Opposition Brief — Arizonans for Official English v. Arizona

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-974

ARIZONANS FOR OFFICIAL ENGLISH AND

ROBERT D. PARK,

PETITIONER,

Vv.

STATE OF ARIZONA: MARIA-KELLEY F YNIGUEZ:

JAIME GUTIERREZ; AND ARIZONANS AGAINST

CONSTITUTIONAL TAMPERING,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENTS

ARIZONANS AGAINST CONSTITUTIONAL

TAMPERING AND THOMAS ESPINOSA

STEPHEN G. MONTOYA

Counsel of Record

ALBERT M. FLORES

Of Counsel

337 North Fourth Avenue

Phoenix, Arizona

85003-1572

(602) 271-0070

Attorneys for Respondents

Arizonans Against Constitutional Tampering

and Thomas Espinosa

January 29, 1996

RULE 29.1 STATEMENT

Arizonans Against Constitutional Tampering is a private un-

incorporated association with no parent or subsidiaries.

(ii)

TABLE OF CONTENTS

QUESTION RESERVE |

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BRIEF FOR RESPONDENT ARIZONANS

AGAINST CONSTITUTIONAL TAMPERING IN

OPPOSITION TO PETITION FOR WRIT OF

111 —ů———r5iũVs —

A. The decision below does not rest on the

resolution of the questions presented by

the petition, and the questions presented

by the petition are based on facts that are

B. The decision below does not announce any

new first amendment protections and is

consistent with the opinions of this Court...

C. The decision below does not conflict with

the law of other Circuits

D. The decision below is consistent with

r .

E. This case does not involve circumstances

r . ˙—ßr

(iii)

UN N —

TABLE OF AUTHORITIES

Page(s)

A. TABLE OF CASES

Abrams . United States, 250 U.S. 616 (1920 11

Bartels v. Iowa, 262 U.S. 404 (19233—T—ä6—l . ———— 7, 12

Bond v. Floyd, 385 U.S. 116, 132-33 (1966) 4,6, 12. 14

Brown v. Oklahoma, 408 U.S. 914 (1972 Fn. 12

Cohen v. California, 403 U.S. 15, 24 (1971) ccc 11, 12, 14

Farrington v. Tokushige, 273 U.S. 284 (1927) 7

Frohwerk v. United States, 249 U.S. 616 (1919) ............. Fn. 11

Gooding v. Wilson, 405 U.S. 518 (1972) Fn. 12

Griswold v. Connecticut, 381 U.S. 475, 482 (1965) ........ Fn. 13

Hurtado v. California, 110 U.S. 516, 530-531 (1884) .............. 7

Katzenbach v. Morgan, 384 U.S. 641 (1966) 3

Lau v. Nichols, 414 U.S. 863 (619979 —————.———. 4

Lewis v. New Orleans, 408 U.S. 913 (1972) Fn. 12

Meyer v. Nebraska, 262 U.S. 390 (1923 7,13

Nebraska District of Evangelical Lutheran Synod v.

McKelvie, 262 U.S. 404, 410 (1923) 7, 12, 13

New York Times v. Sullivan, 376 U.S. 254,

920 9 —ñññññññññĩ— — 3, 4, Fn. 7

Pickering v. Board of Education 391 U.S. 563 (1968) ......... 14

RA. V. City of St. Paul,. U.S. 112 S. Ct.

2 —ñññññññññññññññů ̃ ꝗͤ önñnñ—ꝛ—— 3

Rosenfeld v. New Jersey, 408 U.S. 901 (1972) Fn. 12

Schaefer v. United States, 251 U.S. 466 (1922) Fn. 11

(iv)

Stromberg v. California, 283 U.S. 359 (1931) 13

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926) 7

B. CONSTITUTIONAL PROVISIONS AND STATUTES

Arizona Constitution, Article 28 passim

United States Constitution, Amendment passim

United States Constitution, Amendment XIV ........................ 2

Voting Rights Act of 1965, as amended, 42 U.S.C.

