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

No. 24-853

In the

Supreme Court of the United States

RORY DOUGLAS WILSON,

Petitioner,

v.

IDAHO,

Respondent.

On Petition for a Writ of Certiorari

to the Court of A ppeals of Idaho

BRIEF OF AMICI CURIAE FIRST AMENDMENT

CLINICS AT DUKE, CORNELL, AND SOUTHERN

METHODIST LAW SCHOOLS, AVI ADELMAN AND

WILLIAM OETJEN IN SUPPORT OF PETITIONER

Peter B. Steffensen

SMU Dedman School of Law

First A mendment Clinic

P.O. Box 750116

Dallas, Texas 75275

Thomas S. Leatherbury

Thomas S. Leatherbury

Law, PLLC

Cumberland Hill

School Building

1901 North Akard Street

Dallas, Texas 75201

Sarah Ludington

Counsel of Record

Duke First Amendment Clinic

210 Science Drive

Durham, North Carolina 27708

(919) 613-7048

ludington@law.duke.edu

C. A manda Martin

Duke First Amendment Clinic

210 Science Drive

Durham, North Carolina 27708

Counsel for Amici Curiae

(For Continuation of Appearances See Inside Cover)

378907

A

(800) 274-3321 • (800) 359-6859

Heather E. Murray

Daniela del Rosario Wertheimer

Cornell Law School

First A mendment Clinic

Myron Taylor Hall

Ithaca, New York 14853

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

Moscow’s Ordinance Violates the First

Amendment Because It is a Prior Restraint and

is Overbroad, Inviting Selective Enforcement . . . . . 5

a.

Mo s c o w ’s O r d i n a n c e i s a n

Unconstitutional Prior Restraint . . . . . . . . 6

b.

Overbroad Statutes Allow Governments

to Punish Disfavored Speakers . . . . . . . . . . . 10

II. Incidents and Ordinances Across the Country

Illustrate the Magnitude of the Problem . . . . . 14

a.

Municipalities Continue to Selectively

Enforce Their Laws to Restr ict

Disfavored Speech . . . . . . . . . . . . . . . . . . . . 14

b.

The Prevalence of Overbroad SignPosting Ordinances Makes Clear the

Scope of the Problem . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF CITED AUTHORITIES

Page

CASES:

Alexander v. United States,

509 U.S. 544 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Baker v. City of Fort Worth,

506 F. Supp. 3d 413 (N.D. Tex. 2020) . . . . . . . . . . . . . 9

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Bella Vista United v. City of Phila.,

No. 04-1014, 2004 WL 825311

(E.D. Pa. Apr. 15, 2004) . . . . . . . . . . . . . . . . . . . . . . . . 9

Broadrick v. Oklahoma,

413 U.S. 601 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10

City of Houston v. Hill,

482 U.S. 451 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 10, 13

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

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

Counterman v. Colorado,

600 U.S. 66 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cox v. Louisiana,

379 U.S. 536 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Cited Authorities

Page

Driver v. Town of Richmond ex rel. Krugman,

570 F. Supp. 2d 269 (D.R.I. 2008) . . . . . . . . . . . . . . . . 9

Epona, LLC v. Cnty. of Ventura,

876 F.3d 1214 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 9

Fla. Beach Advert., LLC v. City of Treasure Island,

511 F. Supp. 3d 1255 (M.D. Fla. 2021) . . . . . . . . . . . 13

Forsyth Cnty. v. Nationalist Movement,

505 U.S. 123 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Frederick Douglass Foundation v.

District of Columbia,

82 F.4th 1122 (D.C. Cir. 2023) . . . . . . . . . . . . . . . 12, 13

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gonzalez v. Trevino,

602 U.S. 653 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hartman v. Moore,

547 U.S. 250 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Idaho v. Wilson,

556 P.3d 450 (Idaho Ct. App. 2024) . . . . . . . . . . . . . . 20

KBS Holdco, LLC v. City of W. Hollywood,

No. 2:22-cv-05750-FLA (GJSx), 2025 WL 551651

(C.D. Cal. Jan. 2, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . 13

iv

Cited Authorities

Page

Lamar Advert. Co. v. City of Douglasville,

254 F. Supp. 2d 1321 (N.D. Ga. 2003) . . . . . . . . . . . . 13

Lawson v. City of Kankakee,

81 F. Supp. 2d 930 (C.D. Ill. 2000) . . . . . . . . . . . . . . . . 9

Lozman v. Riviera Beach,

585 U.S. 87 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Lusk v. Vill. of Cold Spring,

475 F.3d 480 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . 9

Martin v. City of Struthers,

319 U.S. 141 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Members of City Council of Los Angeles v.

Taxpayers for Vincent,

466 U.S. 789 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NAACP v. Button,

371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Near v. Minnesota ex rel. Olsen,

