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,

Respondent

On Petition for Writ of Certiorari to the

Court of Appeals of Idaho

Brief of Amicus Curiae Thomas More

Society in Support of Petitioner

Peter Breen

Joan M. Mannix

Christopher J.F.

Galiardo

THOMAS MORE

SOCIETY

Thomas Brejcha

Counsel of Record

THOMAS MORE SOCIETY

309 W. Washington St

Suite 1250

Chicago, IL 60606

(312) 782-1680

tbrejcha@thomasmoresociety.org

April 9, 2025

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

Introduction ................................................................ 2

Summary of Argument ............................................... 3

Argument .................................................................... 5

The First Amendment Curtails Governments’

Historical Power to Compel Private Speech. . 5

II. No Government May Force Private Citizens to

Confess the Rightness of Its Views ................ 9

III. Coercing Rory to Abjure Serves No Interest. 12

Conclusion ................................................................. 15

TABLE OF AUTHORITIES

Cases

303 Creative v. Elenis, 600 U.S. 570 (2023) ............. 11

Abrams v. United States, 250 U.S. 616 (1919) ....... 4, 9

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) . 10

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ....... 13

Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 n.1

(2011) ............................................................... 11, 13

Buck v. Bell, 274 U.S. 200 (1927) ............................. 14

Capitol Square Rev. & Advisory Bd. v. Pinette, 515

U.S. 753 (1995) ...................................................... 11

Cohen v. California, 403 U.S. 15 (1971)................... 10

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Boston, 515 U.S. 557 (1995).................. 1, 11

Janus v. AFSCAME, 585 U.S. 878 (2018) ......... 10, 13

Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021)

................................................................................ 11

McCreary County v. ACLU, 545 U.S. 844 (2005)..... 11

Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241

(1974) ..................................................................... 13

Reed v. Town of Gilbert, 576 U.S. 155 (2015) .......... 12

Roth v. United States, 354 U.S. 476 (1957)................ 9

Schenk v. United States, 249 U.S. 47 (1919).............. 7

State v. Regan, 564 P.3d 706 (Idaho 2025) .............. 13

Thomas v. Collins, 323 U.S. 516 (1945) ......... 3, 12, 13

Vidal v. Elster, 602 U.S. 286 (2024) ......................... 12

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)

.............................................................. 3, 4, 9, 13, 16

Wooley v. Maynard, 430 U.S. 705 (1977) ................. 10

iii

Statutes

1 Stat. 596 (1798) ........................................................ 7

54 Stat 670 (1940) ....................................................... 7

Public Act, 3 Charles I, c.1 (1628) .............................. 5

Other Authorities

1 John Phillip Reid, Constitutional History of the

American Revolution: The Authority of Rights

(1987) ....................................................................... 6

1 Orlando Patterson, Freedom in the Making of

Western Culture (1992)............................................ 5

2 Papers of Thomas Jefferson (Julian P. Boyd ed.

1950) ...................................................................... 10

4 Annals of Cong. (1794) ............................................. 3

8 James Madison, The Papers of James Madison:

Congressional Series (William T. Hutchinson et al.

eds., 1973) ................................................................ 6

9 James Madison, The Papers of James Madison:

Congressional Series (William T. Hutchinson et al.

eds., 1975) ................................................................ 6

A. Scott Berg, Wilson (2014) ....................................... 7

Alexander Meiklejohn, Free Speech and Its Relation

to Self-Government (1948) ....................................... 9

Alexandra Walsham, Charitable Hatred (2006) ........ 4

C. Edwin Baker, Human Liberty and Freedom of

Speech (1989) ......................................................... 10

Charles Darwin, On the Origin of Species, in 2 Harv.