§1973(4)(f) 0 3

Title VI of the Civil Rights Act of 1964, 42 U S. C.

REE — —U—uwůA—ᷣ— 3

C. OTHER AUTHORITIES

A Mixed Race, Ethnicity in Early America, 120

(F. Shuffelton, Ed. 1993) 23 8

American Bilingual Tradition, The, 11-12 (197) 8

Brandeis-Frankfurter Conversations, The, 1985 Sup.

Ct. Rev. 299, 320 (1985) Weener Fn. 13

Demography and Distrust: An Essay on American

Ln ee 8

Emergence of a Free Press, 39 (1988 9

in the States Over Language Minority Rights, 7 J. L.

rr — 2

English-Only Question, The, 21 (19900) Fn. 2

Freedom Fetters: The Alien and Sedition Laws and

American Civil Liberties, 56-58 (1956) Fn. 7

(v)

German and the Germans at the Time of the

American Revolution, 60 Modern Language

FE Ts COD. dininernctenesctcrenititatntiendiiannnninnenne 8

Germans, Harvard Encyclopedia of American Ethnic

-x 8

Hold Your Tongue, 44, 176 (1992) Fn. 2, 11

Journal of the Continental Congress, 108 (1774) .......00 10

N 10

Linguistics and Anthropology, 267, 270 (1977) 9

Origins of the Press Clause, The, 30 UCLA 455,

1 9

Peopling of British North America, The, 16-17 (1986) 8

Politics of Reconstruction, The, 1863-1867, 58 (1965) .......... 10

Polylingualism in the United States of America, in

W. Beer & J. Jacob, Language Policy and National

0 7

Slave Community The, 25 (1979090———ꝛ———————— 8

(vi)

No. 95-974

In the Supreme Court of the United States

OCTOBER TERM, 1995

ARIZONANS FOR OFFICIAL ENGLISH AND

ROBERT D. PARK,

PETITIONER,

STATE OF ARIZONA; MARIA-KELLEY F. YNIGUEZ;

JAIME GUTIERREZ; AND ARIZONANS AGAINST

CONSTITUTIONAL TAMPERING,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENTS

ARIZONANS AGAINST CONSTITUTIONAL

TAMPERING AND THOMAS ESPINOSA

This brief is submitted by Respondents Arizonans Against

Constitutional Tampering and its Chairperson Thomas

Espinosa in opposition to the Petition for Writ of Certiorari

filed with this Court by Arizonans for Official English and its

Chairperson Robert D. Park. Respondent Maria-Kelly F.

Yniguez is submitting a separate brief in opposition to the

petition.

REASONS FOR DENYING THE PETITION

I. SUMMARY OF ARGUMENT

Article 28 of the Arizona Constitution provides that “English

is the language of the ballot, the public schools and all govern-

mental functions and actions.” Ariz. Const., Art. 28, §1(2). Ar-

ticle 28 applies to “the legislative, executive and judicial

branches of government,” and to “all political subdivisions,

departments, agencies, organizations, instrumentalities, local

governments and municipalities” of the State, including “all

government officials and employees during the performance of

government business.” Id., §1(3)(a)(iv). Article 28 requires that

“[t]his State and all political subdivisions of this State shall act

in English and in no other language,” and prohibitſs] this

State from using or requiring the use of languages other than

English. ...” Id., §3(1)(a). Based on this uniformly inclusive

and specific language, Article 28 is “by far the most restrictively

worded official-English law to date.” M. Arrington, Note, En-

glish Only Laws and Direct Legislation: The Battle in the States

Over Language Minority Rights, 7 J. L. & Pol., 325, 327 (1991).