283 U.S. 697 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Niemotko v. Maryland,

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

v

Cited Authorities

Page

Nieves v. Bartlett,

587 U.S. 391 (2019) . . . . . . . . . . . . . . . . . . . . . . 4, 10, 11

Reed v. Town of Gilbert,

576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

Speiser v. Randall,

357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Staub v. City of Baxley,

355 U.S. 313 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

Thornhill v. Alabama,

310 U.S. 88 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10

U.S. v. Reese,

92 U.S. (2 Otto) 214 (1876) . . . . . . . . . . . . . . . . . . . . . 13

United States v. Hansen,

599 U.S. 762 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Virginia v. Hicks,

539 U.S. 113 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vi

Cited Authorities

Page

Watchtower Bible & Track Soc’y of

N.Y., Inc. v. Vill. of Stratton,

536 U.S. 150 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES AND ORDINANCES:

U.S. Const. Amend. I. . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 14

Alva, Okla., Code of Ordinances § 32-27 . . . . . . . . . . . . 19

Arcade, Ga., Code of Ordinances § 40-1(t) . . . . . . . . . . .20

Burlington Code of Ordinances § 21-29 . . . . . . . . . . . . . 15

Campbell, Ohio, Codified Ordinances § 709.03 . . . . . . . 20

D.C. Code § 22-3312.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dallas City Code § 7A-16(a) . . . . . . . . . . . . . . . . . . . . . . . 16

Durango, Colo., Code of Ordinances § 13-21 . . . . . . . . .20

Moscow City Code § 10-1-22(A) . . . . . . . . . . . . . . . 3, 6, 20

Roanoke, Ill., Code § 6-4-2 . . . . . . . . . . . . . . . . . . . . . . . 20

Temple, Tex., Code of Ordinances § 22-20 . . . . . . . . . . 19

vii

Cited Authorities

Page

OTHER AUTHORITIES:

“Agenda Packet” for City of Burlington, Vt., City

Council, Ordinance Committee Aug. 5, 2024,

Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

4 William Blackstone, Commentaries on the Laws

of England 151–52 (1769) . . . . . . . . . . . . . . . . . . . . . . . 5

Burlington, Vt. City Council Resolution 5.07

Relating to Supporting LGBTQIA+ Community

Members and Condemning Transphobia

(Mar. 13, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Letter from Cornell Law School First Amendment

Clinic to Emma Mulvaney-Stanak, Mayor

of Burlington, Vt. (July 22, 2024) . . . . . . . . . . . . . . . 15

6 Writings of James Madison 386 (G. Hunt ed. 1906) . . 7

Municipal Ordinances Spreadsheet (April 9, 2025) . . . 18

Jack Perry, Carrying Nazi Flag, Protesters

D i s r upt Rea din g of ‘ Th e Co mmuni st

Manifesto’ in Providence, Providence J.

(Feb. 22, 2022, 2:35 PM) . . . . . . . . . . . . . . . . . . . . . 16-17

Mark Reynolds, In East Providence, Experts

Say, Neo-Nazis Trying to Recruit Were

Not Anonymous This Time, Providence J.

(July 8, 2022, 3:01 PM) . . . . . . . . . . . . . . . . . . . . . . . . 16

viii

Cited Authorities

Page

Diana Samuels, Ideafarm in Trouble with

Mountain View Police, Again, Mercury News

(Jan. 3, 2011, 4:22 PM) . . . . . . . . . . . . . . . . . . . . . 17, 18

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

INTERESTS OF AMICI CURIAE1

Amici curiae include the First Amendment Clinics

at Duke, Cornell, and Southern Methodist Law Schools.

The Clinics defend and advance freedoms of speech,

press, assembly, and petition through court advocacy,

serve as an educational resource on free expression and

press rights, and provide law students with practice

experience to become the next generation of leaders on

First Amendment issues. The Clinics engage in advocacy

and representation across the country and have an

interest in promoting the sound interpretation of the First

Amendment to preserve the liberties guaranteed by the

U.S. Constitution.

Amicus curiae Avi Adelman is an independent

photojournalist based in Dallas, Texas. As with the

Petitioner, city officials selectively enforced against Mr.

Adelman a local ordinance that regulates the posting of

notices, posters, and other forms of protected written

speech on public property. Mr. Adelman had stapled

posters on a telephone pole in support of Israeli hostages.

Citing the ordinance, Dallas Code Compliance officials

took down Mr. Adelman’s posters after neighbors

complained that his posters constituted “bullying” and

“political hate” speech. Mr. Adelman attempted to replace

his posters several times, but officials continued to remove

1. Counsel for amici curiae certify, pursuant to Supreme

Court Rule 37.6, that this brief was not authored in whole or in

part by counsel for any of the parties; no party or party’s counsel

contributed money for the brief; and no one other than amici and

their counsel have contributed money for this brief. All counsel

of record received timely notice of the intent to file this brief and

written consent of the parties was obtained.

2

them until he eventually stopped posting altogether out of

a concern that his persistence could lead to more serious

punishment. Meanwhile, the city has left many other signs

and posters throughout Dallas untouched, suggesting that

the city specifically and repeatedly targeted Adelman’s

speech for censorship.

Amicus curiae William Oetjen is a resident of

Burlington, Vermont, and member of “Gender Critical

Vermont,” a gender-based advocacy group. As happened

to Petitioner, Burlington city officials selectively enforced

against Mr. Oetjen a local ordinance that regulates

the posting of graffiti on public property. Specifically,

Mr. Oetjen had posted stickers around Burlington in

support of the rights of women and girls. Mr. Oetjen was

issued three citations under the city’s graffiti ordinance,

resulting in a $1,200 fine, even though Burlington had not

previously enforced the ordinance against other stickerposters in the city.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Like many university towns, downtown Moscow,

Idaho, is blanketed with posters, signs, and stickers.

