Amicus Curiae Brief — Arizonans for Official English v. Arizona

a a eR ie

C JUL 26 1996

No. 95-974 |

Supreme Court, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ARIZONANS FOR OFFICIAL ENGLISH AND ROBERT D. PARK,

Petitioners,

Vv.

STATE OF ARIZONA; MARIA-KELLEY F. YNIGUEZ; JAIME P.

GUTIERREZ; AND ARIZONANS AGAINST CONSTITUTIONAL

TAMPERING,

Respondents.

On Writ Of Certiorari To The United States Court Of

Appeals For The Ninth Circuit

Brief Of Amici Curiae American Civil Liberties Union,

American Civil Liberties Union Of Northern California,

Arizona Civil Liberties Union, American Jewish Congress,

Anti-Defamation League, National Education Association,

And People For The American Way,

In Support Of Respondents

Steven R. Shapiro Edward M. Chen

Marjorie Heins Counsel of Record

American Civil Liberties American Civil Liberties

Union Foundation Union Foundation of

132 West 43rd Street Northern California, Inc.

New York, NY 10036 1663 Mission St., Ste 460

(212) 944-9800 San Francisco, CA 94103

(415) 621-2493

Robert L. Rusky

Hanson, Bridgett, Marcus Karen N. Kai

Viahos & Rudy, LLP 159 Beaver St.

333 Market St., Ste 2300 San Francisco, CA 94114

San Francisco, CA 94105 (415) 255-7385

(415) 777-3200

Harlan A. Loeb

Anti-Defamation League

823 U.N. Plaza

New York, NY 10017

(212) 885-7736

TABLE OF CONTENTS

Ce [OED Sb oeK bd eevedessccceces l

STATEMENT OF THE CASE ...............+.. l

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

i ei cwsS SiniGiGile Heid éescececs 6

I. ARTICLE 28'S SWEEPING,

INDISCRIMINATE BAR EXPLICITLY AND

PURPOSEFULLY SUPPRESSES PURE

Di wi eh seiie ees EW 6% 0 0 6 60 0 6

Il. ARTICLE 28 INFRINGES UPON THE

FIRST AMENDMENT RIGHTS OF

LIMITED AND NON-ENGLISH-SPEAKING

ARIZONANS TO PETITION FOR REDRESS

OF GRIEVANCES AND TO COMMUNI-

CATE WITH AND RECEIVE INFORMA-

TION FROM THEIR GOVERNMENT. ...... 9

ALLOCATION OF FIRST AMENDMENT

Ill. ARTICLE 28 DISCRIMINATES IN THE

| D—IMAGh Ce ebeeeecesccdccevess 14

—

STATE’S CONTROL OVER ITS

| "INTERNAL OPERATIONS” AND

; GOVERNMENTAL SPEECH. ........... 18

| IV. THIS CASE DOES NOT CONCERN THE

V. ARTICLE 28 IS SUBSTANTIALLY

UTE. «656 we eesbeccecvec 21

A AN — ceils lity

PETITIONERS’ JUSTIFICATIONS FOR

ARTICLE 28 DO NOT WITHSTAND

PE re

A. The State's Interest In Acting In

B. —_ The State's Interests in Efficiency and

SES . ou Juels 6% eo Bide a

Cc. The State’s Interest In Encouraging

Non-English Speakers To Learn

English as Society’s Common

D. The State’s Interest In Protecting

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island,

__ US. __, 116 S.Ct. 1495 (1996)

Airport Comm'rs v. Jews for Jesus,

482 U.S. 569 (1987) ..........

Arkansas Writers’ Project v. Ragland,

fF ® f | eee

Asian American Business Group v. Pomona,

716 F. Supp. 1328 (C.D. Cal. 1989)

Bantam Books, Inc. v. Sullivan,

t te 5 Gaara e

Block v. Meese,

793 F.2d 1303 (D.C. Cir. 1986) ...

Board of Ed. v. Pico,

457 U.S. 853 (1982) ..........

Bolger v. Youngs Drug Products Corp.,

— fee ere ae

Bond v. Floyd,

ae Gees EEE CVS oe oes

Broadrick v. Oklahoma,

oR ee ae

Brocken v. Spokane Arcades,

GS UB. Ge GP cc ct eet

Page

sede TS

. 8,17, 22, 24

Page

Cases

Buckley v. Valeo,

Gb Ta CSE 8h oc SWEUES ws vee 6, 15

California Motor Transport Co. v. Trucking Unlimited,

5 GE See Se s'S 6 ewe SE See ce os 11

Carey v. Brown,

Cy We ee bib See SUCRE i cee 15

Carmona v. Sheffield,

— i> » | Lo es Sree rr 13

Castro v. California,

EEE wie 5 cheb eee Kewanee Ge 16

City of Ladue v. Gilleo,

__ US. ___, 114 S.Ct. 2038 (1994) .... 7,8, 17

Clark v. Community for Creative Non-Violence,

Ge ae PEED 6's ob sees des bee b eer 6

Cohen v. California,

SR ee ee ee 9

DeShaney v. Winnebago Dept. of Soc. Services,

|) BP A Pra ee 14

Eastern R. Pres. Conf. v. Noerr Motor Freight, Inc.,

ft Ss f Bares SoS reer 11

FCC v. League of Women Voters of California,

PP ee 21

First National Bank v. Bellotti,

Cy es PP GED cd ccdeteecbece 6, 10, 15

Vv

Page

Cases

Forsyth County v. The Nationalist Movement,

a Gee, See oo be ak Wee ods Ges 24

Frontera v. Sindell,

§22 F.2d 1215 (6th Cir. 1975) ............ 13

Garcia v. Gloor,

618 F.2d 264 (Sth Cir. 1980),

cert. den. 449 U.S. 1113 (1981) ........... 28

Grayned v. City of Rockford,

re a en ko ey a Oe Oe 9

Grosjean v. American Press Co. ,

Ss i a be 6 ae dal ee ee ey 15

Hernandez v. New York,

Rf RT ee ee 16

Hunter v. Erickson,

ee OS Ll eee eee 18

Hynes v. Mayor of Oradell,

i re. so big a ship's oe Owe 24

Keyishian v. Board of Regents,

i . a. sd dene be Oe Sees 21

Kleindienst v. Mandel,

DCC Pe scttaeeeecoedsnasé 12

Lamont v. Postmaster General,

Es ee ae ee 7

vi

Page

Cases

Leathers v. Medlock,

Be Gan Sere... hoe to es 16, 17

Linmark Associates, Inc. v. Willingboro,

Se Ge ee bo Na OPs Ehoiales FS. 6 és 8

Los Angeles v. Taxpayers for Vincent,

oe GB. Fae eee ss ob b ds BALLS Th 8, 22

Mabee v. White Plains Publ. Co.,

ae Gs SPEED 6s Bediet ke 0K’ wclmce 16

Maher v. Roe,

Ge Wee St . 60 awd Corer se 14, 21

McDonald v. Smith,

Sones Sp eee: cuck dS 2 atin 11

Meese v. Keene,

pe Sue OP GD. oe wa 0c 0 HORE ee 4, 18

Meyer v. Nebraska,

See We SOOT no 0 WAeS ke serene 7, 16

Minneapolis Star & Tribune v. Minnesota Comm. of Revenue,

Cle GS. Bee Gee +. Hk sd bi ORK cae 15, 17

NAACP v. Button,

pre CS ED én cc ct kewecd bed 9, 25

NAACP vy. Richmond,

743 F.2d 1345 (9th Cir. 1984) ..........., 17

Near v. Minnesota ex rel. Olson,

| Ef Ae eee te 17

vii

Page

Cases

Pickering v. Board of Education, :

391 U.S. 563 (1968) .. 0... ee ee ees

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972) ww cece eee e ees 15

Regan v. Taxation with Representation,

461 U.S. 540 (1983) .. 6... eee eee es 16

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) .......-. eevee 11, 17

Romer v. Evans,

5 Ge

116 S.Ct. 1620 (1996) ..........4.. 17, 18, 30

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. _, 115 S.Ct. 2510 (1995) .......-. 5

Rosenberger,

. SR. ) eee 15, 18

Rust v. Sullivan,

SHRUB. IFS CIPI) . cc ccccccsecs 4, 18, 21

Rutan v. Republican Party of Illinois,

OE ea ae ae 25

Soberal-Perez v. Heckler,

717 F.2d 36 (2nd Cir. 1983),

cert. den., 466 U.S. 929 (1984) .........45. 13

Spence v. Washington,

S18 US. GER CIDP) 2 nc cee vec eseeseces 9

viii

Page

Cases

Texas v. Johnson,

eC Og 6c RS bs Sell COs, a) 6

Thomas v. Collins,

eS ee ae ee 10, 11, 25

Thornhill v. Alabama,

i | es ee ee 22

Toure v. U.S.,

24 F.3d 444 (2nd Cir. SU 4 b- Oi e tei the. i 13

U.S. v. Cruikshank,

92 U.S. (2 Otto) 542 RS os Soe > ll

United Mine Workers vy. Illinois State Bar ASSN. ,

he a en ll

United Mine Workers ¥. Pennington,

ct | Ra rrr ll

United States v. National Treasury Employees Union,

—___; U.S. __, 115 S.Ct. 1003 (1995) .... 8-10, 28

United States v. O’Brien,

are Ws PI Ss gud saa vs 6

Village of Arlington Heights vy. Metropolitan Housing

Development Corp.,

a SRO ©. 8S he eR CL; 14

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc. ,

CS, SS Ge.... . Avia. 2 Aa 10, 12

Page

Cases

Virginia v. American Booksellers Association, us

484 U.S. 383 (1988) ......- 2c eee ee eee

Ward v. Rock Against Racism, :

491 U.S. 781 (1989) 2... eee eee eee tees

Washington v. Seattle School Dist. No. l, a

458 U.S. 457 (1982)... 2. cee ee eee eee

. Churchill,

arscaly U.S. , 114 S.Ct. 1878 (1994) ........ 25

! Barnette,

West Virginia State Board of Education v.