Classics (Charles W. Eliot ed., 1937) (1859) ........ 14

David Colclough, Freedom of Speech in Early Stuart

England (2005) ...................................................... 11

David McCullough, John Adams (2002) .................... 7

Derek Parfit, Reasons and Persons (1984)............... 10

Documents of the Christian Church (Chris Maunder

ed., Oxford Univ. Press 4th ed. 2011) ................... 16

Doris Kearns Goodwin, No Ordinary Time (1995) .... 7

Eugene Volokh, The Law of Compelled Speech, 97

Tex. L. Rev. 355 (2018).......................................... 11

Forrest McDonald, Novus Ordo Seclorum: The

Intellectual Origins of the Constitution (1985) ....... 6

Godfrey Davies, The Early Stuarts 1603-1660, in 9

Oxford History of England (G.N. Clark ed. 1937) .. 5

Gordon S. Wood, The Radicalism of the American

Revolution (1993)..................................................... 6

Irving Bryant, The Bill of Rights: Its Origin and

Meaning (1965) ........................................................ 6

Jack N. Rakove, Original Meanings: Politics and

Ideas in the Making of the Constitution (1997) ...... 6

James Ford Rhodes, History of the Civil War 18611865 (1919) .............................................................. 7

John Locke, Two Treatises of Government and A

Letter Concerning Toleration (Yale Univ. Press

2003) (1689) ........................................................... 14

John Milton, Areopagitica (John W. Hales ed., Oxford

Univ. Press 1932) (1644) ............................. 6, 10, 11

John Phillip Reid, The Concept of Liberty in the Age

of the American Revolution (1988) .......................... 6

John Stuart Mill, On Liberty (Mark Philp &

Frederick Rosen eds., Oxford Univ. Press 2d. ed.

2015) ........................................................................ 4

Johns Hopkins, Coronavirus Resource Center: Idaho

Data Timeline (Mar. 10, 2023) .............................. 14

Jon Huang, et al., Track Covid-19 in Latah County,

Idaho, N.Y. Times (Mar. 26, 2024) ....................... 14

Lawrence M. Friedman, A History of American Law

(2019) ....................................................................... 7

Leo Tolstoy, War and Peace (Amy Mandelker ed.,

Louise Maude & Aylmer Maude trans., Oxford

Univ. Press 2010) .................................................. 15

Mark E. Neely, Jr., The Fate of Liberty: Abraham

Lincoln and Civil Liberties (1992) .......................... 7

Martin H. Redish, Freedom of Expression (1984) .... 10

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

Harv. L. Rev. 1409 (1990) ....................................... 6

Ralph Ketchem, James Madison (1990) .................... 7

Richard Marius, Thomas More (1999) ..................... 15

Robert Nozick, Anarchy, State, and Utopia (1974) . 10

Rodney A. Smolla, Free Speech in an Open Society

(1992) ..................................................................... 10

Stephen D. Solomon, Revolutionary Dissent (2016) .. 4

Steven Ozment, The Age of Reform, 1250-1550 (1981)

................................................................................ 16

The Declaration of Independence (U.S. 1776) ........... 9

The Merriam-Webster Dictionary, Appropriate 35

(2022) ..................................................................... 13

Thomas I. Emerson, The System of Freedom of

Expression (1970) .................................................. 10

Thomas S. Kuhn, The Structure of Scientific

Revolutions (2012) ................................................. 14

Treatises

2 William S. Holdsworth, A History of English Law

(3d. ed. 1922) ........................................................... 5

4 William Blackstone, Commentaries *150-53 .......... 5

Frederic W. Maitland, The Constitutional History of

England (Cambridge Univ. Press 1963)................. 5

Frederic William Maitland, Roman Canon Law in

the Church of England (1898) ................................. 5

Frederick Pollock, The History of English Law Before

the Time of Edward I (Cambridge Univ. Press. 2d

ed. 1968)................................................................... 5

INTEREST OF AMICUS CURIAE1

The Thomas More Society (“TMS”) is a nonprofit

organization devoted to the defense and advocacy of

First Amendment rights, including freedom of speech

and the free exercise of religion. Incorporated as a

501(c)(3) not-for-profit corporation in Illinois and

based in Chicago, TMS accomplishes its organizational mission through litigation, education, and related activities.