People searching for lost pets, advertising yard sales, and

expressing political ideas and slogans have long shared

their messages on Moscow public property without fear of

retribution. Petitioner Rory Wilson is the only person ever

arrested and prosecuted by Moscow under its ordinance

regulating sign posting (the “Ordinance”) since it was first

enacted in 2009. That Wilson was targeted by Moscow law

enforcement is no coincidence. Wilson’s grandfather is the

leader of Christ Church of Moscow, which made national

3

news in 2020 after police arrested and issued citations

to several attendees at an outdoor “psalm sing” that the

church organized to protest the city’s COVID-19 policies.

Several months later, police issued Wilson a citation for

affixing small, removable vinyl stickers with the image of

a hammer-and-sickle, the phrase “Soviet Moscow,” and

Moscow’s COVID-19 slogan (“Enforced because we care”)

at various locations across the city.

Wilson was charged under the Ordinance, codified

at Moscow City Code § 10-1-22(A) (2025), which provides

that:

No person shall post, paint, tack, tape or

otherwise attach or cause to be attached,

any notice, sign, announcement, or other

advertising matter to any fence, wall, building,

tree, bridge, awning, post, apparatus or other

property not belonging to said person without

first obtaining the consent of the owner or

lessee of such property or their agent(s) or

representative(s). No person shall post, paint,

tack, tape or otherwise attach or cause to be

attached any notice, sign, announcement, or

other advertising matter to any telephone or

electric pole within the City.

A s w r itten, the Ordinance violates the First

Amendment under two long-established doctrines

protecting free speech. First, under the doctrine of prior

restraint, the government may not enforce licensing

schemes that give unfettered discretion to public officials

to pick and choose who may speak. See Staub v. City of

Baxley, 355 U.S. 313, 322–24 (1958) (collecting cases).

4

Second, the Ordinance is a paradigmatic example of

a broadly written penal statute that enables selective

enforcement and “may cause others not before the

court to refrain from constitutionally protected speech

or expression.” Broadrick v. Oklahoma, 413 U.S. 601,

612 (1973); see also Thornhill v. Alabama, 310 U.S. 88,

97–98 (1940) (noting the threat to expressive freedoms

posed by a penal statute that broadly sweeps expressive

activities into its ambit because the statute “readily lends

itself to harsh and discriminatory enforcement by local

prosecuting officials, against particular groups deemed

to merit their displeasure, [and] results in a continuous

and pervasive restraint on all freedom of discussion that

might reasonably be regarded as within its purview”).

The danger to speech posed by the selective

enforcement of ordinances like Moscow’s is not hypothetical.

In cities large and small across the country, known critics

of the government have been arrested and prosecuted

for violating sign-posting laws that were seldom, if ever,

enforced. Today, there are hundreds of ordinances like

Moscow’s in effect. As Justice Gorsuch has opined, the

threat of selective enforcement increases as criminal laws

expand “to cover so much previously innocent conduct that

almost anyone can be arrested for something.” Nieves v.

Bartlett, 587 U.S. 391, 412 (2019) (Gorsuch, J., concurring

in part and dissenting in part). There would be little left

of our First Amendment liberties if the state could use

criminal laws “not for their intended purposes but to

silence those who voice unpopular ideas.” Id.

For these reasons, the Court should accept Wilson’s

petition and hold that the Ordinance—and others like

it—are unconstitutional.

5

ARGUMENT

I.

Moscow’s Ordinance Violates the First Amendment

Because It is a Prior Restraint and is Overbroad,

Inviting Selective Enforcement.

The First Amendment protects “uninhibited, robust,

and wide-open” debate on public issues, including

(and especially) “vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

officials.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270

(1964). To preserve open discourse on public matters,

the Constitution forbids government retaliation against

people who voice critical or unpopular opinions. Hartman

v. Moore, 547 U.S. 250, 256 (2006). Licensing schemes

that regulate where and how people may communicate

their ideas, and broadly written laws that provide cover

for the punishment of unpopular viewpoints, betray the

First Amendment’s promise that “[e]very freeman has

an undoubted right to lay what sentiments he pleases

before the public.” Near v. Minnesota ex rel. Olsen, 283

U.S. 697, 713–14 (1931) (quoting 4 William Blackstone,

Commentaries on the Laws of England 151–52 (1769)).

Moscow’s broad prohibition on posting signs, and

other ordinances like it, pose a two-fold threat to that

promise. First, these laws are unlawful prior restraints

when they provide no clear mechanism for obtaining the

government’s consent in advance of speaking and no clearly

defined standards to limit the discretion of government

decisionmakers. Second, as with the Ordinance, overbroad

statutes enable selective enforcement—because they

permit law enforcement to use a little-enforced statute

as a pretext for punishing disfavored speakers—and

6

selective enforcement deters other would-be dissenters

from speaking.

a.

Moscow’s Ordinance is an Unconstitutional

Prior Restraint.

The Moscow Ordinance falls within the ambit of the

Court’s many decisions holding that “a law subjecting

the exercise of First Amendment freedoms to the prior

restraint of a license, without narrow, objective, and

definite standards to guide the licensing authority, is

unconstitutional.” Shuttlesworth v. City of Birmingham,

394 U.S. 147, 150–51 (1969). On its face, the Ordinance

establishes a licensing scheme whereby any person who

desires to post a notice on city property must first obtain

consent from the property owner (apart from posting

on telephone or electrical poles, which is completely

forbidden). Moscow City Code § 10-1-22(A). But its fatal

flaw is that it does not specify how to obtain such consent,

let alone impose any limits upon the officials who would

be responsible for enforcing the Ordinance’s permissionbased regime. Indeed, “[n]o standards appear anywhere;

no narrowly drawn limitations; no circumscribing of this

absolute power; no substantial interest of the community

to be served.” Niemotko v. Maryland, 340 U.S. 268, 272

(1951).