S19 U.S. G24 (1943). we cece wees 5, 20, 30

Constitution and Statutes

United States Constitution

First Amendment ..........--+-+ee55 Passim

<a

8 U.S.C. $1423(b)(2) . es =

_ . ) Se. | rr i ei ee oe ee -

42 U.S.C. §1973D(fI(1) 6. ees

Arizona Constitution, Article 28

Ee ee. ee ee ee ee .

Oa is eA Weed 0 ME EA. oleae oe ee

ee Serre ee h.

| 4 Err ee se es ee ee

pe) Pr ee . nA

So RRP Ors Fe ee , 6,

SS eae yee ree. ee eS 9

Supplemental Authorities

Arizona Publicity Pamphlet ................ 14, 22

Beardmore and Willemyns, "Comment," 60 Int’! J. of the

Sociology of Language (1986)............. 29

Bureau of the Census, 1990 Census of Population, Social and

Economic Characteristics, Arizona,

CUE: bie eo i TRE WW 2a Bak x 10

D. Myers, The Changing Immigrants of Southern California,

Lusk Center Research Institute, U.S.C. (1995) .. 27

K. McCarthy and R. Valdez, Current and Future Effects of

Mexican Immigration in California (The Rand Corp.

BD 66 5.0dsn Kae oO SEA PER Fa oe Se 27

Leibowicz, "The Proposed English Language Amendment:

Shield or Sword?" 3 Yale Law & Policy Rev. 519

COR cc u Sve diwes edison sins 15, 16

Maldoff, "Comment: a Canadian Perspective," 60 Int’l J. of

the Sociology of Language (1986) .......... 29

Meiklejohn, Free Speech and its Relation to Self-Government

BP ee re en as Orr ee 12

Reyhner, "Policies Toward American Indian Languages: A

Historical Sketch," Language Loyalties (1992) (J.

Se MD. 's 0 coe swe ae oid. « 16

Stone, “Content-Neutral Restrictions,”

54 U. Chi. L.Rev. 46 (1987) ........... 9,17

The 1985 South Florida Latin Market (Strategy Research

Se MED > wa ce oc ad beak eee. eee: 27

xi

Page

Supplemental Authorities

Veltman, The Future of Spanish Language in the United

States (New York, Wash. D.C.: Hispanic Policy Dev.

Project, 1988) .....---++ee errr rreres 27

W. Bliss, “Providing Adult Basic Education Services to

Adults with Limited English Proficiency," Report by

Project on Adult Literacy of Southport Institute for ‘

Policy Analysis (1988) ....----++se5e00: 2

Yudof, When Government Speaks (1983) ...-.-+-+->

INTEREST OF AMICI

The interests of Amici are set forth in the Appendix

accompanying this brief. Letters of consent to the filing of this

brief have been lodged with the Clerk of the Court pursuant to

Rule 37.3.

STATEMENT OF THE CASE

In 1988, by the slimmest of margins (50.5% to 49.5%),

Arizona voters added Article 28 to the Arizona Constitution

declaring English the State’s “official” language. Unlike

“official English” legislation of any other state, Article 28

explicitly and broadly bans the government’s use of non-English

languages in communicating with limited- and non-English-

speaking citizens and residents of Arizona. It requires every

level and branch of government and all “government officials

and employees during the performance of government business"

to “act in English and no other language." §§1.2, 1.3. Article

28 also requires all levels of government “to preserve, protect

and enhance the role of . . . English . . . as the official

language,” and prohibits all state and local entities from enacting

or enforcing any “law, order, decree or policy which requires

the use of a language other than English.” §§1.3(b), 3.1(b).

Article 28 contains exemptions permitting the use of

non-English languages only: to protect the rights of criminal

defendants and victims, to protect the public health and safety,

to teach a “foreign” language and to comply with federal laws.

§3.2. These exemptions, which are both limited and vague,'

leave unprotected a wide range of important and vital govern-

mental functions and services, including consumer, social and

voter education projects, vocational rehabilitation services,

public education and all manner of civil and administrative

proceedings, to identify but a few.

' For instance, Article 28 gives no guidance as to where to draw

the line between “public health" and non-"public health.” Does it apply

to routine vaccinations, individual drug or alcohol rehabilitation,

psychological or trauma counselling, development of a toxic waste site?

Similarly, is a parolee appearing before a parole board covered by the

exception for “criminal defendants"?

2

This suit challenging Article 28 on First and Fourteenth

Amendment grounds was brought by Maria-Kelley Yniguez, a

state employee, and Jaime Gutierrez, a state legislator, each of

whom routinely used Spanish in serving their public constituents

and believed Article 28’s ban on the use of non-English

languages during the performance of their duties violated their

rights and those of other public employees and the public. The

District Court dismissed Gutierrez on procedural grounds but

issued a declaratory judgment in Yniguez’ favor, finding Article

28 overbroad under the First Amendment. 730 F.Supp. 309 (D.

Ariz. 1995). The court later awarded Yniguez $1 in nominal

damages.

Following the State’s decision not to appeal, Petitioners

Arizonans for Official English and Robert Park, sponsors of

Proposition 106, were permitted to intervene in order to appeal

the judgment. Respondent Arizonans Against Constitutional

Tampering, the campaign organization that opposed Proposition

106, whose members include State legislators, was permitted to

intervene on appeal as a plaintiff.

The Ninth Circuit affirmed, 69 F.3d 920 (9th Cir. 1995)

(en banc), ruling that Article 28 violated the First Amendment

rights of public employees and elected Officials. It found that

the government’s communications in non-English languages

were matters of public concern, Particularly given the substantial

impact of Article 28 on the public’s right to receive government

information, and that the interests in permitting such communi-

cation outweighed any asserted interest in prohibiting it.

SUMMARY OF ARGUMENT

Article 28 of the Arizona Constitution is unlike any other

law ever challenged on First Amendment grounds in this Court.

It is a sweeping injunction against speech in any language other

than English, harming vital First Amendment interests of the

public without any record evidence of a compelling, substantial

Or even rational justification.

On its face, Article 28 explicitly suppresses a vast body

of pure speech. Its sweep affects virtually every transaction

3

between lish speakers and every branch of state and

SUI stash te dotoenn le operon pti ee

indiscriminate and ex ante: it effectively precludes non-Engli

speaking Arizonans, whatever their circumstances and needs,

from communicating and interacting with their governments,

including state and local legislators and their aides, even if the

public employees and officials are willing and able to use non-

English languages. It attempts to coerce compliance with a

linguistic orthodoxy in a manner which actually undermines,

rather than promotes, national unity. The extraordinary nature

of this law -- whose proscriptions gp mar waco Anamerager

sweeping as to defy the usual First Amendment categories -

content and viewpoint neutrality -- warrants strict judicia

scrutiny. |

Petitione nd that Article 28 should not be subject

to some appear because it merely governs the

te speech in “internal operations” over which the govern-

ment has virtually complete control. However, limiting this

case to government control over its speech, internal or other-

ignores the most important participants in this First

ped equation: the non-English speaking members of the

public, joint stakeholders in the communications or

Article 28, who will no longer be able to communicate

interact with the government on an almost limitless range ©

subjects.” Article 28, therefore, strikes at the core of participa-

tory democracy and undermines a fundamental value of the First

? ‘For example, under Article 28, non-English sj =

longer be able to participate in discussions with their elected representa-

ves or those representatives’ aides, who may be ready and able to com-

auunicate in their constituents’ language. A non-English qpeming Coes

= as ae inf eS

gator about a fair housing, employment discri jell an tale te

violation claim. A non-English speaking parent will no longer

able to converse with a teacher about her child's progress in school or

; is. An eaamplayemans or Gacy tesemnee chinnns wien

be able to converse with a claims representative about the faimess

decision to terminate benefits.