For amicus TMS, this case is principally about the

right of all persons to choose for themselves not only

what to say but what not to say. See Hurley v. IrishAmerican Gay, Lesbian & Bisexual Grp. of Boston, 515

U.S. 557, 573 (1995). TMS has defended clients

against several state and local government efforts to

compel them to parrot government views. If the decision of the Idaho courts stands, it will only embolden

more such violations of the First Amendment.

1 Pursuant to this Court’s Rule 37.6, counsel for amicus curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amicus curiae or its counsel has made a monetary contribution

to the preparation or submission of this brief. Parties received

timely notice of the intent to file this brief.

INTRODUCTION

Streets made desolate by Moscow, Idaho’s COVID19 shutdown saw a flurry of activity in March 2020 as

city workers fanned out, signs underarm, to prop up

public support for Moscow’s restrictions on assembly,

speech, and other rights in the name of public health.

CR.105-09. The laconic language of the signs assured

residents that the city had excised exercise of such

core First Amendment freedoms from the public

square only “Because We Care.” CR. 110.

Half a year into two weeks to flatten the curve,

those signs seemed to some to be as callous as the feet

of those who had skittered across the city to post them.

Impatience was growing fast, festering over fettering

of freedoms that seemed more aligned with the state

motto of “let it be perpetual” than with sound science.

CR.109. Rory Wilson was one of them, and the model

student joined his church to sing peaceful protest

hymns outside city hall.

Police descended on those gathered to pray, arresting some to intimidate the rest. But Rory was unbent

and turned his wit to parody. If Moscow claimed to

suppress rights because it cared, Rory would counter

that government speech with his own samizdat that

quoted those words on stickers adorned with hammers

and sickles. CR.110-11; App. 152a-153a.

Rory himself was then arrested because the police

disagreed with his views. CR.113. He was convicted

under an ordinance never before enforced. CR.113;

App. 183a. Then the court that sentenced him conditioned his probation—and thus in a sense his liberty—

on him abjuring his earlier speech as inappropriate

and uncivil. CR.113; App. 55a.

Moscow indeed.

This case is about one young man’s freedom to

peaceably contribute to the marketplace of ideas.

Rory’s petition convincingly argues that his conviction

cannot stand because in a republic the people tell the

government what to say, not the reverse. See W. Va.

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); 4

Annals of Cong. 934 (1794) (James Madison).

Amicus will not rehash his argument. But it writes

the Court because yet more is at stake. Conditioning

physical liberty on parroting government speech

sounds more in Torquemada than Tocqueville, more

like Malenkov than Madison. Examples of it blot the

pages of Rory’s Bible and Anglo-American legal history alike. But this Court has grown hoarse reminding

government officials for decades that our Constitution

protects the right not to speak.

The petition in this case should be granted.

SUMMARY OF ARGUMENT

The founding generation knew that governments

sometimes coerce speech when they fail to convince.

Commoners had never enjoyed freedom of speech in

Britain, where Magna Carta granted even nobles little

right to speak their minds, and rulers from William

the Conqueror to George III had molded public opinion by regulating press and speech. Thomas v. Collins,

323 U.S. 516, 545 (1945) (Jackson, J., concurring). But

during an English civil war just generations removed,

each side had gone further, compelling even religious

oaths in the name of security, unity, and peace. See

Leonard W. Levy, Legacy of Suppression 6-7 (1960).

Government attempts to compel speech in the colonies too had grown in the years before the Revolution

and encroached on natural rights. In some colonies

one needed to swear fealty to buy land. See Alexandra

Walsham, Charitable Hatred 86-87 (2006). But worse,

all down the seaboard scores of colonists were hauled

before colonial assemblies each year just for criticizing

government actions, with their best shot of escaping

jail or the stocks being to recant. See Leonard W. Levy,

Legacy of Suppression at 11-12, 39-63; Stephen D. Solomon, Revolutionary Dissent 120-49 (2016).

From the first years after the Revolution, America

has taken a more solicitous stance toward speech. See

Leonard W. Levy, Legacy of Suppression at 176-248.

And since the middle of the last century that stance

has toed the line of libertarianism. See id. at 249-312;

cf. John Stuart Mill, On Liberty 18-54 (Mark Philp &

Frederick Rosen eds., Oxford Univ. Press 2d. ed.