After the Governor of Arizona announced her intention to

enforce Article 28, a state employee (Maria-Kelly F. Yniquez),

a state elected official (Jaime Gutierrez), and a local political

action committee (Arizonans Against Constitutional Tamper-

ing) consisting of multilingual state elected officials, state em-

ployees and citizens of Arizona challenged Article 28 in federal

court seeking a declaration that Article 28 violated their rights

under the free speech clause of the first amendment and the

equal protection clause of the fourteenth amendment. The dis-

trict court, a three judge panel of the Ninth Circuit, and the

Fee also D. Baron, The English-Only Question, 21 (“[A)rticle 28 . is the

most restrictive of the current wave of official-language laws. (1990),

and J. Crawford, Hold Your Tongue, 176 (1992) (“Arizona's [Article 28 is] so

far the most restrictive [Official English] measure”). The decision below also

compared Article 28 with other Official English laws and acknowledged Ar-

ticle 28's unique breadth. See Petitioners’ Appendix, 12a (“ ‘official-English’

provisions [outside of Arizona] appear to be primarily symbolic”).

Ninth Circuit sitting en banc successively declared Article 28

facially invalid on free speech grounds. The Governor of Ari-

zona elected not to appeal from the district court’s final judg-

ment after a trial on the merits, and petitioners intervened in

order to prosecute an appeal.

Because Article 28 expressly forbids state elected officials

and their agents from communicating with their colleagues and

constituents in languages other than English “during the per-

formance of government business,” the lower courts all con-

cluded that Article 28 abridged “core” political speech in

violation of the free speech guarantee of the first amendment.

See New York Times v. Sullivan, 376 U.S. 254, 273 (1963) (the

protection of communications between elected officials and

members of the public is “central” to the meaning of the first

amendment). Accordingly, after a trial on the merits and al-

most eight years of litigation, three separate adjudicative bod-

ies have considered and rejected petitioners’ claims.

It is difficult to recall any recent enactment that rivals Article

28 in its facial unconstitutionality. (The ordinance facially in-

validated by this Court on free speech grounds in R.A. V. v. City

of St. Paul. U.S. . 112 S. Ct. 2538 (1992), is a possible

contender.) By declaring that English and “no other language”

is “the language of the ballot,” Article 28 facially violates the

Voting Rights Act of 1965, 42 U.S.C. §1973(4)(f)(1) and (2), as

illustrated by this Court's opinion in Katzenbach v. Morgan,

384 U.S. 641 (1966). By declaring that English and “no other

language” is “the language of the public schools,” Article 28

facially violates Title VI of the Civil Rights Act of 1964, 42

U.S.C. §2000(d), as illustrated by this Court's opinion in Lau v.

Nichols, 414 U.S. 563 (1974). Lastly, by proclaiming that En-

glish and “no other language” is “the language of all govern-

ment functions and actions” by state elected officials “during

the performance of government business,” Article 28 facially

violates the first amendment, as illustrated by this Court's

unanimous opinion in Bond v. Floyd, 385 U.S. 116 (1966), uni-

formly relied on by the courts below in voiding Article 28 on

free speech grounds (but completely ignored by petitioners).

See Petitioners’ Appendix, 26a, 63a and 106a.

In accordance with Bond v. Floyd, as Judge Brunetti suc-

cinctly observed in his concurring opinion in the en banc pro-

ceeding below,

Article [28] offends the First Amendment not merely

because it attempts to regulate ordinary speech, but

because it attempts to manipulate the political process

by regulating the speech of elected officials. Freedom of

speech is the foundation of our democratic process, and

the language restrictions of Article [28] stifle informa-

tive inquiry and advocacy by elected officials. By re-

stricting the free communication of ideas between

elected official: and the people they serve, Article [28

threatens the very survival of our democratic society.

“The manifest function of the First Amendment in a

representative government requires that legislators be

given the widest latitude to express their views on issues

of policy.” [Quoting Bond v. Floyd, 385 U.S.116, 135-36

(1966) (emphasis added).] Elected representatives can-

not fully serve their constituents if they are precluded

from fully expressing their views to, and learning the

views of, those constituents. The First Amendment pre-

cludes an electoral majority from restricting political

communications [of elected representatives] with a cer-

tain segment of the electorate.