4

Amendment -- the facilitation of self-governance essential to a

democratically organized society.

These burdens, moreover, are selectively and discrimina-

torily imposed, purposefully falling on a discrete and historically

disadvantaged segment of the public -- comprised almost

exclusively of ethnic minorities and immigrants -- who are

thereby excluded from virtually all communications with

government regardless of their importance to the individual.

This case, therefore, is not controlled by the Court's

public employee or government speech cases. Pickering v.

Board of Education, 391 U.S. 563 (1968), and its progeny have

all concerned the protection afforded to speech initiated by a

particular employee (such as a presentation to the board of

education, a complaint to co-workers about working conditions,

or writings or speeches to the public). In contrast, Article 28's

ban interferes with interactive communications between citizens

and their government, and thus directly infringes the First

Amendment rights of the public as well as those of public

employees or officials. Moreover, unlike Pickering, the State

does not assert any employment-related justification for Article

28.

Nor does Article 28 embody the government’s interest

in communicating a particularized message or viewpoint such as

the advisability of abortion (Rust v. Sullivan, S00 U.S. 173

(1991)) or the political nature of particular films (Meese v.

Keene, 481 U.S. 465 (1987)). Rather, it bars an entire medium

of speech irrespective of its substantive content or message.

Furthermore, even assuming the government may under

certain circumstances restrict public employees from using non-

English languages in the course of their duties, Article 28's

indiscriminate reach is fatally overbroad. It bars non-English

communications not only by Maria-Kelley Yniguez, but also by

elected officials communicating with their constituencies, by

judges performing marriage ceremonies, and by public teachers,

academics, and librarians in and out of the classroom.

Accordingly, the Court's consideration of the constitu-

5

tionality of Article 28 cannot be constrained by the mechanical

application of public employee speech cases nor by the general

proposition that the government has significant control over the

content of its own speech. Rather, Article 28 must be examined

in light of, and subject to searching scrutiny consistent with, the

multiple First Amendment interests directly and substantially

affected by its sweeping ban. Under this standard -- indeed,

even under a less rigorous standard of review -- the asserted

justifications for Article 28 are unpersuasive.

Although Petitioners assert that Article 28 will make the

government more efficient, the State of Arizona has stipulated

that its administrative efficiency and operational effectiveness is

enhanced, not impeded, by its employees’ ability to use non-

English languages in the course of their duties. Indeed,

independent of the State’s stipulation, Article 28 undermines the

asserted governmental interest in ensuring that its communica-

tions are “neither garbled nor distorted," Rosenberger v. Rector

and Visitors of Univ. of Va., 51S U.S. __, 115 S.Ct. 2510,

2518 (1995), precisely by requiring the State to communicate in

a language incomprehensible to non-English speakers.

The general social goals Petitioners advance also fail to

withstand scrutiny. Article 28 is not needed to protect English

as the State’s primary language: English is already spoken by

96% of Arizonans, and English acquisition remains a high

priority among immigrants. Nor is Article 28 narrowly, or even

reasonably, tailored to enhance English proficiency: it indis-

criminately penalizes all non-English speakers by preventing

them from interacting and communicating with government

regardless of their circumstances or needs. Most importantly,

Article 28 does not foster by “persuasion and example” the goal

of national unity. See West Virginia State Board of Education

v. Barnette, 319 U.S. 624, 640-42 (1943). Rather, Article 28

is an unconstitutionally coercive measure which categorically

disenfranchises a discrete, disadvantaged and vulnerable segment

of the population. Ultimately, its imposition of a rigid linguistic

orthodoxy not only suppresses constitutionally protected

communication in non-official” languages, but it is divisive and

6

counterproductive to social cohesion as well.

ARGUMENT

I. ARTICLE 28’S SWEEPING, INDISCRIMINATE

BAR EXPLICITLY AND PURPOSEFULLY SUP-

PRESSES PURE SPEECH.

Article 28 prohibits all public officials and employees in

Arizona from acting (except for limited and ill-defined circum-

stances exempted in §3.2) in a language other than English

while carrying out governmental functions and policies. In

purpose and effect, it prevents all officials and employees from

communicating with thousands of limited-proficient and non-

English-speaking Arizonans even when they have the means,

ability and desire to communicate in a language their public

understands. Meaningful communication is barred regardless of

need or public value. As the Court of Appeals noted, Article 28

“could hardly be more inclusive"; it “prohibit(s} the use in all

oral and written communications by persons connected with the

government of all words and phrases in any language other than

English." Yniguez, 69 F.3d at 933.

Article 28 thus contravenes core principles and values

undergirding the First Amendment. First, it directly bans pure

speech on its face. \t thus poses a more immediate threat to

First Amendment values than legislation which regulates conduct

and only incidentally impinges upon speech. Cf. United States

v. O’Brien, 391 U.S. 367, 375, 382 (1968); Clark v. Commu-

nity for Creative Non-Violence, 468 U.S. 288, 293 (1984).

Laws “directed at speech” and communication are subject to

“exacting scrutiny” and must be “justified by the substantial

showing of need that the First Amendment requires." Texas v.

Johnson, 491 U.S. 397, 406 (1989); First National Bank v.

Belloni, 435 U.S. 765, 786 (1978) ("Bellotti"); Buckley v.

Valeo, 424 U.S. 1, 16-17 (1976).

Second, by requiring the government to use a language

that is incomprehensible to the non-English speaking members

of its public, Article 28 effectively bars communications in toto.

The purpose of speech is to make oneself understood; imparting

7

a comprehensible message is the essence of communication.’

Article 28 does not merely regulate a mode of expression‘ but

bans communication completely. Therefore, it cannot be

characterized as a mere time, place or manner restriction.

Indeed, as this Court has only this Term observed:

{C]omplete speech bans, unlike content-neutral

restrictions on the time, place, or manner of

expression, are particularly dangerous because

they all but foreclose alternative means of dis-

seminating certain information.

44 Liquormart, Inc. v. Rhode Island, _ _ U.S. ___, 116 S.Ct.

1495, 1507 (1996) (internal citation omitted); see also City of

Ladue v. Gilleo, __ U.S. ___, 114. §.Ct. 2038, 2045 (1994)

("Our prior decisions have voiced particular concern with laws

’ See Lamont v. Postmaster General, 381 U.S. 301, 308 (1965)

(“The dissemination of ideas can accomplish nothing if otherwise willing

addressees are not free to receive and consider them. It would be a

barren marketplace of ideas that had only sellers and no buyers”)

(Brennan, J., concurring).

: For example, if the State banned foreign language newspapers

from printing in any language other than English, or conversely required

that only one language (e.g., Russian) be used, it could hardly maintain

that it was merely regulating a “mode” of expression. Cf Meyer v.

Nebraska, 262 U.S. 390 (1923) (law restricting teaching of German in

public and private schools unconstitutional); Asian American Business

Group v. Pomona, 716 F. Supp. 1328 (C.D. Cal. 1989) (limiting use of

non-English languages on private business signs violates First Amend-

ment). The same would be true if the State required all public doctors to

communicate with their patients solely in Latin, or required all govern-

ment communications to be written, not oral, thereby excluding illiterate

citizens from government services and functions. The point here is not

to suggest that the government cannot impose any restrictions on its

employees’ speech, but simply that a law banning non-English languages

has a profound impact on communication.

that foreclose an entire medium of expression").°

Third, Article 28 is so sweeping that it defies traditional

First Amendment distinctions concerning content and viewpoint

neutrality. However it may be characterized, Article 28’s ban

on speech affects virtually every communicative contact between

thousands of limited- and non-English-speaking residents and

every governmental entity in Arizona. Even a content and

viewpoint neutral ban violates the First Amendment if it broadly

impinges upon protected speech. See United States v. National

Treasury Employees Union, __ U.S. __, 115 S.Ct. 1003,

1015 (1995) ("NTEU") (striking down content-neutral provisions

of Ethics Reform Act because of significant burdens on public

employee speech and on “the public’s right to read and hear

what Government employees would otherwise have written and

said"); City of Ladue, 114 S.Ct. at 2045 (even content and

viewpoint neutral laws “can suppress too much speech");

Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 574 (1987)

(viewpoint neutral regulation unconstitutional because it

. By definition, time, place, and manner restrictions presuppose the

availability of alternative means of communication, such as the distribu-

tion rather than posting of leaflets on public property, Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984), or the performance of a

concert at a lower than desired volume, Ward v. Rock Against Racism,

491 U.S. 781 (1989). If the speaker is barred from using the only

language comprehensible to the listener, no such alternatives exist. Here,

the fact that the speaker is a government official or employee only

underscores the absence of meaningful alternatives: not only is govern-

me..t often the sole source of information, but it often is the sole intended

object of the communication.