2015). Our fixed star as to compelled speech is that no

government official may “prescribe what shall be orthodox in … matter of public opinion or force citizens

to confess … their faith therein.” W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943). We leave

truth-finding instead to honest debate in a marketplace of ideas. See Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting).

Even in wartime, American governments rarely

have retreated from that revolutionary ideal. Of late,

however, government officials increasingly have compelled speech even during peacetime to cudgel those

they cannot cajole. E.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018); Masterpiece

Cakeshop Ltd. v. Colo. Civ. Rts. Comm’n, 584 U.S. 617

(2018). Absent extreme dangers and narrow bounds,

such compulsion cannot survive scrutiny. Nor can it in

this case, where forcing Rory to write an apologia

against himself about pandemic policies long past cannot advance any government interest.

ARGUMENT

I. The First Amendment Curtails Governments’

Historical Power to Compel Private Speech.

Securing freedom of speech was one of our founders’ most revolutionary acts. That freedom was unknown in contemporary Europe. See 1 Orlando Patterson, Freedom in the Making of Western Culture (1992).

And even five centuries after Magna Carta, no treatise

writer in England seems to have thought its limited

speech rights should extend to lower social classes.

See Frederick Pollock, The History of English Law Before the Time of Edward I (Cambridge Univ. Press. 2d

ed. 1968); Frederic W. Maitland, The Constitutional

History of England (Cambridge Univ. Press 1963) .

Not even Coke or Blackstone thought otherwise.

As chair of the committee that drafted England’s Petition of Right in the 1620s, Coke extended much of

Magna Carta to commoners. See Public Act, 3 Charles

I, c.1 (1628). But not speech. After a civil war sparked

over debates over religion in government, Blackstone

disavowed the mere thought: a commoner has a “right

to lay what sentiments he pleases before the public.”

4 William Blackstone, Commentaries *150-53. But he

could and should be punished for writing anything

blasphemous or seditious. See id. No other rule, Blackstone insisted, could keep “peace and good order.” Id.

Blackstone was right about the risk. Religious conflict in England had recently riven the country into

sects that set on each other’s presses and sentenced

each other’s ministers to whippings or worse. See Godfrey Davies, The Early Stuarts 1603-1660, at 68-78,

203-06, in 9 Oxford History of England (G.N. Clark ed.

1937); Frederic William Maitland, Roman Canon Law

in the Church of England 60-61, 162-63 (1898).

The bloodshed had caused even free speech champion John Milton to blanch, arguing that religious heterodoxy must be muzzled. Areopagitica 5 (John W.

Hales ed., Oxford Univ. Press 1932) (1644). Courts

agreed, convicting William Penn among others for refusing to recant religious beliefs. See Irving Bryant,

The Bill of Rights: Its Origin and Meaning 56-57

(1965); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103

Harv. L. Rev. 1409, 1471-1472 & n.320 (1990).

But by the time our founders convened in Penn’s

colony to discuss independence, they were of the mind

that it was not freedom of speech that had triggered

tyranny and war. Suppression of that freedom had.

See John Phillip Reid, The Concept of Liberty in the

Age of the American Revolution 120-21 (1988); Irving

Bryant, The Bill of Rights at 121-28 (1965). And so the

Continental Congress endorsed a free press, and several colonies relaxed their own speech bans in their

revolutionary constitutions.2 See Forrest McDonald,

Novus Ordo Seclorum: The Intellectual Origins of the

Constitution 45 (1985).

