Amicus Curiae Brief — Rory Douglas Wilson, Petitioner v. Idaho

Supreme Court briefApr 9, 2025

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No. 24-853

In the Supreme Court of the United States

RORY DOUGLAS WILSON, Petitioner,

IDAHO

On Petition for Writ of Certiorari to

the Court of Appeals of Idaho

BRIEF OF PROTECT THE FIRST

FOUNDATION AS AMICUS CURIAE

SUPPORTING PETITIONER

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

JOSHUA J. PRINCE

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

Counsel for Amicus Curiae

APRIL 9, 2025

TABLE OF CONTENTS

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

INTRODUCTION, SUMMARY, AND

INTERESTS OF AMICUS CURIAE ....................... 1

STATEMENT............................................................... 3

ADDITIONAL REASONS FOR GRANTING

THE PETITION ....................................................... 4

This Court Has Repeatedly Condemned

Standardless Discretionary Licensing

Regimes in the Speech Context. ..................... 4

II.

At a Minimum, This Court Should

Summarily Reverse to Enforce the WellEstablished Rule That Standardless

Discretionary Licensing Regimes Violate

the First Amendment. .................................... 8

CONCLUSION ............................................................ 9

TABLE OF AUTHORITIES

Cases

Page(s)

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) .................................................. 8

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) .............................................. 1, 7

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) .................................................. 7

Kunz v. People of State of New York,

340 U.S. 290 (1951) .............................................. 5, 6

Largent v. State of Texas,

318 U.S. 418 (1943) .................................................. 5

Niemotko v. State of Maryland,

340 U.S. 268 (1951) .............................................. 6, 7

Saia v. People of State of New York,

334 U.S. 558 (1948) .......................................... 4, 5, 9

Speech First, Inc. v. Sands,

144 S. Ct. 675 (2024) ................................................ 2

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .................................................. 7

Ordinance

Moscow City Code § 10-1-22 ........................................ 3

Rule

Sup. Ct. R. 10 ............................................................... 9

Other Authority

Eli Nachmany,

Bill of Rights Nondelegation,

49 BYU L. Rev. 513 (2023) .................................. 4, 8

INTRODUCTION, SUMMARY, AND

INTERESTS OF AMICUS CURIAE 1

Petitioner Rory Wilson was convicted for failing to

seek permission from Moscow, Idaho’s government

before publicly posting stickers condemning its

COVID-19 response. His conviction was then affirmed

in a published opinion, setting a dangerous precedent

that not only leaves Moscow’s law in place, but also

gives the green light to other cities in Idaho that—

emboldened by this case—may follow Moscow’s lead

and claim the authority to convict those who dare to

publicly post their speech without prior government

approval. The petition should be granted to guarantee

that the now court-approved prior restraint Moscow

has imposed is not adopted elsewhere.

This Court’s precedents confirm that regimes like

Moscow’s—which premise a person’s right to speak on

his first seeking government permission—are

inherently suspect. After all, if permission must be

affirmatively granted, permission can be denied. And

where a speaker’s right to speak is left to the whims of

a government actor with “unbridled discretion,” the

speaker is subject to an unconstitutional “prior

restraint.” City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750, 757 (1988). The risk of viewpointdiscriminatory censorship is all the greater where, as

here, the speaker seeks to criticize the very

government from which it must seek permission to

1 This brief was not authored in whole or in part by counsel for

any party and no person or entity other than amicus curiae or its

counsel has made a monetary contribution toward the brief’s

preparation or submission. All parties have received timely notice

of the filing of this brief.

speak. And some speakers, rather than facing the

indignity of asking the government for permission to

criticize it, may be deterred from speaking at all. Yet,

as Justice Thomas has explained, government actions

leading to “self-censorship” violate “the First

Amendment just as acutely as a direct bar on speech.”

Speech First, Inc. v. Sands, 144 S. Ct. 675, 676 (2024)

(Thomas, J., dissenting) (citations omitted).

Because Petitioner was charged for not seeking

the government’s permission before speaking, this

Court’s precedents on discretionary-permitting

regimes should have led to his acquittal. Yet the Idaho

courts ignored those precedents—as well as

Petitioner’s showing that the Moscow ordinance

exceeds reasonable time, place, and manner

restrictions.

That error is particularly troubling to amicus

Protect the First Foundation (“PT1”), a nonprofit,

nonpartisan organization that advocates for

protecting First Amendment rights in all applicable

areas of law. PT1 advocates on behalf of all people

across the ideological spectrum, including people who

may disagree with the organization’s—or, as here,

with the government’s—views.

Amicus agrees with Petitioner that Moscow’s

ordinance and the resulting prosecution are

unconstitutional. Amicus writes separately to expand

on Petitioner’s showing that discretionary licensing

regimes that require “a speaker to seek permission

before” speaking, Pet. 2, are constitutionally invalid

under this Court’s precedents. Because the Idaho

courts left that regime in place, this Court should

grant review and reverse.