Petitioners’ Appendix, 63a-64a. This reasoning reflects this

Court’s settled understanding of “the central meaning of the

First Amendment.” New York Times v. Sullivan, 376 U.S. 254

(1963). As the Court recognized in the Sullivan case, the first

amendment was designed to “secure the widest possible dis-

semination of information from diverse and antagonistic

sources.” Id at 266. As the courts below concluded, Article 28

would restrict and homogenize the dissemination of informa-

tion by restricting the political speech of state elected officials

and their constituents in direct violation of this Court's opinion

in Bond v. Floyd.

For these reasons, the decisions of the courts below were

correct and need not divert this Court's precious resources by

further review.

II. ARGUMENT

A. The decision below does not rest on the resolution

of the questions presented by the petition, and the

questions presented by the petition are based on

facts that are outside of the record.

In the “Questions Presented” section of their petition, peti-

tioners state that this case involves “a state employee [who]

sought to write government documents in Spanish” and a sub-

sequent declaration that Article 28 is “unconstitutional because

it violate[s] the free speech rights of public employees.” These

issues are not central to the decisions below and are in fact

based on factual assumptions outside of the record on appeal.

This is not a case of an errant state employee insisting on

communicating in a language not understood by her supervi-

sors, co-workers, or members of the public. As acknowledged

by the courts below, Ms. Yniquez spoke Spanish only to mem-

vers of the public and co-workers who understood and desired

to speak in Spanish. See Petitioners’ Appendix, 46a-47a. Many

members of the public to whom Mr. Yniquez spoke Spanish

could not understand English. On those few occasions when

Ms. Yniquez drafted a document in Spanish, it was always for

the benefit of a member of the public who could not under-

stand English, and the document was always reproduced in

English. Not only was Ms. Yniquez’s use of Spanish in the

workplace not disruptive, it enhanced her ability to efficiently

perform her official duties. Ms. Yniquez’s supervisor accord-

ingly did not object to her use of Spanish, and the State of

Arizona admitted that it had no legitimate business purpose in

proscribing such speech.

In short, this record simply does not provide the iacts re-

quired to consider the questions presented by the petition.

Even if this Court were free to assume the requisite facts, the

decisions below are not contingent on the resolution the ques-

tions presented by the petition and rest on independent

grounds. Petitioners’ description of this case as involving only

the free speech rights of public employees is false. In actuality,

the district court, the three judge panel of the Ninth Circuit,

and the Ninth Circuit sitting en banc all concluded that the fact

that Article 28 expressly proscribed the political speech of state

elected officials and their agents was enough to declare Article

28 unconstitutional on free speech grounds in accordance with

this Court’s opinion in Bond vy. Floyd. Petitioners’ Appendix,

26a, 36a and 106a. Petitioners’ avoidance techniques in this

regard are best illustrated by their complete failure to address

Bond v. Floyd in their lengthy petition.

Petitioners’ procrustean treatment of the record and the de-

cisions below demonstrates that this case is not an appropriate

vehicle for addressing the questions presented by the petition.

B. The decision below does not announce any new

first amendment protections and is consistent with

the opinions of this Court.

The public and private use of languages other than English

has been a staple of every era of American history. The United

States has been a polylingual nation since its founding, and

foreign language communications have constituted “speech”

under the first amendment since the Bill of Rights was ratified

in December, 1791. As this Court observed over one hundred

years ago in Hurtado v. California, 110 U.S. 516, 530-531

(1884):

The Constitution of the United States.. was made for

an undefined and expanding future, and for a people

gathered and to be gathered from many nations and of

many tongues.

(Emphasis added.) The decisions below do not introduce new

legal doctrines, but merely acknowledge long-standing rights

that no state has attempted to abridge since the anti-foreign

hysteria of the World War I era, culminating in this Court's

opinions in Meyer v. Nebraska, 262 U.S. 390 (1923), Bartels v.