To require non-English speakers to enlist the aid of private

translators is not a meaningful “alternative.” Translators may not be

available to all members of the public (indeed, might be least available to

those people who would need them most), and at best provide an ineffi-

cient and expensive means of communication. Such an alternative is not

“ample.” Cf. City of Ladue, 114 S.Ct. at 1025 (alternative not as cheap

and convenient and may not be a “practical substitute"); Linmark Associ-

ates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (alternatives “involve

more cost and less autonomy”).

9

“prohibited all protected expression") (emphasis in original).

See Stone, “Content-Neutral Restrictions," 54 U. Chi. L.Rev.

46, 53-54 (1987) (content-neutral laws may nonetheless be

subject to heightened scrutiny).°

Finally, like the law struck down in NTEU, Article 28’s

ban on speech is ex ante. Rather than providing the basis for a

post hoc punishment of a public employee’s speech, it is a

"wholesale deterrent to a broad category of expression by a

massive number of potential speakers" and thus "chills potential

speech before it happens." N7EU, 115 S.Ct. at 1013-1014.’

Il. ARTICLE 28 INFRINGES UPON THE FIRST

AMENDMENT RIGHTS OF LIMITED AND NON-

ENGLISH-SPEAKING ARIZONANS TO PETITION

FOR REDRESS OF GRIEVANCES AND TO COM-

MUNICATE WITH AND RECEIVE INFORMA-

TION FROM THEIR GOVERNMENT.

"The Constitution often protects interests broader than

those of the party seeking their vindication. The First Amend-

’ A strong case can be made, moreover, that Article 28's ban on _

speech is not content neutral in fact because its application turns literally

upon the content of speech -- the words used. The government's regula-

tion of the speaker's chosen words, even to convey a message that could

be similarly expressed in other words, cannot be characterized as content

neutral. Cohen v. California, 403 U.S. 15, 24 (1971) (generally “govern-

mental bodies may not prescribe the form or content of . . . individual

expression”); Spence v. Washington, 418 U.S. 405, 411 n. 4 (1974)

(statute limiting expression violates First Amendment even if views could

have been expressed in other ways). If proscribing particular words is

content regulation, so perforce is a ban on entire vocabularies.

’ The chilling effect of Article 28’s broad, ex ante prohibitions is

reinforced by the vagueness of its exceptions. Not only do these excep-

tions fail to give public employees guidance as to their application, see n.

1, supra, but Article 28 impels public employees to apply them narrowly

since they may be disciplined or even sued, see §4, for violating its

prohibitions. Cf. Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972); NAACP v. Button, 371 U.S. 415, 433 (1963).

10

ment, in particular, serves significant societal interests."

Bellotti, 435 U.S. at 776. Restrictions placed upon expression

by the speaker may implicate distinct and different rights of the

listener. NTEU, 115 S.Ct. at 1015 (“large-scale disincentive to

government employees’ expression also imposes a significant

burden on the public’s right to read and hear"); Virginia State

Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. ,

425 U.S. 748, 757 (1976).

While Article 28 is ostensibly directed at the speech of

public employees and officials, it necessarily and substantially

impairs the First Amendment rights of limited- and non-English-

speaking residents of Arizona.’ Article 28 extends well beyond

so-called official "government speech" to affect virtually every

interaction between government and the language-minority

public, depriving thousands of non-English proficient citizens

and residents of the opportunity not only to receive information

from, but to communicate with (i.e., to be heard and responded

to by) their government, and thus of their right to petition the

government for redress of grievances. In this way, Article 28

not only offends fundamental First Amendment values essential

to the functioning of our democratic republic, see, e.g. , Bellotti,

435 U.S. at 776-777; Thomas v. Collins, 323 U.S. 516, 529-32

(1945), but it also discriminatorily allocates its burdens by

impairing the ability of discretely identifiable and historically

disadvantaged groups to participate in their government.°

The right to petition for redress of grievances is a funda-

mental First Amendment right lying at the core of our democra-

. According to the 1990 Census, 122,423 (4%) Arizonans over the

age of 5 do not speak Englich well, while 275,907 (8%) do not speak

English “very well." Bureau of the Census, 1990 Census of Population,

Social and Economic Characteristics, Arizona, 48 (1990). Included

among limited and non-English speakers are elderly citizens and Native

Americans. See 8 U.S.C. §1423(b)(2) (elderly long-time residents may

be excused from English language requirement for naturalization).

* — These claims are properly presented by the record in this case.

See n. 21, infra.

1]

cy. McDonald v. Smith, 472 U.S. 479, 482-83, 485 (1985);

United Mine Workers v. Illinois State Bar Assn. , 389 U.S. 217,

222 (1967) (right to petition is "among the most precious of the

liberties safeguarded by the Bill of Rights"); U.S. v. Cruik-

Shank, 92 U.S. (2 Otto) 542, 552 (1876) (The right of the

people to assemble and to petition their government for a

redress of grievances is inherent in the concept of a republican

form of government)."° The right broadly protects “[g]reat

secular causes[{] with small ones" -- causes that are “not

confined to any field of human interest," Thomas v. Collins, 323

U.S. at 531 -- and bars State interference with access to the

legislature, the exe utive branch and its various agencies, and

the judicial branch."

Under Article 28, executive and administrative officials

and employes, as well as legislative representatives and their

staffs, are all barred from communicating with their constituents

in Spanish or any language other than English. Because of its

unprecedented scope, Article 28 interferes with everyday

activities and communications most citizens take for granted,

burdening the non-English speaking resident who seeks to take

issue with his utility charges, to address his city council or

school board, or to contest an eviction from public housing. By

erecting a permanent linguistic barrier between non-English

speakers and every branch and agency of their government on

an almost limitless variety of subjects, Article 28 thus unques-

"© See also Eastern R. Pres. Conf. v. Noerr Motor Freight, Inc.,

365 U.S. 127, 137 (1961) (“the whole concept of representation depends

on the ability of the people to make their wishes known to their represen-

tatives"); Richmond Newspapers v. Virginia, 448 U.S. 555, 575 (1980)

(First Amendment freedoms, including the right to petition for redress of

grievances “share a common core purpose of assuring freedom of commu-

nication on matters relating to the functioning of government”).

"See Noerr, 365 U.S. at 137-38 (legislature); United Mine

Workers v. Pennington, 381 U.S. 657 (1965) (executive); California

Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)

(administrative agencies); United Mine Workers v. Illinois State Bar

Assn., 389 U.S. at 221 (courts).

12

tionably infringes the non-English speaking public's right to

Furthermore, by categorically prohibiting public

employees and officials from communicating in a non-English

language (or even using non-English words), Article 28

effectively bars language minorities from receiving important,

often vital, governmental information. Under Article 28,

government employees are no longer able to convey in Spanish,

Navajo, or Vietnamese information about a proposed redevelop-

ment project, a water conservation program, consumer fraud,

job training opportunities, wage and hour laws, changes in

hunting and fishing regulations, the contemplated closure of a

local school, or countless other subjects. Article 28 thus

impairs the public’s right “to receive information and ideas."

Virginia State Board of Pharmacy, 425 U.S. at 757, quoting

Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972).

Access to government information is particularly

important for the proper functioning of a democracy. “Govern-

ments have an almost unique capacity to acquire and disseminate

information in the modern state." Yudof, When Government

Speaks, 9-10 (1983); see also Meiklejohn, Free Speech and its

Relation to Self-Government 65-66 (1948) (First Amendment

protects right of people to intelligently discuss issues of public

concern for purpose of self-government). Accordingly, the

principle that “the right to r° eive ideas is a necessary predicate

to the recipients’ meaning _ exercise of his own rights of

speech, press, and political freedom," Board of Ed. v. Pico, 457

U.S. 853, 867 (1982), applies with particular force to govern-

ment information. Certainly, the First Amendment interest in

obtaining government information essential to the functioning of

a democratic republic is at least as great as that in obtaining

commercial information from private advertisers. See Bolger v.

Youngs Drug Products Corp., 463 U.S. 60, 64-65 (1983)

(commercial speech enjoys less protection than core First

Amendment speech); see also 44 Liquormart, 116 S.Ct. at

1507-1508.

Finally, by barring public officials and employees from

13

communicating with members of the public in any non-"official"

language, Article 28 effectively prevents interactive communica-

tions between the government and the non-English speaking

public. Public employees can neither initiate communication

with nor even receive or reply to inquiries in the languages

understood by non-English-speakers. Article 28 bans everything

from a town hall discussion with elected officials to a private

dialogue between a parent and teacher. Without the possibility

of conversation or dialogue, the essential nature of comvnunica-

tion is thwarted.