Any system of prior restraints on expression bears

“a heavy presumption against its constitutional validity.”

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). 2

2. This Court has historically expressed heightened concern

about licensing regimes that “throttle” speech before it is uttered,

as opposed to laws that impose criminal penalties “to punish the

7

To legitimately impose a pre-clearance regime for speech,

the government must include “procedural safeguards

that reduce the danger of suppressing constitutionally

protected speech.” Conrad, 420 U.S. at 559 (citing Bantam

Books, 372 U.S. at 71). But even if a city can regulate sign

posting to preserve esthetic values, see, e.g., Members of

City Council of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 806 (1984), it cannot use a permission-based model

to achieve its goals without ensuring that the licensor is

guided by clearly defined standards. Shuttlesworth, 394

U.S. at 150–51. Otherwise, “the mere existence of the

licensor’s unfettered discretion, coupled with the power

of prior restraint, intimidates parties into censoring their

own speech, even if the discretion and power are never

actually abused.” City of Lakewood v. Plain Dealer Publ’g

Co., 486 U.S. 750, 757 (1988); see also Forsyth Cnty. v.

Nationalist Movement, 505 U.S. 123, 130 (1992) (noting

that an ordinance that delegates overly broad discretion

to the decisionmaker creates an impermissible risk of

suppression of ideas in every application).

The values protected by the First Amendment are

offended when citizens like Petitioner are required

few who abuse rights of speech after they break the law.” Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 558–59 (1975). The

Ordinance here is a chimera that embeds a prior restraint within a

criminal prohibition, strengthening the concerns that animate the

Court’s prior restraint jurisprudence, because the added threat

of a criminal penalty amplifies the chill felt by would-be speakers.

See Alexander v. United States, 509 U.S. 544, 568 (1993) (Kennedy,

J., dissenting) (“‘[T]his idea of the freedom of the press can never

be admitted to be the American idea of it’ because a law inflicting

penalties would have the same effect as a law authorizing a prior

restraint.” (quoting 6 Writings of James Madison 386 (G. Hunt

ed. 1906))).

8

to seek permission from a government official before

expressing their views, especially without strict limits

on the official’s discretion. See Staub, 355 U.S. at 325

(striking down ordinance that made “enjoyment of speech

contingent upon the will of the Mayor and Council of

the City”); Shuttlesworth, 394 U.S. at 150–51 (striking

down ordinance that granted “virtually unbridled and

absolute power to prohibit any ‘parade,’ ‘procession,’ or

‘demonstration’ on the city’s streets or public ways”);

Conrad, 420 U.S. at 560–62 (striking down licensing

scheme for use of municipal theater for lack of procedural

safeguards); Watchtower Bible & Track Soc’y of N.Y., Inc.

v. Vill. of Stratton, 536 U.S. 150, 165–67 (2002) (striking

down ordinance that required speaker to get a permit

before engaging in door-to-door advocacy); see also

Martin v. City of Struthers, 319 U.S. 141, 146–47 (1943)

(opining that the “[f]reedom to distribute information to

every citizen wherever he desires to receive it is so clearly

vital to the preservation of a free society that, putting

aside reasonable police and health regulations of time

and manner of distribution, it must be fully preserved”).

But despite this Court’s admonishments to the contrary,

local governments continue to enact laws, like the Moscow

Ordinance, that function as prior restraints because they

give local censors the freewheeling authority to exclude

disfavored speakers from the public square.

Where similar ordinances have been subjected to

legal challenge, they have failed to withstand scrutiny

because conditioning the exercise of a First Amendment

right on the whims of government officials is among the

most fundamental evils of a prior restraint. See FW/

PBS, Inc. v. City of Dallas, 493 U.S. 215, 225–26 (1990)

(ordinance requiring a more onerous inspection regime

9

for sexually oriented businesses); Epona, LLC v. Cnty. of

Ventura, 876 F.3d 1214, 1222–26 (9th Cir. 2017) (ordinance

requiring that conditions be met “to the satisfaction of the

appropriate decision-making authority”); Baker v. City of

Fort Worth, 506 F. Supp. 3d 413, 421–25 (N.D. Tex. 2020)

(ordinance requiring permission of city council to post

any “handbill, sign, poster or advertisement”); Driver v.

Town of Richmond ex rel. Krugman, 570 F. Supp. 2d 269,

272 (D.R.I. 2008) (ordinance requiring approval of Chief

of Police to post a sign); Lawson v. City of Kankakee, 81

F. Supp. 2d 930, 935 (C.D. Ill. 2000) (ordinance requiring

consent of the city); Bella Vista United v. City of Phila.,

No. 04-1014, 2004 WL 825311, at *3–5 (E.D. Pa. Apr. 15,

2004) (ordinance requiring permission from the city); see

also Lusk v. Vill. of Cold Spring, 475 F.3d 480, 491–92 (2d

Cir. 2007) (invalidating sign-posting ordinance that froze

speech for impermissibly long time during pendency of

permitting process).