Iowa, 262 U.S. 404 (1923), Nebraska District of Evangelical

Lutheran Synod v. McKelvie, 262 U.S. 404, 410 (1923), Yu Cong

Eng v. Trinidad, 271 U.S. 500 (1926), and Farrington v.

Tokushige, 273 U.S. 284 (1927). In fact, as these (and other)

opinions illustrate, Americans have enjoyed a virtually un-

qualified right to communicate in languages other than English

under the first amendment for over two hundred years, and

foreign language speech has played an essential rule in the

development of first amendment jurisprudence.”

The polylingualism of the founding era is well-known and

has received considerable scholarly attention. Over tive hun-

dred Native American languages were spoken in eighteenth

century America, and over a quarter of a million German and

French speakers had settled in America by 1790. See E. Sagarin

& R. Kelly, “Polylingualism in the United States of America,”

in W. Beer & J. Jacob, Language Policy and National Unity,

20-43 (1985), and H. Kloss, The American Bilingual Tradition,

11-12 (1977). A significant number of African-Americans also

spoke various African dialects in early America. See J.

Blassingame, The Slave Community, 25 (1979). As the Pulitzer

Prize winning historian Bernard Bailyn has written, “[a]n esti-

mated 10 percent of the pre-Revolutionary population was

German-speaking, . . and Georgia’s] population was so poly-

glot that a successful magistrate needed to speak fluently in at

least three languages and preferably four. ...” B. Bailyn, The

Peopling of British North America, 16-17 (1986).

Eighteenth century American polylingualism was not con-

fined to the spoken word or the private sector. In the public

As this Court observed in New York Times v. Sullivan, 374 U.S. at 273, the

controversy over the Alien and Sedition Acts of 1798 “first crystallized a

national awareness of the central meaning of the First Amendment.” Hos-

tility to foreign people, foreign ideas and foreign languages gave rise to the

enactment of the Acts. See generally J. Smith Freedom's Fetters: The Alien

and Sedition Laws and American Civil Liberties, 86-58 (1956).

sphere at the national level, the Continental Congress pub-

lished various official documents in German and French, in-

cluding the Articles of Confederation and the famous 1774

Address to the people of Quebec extolling the virtues of free

speech and self-government. See J. Perea, “Demography and

Distrust: An Essay on American Languages, Cultural Pluralism

and Official English,” 77 Minn.L.Rev. 269, 271 (1992). Official

polylingualism was also common at the local level. In eigh-

teenth century Pennsylvania, for example, “[i}n legal action(s]

and court proceedings, documents in German were just as

valid as those in English.” W. Parsons, Representation of

Ethnicity Among Colonial Pennsylvania Germans, in A Mixed

Race, Ethnicity in Early America, 120 (F. Shuffelton, Ed. 1993).

Significantly, Pennsylvania was the only state whose constitu-

tion had a “free speech” clause when the Bill of Rights was

drafted in 1791, and the free speech clause of the first amend-

ment was modeled on the Pennsylvania provision. See L. Levy,

Emergence of a Free Press, 5 (1985).

In the private sector, approximately thirty-eight different

German-language newspapers were published in America be-

tween 1732 and 1800. See K. Conzen, “Germans,” Harvard

Encyclopedia of American Ethnic Groups, 409 (1980). In fact,

Benjamin Franklin published one of the first German language

newspapers in America in 1732 (the “Philadelphische

Zeitung”), see K. Bartel, “German and the Germans at the

Time of the American Revolution, 60 Modern Language Jour-

nal, 98 (1976), and John Peter Zenger was a “poorly educated

German immigrant” who probably spoke more German than

English. See L. Levy, Emergence of a Free Press, 39 (1985).

