.S. 520, 533, 542 (1993)).

19

Espinoza v. Montana Department of Revenue

Similarly, in Espinoza v. Montana Department

of Revenue, Montana created a tax-credit scholarship

program to aid students in attending private schools. 591

U.S. 464 (2020). The Montana Department of Revenue

prohibited the use of these scholarships at religious

schools, citing an amendment to the state’s constitution

barring public funds from going to religious institutions.

Id. at 468-70. Parents who wanted to use the scholarships

to send their children to a Christian school sued the state,

arguing the no-aid provision violated the Free Exercise

Clause. Applying the precedent from Trinity Lutheran,

this Court held that the no-aid provision discriminates

based on religious status and therefore is unconstitutional.

Id. at 487 (“A State need not subsidize private education.

But once a State decides to do so, it cannot disqualify

some private schools solely because they are religious.”).

Here, too, while not involving speech in the traditional

sense, the tension between a state’s declination to publicly

platform religious views, on one hand, and citizens’ desire

to participate in a public program regardless of their

religious status, on the other, gave way in favor of free

exercise.15

Carson as next friend of O. C. v. Makin

Shortly after this Court decided Espinoza, it

considered Carson as next friend of O. C. v. Makin, 596

U.S. 767 (2022). In Carson, Maine had enacted a tuition15. See Citizens United v. Fed. Election Comm’n, 558

U.S. 310 (2010) (treating spending as speech and holding that a

federal statute barring independent corporate expenditures for

electioneering communications violated the First Amendment).

20

assistance program for parents who live in school districts

that do not operate a secondary school of their own. Id.

at 771-72. Parents were able to designate the secondary

school they would like their child to attend—public or

private—and the school district was to transmit payments

to that school to help defray the costs of tuition. Id. at 77273. While most private schools were eligible to receive the

payments, they had to be “nonsectarian.” Id. at 773. The

Court noted that in Trinity Lutheran and Espinoza, it

held that:

the Free Exercise Clause forbids discrimination

on the basis of religious status. But those

decisions never suggested that use-based

discrimination is any less offensive to the Free

Exercise Clause. This case illustrates why.... [a]

ny attempt to give effect to such a distinction by

scrutinizing whether and how a religious school

pursues its educational mission would also raise

serious concerns about state entanglement with

religion and denominational favoritism.”

Id at 787.

Thus, this Court held that “Maine’s ‘nonsectarian’

requirement for its otherwise generally available tuition

assistance payments violates the Free Exercise Clause of

the First Amendment. Regardless of how the benefit and

restriction are described, the program operates to identify

and exclude otherwise eligible schools on the basis of their

religious exercise.” Id. at 789.

In each of these cases, the Court could have held that

the government was being forced to speak in some way:

21

• In Kennedy, this Court could have held that

as a public-school employee, Mr. Kennedy

was speaking on behalf of the government,

and therefore compelling it to promote

religion;

• In Trinity Lutheran and Espinoza, this

Court could have held that the decision

whether to award or deny funds to churchoperated schools was government speech and

therefore immune from First Amendment

scrutiny;

• In Carson, this Court could have held

that the decision to exclude religious

schools from tuition-assistance programs

is government speech that doesn’t violate

the Free Exercise Clause.

In these cases, the government entities raised the

Establishment Clause as a defense—and lost. See,

Kennedy, 597 U.S. at 516, 518; Trinity Lutheran, 582 U.S.

at 465, 466; Carson, 596 U.S. at 774-75. But consider if the

government-speech doctrine as such a bright-line rule

approach applied by the Eleventh Circuit had been applied?

The doctrine could be utilized by litigants as an end-run

around these sound decisions, creating an unwanted

loophole that would have infringed on private individuals’

constitutional rights to free expression or exercise, while

providing nominal benefit to the government. So, these

cases highlight why a more flexible analysis deferential

to individual rights is constitutionally appropriate when

determining whether government speech should defeat

free exercise—not a harsh, bright-line rule.

22

III. IF THIS COURT GRANTS THE PETITION

FOR WRIT OF CERTIORARI, A NUMBER OF

PENDING CASES WILL BE IMPACTED BY THE

OUTCOME.

A merits ruling by the Court in this case will have

far-reaching, beneficial, and clarifying implications

beyond the immediate parties. Accordingly, in considering

the petition, this Court should consider not only the

present dispute, but also the broader consequences of its

holding—particularly, how its reasoning may influence

the development of the government-speech doctrine and

its intersection with the Free Exercise Clause.

Currently, there are numerous cases pending around

the country that involve this issue.