James Madison pushed the Continental Congress

to also formally declare it could not compel speech in

violation of religious belief as kings and parliaments

had a century earlier. See 8 James Madison, The Papers of James Madison: Congressional Series 149, 19597, 295-304 (William T. Hutchinson et al. eds., 1973);

9 id. at 430-31 (1975). And for more than a century,

2 Products of their time, the colonial charters until then had in-

ternalized the British understanding that Magna Carta only prohibited prior restraints on speech. See Jack N. Rakove, Original

Meanings 292 (1997); 1 John Phillip Reid, Constitutional History

of the American Revolution 165-66 (1987); Gordon S. Wood, The

Radicalism of the American Revolution 13-14 (1993).

that redline mostly held even during wartime when

government suppression of speech ramped up.3

Government speech regulation during World War

II broke through Madison’s redline, though, marking

the first time in American history when governments

systematically tried to coerce speech. The issue came

to a head in West Virginia, where in the wake of the

Pearl Harbor attack the legislature directed the state

board of education to prescribe a course of study aimed

at “teaching, fostering, and perpetuating the ideals,

principles and spirit of Americanism, and increasing

3 Such government suppression of speech during wartime

has

been one of the most consistent practices in American political

history from the beginning. Washington asked Congress to ban

speech supporting the French Revolution. Ralph Ketchem,

James Madison 354-55 (1990). Adams banned criticism of government as war loomed with France. 1 Stat. 596 (1798); David

McCullough, John Adams 504-07 (2002). And during the Civil

War, governments on both sides of the war suppressed speech.

See Mark E. Neely, Jr., The Fate of Liberty 27-28 (1992); James

Ford Rhodes, History of the Civil War 1861-1865, at 351-54

(1919); Public Laws of the Confederate States of America 6

(James M. Matthews ed., 1862).

Governments suppressed speech even more during World

War I. Wilson signed a ban on speech that might cast “contempt,

scorn, contumely, or disrepute” on the federal government. A.

Scott Berg, Wilson 452-56 (2014). For their part, several States

passed syndicalism laws to achieve the same effect. See Lawrence

M. Friedman, A History of American Law 696-97 (2019). And this

Court found that such suppression can pass muster during times

war because the Constitution is not a suicide pact: “things that

might be said in time of peace … will not be endured so long as

men fight.” Schenk v. United States, 249 U.S. 47, 52 (1919).

And just months after telling millions that Americans deserved to be free from fear and before World War II had even hit

American shores, Roosevelt signed a sedition law similar those

signed by predecessor wartime presidents. See 54 Stat 670, 671

(1940); Doris Kearns Goodwin, No Ordinary Time 201-02 (1995).

the knowledge of the organization and machinery of

government.” W. Va. Code § 1734 (1941 Supp.). The

board fulfilled that mandate by requiring students

and others to salute the American flag. Barnette, 319

U.S. at 626 & n.2. Students who refused were to be

expelled and deemed juvenile delinquents while their

parents were subject to fines and jailtime. See W. Va.

Code §§ 1847, 1851, 4904(4) (1941 Supp.).

Parents and teachers objected to making a gesture

uncannily like the Nazi flag salute. Id. at 627-28. The

school board granted concessions to some groups. But

not to Jehovah’s Witnesses. That religious group insisted it was patriotic, and members offered to periodically and publicly pledge “allegiance and obedience to

all the laws of the United States that are consistent

with God’s law, as set forth in the Bible.” Barnette, 319

U.S. at 628 n.4. But they insisted that the flag was a

graven image they could not salute without violating

the First Commandment. Id. at 629.

State public schools widely ignored the scruple, expelling students of the Jehovah Witness faith when

they did not salute and threatening to ship them off to

criminal reformatories. Id. at 630. Their parents were

then prosecuted for causing delinquency. Id. A class of

affected parents sought to enjoin the flag statute policy as applied to them. A three-judge panel granted

that injunction, and the school board brought the case

before this Court on direct appeal. See id.

The case entangled numerous constitutional issues, but this Court homed in on compelled speech. It

acknowledged that the school board was within its

rights to enact a flag statute to promote a government

interest in fostering “patriotism and love of country.”

Id. at 631. But echoing Madison, this Court said that

“substituting a compulsory salute and slogan” was a

bridge too far. Id. A flag salute is symbolic speech as

much as a bowed head before a cross or bended knee

before a crown, and just as illicit to coerce without a

compelling reason because it stifles the mind and sullies the conscience with barren lies. Id.at 631-34.