The Moscow Ordinance’s “consent” requirement

commits the same sin. It effectively confers upon Moscow

officials the unfettered discretion to regulate expression,

without establishing clear criteria, procedures, or time

frames for seeking consent or determining its grant or

denial. Petitioner’s prosecution demonstrates ex post why

these safeguards are necessary; without them, viewpointbased prosecutions are more likely, because the lack of

guardrails emboldens officials to wield these ordinances

selectively against speakers they dislike. Here, despite the

documented absence of enforcement of the Ordinance prior

to Petitioner’s prosecution—or to put it differently, despite

a history of Moscow giving constructive permission to all

other members of the public to post stickers and other

signage on public property without first obtaining the

10

City’s blessing—the City acted swiftly and specifically to

punish Petitioner for his speech. Those actions should be

fatal both to Petitioner’s prosecution and to the ordinance

itself. This Court should review the Ordinance and

Petitioner’s conviction to reiterate that official censorship

has no place in a free country.

b.

Overbroad Statutes Allow Governments to

Punish Disfavored Speakers.

The Moscow Ordinance is broadly written, giving

law enforcement virtually unfettered discretion to decide

whom to prosecute for sign posting. This discretion invites

selective enforcement—as happened in Petitioner’s case—

which in turn chills speech. These dual concerns sit at the

heart of the overbreadth doctrine: “It is not merely the

sporadic abuse of power by the censor but the pervasive

threat inherent in its very existence that constitutes the

danger to freedom of expression.” Thornhill, 310 U.S.

at 97; see also Broadrick, 413 U.S. at 612 (expressing a

concern that “protected speech of others may be muted

and perceived grievances left to fester because of the

possible inhibitory effects of overly broad statutes”).

The right to verbally oppose the government without

fear of arrest is a defining feature of our constitutional

democracy. City of Houston v. Hill, 482 U.S. 451, 462–63

(1987). Expansive discretion in enforcement threatens

First Amendment freedoms when officials “exploit the

arrest power as a means of suppressing speech,” as

happened to Petitioner. Nieves, 587 U.S. at 406 (quoting

Lozman v. Riviera Beach, 585 U.S. 87, 99 (2018)); see also

Cox v. Louisiana, 379 U.S. 536, 557 (1965) (opining that

“[t]he pervasive restraint on freedom of discussion by the

11

practice of the authorities under [a] statute is not any less

effective than a statute expressly permitting such selective

enforcement”). The potential for law enforcement officers

to punish government critics via the selective enforcement

of otherwise dormant laws is an increasingly vexing

problem. Recently, in Nieves, 587 U.S. at 407, this Court

noted that it would be “insufficiently protective of First

Amendment rights” to dismiss a retaliatory arrest claim

brought by a vocal critic of the police who was arrested

for jaywalking—behavior that is widely prohibited but

rarely prosecuted. To rigidly require the absence of

probable cause in those cases could pose “a risk that some

police officers may exploit the arrest power as a means

of suppressing speech.” Id. (quoting Lozman, 585 U.S. at

99); see also Gonzalez v. Trevino, 602 U.S. 653, 665 (2024)

(Alito, J., concurring).

Petitioner exemplifies the concern that speakers who

are known government critics are particularly vulnerable

to selective enforcement. Three months before his arrest,

Wilson was part of a “psalm sing” in which congregants

of his church were arrested and cited. To protest the

arrests, Wilson began his stickering campaign criticizing

Moscow’s restrictive COVID-19 policies. Soon thereafter,

he was arrested for violation of the Ordinance—the only

individual ever charged under that law in its fifteen-year

history. The City’s animus towards Wilson’s message is

a much likelier explanation for his arrest than any newfound enthusiasm for enforcing its sign-posting ordinance.

See Gonzalez, 602 U.S. at 665 (Alito, J., concurring)

(noting that police animus towards a jaywalker’s message

may be a much likelier explanation for his arrest than the

mere existence of probable cause).

12

A recent case from the District of Columbia illustrates

the way that broadly drafted statutes facilitate selective

enforcement that amounts to viewpoint discrimination. In

Frederick Douglass Foundation v. District of Columbia,

82 F.4th 1122 (D.C. Cir. 2023), the D.C. Circuit held that

the city government plausibly engaged in viewpoint

discrimination by selectively enforcing its defacement

ordinance against a pro-life advocacy organization. The

D.C. ordinance at issue prohibited citizens from “‘willfully

and wantonly . . . writ[ing], mark[ing], draw[ing], or

paint[ing]’ on public or private property, without consent

of the owner or the public official” in control. Id. at 1131

(alterations in original) (quoting D.C. Code § 22-3312.1).

But in the summer of 2020, the District of Columbia

“all but abandoned enforcement” of the ordinance,

“creating a de facto categorical exemption” for anyone

who marked public or private property with Black Lives

Matter (“BLM”) messages. Id. at 1132. Even D.C. Mayor

Muriel Bowser appeared to give her blessing to the BLM

messaging by commissioning a painting of “Black Lives

Matter” to cover more than a city block. Id.

