Amicus Curiae Brief — Board of Regents of Univ. of Wis. System v. Southworth

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On Writ of Certiorari to the

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BRIEF OF THE

NATIONAL SMOKERS ALLIANCE

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

BoaLT HALL SCHOOL OF LAW

University of California

CPS Berkeley, CA 94720

(510) 643-5089

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........

SUMMARY OF ARGUMENT ....

I.

Il.

III.

ete eenee —-

THE UNIVERSITY CONTEXT DOES NOT

JUSTIFY THE VIOLATION OF A CITIZEN’S

FIRST AMENDMENT RIGHT AGAINST

COMPELLED POLITICAL SPEECH ........ iil

PETITIONERS’ FEE CANNOT SURVIVE

FIRST AMENDMENT STANDARDS OF RE-

WR tinticentehaevicstanintnadnantiedtbinatitmasmnctiiesnattes

THE FIRST AMENDMENT’S ORIGINAL UN-

DERSTANDING SUPPORTS THE PROHIBI-

TION ON THE USE OF MANDATORY FEES

TO FUND POLITICAL SPEECH .......0000000.

CONCLUSION ...................-.-. hibciaesiicalaateiatipsg iecgeeninnieeain

Page

15

CASES

ii

TABLE OF AUTHORITIES

Page

Abood v. Detroit Board of Education, 481 U.S.

BOD CROCE) cxceniceccsisscecstsncnnsiiniaiaeseeaeen passim

Buckley v. Valeo, 424 U.S. 1 (1976) ..00.0..00....----- 5, 19, 20

Carroll v. Blinken, 957 F.2d 991 (2d Cir. 1992)...... 9

Chicago Teachers Union v. Hudson, 475 U.S. 292

0) | ARTEL

Edenfield v. Fane, 507 U.S. 761 (1998) ..................

Ellis v. Brotherhood of Railway, Airline & Steam-

ship Clerks, 466 U.S. 485 (1984) ..0000.0.. cee.

Estate of Hemingway v. Random House, 23 N.Y.2d

Se) are

Everson v. Board of Ed. Of Ewing, 330 U.S. 1

CRD). xccnceceecccesecnernespecsiusuunpunanssianis InnnaannnnnnnnE

Galda v. Rutgers, 772 F.2d 1060 (8d Cir. 1985)......

Glickman v, Wileman Brothers & Elliott, Ine., 117

BS. Ce. BABS CIGOGD): qcnconcerecscdusncsacwsnsisaseeeenen

Horper & Row Publishers, Inc. v. Nation Enter-

prices, €71 U.B. GEG COBB) ...cumcicicticcsees

Hayvs County Guardian v. Supple, 969 F.2d 111

(Gita Cle. 2008) .eccacscarsevcescussetssuiiaieisnalnnaennnennnes 9

Hazelwood School District v. Kuhlmeier, 484 U.S.

BOO CRGRB) ~.cecovcencecscsestssnseescnbeaninsninansiasnanee 11

Healy v. James, 408 U.S. 169 (1972) ....00000000...... 11, 12,13

Kania v. Fordham, 702 F.2d 475 (4th Cir. 1988)... 9

Keller v. State Bar of California, 496 U.S. 1

_

o ow

C1GBD) acencesecccesssesecasecusseueiesninieieannnennannnnnnn passim

Keyishian v. Board of Regents, 385 U.S. 589

CRO FD anneccccncsesvocnsnecosesnsedpsinneniienasnensniinanasanamnannnnan 12, 14

Lamb's Chanel v. Center Moriches Union Free

School Dist., 508 U.S. 884 (1998) 2.000000. 25

Lehnert v. Ferris Faculty Association, 500 U.S.