Of course, amici do not claim that every denial of access

to government or governmental information violates the

Constitution. This case, however, does not challenge a failure

to provide a particular service or notice in a non-English

language. Rather, Article 28 was intended to eliminate multilin-

gual governmental functions and services -- even those that

promote government efficiency and equity and that government

officials would otherwise voluntarily provide. Petitioners’

reliance on cases rejecting constitutional claims that the govern-

ment has a duty to provide a non-English language notice,

examination, or service is therefore misplaced.» None of

them involved an explicit and purposeful suppression of speech

as sweeping as that presented here; indeed, none involved a

First Amendment challenge at all. Although the plaintiffs in

those cases asserted an affirmative right to bilingual services,

this case involves a negative liberty -- the right not to have the

government bar communications between willing speakers and

listeners. Of. Maher v. Roe, 432 U.S. 464, 475-77 (1977);

DeShaney v. Winnebago Dept. of Soc. Services, 489 U.S. 189,

195 (1989). Nor did these cases involve the deliberate imposi-

2 See Soberal-Perez v. Heckler, 717 F.2d 36 (2nd Cir. 1983), cert

den. , 466 U.S. 929 (1984) (provision of governmental notices in English);

Toure v. U.S. , 24 F.3d 444 (2nd Cir. 1994) (per curiam) (no governmen-

tal notices in French); Carmona v. Sheffield, 475 F.2d 738 (9th Cir.

1973) (provision of forms and services in English only); Frontera v.

Sindell, 522 F.2d 1215 (6th Cir. 1975) (civil service exam provided only

in English).

14

tion of burdens on language minorities; rather, the omissions or

failures to provide bilingual services were the incidental result

of neutral policies and practices, such as the reasonable alloca-

tion of limited resources. Article 28, in contrast, was enacted

"*because of,’ and not ‘in spite of,” the burden it imposed on

language minorities.’ Village of Arlington Heights v. Metro-

politan Housing Development Corp., 429 U.S. 252, 266-68

(1977). Finally, Article 28’s blanket ban on the use of all non-

English languages in all levels and branches of government --

coupled with its deliberate withdrawal of bilingual services -- is

a sweeping and pervasive infringement of constitutional guaran-

tees that far exceeds the particularized failure of a single

governmental agency to provide bilingual services or notices.

Cf. Pico, 457 U.S. at 879 n.1 (“removal, more than failure to

acquire, is likely to suggest an impermissible political motiva-

tion may be present") (Blackmun, J., concurring) (citation

omitted).

Ill. ARTICLE 28 DISCRIMINATES IN THE ALLOCA-

TION OF FIRST AMENDMENT RIGHTS.

Article 28’s unconstitutional ban on pure speech also

offends core First Amendment precepts by imposing unequal

barriers to communication with the government and by selective-

ly disenfranchising language minority groups. Embedded within

the First Amendment is “the principle of equal liberty of

expression.” Karst, “Equality as a Central Principle in the First

Amendment,” 43 U. Chi. L. Rev. 20, 23 (1975); see, e.g.,

Carey v. Brown, 447 U.S. 455 (1980); Police Department of

Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("we have frequent- -

ly condemned such discrimination among different users of the

3 Article 28’s rationale, according to its proponents, was to with-

draw available services and thereby make life difficult for non-English

speakers so as to “encourage the learning of English.” Pet. Br. at 17.

See Asizona Publicity Pamphlet at 27 (argument submitted by Petitioner

Robert D. Park (also chair of Petitioner Arizonans for Official English)

(“passage of Proposition 106 would encourage non-English speakers to

familiarize themselves with the language”) J.A. 29 (emphasis added).

15

same medium for expression"). See also Grosjean v. American

Press Co., 297 U.S. 233 (1936), Minneapolis Star & Tribune

v. Minnesota Comm. of Revenue, 460 U.S. 575 (1983), and

Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987)

(selective taxation targeting small, discrete segments of the press

violative of First Amendment). Cf. Broadrick v. Oklahoma,

413 U.S. 601, 616 (1973) (upholding a law restricting the

political activities of state employees, finding it “is not a

censorial statute, directed at particular groups or viewpoints")

(emphasis added)."*

Here, Article 28 egregiously violates the First Amend-

ment equality principle by discriminatorily barring a small

(relative to the general population), discrete, and already

vulnerable group from the important arena of governmental

communications. Article 28 is plainly “directed at particular

groups,” Broadrick, 413 U.S. at 616 -- groups that are at least

as vulnerable and disfavored as the newspapers and magazines

selectively taxed in Grosjean, Minneapolis Star, and Arkansas

Writers’ Project." Of. Buckley, 424 U.S. at 48-49 (govern-

See also Rosenberger, 132 L.Ed.2d at 714-15 (“In the realm of

private speech or expression, government regulation may not favor one

speaker over another"); Bellotti, 435 U.S. at 784-85 ("In the realm of

protected speech, the legislature is constitutionally disqualified from

dictating . . . the speakers who may address a public issue"); Buckley,

424 U.S. at 18 (campaign expenditure restrictions that "discriminate

among speakers” unconstitutional).

‘8 At various times in American history, language minorities have

been victimized by language barriers purposefully erected against them.

See Leibowicz, “The Proposed English Language Amendment: Shield or

Sword?" 3 Yale Law & Policy Rev. 519, 533-39 (1985) (English literacy

requirements were erected as conditions for public employment, natural-

ization, immigration, and suffrage in order to exclude “new” immigrants

from Italy, Russia, Hungary and other southern and eastern European

countries); id. at 536 (New York Constitution was amended to disenfran-

chise over one million Yiddish-speaking citizens); Meyer v. Nebraska, 262

U.S. 390 (1923) (schools prohibited from teaching German); Castro v.

(continued...)

16

ment may not “restrict the speech of some elements of our

society in order to enhance the relative voice of others"; First

Amendment “designed ‘to secure “the widest possible dissemina-

tion of information from diverse and antagonistic sources”’").

To be sure, the differential treatment condemned in prior

cases, which involved only indirect and incidental burdens on

speech,'® was animated primarily by concern over viewpoint

suppression by the State. However, this Court has never before

countenanced the direct and purposefully discriminatory

infringement upon the First Amendment rights of a discrete and

disfavored group -- consisting almost exclusively of immigrants

and ethnic minorities -- whose lack of English proficiency

already disadvantages them in the arena of public discourse and

governmental communication. Nor should it do so here.

Official suppression of viewpoints is not the sole concern of the

First Amendment. See City of Ladue, 114 S.Ct. at 2045; Jews

for Jesus, 482 U.S. at 574-576; Minneapolis Star, 460 U.S. at

'S (...continued)

California, 2 Cal.3d 223 (1970) (California Constitution amended to

disenfranchise Chinese-speaking voters); Reyhner, “Policies Toward

American Indian Languages: A Historical Sketch," Language Loyalties,

41-47 (1992) (J. Crawford, ed.) (Native American children separated

from their families and forced to attend English language boarding schools

where they were punished for speaking native language). Congress has

recognized the continuing depth of discrimination against language

minorities. See 42 U.S.C. §1973b(f)(1). See also Hernandez v. New

York, 500 U.S. 352, 371 (1991) ("It may well be, for certain ethnic

groups and in some communities, that proficiency in a particular

language, like skin color, should be treated as a surrogate for race under

an equal protection analysis”).

© See Leathers v. Medlock, 499 U.S. 439, 452-453 (1991)

(extension of generally applicable sales tax to cable television services but

not to print media); Regan v. Taxation with Representation, 461 U.S. 540

(1983) (contributions to non-profit organizations engaged in lobbying not

deductible except for veterans organizations); Mabee v. White Plains

Publ. ©.., 327 U.S. 178 (1946) (exempting certain small newspapers

from general application of Fair Labor Standards Act to newspapers and

other businesses).

17

592. A statute challenged under the First Amendment “must be

tested by its operation and effect." Near v. Minnesota ex rel.

Olson, 283 U.S. 697, 708 (1931); see also, NAACP v. Rich-

mond, 743 F.2d 1345, 1356 (9th Cir. 1984). The systematic

deprivation of an identifiable group's right to communicate with

government undermines one of the First Amendment's central

values and functions: to “securie] and foster{]" the integrity of

“our republican system of self-government." Richmond

Newspapers, 448 U.S. at 587 (Brennan, J., concurring).'’ It

threatens to distort the marketplace of ideas. See Stone, 54 U.

Chi. L.Rev. at 55.

In addition to suppressing the fundamental right of

language minorities to communicate with their government,

Article 28 also imposes a structural obstacle to their participa-

tion in the political process by flatly prohibiting any public

entity, including state and local legislatures, from “mak{ing} or

enforc{ing] a law, order, decree or policy which requires the use

of a language other than English." Art. 28, §3.1. Like the

initiative measure struck down in Romer v. Evans, _—-US.

___, 116 S.Ct. 1620 (1996), Article 28 precludes language

minorities from seeking beneficial legislation (e.g. , establishing

multilingual services) through the normal political process.