During the same period, however, the Frederick

Douglass Foundation sought, but never received,

permission from Mayor Bowser to paint “Black PreBorn Lives Matter” on a sidewalk. Id. at 1133–34. When

Foundation members arrived for a permitted rally, police

officers told them that they would be arrested for violating

the defacement ordinance if they chalked on the sidewalk

and promptly arrested two Foundation members who

began chalking their message. Id. at 1134. A year later,

the Foundation again sought permission to display their

message on the sidewalk but were again denied their

request. Id. The D.C. Circuit found that the Foundation

13

had “plausibly alleged the District abridged its members’

First Amendment rights by enforcing the defacement

ordinance on the basis of the content and viewpoint of

their speech.” Id. at 1142. The decision underscores the

principle that the government may not “pick[] winners and

losers in public debates” “under the cover of prosecutorial

discretion.” Id.

The Frederick Douglass Foundation case is just one

example of why this Court has cautioned that trusting

government officials to fairly apply overly broad statutes

invites abuse. See also Fla. Beach Advert., LLC v. City

of Treasure Island, 511 F. Supp. 3d 1255, 1274 (M.D.

Fla. 2021) (finding city sign ordinance unconstitutional

because its broadly worded prohibition granted “unbridled

discretion” to city in granting exemptions and “[n]othing in

the law prevent[ed] the City from encouraging some views

and discouraging others through the arbitrary grant or

denial of . . . sign permits”) (quoting Lamar Advert. Co. v.

City of Douglasville, 254 F. Supp. 2d 1321, 1328–29 (N.D.

Ga. 2003)); KBS Holdco, LLC v. City of W. Hollywood, No.

2:22-cv-05750-FLA (GJSx), 2025 WL 551651 at *5 (C.D.

Cal. Jan. 2, 2025) (finding plaintiffs alleged facts sufficient

to state a claim that sign ordinance was unconstitutional

because “the unbridled discretion granted to the City

Manager and Screening Committee . . . could cause

applicants to self-censor . . . out of fear that they might be

excluded from future rounds”). As this Court has observed,

“[i]t would certainly be dangerous if the legislature could

set a net large enough to catch all possible offenders, and

leave it to the courts to step inside and say who could be

rightfully detained, and who should be set at large.” City

of Houston, 482 U.S. at 466 (quoting U.S. v. Reese, 92 U.S.

(2 Otto) 214, 221 (1876)).

14

The First Amendment requires “breathing space

to survive.” NAACP v. Button, 371 U.S. 415, 433 (1963).

Ordinances that broadly prohibit expressive activities

choke out that breathing space. See United States v.

Hansen, 599 U.S. 762, 769–70 (2023) (“Overbroad laws

‘may . . . chill constitutionally protected speech,’ and if

would-be speakers remain silent, society will lose their

contributions to the ‘marketplace of ideas.’”) (quoting

Virginia v. Hicks, 539 U.S. 113, 119 (2003)). The threat

of being prosecuted for the expression of unpopular

views will cause ordinary citizens to “steer ‘wide[] of the

unlawful zone’” for fear that if their judgment is wrong,

they could become the next person arrested under the

sign-posting ordinance. Counterman v. Colorado, 600

U.S. 66, 77–78 (2023) (quoting Speiser v. Randall, 357 U.S.

513, 526 (1958)). If the Ordinance is allowed to stand, other

citizens of Moscow may be deterred from expressing views

critical of the City for fear of being criminally prosecuted,

as Petitioner Wilson was.

II. Incidents and Ordinances Across the Country

Illustrate the Magnitude of the Problem.

a.

Municipalities Continue to Selectively Enforce

Their Laws to Restrict Disfavored Speech.

Petitioner Wilson is not alone in being targeted and

punished for criticizing his local government. Overbroad

ordinances have been wielded by municipalities across

the country to selectively enforce ostensibly contentneutral laws against disfavored speech. The problem is

especially acute with respect to sign-posting ordinances.

As happened to Petitioner Wilson, public officials exploited

15

overbroad sign-posting ordinances to target and punish

amici, and others, for expressing disfavored, unpopular,

or dissenting viewpoints.

Amicus William Oetjen placed homemade stickers

in public places in Burlington, Vermont, to express his

view that efforts to advance transgender rights have

harmed non-transgender women and girls. Letter from

Cornell Law School First Amendment Clinic to Emma

Mulvaney-Stanak, Mayor of Burlington, Vt. (July 22,

2024), at 1. 3 Burlington city officials repeatedly expressed

their disapproval of Mr. Oetjen’s stickering campaign

and ultimately enacted a resolution to acknowledge the

“spread [of] hate through . . . aggressive stickering” and

express support for the continued “tracking all [instances

of] . . . hate speech.” Id. at 2 (citing Burlington, Vt.

City Council Resolution 5.07 Relating to Supporting

LGBTQIA+ Community Members and Condemning

Transphobia (Mar. 13, 2023)). Although Burlington had

a “longstanding culture of public stickering campaigns

on social and cultural issues,” the city served Mr. Oetjen

with three citations for violating its graffiti ban, § 21-29

of the Burlington Code of Ordinances—the first time the

ordinance had been enforced against anyone in the prior

eighteen months. Id. at 1–2.

The selective enforcement of overbroad sign-posting

ordinances chills speech even when the speaker faces only

the threat of government punishment, as experienced

3. “Agenda Packet” for City of Burlington, Vt., City Council,

Ordinance Committee Aug. 5, 2024, Meeting, https://burlingtonvt.

portal.civicclerk.com/event/7365/files/agenda/11480 (click on

“CornellClinicLettertoBTVCityCouncil” in sidebar).