BOT CRGBE D ccncccnercnsatsosectantnececsdisnssannanannnanes 8

Los Angeles v. Preferred Communications, Inc.,

Bis Se Oy) | ee 10

Machinists v. Street, 8367 U.S. 740 (1961) —...0000..... 6

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

BED CEOTE) ceccoccentesetotussenuisitectainetioniesnneen 4

Pacific Gas & Electric Co. v. Public Utilities Com-

mission, 475 U.S. 1 (1986) ..........-........c-eceeeccccceees 4,5

iii

TABLE OF AUTHORITIES—Continued

Page

Papish v. Board of Curators of the University of

Missouri, 410 U.S. 667 (1978)... 11

R.A.V. v. St. Paul, 505 U.S. 877 (1992) —................ 17

Railway Employees’ Dept. v. Hanson, 351 U.S. 225

EEE SEES EE ee ee 6

Riley v. Nat'l Fed. of the Blind of North Carolina,

CL 17

Rosenberger v. Rector and Visitors of the Univer-

sity of Virginia, 515 U.S. 819 (1995) ................ passim

Rust v. Sullivan, 500 U.S. 178 (1991) ..................... 13

Smith v. Regents of the University of California,

4 Cal.4th 843, 844 P.2d 500 (Cal.1993) ............ - 9

Southworth v. Grebe, 151 F.3d 717 (7th Cir.

EL LEE 9

Southworth v. Grebe, 157 F.3d 1124 (1998) (de-

nial of petition for rehearing en banc) ........... 9

Tinker v. Des Moines Independent School District,

a easusbeteceneonse 11

Turner Broadcasting System v. F.C.C., 512 U.S.

2 (1994) .. . 20, 21

Verucnis School District 47d 0 v. . Acton, ‘B15 US.

EEE 11

West Virginia Board of Education v. Barnette, 319

SS 4,14

Widmar v. Vincent, 454 U.S. 263 (1981) ........11, 18, 14

Wooley v. Maynard, 430 U.S. 705 (1977) ............... 4

OTHER AUTHORITIES

2 Papers of Thomas Jefferson 545 (Julian P. Boyd

a 24, 25, 26, 27

Robert L. Cord, Separation of Church and State:

Historical Fact and Current Fiction (1982)... 23

Thomas Curry, The First Freedoms (1986) ......... 23

Leonard Levy, The Establishment Clause (1986). 24

Dumas Malone, Jefferson: The Virginian (1948). 24, 26

Leo Pfeffer, Church State and Freedom (revised

I cercnesione 24

iv

TABLE OF AUTHORITIES—Continued NATIONAL SMOKERS ALLIANCE

The Viestaie Gtatate 4 , Page AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

irginia or Religious Freedom: Its :

Evolution and Consequences in American His- The National Smokers Alliance is a non-profit member-

tory (Merrill D. Peterson & Robert C. Vaughn | ship organization composed of adults who support the ac-

0, NID once eneemmenccsesnornemenennennnnnceprenenenion 24 | commodation of smokers and non-smokers in public places

and in the workplace, and who oppose government-im-

posed smoking bans and the excessive taxation and regu-

lation of tobacco products. The National Smokers Alli-

ance, which has a total membership of approximately

3,000,000, files this brief amicus curiae with the consent

of the parties as provided for in the Rules of this Court.?

SUMMARY OF ARGUMENT

The First Amendment's protections for the freedom of

speech include the right of each citizen not to speak. As

part of this right, individuals cannot be forced to support,

either through their actions, speech, or financial means,

the dissemination of ideas with which they disagree. A

particular threat to the right against compelled speech

arises when the government imposes a discrete fee to be

used to fund speech with which the fee-payers disagree.

Where, as here, the state requires such a mandatory pay-

ment, this Court has recognized only limited exceptions

to the First Amendment's broad protections. None of the

circumstances of this case justify expanding a narrow ex-

ception to the Free Speech Clause to include the millions

of students, faculty, and staff on the nation’s college and

university campuses.

Because the university setting is sharply different from

the contexts within which this Court has permitted man-

datory fees to fund speech, this Court should refuse to

1 No counsel for a party authored this brief amicus curiae in

whole or in part, and no person or entity, other than the amicus —

curiae, made a monetary contribution to the preparation or sub-

mission of this brief.