Unlike any other group (such as women, the disabled, veterans,

or the elderly), language minorities may obtain beneficial

legislation “only by enlisting the citizenry of [Arizona] to amend

the state constitution... . This is so no matter how local or

discrete the harm, no matter how public and widespread the

injury.” 116S.Ct. at 1627. As in Romer, Article 28 thus

imposes “a broad and undifferentiated disability on a single

named group" and “identifies persons by a single trait,” id. at

1628, in denying them the right to equal participation in the

process of government. See also, Hunter v. Erickson, 393 U.S.

‘The discriminatory imposition of burdens may violate the First

Amendment even when the government has no improper censonal motive.

Minneapolis Star, 460 U.S. at 592 (“Illicit legislative intent is not the sine

qua non of a violation of the First Amendment"). The risk of suppres-

sion, regardless of motive, is sufficient. Leathers, 499 U.S. at 453.

18

385, 391 (1969); Washington v. Seattle School Dist. No. 1, 458

U.S. 457, 483-84 (1982).

IV. THIS CASE DOES NOT CONCERN THE STATE’S

CONTROL OVER ITS "INTERNAL OPERATIONS-

" AND GOVERNMENTAL SPEECH.

Despite Article 28's infringement upon core First

Amendment interests, Petitioners claim that Article 28 should

not be subject to any significant judicial scrutiny because the

state has virtually complete power over its own speech. The

argument is meritless, and neither Rosenberger, 115 S.Ct. 2510,

nor Rust, S00 U.S. 173, upon which Petitioners rely, are

apposite, let alone controlling.

The concept of “government speech,” as explained in

Rust and Rosenberger, basically encompasses the government's

ability to promote and expound its views and policies -- usually

through policy choices made by specific agencies, or by the

legislature and implemented by the executive branch -- without

being obliged to offer “equal time” to other views. Rust gives

a paradigm example: “[wjhen Congress established a National

Endowment for Democracy . . ., it was not constitutionally

required to fund a program to encourage competing lines of

political philosophy such as communism and fascism." 500

U.S. at 194; see also Meese, 481 U.S. 465 (government may

express its views about whether certain films are “political

propaganda").

Nonetheless, although the State as speaker “may make

content-based choices” and “may take legitimate and appropriate

steps to ensure that its message is neither garbled nor distorted,"

Rosenberger, 115 S.Ct. at 2518, the State may not use its

expression to threaten or coerce and thus interfere with the civil

liberties of citizens, Bantam Books, Inc. v. Sullivan, 372 U.S.

58 (1963); see also Block v. Meese, 793 F.2d 1303, 1314 (D.C.

Cir. 1986) (Scalia, J.) ("The line of permissibility, we think

falls . . . between the disparagement of ideas . . . and the

suppression of ideas through the exercise or threat of state

power").

19

Article 28 reflects no “government speech" interest: it

neither embodies any government interest in conveying a

substantive message or viewpoint nor ensures that any substan-

tive government message is not garbled or distorted. In fact, as

Arizona has acknowledged, Article 28 actually undermines its

interest in ensuring its messages are clearly understood. As its

proponents intended, its prohibitions ensure that thousands of

either a garbled message or no message at all. See Amicus Brief

of National Council of La Raza, er al. (describing impact of

Article 28 on government communications with language

inorities).

Article 28 also does not negate the State's ability to

make a content-based choice to communicate a substantive

message. With or without Article 28, the State can express or

withhold its views on abortions, films, books, welfare, immigra-

tion policy or any other matter within its legitimate sphere. It

can advise the public about the importance of a common

language and the benefits to all its residents of learning English.

Article 28’s ban on the use of non-English languages, however,

has nothing to do with such content-based choices on speech

because its coercive prohibitions ban virtually all non-English

communication regardless of its substantive content.'*

Nor does Article 28 merely regulate the “internal opera-

tions” of government, as Petitioners contend. Rather, Article 28

extends well beyond the confines of official “government

“To the extent Petitioners maintain that the State is delivering a

symbolic message about national and social unity in banning all non-

English languages from governmental discourse, Article 28 is not merely

advisory. Rather, it coerces the public's expression of and participation

im a particular substantive message at the expense of the public's own

constitutionally protected speech rights. The coercion of such orthodoxy

in @ misguided attempt to foster national or social unity violates the same

basic First Amendment rights vindicated in Barnette, 319 U.S. at 640-42

("no official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion or force citizens

to confess by word or act their faith” in a prescribed orthodoxy).

20

speech" to affect virtually every interaction between the

government and a substantial segment of the public. It imposes

a strict ban on the speech of multifarious state and local officers

and employees, including judges and legislators, who have many

different substantive messages to convey; and it also suppresses

communication by, and receipt of information from, the non-

English speaking public.

Moreover, the Court has never extended the “govern-

ment speech” theory to a law affecting governmental communi-

Cations as vast and various as those encompassed by Article 28.

In contrast to the situation in which a particular executive

agency seeks to convey its own particular message (¢.g., Rust),

an assertion of a “government speech” interest in such a broad

range of communications by every level and branch of the

government as a whole is highly suspect because there is: (1)

less likelihood of a coherent, particularized message;'* (2) an

increased risk of large-scale infringement upon the free speech

rights of public employees, other agencies of government, and

the public; and (3) a greater risk of a “pall of orthodoxy” than

where a single agency is involved. Cf Keyishian v. Board of

Regents, 385 U.S. 589, 603 (1967).

Thus, neither Rust nor Rosenberger controls this case.”

'* Government “speaks” with many voices: legislative and judicial

branch employees, for example, may, and often do, vociferously disagree.

Even within the executive branch different agencies may have different

messages to convey (e.g., occupational safety vs. corporate promotion,

or civil nghts enforcement vs. defense of government officers who are

sued for civil rights violations). Loca’ and county offices often have

different messages than statewide agencies.

” Rust, which upheld a prohibition on spending federal subsidies

under Title X for abortion counseling, is inapposite for additional reasons.

First, the challenged restrictions applied only to the grantee’s project

activities receiving Title X monies; the grantee was left “unfettered in its

other activities.” 500 U.S. at 196. Clinics could continue to provide, and

patients could continue to receive, abortion counseling so long as Title X

monies were segregated from that activity. In contrast, Article 28's bar

(continued...)

21 z

The primary thrust of Article 28 is not to convey a substantive

message but to suppress virtually all communications between

non-English proficient Arizonans and their government, to

deprive legislators and other government officials of their

constitutional rights to communicate with the public, and to

garble, rather than enhance, whatever messages the government

may legitimately desire to express.

Vv. ARTICLE 28 IS SUBSTANTIALLY OVERBROAD.

A law is unconstitutionally overbroad if it burdens a

substantial amount of protected speech and thus presents “‘a

realistic danger’” that it will "‘significantly compromise recog-

nized First Amendment protections of parties not before the

Court... .’" Jews for Jesus, 482 U.S. at 574, quoting

Taxpayers for Vincent, 466 U.S. at 801. Facial challenges

based on overbreadth are permitted because of the severe

“chilling effect” overbroad laws have on protected speech. Jews

for Jesus, 482 U.S. at 574-76. Thus, because it poses on its

» (...continued) “

is near absolute, and, as in FCC v. League of Women Voters of Califor-

nia, 468 U.S. 364 (1984), distinguished in Rust, no alternative means

exist by which non-English-speakers can communicate with the govern-

ment to obtain information which, unlike abortion counseling, often is not

available elsewhere.

Nor did Rust involve a “general law singling out a disf~vored

group on the basis of speech content.” 500 U.S. at 194. As dem nstrat-

ed above, Article 28 does single out an historically disfavored, vulnerable

group and, with only limited and vague exceptions, effectively bars all

Finally, Rust is predicated on the recognized distinction between

“state interference with protected activity” and “state encouragement of

alternative activity.” 500 U.S. at 193, quoting Maher, 432 U.S. at 475.

Article 28 clearly crosses that line into illegitimate “interference” with

basic First Amendment freedoms. The citizenry’s nght to communicate

redress of grievances, is historically rooted in our constitutional democ-

racy and long recognized as essential to the proper functioning of a

republican form of government. See Section II, supra.

22

face too great a risk of censorship, a statute may be impermis-

sibly overbroad even assuming it has some constitutional

applications. Vincent, 466 U.S. at 798-800,”!

Judged by these standards, Article 28 is plainly over-

broad.” Even assuming the State may require its employees

to use only English in certain contexts (such as in commu-

nicating with monolingual English speakers, in performing a

joint task with other employees who speak only English, or in

preparing documents which must be reviewed by English-

speaking supervisors), Article 28, if upheld, would regularly

and unavoidably suppress a wide range of core First Amend-

ment speech.

First, as demonstrated above, Article 28 does not just

burden, it outright bans, speech: it does so not just on a single

subject but on a vast range of subjects on which the limited- and

non-English-speaking public may need to communicate with

government. It imposes a large-scale infringement upon the

rights of the public to receive information, to communicate with

the government, and to petition for redress of grievances.