STATEMENT

Moscow City Code section 10-1-22 restricts the

posting of signs on public property “without prior

approval, in writing[.]” App. 85a. After Petitioner

posted stickers criticizing the city’s COVID-19

response, Moscow charged him with violating the

ordinance. App. 4a. But though other signs have been

posted without prior permission, Moscow had never

enforced the ordinance. Pet. 5. And the arresting

officer admitted that it was only being enforced now

because Moscow police did not “agree” with the

stickers’ “messaging.” Pet. 6; App. 183a.

This was not the first time city officials had

expressed distain for those who criticized their

COVID-19 response. The City Prosecutor had

expressed animosity, for example, against Petitioner’s

church—which Petitioner’s grandfather led—and

called members of the church, among other things,

“religious idiots.” Pet. 3. And, after Moscow arrested

church attendees at a “psalm sing” organized to

protest the city’s COVID-19 restrictions, the City

Prosecutor called church members “obnoxious” for

“trying to turn [the arrests] into a religious

persecution thing.” Pet. 4.

Petitioner was convicted of violating Moscow’s

ordinance, and the district court rejected his claims

that the City prosecuted him to punish his viewpoint

on the COVID-19 restrictions. Pet. 6-7. The Court of

Appeals affirmed, ignoring Petitioner’s showing that

the ordinance exceeded permissible time, place, and

manner prior restraints. Pet. 8. The Idaho Supreme

Court denied review. Ibid.

ADDITIONAL REASONS FOR GRANTING

THE PETITION

This Court Has Repeatedly Condemned

Standardless Discretionary Licensing

Regimes in the Speech Context.

As recent scholarship confirms, this “Court has

long taken the view that discretionary permitting

regimes for speech are themselves censorious and thus

unconstitutional.” 2 Because Moscow’s ordinance is

materially indistinguishable from other laws that this

Court has found to violate the First Amendment, it too

is unconstitutional.

In Saia v. People of State of New York, for

example, this Court reviewed the constitutionality of

an ordinance that allowed the public use of radio and

loudspeakers to share “news and matters of public

concern” only with “permission obtained from the

Chief of Police.” 334 U.S. 558, 558 n.1 (1948). The case

arose after a minister, who sought—and was denied—

a permit, was convicted for using such equipment

anyway. Id. at 559.

In finding that the resulting conviction facially

violated the First Amendment, the Court explained

that the ordinance “establishe[d] a previous restraint

on the right of free speech.” Id. at 559-560. Worse, the

ordinance provided no standards governing the Chief

of Police’s permitting decision and therefore placed

“[t]he right to be heard * * * in [his] uncontrolled

discretion.” Id. at 560-561. The Court explained that

2 Eli Nachmany, Bill of Rights Nondelegation, 49 BYU L. Rev.

513, 517 & n.13 (2023) (collecting cases).

such “uncontrolled discretion” essentially allowed

officials to deny permits “because some people find the

ideas annoying.” Id. at 560-562.

The concerns that were dispositive in Saia are

equally controlling here. Given Moscow’s history of

animus towards members of Petitioner’s faith who

criticized Moscow’s COVID-19 response, it requires no

stretch of the imagination to know what Moscow

would have done if Petitioner had sought its

permission before posting the stickers.

Likewise, in Largent v. State of Texas, the Court

reviewed an ordinance that made “it unlawful for any

person to solicit orders or to sell books, wares or

merchandise * * * without first filing an application

and obtaining a permit.” 318 U.S. 418, 418 (1943)

(citation omitted). Such permits were only available if

“the Mayor deem[ed] it proper or advisable[.]” Id. at

418-419 (citation omitted). Largent was convicted for

violating this ordinance by asking for voluntary

monetary contributions as she distributed religious

materials. Id. at 419-420. This Court reversed because

the “proper or advisable” standard left the

“[d]issemination of ideas depend[ent] upon the”

Mayor’s prior approval, which the Court considered

“administrative censorship in an extreme form.” Id. at

422.

Saia and Largent are hardly outliers. In Kunz v.

People of State of New York, this Court also reviewed

a city ordinance that made “it unlawful to hold public

worship meetings on the streets without first

obtaining a permit from the city police commissioner.”

340 U.S. 290, 290-291 (1951). As in Saia, the

petitioner—also a minister—was convicted for

speaking after unsuccessfully trying to comply with

the ordinance by obtaining a permit. Id. at 292-293.

Here again, the Court held that the ordinance violated

the First Amendment in part because it contained “no

mention * * * of reasons for which such a permit

application can be refused.” Id. at 293. Without

“appropriate standards” to guide an official’s actions,

the ordinance provided “an administrative official

discretionary power to control in advance the right of

citizens to speak[.]” Id. at 293, 295. That discretion

made the ordinance “clearly invalid as a prior

restraint on the exercise of First Amendment rights.”