16

by amicus Avi Adelman. Mr. Adelman stapled “Bring

Them Home Now” posters supplied by an advocacy group

supporting the return of Israeli hostages to a telephone

pole in front of his house in East Dallas. Within a few days,

neighbors contacted the City of Dallas’s Code Compliance

office to complain about Mr. Adelman’s posters, which one

neighbor characterized as “political hate” speech. Code

Compliance officers immediately removed the posters

pursuant to § 7A-16(a) of the Dallas City Code, which

makes it illegal to “post[] or affix[] . . . any notice, poster,

or device, which is calculated to attract the attention of

the public, to any lamp post, utility pole, telephone pole,

cellular telephone pole, or tree that is located on any

public right-of-way or other public property, or to any

public structure or building.” Code Compliance officers

told Mr. Adelman that they had no choice but to remove

the posters, a rationale belied by the city’s long history

of allowing posters on other topics to remain on poles

throughout North Dallas. Mr. Adelman witnessed this

cycle—posting signs only to see them removed by city

officials—repeat several times until he eventually gave

up and stopped replacing the posters altogether. City

officials singled out Mr. Adelman for his viewpoint and

successfully used the threat of enforcement under the

ordinance to silence him.

Amici are just two of many speakers throughout the

country who have been subjected to selective enforcement

by law enforcement through the use of overbroad signposting ordinances. For example, in East Providence,

Rhode Island, two men were arrested after posting

literature on telephone poles to recruit new members to

the Nationalist Social Club 131, their neo-Nazi group.

Mark Reynolds, In East Providence, Experts Say, Neo-

17

Nazis Trying to Recruit Were Not Anonymous This

Time, Providence J. (July 8, 2022, 3:01 PM). 4 At the

time of the arrests, police had already been following

Nationalist Social Club 131 and its activities—just a few

months earlier, police were called to a local library after

the organization interrupted a reading of the Communist

Manifesto. Jack Perry, Carrying Nazi Flag, Protesters

Disrupt Reading of ‘The Communist Manifesto’ in

Providence, Providence J. (Feb. 22, 2022, 2:35 PM).5 Police

cited a local ordinance that bans posting signs on any pole

absent approval by the mayor as their basis for identifying

and arresting two members of the group. Reynolds, supra.

Wo’O Ideafarm, a resident of Mountain View,

California, was likewise well known to the police for his

expressive activities, and thus he was “not surprised” to

learn that police were seeking a warrant for his arrest for

posting signs opposing Proposition 8 and gay marriage on

a town utility pole, in contravention of a local ordinance

prohibiting sign-posting without permission. Diana

Samuels, Ideafarm in Trouble with Mountain View

Police, Again, Mercury News (Jan. 3, 2011, 4:22 PM).6

Mr. Ideafarm had previously faced dozens of charges

for displaying controversial signs throughout town and

4 . https: // w w w.prov idencejou r na l.com /st or y/new s /

crime/2022/07/08/neo-nazi-recruiters-east-providence-werenot-anonymous-this-time/7821731001/.

5. https: // w w w.prov idencejou r na l.com /st or y/new s /

loca l / 2 0 2 2 /0 2 / 2 2 /na zi- swasti ka-f lag-prot estors- disr upt p r o v i de nc e - c o m mu n i s t - m a n i fe s t o - r e a d i n g - r e d - i n klibrary/6891544001/.

6. https://www.mercurynews.com/2011/01/03/ideafarm-introuble-with-mountain-view-police-again/.

18

had been arrested a few months earlier for staging a

sit-in at the police station. Id. Even though Mr. Ideafarm

ultimately decided “not to fight that fight” and offered

to take the signs down, police were intent on arresting

him: “[W]hen he breaks the law, we go for the warrant,”

a police spokeswoman declared. Id.

b.

The Prevalence of Overbroad Sign-Posting

Ordinances Makes Clear the Scope of the

Problem.

Sign-posting laws implicate core First Amendment

rights. See Reed v. Town of Gilbert, 576 U.S. 155, 164 (2015)

(analyzing municipal “Sign Code” as a “content-based

regulation[] of speech”); Taxpayers for Vincent, 466 U.S.

at 803 (noting that an ordinance prohibiting the posting

of signs on public property “raises the question whether

the ordinance abridges [appellees’] ‘freedom of speech’

within the meaning of the First Amendment”). This case

warrants review to provide clarity to the governments

across the country that regulate signs and other forms of

protected speech such as posters and stickers.

Hundreds of municipalities regulate sign-posting

using language similar to or broader than Moscow’s

Ordinance. Amici identified over 400 sign-posting

ordinances enacted by cities large and small, liberal and

conservative, reflecting the full scope of the country’s

regional, economic, and political diversity.7 Amici’s

7. Municipal Ordinances Spreadsheet (April 9, 2025),

available at https://law.duke.edu/sites/default/files/clinics/

firstamendment/2025.04.09_Municipal_Ordinances_Spreadsheet.

xlsx and https://cornell1a.law.cornell.edu/ordinance-spreadsheet.