2

apply the analysis of Abood v. Detroit Board of Educa-

tion, 431 U.S. 209 (1977). Instead, petitioners’ compul-

sory fees should be subject to the standards of review that

apply to government attempts to burden speech in the

public sphere. Cases such as Abood and Keller v. State Bar

of California, 496 U.S. 1 (1990), have allowed manda-

tory fees because the state was advancing a government

objective in which success was utterly dependent on the

collective participation of all in the affected class. In such

cases, compelled association and dues overcame free-rider

problems that threatened to doom the very existence of

a state-promoted institution. Here, by contrast, no state

interest justifies the forced collectivization of student ef-

forts and resources.

This case’s setting in the college and university context

demands that any state burdens on free speech rights re-

ceive the strictest of scrutiny. Simply because respond-

ents are in college, and not the public sphere, the state

does not have greater freedom to trample their constitu-

tional rights. Cases that have recognized reduced consti-

tutional rights in schools usually have occurred in the

primary and secondary school context, where the needs

of educators to maintain order and safety are paramount.

In the university setting, by contrast, students are adults

who enjoy full political rights and are part of a commu-

nity that should receive the same constitutional treatment

as the public sphere.

Application of the First Amendment's bar on compelled

speech threatens neither the State’s right to make aca-

demic choices nor the academic freedom of professors and

students. Petitioners’ fee funds student-run activities that

take place outside of the classroom; these student groups

are not under direct faculty supervision, there are no

classroom discussions or lectures, and there are no formal

3

evaluations of student performance. Prohibition of the

fee does not prevent the university from deciding what

courses to offer, nor does it interfere with classroom

education.

Petitioners’ mandatory fee should receive strict scru-

tiny. In its other compelled speech cases, this Court im-

plicitly has used this standard when plaintiffs have chal-

lenged government efforts to force them to support speech

with which they disagree. In such cases, the funding of

other speech with which the objecting fee-payers might

agree does not provide a cure for the violation of free

speech rights. Instead, this Court has invalidated the fee

automatically. The mandatory fee forces objecting stu-

dents to replace the speech that they would support with

their funds with speech chosen by the university and its

student groups. Even if this Court were to conclude that

petitioners’ funding scheme were content-neutral, recent

cases support affirming the decision below. This Court

has never held that the state can achieve the goal of cre-

ating a virtual public forum—solely for the purnose of

promoting the expression of diverse viewpoints—by com-

pelling dissenting citizens to contribute financially through

a special fee. It should not do so now.

The limited evidence that we have concerning the orig-

inal understanding of the First Amendment supports the

principle that the government cannot use mandatory fees

to support speech with which the payers disagree. In ex-

amining these issues, Justices and legal scholars have lone

looked to the Virginia “Assessment Controversy” for

guidance as to the intentions and beliefs of those who

wrote the First Amendment. While the Assessment Con-

troversy occurred five years before the ratification of the

Bill of Rights, its involvement of many of the leading

founders, in the most important state of the early repub-

4

lic, and its airing of many of the key arguments and is-

sues, justifies its relevance for interpretation of the First

Amendment. Close examination of the Assessment Con-

troversy indicates that some of the leading framers would

have understood the emerging First Amendment to bar

the imposition of discrete taxes to fund political or ideo-

logical speech. Efforts by key founders, such as Thomas

Jefferson and James Madison, to disestablish the Anglican

church represented a broader belief that the state should

not be in the business of shaping citizen’s minds and

views. Central to their efforts was the idea that the gov-

ernment could not force individuals to pay for the dis-

semination of ideas with which they disagree. This singu-

lar historical event lends important support for the same

principle embodied in this Court’s case law and its appli-

cation to the case at hand.

ARGUMENT

The First Amendment guarantees a citizen’s right to

remain silent, just as it protects the right to speak. West

Virginia Board of Education v. Barnette, 319 U.S. 624

(1943), read the Free Speech Clause to prohibit states

from compelling public school students to salute and

pledge allegiance to the American flag. As Justice Murphy

observed in Barnette, the First Amendment “includes both

the right to speak freely and the right to refrain from

speaking at all.” Jd. at 645 (Murphy, J., concurring).