Second, Article 28 censors a huge Category of communi-

ee As in any overbreadth case, the plaintiff may properly assert the

First Amendment interests of all those potentially affected by the chal-

lenged law: here, other public employees, elected officials, and members

of the public whose rights to receive information, communicate with

government, and participate in the political process are infringed. See,

€.g., Vincent, 466 U.S. at 798; Broadrick, 413 U.S. at 612; Thornhill y.

Alabama, 310 U.S. 88, 96 (1940). In addition, Respondent Arizonans

Against Constitutional Tampering (AACT) represents the interests of the

public as well as legislators and executive ranch employees. See AACT

Brief in Opposition at 2; Arizona Publication Pamphlet at 32 (argument

Pasa Ste Representative Armando Ruiz, chairman of AACT)

an Although the “substantial” overbreadth requirement does not

@ particular quantitative threshold, the requisite degree of “substantiality”

diminishes where, as here, pure speech rather than expressive conduct is

regulated. Broadrick, 413 U.S. at 612-13.

23

cations between and among elected officials in all branches and

at all levels of government, their entire staffs, and their constitu-

ents. These communications, to which the concept of “govern-

ment speech” simply does not apply, deserve the First Amend-

ment’s greatest protection. Bond v. Floyd, 385 U.S. 116, 135-

37 (1966). In this respect alone, Article 28 is substantially

overbroad because, in suppressing speech by elected officials

and their staffs, it thereby thwarts vital communication through-

out the government. See Yniguez, 69 F.3d at 950 (Brunetti, J.,

concurring). See Amicus Brief of the Congressional Asian

Pacific American Caucus and the Congressional Hispanic

Caucus (elaborating on this point).

Finally, however the individual plaintiffs’ free speech

rights may be categorized, Article 28’s wholesale bar goes much

farther to affect virtually every contact or conversation any

public employee may have with non-English-speaking members

of the public and to prevent speech between willing speakers

and listeners in a nearly infinite variety of circumstances. As

the Ninth Circuit’s decision demonstrates, even viewed within

Pickering’s less rigorous First Amendment framework, there are

many instances where employee speech is a matter of public

concern and the interest in permitting that speech outweighs the

State’s interest in prohibiting it. Yniguez, 69 F.3d at 938-42.”

2» Contrary to U.S. English’s suggestion, Article 28 cannot be

“narrowly construed” to eliminate its substantial overbreadth. No readily

identifiable unconstitutional term can be excised. See Brockett v. Spokane

Arcades, 472 U.S. 491 (1985). Nor do the exceptions in §3.2 signifi-

cantly limit Article 28's sweep. Indeed, they are so vague that they offer

no assurance of a sufficiently narrowing interpretation and, indeed, create

additional constitutional problems by vesting unbridled discretion in those

charged with their enforcement. See, e.g., Forsyth County v. The Nation-

alist Movement, 505 U.S. 123, 133-36 (1992); Hynes v. Mayor of

Oradell, 425 U.S. 610, 622 (1976). As this Court has made clear,

federal courts cannot rewrite state laws; only when a@ provision is

**readily susceptible’ to a narrowing construction” can a court interpret

it to avoid constitutional invalidation. Virginia v. American Booksellers

Association, 484 U.S. 383, 397 (1988) (emphasis added). Article 28

(continued...)

24

In an attempt to negate such overbreadth, Petitioners

advocate for a categorical rule that public employees have

virtually no First Amendment rights with respect to speech in

the course of government business. Under that theory, a state

employee’s discussion of conditions at public hospitals, a

whistleblower’s report critical of high officials, an administra-

tive judge’s finding of government wrongdoing, a teacher’s

exercise of academic judgment in the classroom, or a public

defender’s representation of a client would have no meaningful

First Amendment protection against the State’s interference

simply because the speech is performed in the course of

governmental business.“ Such a rule asks too much.

On its face, Article 28 prohibits even a single word or

phrase in Spanish or any other foreign language by any public

official or employee in a vast number of instances irrespective

of the circumstances and regardless of the importance of the

subject matter. Because its reach extends well beyond whatever

core of communications between government and its citizens the

State could legitimately require to be made solely in English,

Article 28 is hopelessly overbroad.

VI. PETITIONERS’ JUSTIFICATIONS FOR ARTICLE

28 DO NOT WITHSTAND CLOSE SCRUTINY.

Article 28’s extraordinary, wide-ranging and purposeful

ban on pure speech substantially impairs core First Amendment

interests of the public, and of public officials and employees,

and selectively disenfranchises language minorities from the

processes of government. Article 28, therefore, should be

subject to strict judicial scrutiny. See, e.g., NAACP v. Button,

371 U.S. at 438-39; Thomas v. Collins, 323 U.S. at 529-30.

» (...continued)

“simply leave[s} no room for a narrowing construction." Jews for Jesus,

482 U.S. at 575.

* It would also mean that the government could force all its em-

ployees to wear ideological lapel pins or deliver ideological messages

irrespective of their normal duties. Yniguez, 69 F.3d at 940, n. 24.

25

Article 28 should not be suvject only to rational basis

review as “government speech” for the reasons set forth in

Section IV, supra. Nor should it be analyzed under the less

rigorous balancing test of Pickering and its progeny, since the

State has negated any employment-related justification in

stipulating that its employees’ use of non-English languages

enhances rather than diminishes its efficiency and effectiveness.

J.A. 53-54. Moreover, Pickering and its progeny have all

focused on protection afforded to speech initiated solely by

government employees. Article 28, in contrast, directly

infringes upon interactive communication between the govern-

ment and its citizenry and thus directly implicates the constitu-

tional rights of the public.”

Under any standard of review, Article 28 is unjustified

and irrational. None of the four discernable justifications

Petitioners have posited in support of Article 28 withstands

constitutional scrutiny: none has been shown on this record to

be compelling, substantial or even rational; nor has Article 28

been shown to be, nor is it, narrowly tailored to further any of

the asserted interests.

A. The State’s Interest In Acting In English.

Petitioners contend that the State has an interest in

choosing a single language in which to conduct its affairs. Pet.

Br. at 27-29. Even assuming that the State has such an interest,

*% ‘Thus, by Article 28, Arizona is not regulating its employees’

speech in its capacity as employer; it is regulating their speech, as well

as that of the public, in its capacity as sovereign. Waters v. Churchill,

__U.S. __, 114 S.Ct. 1878, 1886 (1994). See Rutan v. Republican

Party of Illinois, 497 U.S. 62, 70 n.4 (1990) (where restrictions on

employee speech are not “employment-related,” there is no reason to

relax strict scrutiny ordinarily applicable); 44 Liquormart, 116 S.Ct. at

1508 (where ban on advertising serves an end unrelated to consumer

protection, it must be reviewed with “special care” exceeding traditional

scope of review afforded to commercial speech). In any event, for the

reasons stated by the Ninth Circuit, Article 28 fails even the Pickering

test.

26

that interest does not justify a prohibition of governmental

provision of supplementary communications in other languages

where necessary and appropriate.

B. The State’s Interests in Efficiency and Effec-

tiveness.

Petitioners claim that the use of a single language in the

performance of all government functions will make government

more efficient. As noted above, however, Arizona has stipulat-

ed that the State’s operational efficiency is enhanced, not

diminished, by permitting public employees to communicate

effectively with non-English-proficient citizens. Nothing in the

record demonstrates there has been any administrative problem

resulting from the long-standing use of Spanish and other

languages by state employees.”

Moreover, even if operational problems had been shown,

Article 28 is overbroad. There is no showing that a more

narrowly tailored measure, such as permitting individual

supervisors or departments to impose particularized language

restrictions appropriate to the specific circumstances, would be

inadequate.

. The State’s Interest In Encouraging Non-

English Speakers To Learn English as Socie-

ty’s Common Language.

Assuming the State has a substantial interest in encourag-

ing English proficiency among its residents, Article 28 is an

ineffective and inappropriate means of accomplishing that end.

First, it is unnecessary. English is already spoken “well” by

96% of the Arizonans over the age of 5. See n. 8, supra.

Notwithstanding the alarms over “official multilingualism"

sounded by Article 28’s proponents, the rate of English acquisi-

. Petitioners’ assertion that Yniguez wrote releases only in Spanish

which her supervisor could not understand musstates the record. See Brief

in Opposition [to Petition for Certiorari], of Respondent Yniguez, Appen-

dix at 3-5. :

27

tion among immigrants is as rapid today as ever.”’

Nor do language minorities need an "incentive" to learn

English. In fact, the problem is the lack of English language

classes and other such resources available to these groups, not

their lack of desire to learn English.” Article 28 does nothing

constructive to increase the availability of such resources.