Doctrine prohibiting compelled speech has ramified since Barnette, but its root remains intact and vital. Even national unity during history’s deadliest war

did not justify government threatening children for

merely abstaining from speech. Nor has any lesser national crisis since warranted conjuring the suppressive spirit of the Star Chamber to force someone to recant his views tethered to religion in favor of views

officials deem more “appropriate.” CR.113; App. 55a.

II. No Government May Force Private Citizens

to Confess the Rightness of Its Views.

The taxonomic distinction this Court made in Barnette between suppressing and compelling private

speech sounds in an understanding of how they are

alike but also how they importantly differ.

Many think of speech solely in instrumental terms.

America rebelled so its people could live however

“shall seem most likely to effect their Safety and Happiness.” The Declaration of Independence para. 2

(U.S. 1776). And the Free Speech Clause just maximizes the likelihood that what seems best actually is by

forcing all ideas into dialectic and synthesis. See Roth

v. United States, 354 U.S. 476, 484 (1957); Abrams v.

United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting); Alexander Meiklejohn, Free Speech and

Its Relation to Self-Government 1-27 (1948).

But this Court has recognized since Barnette that

the freedom to speak is more than merely a societal

utility maximizer. Cf. Robert Nozick, Anarchy, State,

and Utopia 41 (1974); Derek Parfit, Reasons and Persons 385-90 (1984). There is a self-actualization that

occurs when a person interacts with his speech. See

Martin H. Redish, Freedom of Expression 20-21

(1984). That interaction forces him, as Milton once put

it, to “summon up all his reason and deliberation to

assist him.” John Milton, Areopagitica at 30. He

“searches, meditates, is industrious, and likely consults and confers with his judicious friends.” Id. And

then when he sits down to write, pride if nothing else

forces him to engage with the best opposing views of

“any that writ before him.” Id.

Compelling speech thus violates not just a man’s

mouth but the mechanics of his mind. See Rodney A.

Smolla, Free Speech in an Open Society 9 (1992); C.

Edwin Baker, Human Liberty and Freedom of Speech

69 (1989). At best, it impresses him into a kind of ventriloquism act before he has time to think. At worst, it

orders him to lie about what he already thinks to be

true, a doublethink both “sinful and tyrannical,” 2 Papers of Thomas Jefferson 545-53 (Julian P. Boyd ed.

1950); accord Ashcroft v. Free Speech Coal., 535 U.S.

234, 253 (2002), because it impairs development of

one’s intellect and personality. Wooley v. Maynard,

430 U.S. 705, 714 (1977); Thomas I. Emerson, The

System of Freedom of Expression 6 (1970). As much

when it indoctrinates the weak as when it humiliates

the strong, it “is always demeaning.” Janus v.

AFSCAME, 585 U.S. 878, 893 (2018); see Cohen v. California, 403 U.S. 15, 24 (1971).

Barnette aimed to end such indignity. If there is

any “fixed star in our constitutional constellation,” it

exalts, it is that no government official “can prescribe

what shall be orthodox in … matter of public opinion

or force citizens to confess by word or act their faith

therein.” 319 U.S. at 642. Instead, as this Court has

expounded in a long line of cases applying Barnette,

with rare exception it lies with the speaker alone to

choose whether to speak and then what to say. See,

e.g., Hurley, 515 U.S. at 573.

As Barnette itself suggests, that holds true especially for speech that involves religious belief. Freedom of speech arose out of discussions about the freedom of religion See David Colclough, Freedom of

Speech in Early Stuart England 77-119 (2005). And

ever since the Revolution, religious speech thus has

lain at the heart and in the sinews of First Amendment freedom. It is as central to the freedom as the

prince is to Hamlet. Capitol Square Rev. & Advisory

Bd. v. Pinette, 515 U.S. 753, 760 (1995). And so invading it with sufficient cause is barred.

Government indeed must carry a “heavy burden to

justify intervention” with respect to “religious speech.”

Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180, 190

(2021). Government may not imperil “the integrity of

individual conscience in religious matters,” McCreary

County v. ACLU, 545 U.S. 844, 876 (2005), by forcing

one to “utter what is not in her mind about a question

of … religious significance.” 303 Creative v. Elenis,

600 U.S. 570, 596 (2023) (cleaned up).

It makes no difference if, like in the Inquisition or

Star Chamber, the coerced speech occurs in private.

Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792 n.1

(2011). To speak, and much more to write, is a labor of

mind. John Milton, Areopagitica at 30. And the government cannot impress that labor in pursuit of a view

it favors. 303 Creative LLC, 600 U.S. at 588-89; Eugene Volokh, The Law of Compelled Speech, 97 Tex. L.

Rev. 355, 382 (2018).

Descending from the ethereal to brass tacks, this

means that because government action that compels

speakers to alter the content of their speech is always

content-based, it must satisfy strict scrutiny, i.e., it is

presumed to be unconstitutional unless it is narrowly

tailored to advance a compelling government interest.

See Vidal v. Elster, 602 U.S. 286, 292-93 (2024). That

standard of review is the most stringent in constitutional law and satisfied only by laws that target “the

gravest abuses, endangering paramount interests.”

Thomas v. Collins, 323 U.S. 516, 530 (1945).

That scrutiny is even more searching when the

compulsion is viewpoint discriminatory. Such viewpoint discrimination egregiously strikes at the heart

of the First Amendment. Vidal, 602 U.S. at 293. And

so whatever the motive of the government might be,

see Reed v. Town of Gilbert, 576 U.S. 155, 163-67

(2015), it drives information out of the marketplace of

ideas and so presumptively is unconstitutional.

Matal, 582 U.S. at 246.

III. Coercing Rory to Abjure Serves No Interest.

Among other conditions, the trial court gave Rory

unsupervised probation—that is, allowed him to remain out of jail—only if he wrote “a 3-5 page paper on

“what appropriate civil discourse is, what you would

have done differently in this case, and file [sic] with

the Court by June 30, 2022.” App. 55a. In other words,

much like the school board vis-à-vis students in Barnette, the court dangled a sword of Damocles above

Rory unless he knuckled under to voice government

views. See 319 U.S. at 630.

Given the facts of this case and what the Idaho Supreme Court has understood the word “appropriate”

to typically mean, the court can only be understood to

have mandated that Rory write an essay confessing

that it was either (1) impermissible or (2) inapt to post

stickers in public places that criticized Moscow’s

COVID-19 policies and enforcement using its own language in obvious parody. See State v. Regan, 564 P.3d

706, 711 (Idaho 2025); The Merriam-Webster Dictionary, Appropriate 35 (2022). Since it beggars belief that

the court thought any criticism of government is impermissible, it must have had aptness in mind.

That approach, to its credit, seems to recognize the

situational analysis that strict scrutiny requires. But

it fails to recognize the situational analysis yields no

finding of a cognizable government interest that compelling the confession could serve. Such an interest

would need to be both real rather than speculative, see

Brown, 564 at 799, and concern “the gravest abuses”

that are “endangering paramount interests.” Collins,

323 U.S. at 530. And not at some future time but at

the time the speech is compelled. See Janus, 585 U.S.

at 893; Barnette, 319 U.S. at 633.

This Court has never found a government interest

to meet that lofty standard in a compelled speech case.

National security does not, even in wartime. Barnette,

319 U.S. at 634, 640-41. Protecting others from discrimination does not. Boy Scouts of Am. v. Dale, 530

U.S. 640, 644, 656-61 (2000). And even making it easier for others to exercise constitutional rights does not

overleap the necessary bar. See Miami Herald Pub.

Co. v. Tornillo, 418 U.S. 241, 244, 248, 258 (1974).

Same for whatever public health interests the

court might have thought were at stake in this case.

To be sure, governments have an interest in public

health. Roman Cath. Diocese of Brooklyn, 592 U.S. at

19. But the pandemic had petered out before Rory was

sentenced. Idaho had one COVID-19-related death

that day. Johns Hopkins, Coronavirus Resource Center: Idaho Data Timeline (Mar. 10, 2023). And his

county barely even had any hospitalized COVID-19

patients. See Jon Huang, et al., Track Covid-19 in

Latah County, Idaho, N.Y. Times (Mar. 26, 2024).