Id. at 293. Here, Moscow’s ordinance suffers from the

same defect. App. 85a.

Also illustrative is Niemotko v. State of Maryland,

340 U.S. 268 (1951), a case that this Court decided on

the same day it decided Kunz. In Niemotko, two

Jehovah’s Witnesses “scheduled Bible talks” at a

public park. Id. at 269. Although no ordinance forbade

using the park for such talks, “the custom for

organizations * * * desiring to use it for meetings and

celebrations” was to first “obtain permits from the

Park Commissioner.” Ibid.

The Witnesses sought—and were refused—

permission to use the park. Id. at 269-270. The story

played out in a now familiar way. The Witnesses held

their meeting anyway and, because they lacked a

permit, they were arrested and convicted for engaging

in “disorderly conduct.” Id. at 270. In reversing, this

Court concluded that it was “quite apparent that any

disorderly conduct” that the Witnesses were accused

of “must have been based on the fact that appellants

were using the park without a permit[.]” Id. at 271.

The Court then made quick work of the conviction,

finding it invalid under the “many” cases where the

Court has “examined the licensing systems by which

local bodies regulate the use of * * * public places.”

Ibid. The Court expressed concern with the “limitless

discretion” that informed the conviction, which

necessarily turned on “the whims or personal opinions

of a local governing body.” Id. at 272. Because the

unwritten practice lacked “standards” and “narrowly

drawn limitations” to “circumscrib[e] * * * [the Park

Commissioner’s] absolute power” to deny a permit, it

violated the First Amendment. Id. at 271-272.

To be sure, this Court has since established

standards allowing “reasonable restrictions on the

time, place, or manner of protected speech” in public

places—such as those necessary to ensure equitable

access to limited resources in, say, a public park. See

Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (collecting cases). But any such restrictions

must be “justified without reference to the content of

the regulated speech, * * * [be] narrowly tailored to

serve a significant governmental interest, and * * *

leave open ample alternative channels for

communication of the information.” Ibid. (quoting

Clark v. Community for Creative Non-Violence, 468

U.S. 288, 293 (1984)).

But even this Court’s more recent cases

acknowledge

and reaffirm

the

fundamental

unconstitutionality of regimes that “plac[e] unbridled

discretion in the hands of a government official” to

limit—or prevent altogether—a person’s free

expression. See City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 757 (1988) (collecting cases);

accord City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 423 n.19 (1993). Under the precedents

explored above, taken together with those explained

by Petitioner (at 19-21), a statute is not a reasonable

time, place, and manner restriction, and is instead

“unconstitutional[,] if it delegates standardless

discretion to a government official to permit or deny

expressive activity.” 3

II. At a Minimum, This Court Should

Summarily Reverse to Enforce the WellEstablished Rule That Standardless

Discretionary Licensing Regimes Violate

the First Amendment.

Petitioner’s conviction—which results from just

such an ordinance—flouts this nearly century-long

precedential chain. Yet the court below completely

ignored Petitioner’s showing that Moscow’s ordinance

is not a reasonable time, place, and manner

regulation. And Petitioner was correct, both for the

reasons he offered, see App. 131a, and because the

ordinance imposes a blanket prohibition on all posted

speech without prior government approval and sets no

standards governing the exercise of the City’s

discretion. This case presents a clear opportunity to

reassert that standardless discretionary licensing

regimes violate the First Amendment.

By upholding Petitioner’s conviction under the

Moscow ordinance, Idaho courts approved that

discretionary licensing regime and decided an

important federal question in a way that drastically

3 Nachmany, supra note 2, at 539 (emphasis added).

departs from this Court’s First Amendment

precedents. Sup. Ct. R. 10(c). Petitioner should not be

forced to carry a criminal conviction for violating an

unconstitutional law. At a minimum, this Court could

summarily reverse the decision below, or it could grant

review to reiterate the base constitutional principles

reflected in its licensing precedents.

But Petitioner’s unconstitutional conviction is

only one reason for review. Moscow’s ordinance and

the Idaho courts’ decisions upholding it remain the law

in Idaho. Without this Court’s review, the ordinance

will continue to impose a prior restraint on those that

wish to speak in Moscow by requiring them—on threat

of conviction—to seek approval prior to speaking. That

precedent will both chill and restrict those who wish

to post views disfavored by the City. And there is a risk

that the precedent set in this case will cause other

cities in Idaho and elsewhere to follow Moscow’s lead.

This Court should grant the petition to ensure that

ordinances like Moscow’s do not proliferate, giving

local governments “uncontrolled discretion” over “the

right to be heard” in the public square. Saia, 334 U.S.

at 560-561.

CONCLUSION

Moscow’s standardless discretionary-permitting

ordinance allowed it to convict a person for expressing

a disfavored viewpoint without first seeking the

government’s imprimatur. That conviction should be

reversed—whether summarily or on plenary review.

Either way, the petition should be granted.

Respectfully submitted,