Nor is Article 28 tailored narrowly, if at all, to further

this asserted interest. It effectively penalizes all Arizona

residents not proficient in English -- barring them from access

to government services, information, and communication --

regardless of their circumstances, abilities or needs. It indis-

criminately sweeps within its reach elderly residents who no

longer have the capacity to learn a new language, recent

immigrants who have not had an opportunity to learn English,

and migrant workers who because of limited time and resources

cannot enroll in adult English classes. For these individuals and

2” ‘Half of all recent Mexican immigrants in California speak

English already. Among first-generation Mexican-Americans, 95% are

proficient in English; the transformation is even more dramatic for

second-generation Mexican-Americans, with at least 50% having lost

proficiency in their native tongue. K. McCarthy and R. Valdez, Current

and Future Effects of Mexican Immigration in California (The Rand Corp.

1985). Other studies show the rate of English acquisition by language

minorities is just as rapid as it has been in previous generations.

Veltman, The Future of Spanish Language in the United States (New

York, Wash. D.C.: Hispanic Policy Dev. Project, 1988) at i-x; D.

Myers, The Changing Immigrants of Southern California, Exh. 4.2, Lusk

Center Research Institute, U.S.C. (1995).

% In the Miami area, 98 % of Latino parents surveyed, as compared

to 94% of Anglo parents, felt it was essential for their children to read

and write English perfectly. See The 1985 South Florida Latin Market

(Strategy Research Corp. 1985). Indeed, the demand for English as a

Second Language training far outstnps supply nationwide, resulting in

long lines and waiting lists for the few available classes. See W. Bliss,

"Providing Adult Basic Education Services to Adults with Limited English

Proficiency,” Report by Project on Adult Literacy of Southport Institute

for Policy Analysis (1988).

28

many others, “language might well be an immutable characteris-

tic like skin color, sex or place of birth." Garcia v. Gloor, 618

F.2d 264, 270 (Sth Cir. 1980), cert. den. 449 U.S. 1113

(1981). The burdens Article 28 imposes on these classes clearly

do not further its ostensible goals. Indeed, because Article 28

restricts how educators may choose to inwlement English

acquisition programs by prohibiting native language instruction

even where proven to be effective (except where mandated by

federal law), Article 28 actually undermines the asserted goal.

D. The State’s Interest In Protecting "National

Unity."

| Finally, Petitioners argue that the State “has substantial

interests in protecting itself and society from the divisive effects

of official multilingualism." Pet. Br. at 36. Fatal to Petition-

ers’ position, however, is their failure to present any evidence

to support their assertion either that the government's provision

of multilingual services threatens societal unity, or that non-

English speakers are seeking some form of political separation.

When the State suppresses speech to prevent anticipated harms,

. it must do more than simply ‘posit the

existence of the disease sought to be cured.’ . .

. It must demonstrate that the recited harms are

real, not merely conjectural, and that the regula-

tion will in fact alleviate these harms in a direct

and material way."

NTEU, 115 S.Ct. at 1101.

In fact, there is no language war between English,

Spanish and Native-American speakers in Arizona. Not only

does our nation’s rich history of multilingualism belie the

presumption that linguistic diversity inherently threatens our

social fabric,” but Congress has recently reaffirmed the

| » | See Amicus Brief of the State of New Mexico (describing state’s

nich history of official bilingualism) and Amicus Brief of Congressional

(continued...)

29

“crucial” contribution multilingualism makes to “our nation’s

economic competitiveness and national security," as well as to

our “global perspective” and “understanding of diverse people

and cultures.” 20 U.S.C. §7512 (Foreign Language Assistance

Act of 1994, Pub. L. 103-382 (1994)). This historical tradition,

carried forward to the present, refutes Petitioners’ alarmist

contentions.

Even more fundamentally, for the reasons described in

the Amicus Brief of the Linguistic Society of America ("LSA"),

the suppression of non-"official" languages is actually counter-

productive to national unity. Throughout the world, tensions

between groups over language have generally been the manifes-

tation, not the cause, of underlying social problems; attempts to

suppress one language invariably exacerbate the problem.”

Given this tradition, the State’s attempt to forge societal

unity through coercion is irreconcilable with basic constitutional

principles. As this Court observed over a half-century ago:

National unity as an end which officials may

foster by persuasion and example is not in

question. The problem is whether under our

Constitution compulsion as here employed is a

permissible means for its achievement. [{] . . .

As governmental pressure toward unity becomes

greater, so strife becomes more bitter as to

» (...continued)

Asian Pacific American Caucus, ef al. (describing the long history of

multilingual communication by government since our nation’s inception).

% ~~ See Maldoff, “Comment: a Canadian Perspective,” 60 Int'l J. of

the Sociology of Language 105, 106 (1986) (conflict between French and

English speakers in Canada is the “result of the withdrawal of, or the

failure to recognize, language rights rather than the result of linguistic

tolerance and generosity”) (emphasis added); Beardmore and Willemyns,

"Comment," 60 Int’l J. of the Sociology of Language 117, 120-121

(1986) (tensions in bilingual nations such as Belgium due not to bilingual-

ism, but rather to historical factors and lack of equality afforded to

subordinate language group).

30

whose unity it shall be. . . . [{] . . . [T)he First

Amendment to our Constitution was designed to

avoid these ends by avoiding these beginnings.

Barnette, 319 U.S. at 640-41.

Thus, Article 28 has no legitimate justifications, and

fails to pass muster under any standard of review. See Yniguez,

69 F.3d at 944-47. As in Romer, its “sheer breadth is so

discontinuous with the reasons offered for it that the amendment

seems inexplicable by anything but animus toward the class that

it affects." 116 S.Ct. at 1627.

CONCLUSION

For the foregoing reasons, the judgment of the Ninth

Circuit in this case should be affirmed.

Respectfully Submitted,

Steven R. Shapiro

Marjorie Heins

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, NY 10036

(212) 944-9800

Robert L. Rusky

Hanson, Bridgett, Marcus

Viahos & Rudy, LLP

333 Market St., Ste 2300

San Francisco, CA 94105

(415) 777-3200

Harlan A. Loeb

Anti-Defamation League

823 U.N. Plaza

New York, NY 10017

(212) 885-7736

Edward M. Chen

Counsel of Record

American Civil Liberties

Union Foundation of

Northern California, Inc.

1663 Mission St., Ste 460

San Francisco, CA 94103

(415) 621-2493

Karen N. Kai

159 Beaver St.

San Francisco, CA 94114

(415) 255-7385

Elliot M. Mincberg

Lawrence S. Ottinger

People For The American

Way

200 M St., NW

Washington, DC 30036

(202) 467-2399

Attorneys for Amici Curiae

July, 1996

APPENDIX

APPENDIX

INTEREST OF AMICI

The American Civil Liberties Union ("ACLU") is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members. The American Civil Liberties Union Founda-

tion of Northern California and the Arizona Civil Liberties Union

are regional affiliates of the ACLU. The ACLU was founded over

seventy-five years ago to preserve and protect the fundamental

principles of the Bill of Rights. Central to those principles is the

First Amendment's guarantee of freedom of speech, including the

right to receive information, to communicate with the government,

and petition the government for redress of grievances. The ACLU

has also been active in protecting the rights of language minorities

from discrimination and infringement upon their speech rights.

The American Jewish Congress ("AJC") is an organization

of American Jews founded in 1918 to promote the civil, political,

economic and religious rights of American Jews. AJC opposes

English-only policies of the sort adopted by Arizona. This position

is fueled by history. The American Jewish Congress was founded

by Jewish immigrants from Eastern Europe, few of whom arrived

speaking any English. Although it is now forgotten, these

immigrants were aided by the use of Yiddish by various branches

of government to facilitate their contacts with government.

The Anti-Defamation League ("ADL") is one of the

nation’s oldest civil rights organizations. It was founded in 1913

to combat anti-Semitism and promote good will among all races,

ethnic groups, and religions. As set out in its charter, ADL’s

“ultimate purpose is to secure justice and fair treatment to all

citizens alike and to put an end forever to unjust and unfair

discrimination against any sect or body of citizens." ADL joins in

this amicus curiae brief because Article 28 of the Arizona Constitu-

tion discriminates against non-English speaking minorities, and

singles these groups out for disparate treatment in a variety of

public contexts in violation of their constitutional rights. It is

ADL’s belief that when the rights of any group of citizens are

jeopardized or impaired the fundamental rights of all citizens are

at risk.

People for the American Way ("People For”) is a nonparti-

san, education-oriented citizens’ organization established to

promote and protect civil and constitutional rights, including First

Amendment freedoms. Founded in 1980 by a group of religious,

civic and educational leaders devoted to our nation’s heritage of

tolerance, pluralism and liberty, People For now has over 300,000

members nationwide. People For has frequently represented

parties and filed amicus curiae briefs before this Court in litigation

seeking to defend First Amendment rights. People For has joined

in filing this brief to help vindicate the important First Amendment

principles and values at stake in this case, particularly the right of

the public to receive important information and to petition the

government for redress of grievances, and the underlying, funda-

mental values of tolerance, pluralism, and participatory democracy.