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

principle to prohibit states from forcing drivers to display

the state motto on their license plates, and Pacific Gas

& Electric Co. v. Public Utilities Commission, 475 U.S.

1 (1986), invalidated a state rule that required a utility

to distribute an unwanted consumer organization’s com-

munication. See also Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974). As this Court declared

———

5

in PG&E; “the essential thrust of the First Amendment

is to prohibit improper restraints on the voluntary public

expression of ideas . . . There is necessarily . . . a con-

comitant freedom not to speak publicly, one which serves

the ultimate end as freedom of speech in its affirmative

aspect.” 475 U.S. at 11 (quoting Harper & Row Publish-

ers, Inc. v. Nation Enterprises, 471 U.S. 524, 559 (1985)

(quoting Estate of Hemingway v. Random House, 23

N.Y. 2d 341, 348 (1968) (emphasis in original) ).

As these cases demonstrate, the Free Speech Clause

bars the government from compelling individuals to sup-

port, either through their actions, speech, or financial

means, the dissemination of ideas with which they dis-

agree. This principle applies regardless of whether the

government actually forces individuals to speak, as in

saluting the flag, or compels them to pay funds that sup-

port speech with which they disagree. See Keller, 496

U.S. 1; Abood, 431 U.S. 209. As this Court-recognized

in Buckey v. Valeo, 424 U.S. 1 (1976), the First Amend-

ment protects, as speech, financial contributions to an

organization for the purpose of political speech. /d. at

22-23. Both forced speech and forced contributions, there-

fore, strike at the very heart of the First Amendment

“notion that an individual should be free to believe as he

will, and that in a free society one’s beliefs should be

shaped by his mind and his conscience rather than coerced

by the state.” Abood, 431 U.S. at 235 (citations omit-

ted). That core First Amendment principle is violated by

the petitioners’ effort to force respondents to contribute

financially to support political speech with which they

disagree.

6

I. THE UNIVERSITY CONTEXT DOES NOT JUSTIFY

THE VIOLATION OF A CITIZEN’S FIRST AMEND-

MENT RIGHT AGAINST COMPELLED POLITICAL

SPEECH

A particular threat to the right against compelled speech

arises when the government imposes a discrete fee to be

used to fund political and ideological speech. Where, as

here, the state requires such a mandatory payment, this

Court has recognized only limited exceptions to the First

Amendment's broad protections against compelled speech.

In such cases, the Court has allowed mandatory fees only

when the state was advancing a government objective

that required the collective participation of all in the lim-

ited, affected class in order to succeed. This case—which

involves universities, rather than union shops or bar asso-

ciations—bears no similarities to situations in which the

Court has allowed mandatory fees. Because the univer-

sity setting is vastly different from these other contexts,

this Court should subject petitioners’ activities fees to the

normal standards of scrutiny that apply when government

burdens political speech.

In the context of agency shop rules, for example, this

Court has held that the government may compel non-

union teachers to contribute financial dues to the union

that negotiated their collective bargaining agreement.

Abood, 431 U.S. 209. Although the non-union teachers

held a right against compelled speech, this Court found

that the government had a legitimate interest in promot-

ing the union shop to prevent free-riding by non-union

workers on a union’s collective bargaining efforts. /d. at

222: see also Railway Employees’ Dept. v. Hanson, 351

U.S. 225 (1956): Machinists v. Street, 367 U.S. 740

(1961). In order to accommodate both interests, Abood

held that the union could use the funds of objecting non-

union teachers for collective bargaining activities, but not

7

for the espousal of political or ideological causes, unre-

lated to collective bargaining, with which the teachers

disagreed. Jd. at 235-36. The mandatory fee prevents

those who benefit from union representation from avoid-

ing their fair share of the cost.

Similarly, in the context of state bar associations, this

Court has recognized that the Abood exception to the

First Amendment’s ban on compelled speech applies only

because of the role of the bar in regulating the legal pro-

fession. In Keller v. State Bar of California, this Court

found that lawyers benefited from the unique status of an

integrated bar in a manner analogous to the way employ-

ees gained from union representation. 496 U.S. at 12.