19

research is a non-exhaustive representation of the

broad range of local sign-posting ordinances that are

currently in force nationwide. The quantity of ordinances

underscores the stakes here—Petitioner’s arrest in

Moscow, Idaho could just as easily have happened in Alva,

Oklahoma, 8 or Temple, Texas,9 or any of hundreds of other

cities and towns across the country that have enacted

similar prohibitions. The danger of selective enforcement

under these laws is thus a national concern, because they

give local law enforcement officials virtually unfettered

discretion to punish speech with which they disagree.

Amici’s research also revealed that many municipal

sign-posting ordinances act as prior restraints because

they impose a requirement to obtain permission or

consent from local officials to place signs and similar

materials on public property, while offering little in the

way of clearly defined standards to ensure permission

is not withheld based on the content or viewpoint of the

speaker. Accordingly, these ordinances enable selective

enforcement because municipal officials have unlimited

discretion to pick and choose which speakers have

permission to speak. For example, in Campbell, Ohio, it

8. “It is unlawful for any person to place, stick, tack, paste, post,

paint, mark, write or print any sign, poster, picture, announcement,

advertisement, bill placard, device or inscription upon any public or

private building, fence, sidewalk, bridge, viaduct, post, automobile,

other vehicle or other property of another, without the consent of the

owner or person in charge thereof.” Alva, Okla., Code of Ordinances

§ 32-27.

9. “Any person who, without first having obtained the consent

of the owner, shall stick, paint or stamp upon any house, fence, wall,

pavement, or other object not his own, any written printed or other

notice, bill sign, circular, poster or advertisement shall be deemed

guilty of a misdemeanor.” Temple, Tex., Code of Ordinances § 22-20.

20

is forbidden to erect any “poster, sign, handbill, placard

or literature” on any “public building,” without first

obtaining permission from the “occupant or owner” of the

building. Campbell, Ohio, Codified Ordinances § 709.03.

Similarly, in Arcade, Georgia, it is unlawful to post any

“sign, poster, advertisement, or notice of any kind” on

“any public property” without the “written consent of the

owner.” Arcade, Ga., Code of Ordinances § 40-1(t).

Moreover, laws that purport to limit their reach to

“advertising matter” are not immune from being used as

tools of suppression. Petitioner Wilson’s conviction under

Moscow’s Ordinance, which includes a prohibition on the

posting of “advertising matter,” emphasizes that problem.

Moscow, Idaho City Code § 1-22(A). Wilson argued that the

plain language of the statute was limited to a prohibition

on “advertising matter.” Idaho v. Wilson, 556 P.3d 450,

455 (Idaho Ct. App. 2024). The Idaho Court of Appeals

concluded that the Ordinance included, but was not limited

to, “advertising matter,” and that Wilson’s speech “did not

need to constitute ‘advertising matter’” to fall within the

Ordinance’s ambit. Id. If interpreted similarly by other

state courts, ordinances like those in Durango, Colorado,10

or Roanoke, Illinois11 could be used to criminalize core

political speech in those municipalities, too.

10. “It shall be unlawful for any person to post, paint, tack or

otherwise attach any notice or other advertising matter to any fence,

wall or building or other property until first obtaining the consent

of the owner of such property.” Durango, Colo., Code of Ordinances

§ 13-21.

11. “It shall be unlawful for any person to post, paint, tack or

otherwise attach any notice or other advertising matter to any fence,

wall or building or other property until first obtaining the consent of

the owner of such property.” Roanoke, Ill., Code § 6-4-2.

21

The selective prosecution of Petitioner Wilson, under

an ordinance that is one of hundreds of similar ordinances

in force around the country, reveals a significant First

Amendment blind spot in need of correction. Each of

these ordinances could be used to silence speakers who

express viewpoints unpopular with government officials.

When speakers are punished for posting in the same public

spaces that others use without incident—provided that

their speech conforms to the government’s orthodoxy—

the specter of viewpoint discrimination is inescapable.

Petitioner Wilson’s case is an ideal vehicle to address

the broader constitutional concerns raised here. His

conviction is the paradigmatic example of an improper,

viewpoint-based prosecution that could arise under any

of the hundreds of similar ordinances currently in effect

around the country. Absent clarification of the basic First

Amendment principles that should have restrained local

officials from punishing Wilson solely because of his

speech, overbroad local ordinances that regulate sign

posting will continue to permit selective enforcement

against unpopular viewpoints and will deter would-be

speakers who fear reprisal. Our public squares are not,

and never have been, spaces where only governmentsanctioned messages are permitted. Where, as here, the

government tacitly opens its spaces for the messages

of some, but acts swiftly to punish others, the First

Amendment must serve as a check on that discriminatory

exercise of government power.

22

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari and reverse the decision of the Idaho Court of

Appeals.

Respectfully Submitted,

Sarah Ludington

Counsel of Record

Duke First Amendment Clinic

210 Science Drive

Durham, North Carolina 27708

(919) 613-7048

ludington@law.duke.edu

C. A manda Martin

Duke First Amendment Clinic

210 Science Drive

Durham, North Carolina 27708

Peter B. Steffensen

SMU Dedman School of Law

First A mendment Clinic

P.O. Box 750116

Dallas, Texas 75275

Thomas S. Leatherbury

Thomas S. Leatherbury

Law, PLLC

Cumberland Hill

School Building

1901 North Akard Street

Dallas, Texas 75201

23

Heather E. Murray

Daniela del Rosario Wertheimer

Cornell Law School

First A mendment Clinic

Myron Taylor Hall

Ithaca, New York 14853

Counsel for Amici Curiae