Nor could the court have reasonably thought the

essay would advance a compelling government interest in getting people to “believe science,” however that

unscientific expression is understood. Five Justices of

this Court concluded in United States v. Alvarez that

no such interest even exists. United States v. Alvarez,

567 U.S. 709, 731-32 (2012) (Breyer, J., concurring);

id. at 749 (Alito, J., dissenting). That makes sense.

Government ex ante lacks clear expertise to discern

what accurate science even is. See John Locke, Two

Treatises of Government and A Letter Concerning Toleration 241 (Yale Univ. Press 2003) (1689). And any

track record that includes Scopes, Dred Scott, and

sterilization of women after “three generations of imbeciles” hardly inspires ex post confidence in such

competence. Buck v. Bell, 274 U.S. 200, 207 (1927).

If anything, the government interest lies in not

saying what science people are to believe in any subfield where science is still in flux. Science historically

has advanced only by debate leavened with time. See

Charles Darwin, On the Origin of Species 499, in 2

Harv. Classics (Charles W. Eliot ed., 1937) (1859).

That is just as true today. Debates from the smelting

of galaxies to the melting of glaciers might rage hot.

But that crucible alone can forge science. See generally

Thomas S. Kuhn, The Structure of Scientific Revolutions 143-72 (2012).

Even assuming any of the above interests was cognizable (none is), the court could not reasonably have

believed the essay would advance the interest in a

narrowly tailored way. If anyone in Moscow still resisted the city’s COVID messaging by the time Rory

was sentenced, there were plenty of alternative ways

to provide another nudge without compelling speech.

CONCLUSION

Voluntarily voicing his views from another Moscow

shaken by social change, Leo Tolstoy observed that to

“tell the truth is very difficult, and young people are

rarely capable of it.” Leo Tolstoy, War and Peace 258

(Amy Mandelker ed., Louise Maude & Aylmer Maude

trans., Oxford Univ. Press 2010). After lengthy litigation over some stickers, Rory appreciates the accuracy

of that statement as much as anyone does.

But he also knows the First Amendment protects

the right of young people like him to shop their views

in the marketplace of ideas. America is the better off

because of it: thirtysomethings Jefferson, Hamilton,

and Madison wrote our Declaration of Independence,

most of the Federalist Papers that helped knit our nation, and a Bill of Rights that keeps that nation one of,

by, and for the people even in times of crisis. So often

only the young can afford to become iconic iconoclasts.

Implicitly since those iconoclasts wrote and expressly since this Court decided Barnette in response

to other government attempts to coerce student

speech, the First Amendment likewise has been recognized to protect a right not to engage in the fraud of

and upon the mind that is compelled speech.

That right is rare. Amicus’s namesake lacked it

and so mounted the scaffold in England’s Inquisition.

See Richard Marius, Thomas More 490-514 (1999).

The father of Rory’s branch of Christianity also lacked

it as he stood trial for (like Rory) parrying by parody

what he thought to be benighted government policy in

a Holy Roman Empire where church and state were

inseparable. See Steven Ozment, The Age of Reform,

1250-1550, at 199-204 (1981). When ordered to recant,

Luther insisted he could not without betraying his beliefs: “Here I stand, I can do no other.” Documents of

the Christian Church 212-14 (Chris Maunder ed., Oxford Univ. Press 4th ed. 2011).

Nor can Rory recant his own beliefs five centuries

later, and there is no good reason to make him do so.

Barnette read history from the time of the Roman Coliseum to the time of modern Russian labor camps to

prove that coercing speech never achieved the goal of

national unity of thought it sought to. See 319 U.S. at

641. It could terrify but not unify. And so like our

Founders and Framers, this Court chose another way.

This case offers the Court a chance to confirm us

on that path and remind governments that even in a

city called Moscow and with respect to Dostoyevsky,

we are a nation of crime and punishment but not of a

grand inquisitor.

The petition should be granted.

Respectfully submitted,