Woolard v. Thurmond

Woolard v. Thurmond is currently pending at the

Ninth Circuit Court of Appeals.16 In that case, parents

are challenging the constitutionality of publicly funded

homeschool-aid programs in California. The programs

are operated by charter schools and grant parents’ access

to funds to purchase curricula and other instructional

materials from secular organizations to use to teach their

own children. Unfortunately, the programs deny funds to

religious families who wish to homeschool their children

with comparable faith-based materials from faith-based

organizations. So far, the litigation has constricted First

Amendment rights. The district court dismissed the

families’ claims for (1) violation of their free exercise

16. Case No. 24-4291 (9th).

23

rights despite allegations that they were denied access

to a publicly funded program of private choice because of

their religion and (2) violation of their free speech rights

despite allegations that they were denied access to a

public program of private choice because they sought to

express religious viewpoints. Woolard v. Thurmond, No.

2:23-CV-02305-JAM-JDP, 2024 WL 3010899 (E.D. Cal.

June 10, 2024)

Arroyo-Castro v. Gasper

Confusion about whether and how government views

override free exercise rights is brewing within schools, too.

Marisol Arroyo-Castro is a tenured public-school teacher

and practicing Catholic with a case pending in federal

district court in Connecticut.17 For over three decades, she

has educated students. And, for approximately ten years,

Ms. Castro displayed a small crucifix on the wall of her

classroom, next to her desk. Other teachers at the school

display personal expressive items in their desk areas,

including action figures, sports mementos, and pictures

of family and friends. In fact, some of Ms. Castro’s fellow

teachers display items with religious connotations, such as

a coffee mug citing chapter 31 of Proverbs, a photograph

of the Virgin Mary, and a Christmas tree.

But last year, Ms. Castro received an email from the

school’s vice principal expressing a “concern” about the

crucifix. After meeting with the vice principal, Ms. Castro

was instructed to take it down. The vice principal followed

up with an email stating that “any permanent displays

of religious symbols are prohibited from public schools,

17. Arroyo-Castro v. Gasper, 3:25-CV-00153 (D. Conn.)

24

based on the First Amendment of the United States

Constitution.” He noted that if she didn’t take it down, “it

would lead to insubordination and disciplinary measures,”

and thanked her “for complying with the expectation to

remove the permanent religious display as public schools

may not erect any type of religious display on school

property.” Ms. Castro did not take down the crucifix.

After a later meeting with the school’s principal

and a school district representative, Ms. Castro agreed

to compromise by placing the crucifix in a less-visible

location: attached to the underside of her desk. But the next

morning, Ms. Castro returned it to its original location on

the wall and was sent a letter of reprimand with further

threats of suspension and eventual termination. The next

day, she arrived at school to discover that the crucifix had

been removed. In another meeting with the principal’s

office, Ms. Castro was instructed that a few days without

pay would help her better “reflect” on whether it was in

her “best interest” to keep hanging the crucifix. She was

suspended for two days for being “insubordinate,” and

was told she could return to work on the condition that she

agree to remove the crucifix. Unwilling to take down the

religious symbol in good conscience, Ms. Castro informed

the principal and other school and district staff that she

could not comply with their directives. She was placed on

paid administrative leave. Ms. Castro then filed suit, in

expectation that her free exercise rights will be protected

despite the government’s desire to stifle her expression.

25

Gabriel Olivier v. City of Brandon

Recently, this Court granted the petition for a writ

of certiorari in Gabriel Olivier v. City of Brandon.18

Mr. Olivier is a Christian who was arrested and fined

for violating an ordinance targeting “protests” outside

a public amphitheater in Brandon, Mississippi. The

ordinance prohibits individuals from engaging in religious

speech on city-owned sidewalks and grassy areas in

the park, forcing Mr. Olivier to evangelize in a remote

“protest” area. After his arrest, Mr. Olivier challenged

the ordinance in federal court.

Each of these cases could be impacted by this Court’s

handling of the case at bar. As displayed by the Eleventh

Circuit’s opinion in the current case, courts are inclined

to apply a bright-line rule for the government-speech

doctrine—one that has been questioned by constitutional

scholars across the legal spectrum and that at times

has proven a right-constricting blunt instrument. Now,

this Court has the opportunity to alleviate confusion by

clarifying that the government-speech doctrine does not

always defeat a Free Exercise claim.

18. Gabriel Olivier v. City of Brandon, 24-993 (U.S.).

26

CONCLUSION

The Court should grant the petition and take up

the thorny question of whether and when government

speech can be used to override free exercise rights. As

the Eleventh Circuit’s grappling below shows, only this

Court can provide the clarity and resolution needed.

Respectfully submitted,

Elise M. Engle

Shutts & Bowen LLP

4301 West Boy Scout

Boulevard, Suite 300

Tampa, FL 33609

Thomasina F. Moore

Counsel of Record

Denise M. Harle

Shutts & Bowen LLP

215 South Monroe Street,

Suite 804

Tallahassee, FL 32301

(850) 241-1717

tmoore@shutts.com

Counsel for Amicus Curiae