And of course, the contributions of French, German, African

and Native American forces to American Revolutionary War

effort were essential to the birth of our Nation.“

Based on the express and unqualified language of the free

speech clause itself, coupled with the pervasive official and

> The official use of Navajo as a military secret-code also helped to pre-

serve the Nation in World War II.

private use of foreign language speech in late eighteenth cen-

tury America, it is improbable that the framers and ratifiers of

the first amendment did not intend to include foreign language

speech within the free speech and press provisions of the first

amendment. As a leading scholar in the history of American

multilingualism has noted, “early political leaders recognized

the close connection between language and religious/cultural

freedoms, and they preferred to refrain from proposing legis-

lation which might be construed as a restriction on these free-

doms.” S. Heath, Language and Politics in the United States, in

Linguistics and Anthropology, 267, 270 (1977).

This conclusion is poignantly illustrated by the fact that one

of the most definitive official expressions of the original under-

standing of the freedom of the press is contained in a 1774

proclamation in French issued by the Continental Congress to

the people of Quebec in an attempt to procure Quebecois sup-

port for the American Revolution. See D. Anderson, The Ori-

gins of the Press Clause, 30 UCLA 455, 463-464 (1983). The

English language version of the Address states:

The last right we shall mention, regards the freedom of

the press. The importance of this consists, besides the

advancement of truth, science, morality, and the arts in

general, in its diffusion of liberal sentiments on the ad-

ministration of Government, in its ready communica-

tion of thoughts between subjects, and its consequential

promotion of union among them, whereby oppressive

officers are shamed or intimidated, into more honor-

able and just modes of conducting affairs.

1 Journal of the Continental Congress, 108 (1774). The fact that

the first American government engaged in official communica-

tions in languages other than English regarding matters of pub-

lic concern indicates that they considered such communications

as falling within the realm of free speech. The framers’ accep-

tance of polylingualism is also reflected in the national motto

which they adopted for the Nation E pluribus unum.”

The free speech tradition of the original framers was re-

spected by the framers of the Civil War amendments. For in-

stance, Representative Thaddeus Stevens of Pennsylvania, the

head of the House delegation to the Joint Committee on Re-

construction that officially reported the fourteenth amend-

ment, explained that the Reconstruction legislation passed

pursuant to section wo of the thirteenth amendment was de-

signed to assure that “all laws be impartial, without regard to

language, race or former condition.” Quoted in D. Donald, The

Politics of Reconstruction, 1863-1867, 58 (1965) (emphasis

added). This understanding reflects the pervasive nature of for-

eign language speech in the Civil War and Reconstruction eras.

In fact, in his unsuccessful 1858 senatorial campaign against

Stephen Douglas, Abraham Lincoln had his famous “House

Divided” speech (among others) translated into German in

order to appeal to Illinois's influential German constituency.

See D. Donald, Lincoln, 211, 231 (1995). The polylingualism of

this foundational era of American constitutional history is also

illustrated by the publication of Minnesota’s constitution of

1857 in English, German, Swedish, Norwegian and French. See

J. Crawford, Hold Your Tongue, 44 (1992).

The framers’ decision not to distinguish between English and

non-English speech for first amendment purposes is also re-

flected by the majority and dissenting opinions in the case that

many scholars identify as the starting point of modern first

amendment jurisprudence, Abrams v. United States, 250 U.S.

616 (1920). In Abrams, several Russian Jewish emigres chal-

lenged their convictions under the Espionage Act of 1917 as

violative of their rights under the first amendment based on the

fact that the only evidence of “espionage” consisted of distrib-

uting leaflets in English and Yiddish condemning America’s

involvement in the Russian Revolution. Although the Court

directly considered (and translated) the Yiddish leaflet in

Abrams, both the majority opinion by Justice Clarke and the

dissenting opinion by Justice Holmes treat the two languages as

standing on equal footing for first amendment purposes.‘

This Court has also expressly concluded that choice of lan-

guage is protected by the first amendment. In Cohen v. Cali-

fornia, 403 U.S. 15, 24 (1971), this Court considered whether a

person could be punished for wearing a shirt bearing the words

“fuck the draft” in the Los Angeles County Courthouse. In

concluding that choice of words was protected by the free

speech clause, the Court reasoned that:

We cannot indulge the facile assumption that one can

forbid particular words without also running a substan-

tial risk of suppressing ideas in the process. Indeed,

governments might soon seize upon the censorship of

particular words as a convenient guise for banning the

expressing of unpopular views. We have been able, as

noted above, to discern little social benefit that might

result from running the risk of opening the door to such

grave results.

Id. Although Mr. Cohen could have easily chosen to use less

provocative terms, the Court acknowledged that the first

amendment protected the “emotional impact” of words in ad-

dition to their “cognitive content.” Jd.‘

As the Ninth Circuit understandably concluded, if a speaker

has a free speech right to use profanity under Cohen, a speaker

“The Court also considered foreign language speech in the free speech

context in Frohwerk v. United States, 249 U.S. 616 (1919), and Schaefer .

United States, 251 U.S. 466 (1922), both of which involved the question of

whether speech published in German-language newspapers (the “Missouri

Staats Zeitung”, the “Philadelphia Tageblan” and the “Philadelphia

Sonntagsblan”) violated the Espionage Act of 1918. Like the Court in

Abrams, although the Court carefully translated the speech in question from

German to English in each case, it did not state or suggest that such speech

did not constitute speech under the first amendment.

* This Court has also protected choice of language under the first amend-

ment in the following cases involving profanity: Gooding v. Wilson, 405 U.S.

518 (1972), Rosenfeld v. New Jersey, 408 U.S. 901 (1972), Lewis v. New Or-

leans, 408 U.S. 913 (1972), and Brown v. Oklahoma, 408 U.S. 914 (1972).

a fortiori has a free speech right to use a language other than

English (eopecially a those clcumatances ia which the epecher

is unable communicate in English). See Petitioners’ Appendix,

29a-30a. Correspondingly, as the Ninth Circuit also concluded,

if a private citizen's right to engage in foreign language com-

— — — pd consistent with the first

amendment, neither can a state elected official's. See Bond v.

Floyd, 385 U.S. 116, 132-33 (1966) (state may not impose

stricter First Amendment standards on legislators, elected of-

ficials must “be given the widest latitude to express their views

on policy”).

Article 28’s facial unconstitutionality is perhaps most aptly

illustrated by this Court’s opinion in Nebraska District of Evan-

gelical Lutheran Synod v. McKelvie, 262 U.S. 404, 410 (1923),

which was consolidated with this Court's decision in Bartels v.

lowa, 262 U.S. 404 (1923). In McKelvie, this Court considered

an action to enjoin the Governor and Attorney General of

Nebraska from enforcing a 1921 Nebraska statute which pro-

vided that:

The English language is hereby declared to be the of-

ficial language of this State, and all official proceedings,

records and publications to be in such language and all

the common school branches shall be taught in said

language in public, private, denominational and paro-

chial schools.

Id. at 411, n.3. This statute repealed the statute previously

voided by the Court in Meyer v. Nebraska. Id. The statute is

remarkably similar to Article 28 and was voided in its entirety

by the Court based on its reasoning in Meyer“

This Court’s longstanding refusal to distinguish between dif-

ferent languages for first amendment purposes is also in accord

with the protection of “symbolic” speech under the free

* Although Meyer, Bartels and McKelvie were decided on substantive due

process grounds before the development of modern free speech jurispru-

dence, this Court subsequently characterized Meyer as a first amendment

case in Griswold v. Connecticut, 381 U.S. 475, 482 (1965). Moreover, Justice

speech clause. In fact, in the first case in which this Court

voided a law on free speech grounds, the “speech” consisted of

the mere display of a red flag without any attendant verbal

communications. See Stromberg v. California, 283 U.S. 359

(1931). Indeed, the fact that foreign language use involves

“pure speech” (i.e., only words with no conduct) mandates that

it be subject to even greater protection than that enjoyed by

“symbolic” speech (i.e., speech plus conduct).

Lastly, but perhaps most importantly, by proscribing an en-

tire category of core political speech by state elected officials,

be it in Spanish, American Sign Language, Braille or any other

non-English language , Article 28 undermines the fundamental

purpose of the first amendment—to guarantee “the free com-

munication of ideas between elected officials and the people

they serve. ...” Petitioners’ Apendix, 63a (Brunetti, J., concur-

ring, citing Bond v. Floyd, 385 U.S. 116, 136-37 (1966)). Article

28 thus stands in conspicuous opposition to this Court's foun-

dational first amendment jurisprudence.

In sum, the decisions below do not announce new constitu-

tional rights. To the contrary, petitioners’ clearly seek reversal

of Meyer v. Nebraska, Nebraska District of Evangelical

Lutheran Synod v. McKelvie, Bond v. Floyd, Pickering v. Board

of Education, and Cohen v. California and completely ignore

the principle of stare decisis.

C. The decision below does not conflict with the law

of other Circuits.

The decision below is based on an unusual state law and

peculiar facts. It does not conflict with the law of any other

Circuit. Because this is an action involving the free speech

rights of elected officials and other public servants, the cases

cited by the petition involving private employers arising under

Title VII of the Civil Rights Act of 1964 are inapposite. Nor

Brandeis, who joined the majority opinion in Meyer without separate com-

ment, later indicated that he based his decision on the “right to... utter

speech.” See M. Urofsky, “The Brandeis-Frankfurter Conversations,” 1985

does this case implicate any right to multilingual government

services. Respondents requested relief only from a prior re-

straint of free speech.

Based on the absence of conflicting opinions on these issues

in the lower courts, this case is inappropriate for certiorari.

D. The decision below is consistent with federalism.

Petitioners argue that this Court should reverse the decision

below because it “hinders federalism.” Petition, 21. However,

the two highest ranking elected officials of the State of

Arizona—the Governor and the Attorney General—have both

elected not to appeal from the lower courts’ decisions or oth-

erwise participate in this proceeding (even if only to urge that

Article 28 be submitted to the Arizona Supreme Court for

interpretation). They are the individuals that the people of

Arizona selected to defend the interests of the State before this

Court, not petitioners. Given the fact that the highest elected

officers of the State of Arizona have acquiesced in the lower

courts’ decisions, the interests of federalism require that this

Court not intervene in this case to upset a six year status quo.

In fact, the only threat to federalism in this case is petitioners’

invitation for this Court to rewrite Article 28.

E. This case does not involve circumstances worthy

of certiorari.

The outcome of this case was contingent on a uniquely re-

strictive state enactment which the State itself has elected not

to defend. Although this case is important to the parties to this

proceeding, the decisions below do not establish rules of gen-

eral applicability or importance to the legal system of the Na-

tion as a whole. They instead reflect eight years of painstaking

efforts by the lower courts to apply well-settled first amend-

ment principles to an exceptionally peculiar and complex fac-

tual context impacting a single locality. Reflecting the unusual

nature of both the language of Article 28 and the underlying

material facts, no inconsistency with precedent has been

really as worthy of certiorari as the petition claims, other cir-

cuits will surely consider the issue in the future and provide this

Court with a complete record by which to consider the ques-

tion. The absence of any litigation on this issue arising outside

of Arizona when such laws have been on the books for years

demonstrates the unique nature of Article 28 and its purely

local impact. The petition merely seeks reversal of a narrowly

tailored decision adverse only to petitioners and is thus inap-

propriate for certiorari.

CONCLUSION

For the foregoing reasons, this Court should deny the Peti-

tion For a Writ of Certiorari in this matter.

Respectfully submitted,