State law required bar membership and dues as a condi-

tion of practicing law in the state. In return, the bar

engaged in a number of functions to regulate the practice

of law, such as examining applicants for admission, for-

mulating rules of professional conduct, and disciplining

lawyers for misconduct. 7d. at 4-5. For an integrated

bar to succeed in the self-regulation of the legal profes-

sion, all practicing lawyers must be members; lawyers

benefit by avoiding more direct state supervision and by

being admitted to the practice of law. Jd. at 12-14. Thus,

in cases where the bar is acting in its role as a profes-

sional adviser to those ultimately charged with the regula-

tion of the legal profession, the First Amendment does

not prohibit the use of dissenting members’ funds. /d. at

15. But when those funds are used for political or ideo-

logical speech unrelated to those goals, the Free Speech

Clause is offended. As this Court noted, compulsory bar

dues could not be used to endorse or advance “a gun

control or nuclear weapons freeze initiative,” but they

could be used for activities connected with disciplining

members of the bar. Jd. at 16.

This Court has allowed mandatory fees for compelled

speech in only these two narrow circumstances. If the

State interest in assuring successful regulation requires

“compelled association,” id. at 13, then it can compel

financial contributions for the support of speech, but only

if that speech is related to the purpose of a valid regula-

tory framework. In Ellis v. Brotherhood of Railway, Air-

line & Steamship Clerks, 466 U.S. 435 (1984) and Chi-

cago Teachers Union v. Hudson, 475 U.S. 292 (1986),

this Court refined the Abood analysis to bar the expendi-

ture of dissenting employees’ dues on speech that was not

“sermane” to collective bargaining activities. See also

Lehnert v. Ferris Faculty Association, 500 U.S. 507

(1991). As recent cases have explained, the state may

use mandatory fees to fund speech only if the speech is

“germane” to the regulation’s objectives, it is justified by

the government's vital policy_interests, and it does not

significantly burden free speech interests. See Lehnert,

500 U.S. at 519; Ellis, 466 U.S. 435; see also Glickman

v. Wileman Brothers & Elliott, Inc., 117 S. Ct. 2130,

2146 (1997) (Souter, J., dissenting).

Aside from the unique situations created by union shops

and state bars, this Court has refused to broaden the

narrow excention for compelled political speech. While

the Court recently upheld a federal agricultural marketing

program that compelled contributions in order to pay for

generic advertising, Glickman vy. Wileman Brothers &

Elliott, Inc.. 117 S. Ct. 2130 (1997), it found that the

First Amendment's bar on compelled speech was not im-

plicated because the advertising constituted commercial

speech. /d. at 2138, 2140. Glickman does not apply

where, as here. the compelled speech is of a political and

ideological nature. The Court has never extended the

Abvod analysis to the different. if not unique. context of

the university—nor should it.

9

—

Although the lower courts that have addressed this

issue have adopted the Abood approach, see, e.g., South-

worth v. Grebe, 151 F.3d 717, 722-23 (7th Cir. 1998);

Galda v. Rutgers, 772 F.2d 1060, 1063-64 (3d Cir.

1985); Carroll v. Blinken, 957 F.2d 991, 997 (2d Cir.

1992); Hays County Guardian v. Supple, 969 F.2d 111,

123 (Sth Cir. 1992); Kania v. Fordham, 702 F.2d 475,

479-80 (4th Cir. 1983); Smith v. Regents of the Uni-

versity of California, 4 Cal.4th 843, 844 P.2d 500, 511

(Cal.1993), they have done so without analyzing whether

the standard of scrutiny that applies in the public sphere,

rather than in the workplace, is more appropriate. To be-

sure, in Rosenberger v. Rector and Visitors of the Uni-

versity of Virginia, 515 U.S. 819 (1995), Justice O’Con-

nor’s concurring opinion appeared to suggest that the

Abood/Keller approach might apply to mandatory stu-

dent fees. Jd. at 851 (O'Connor, J., concurring). But

Justice O’Connor’s concurrence only cited Keller and

Abood to make car that Rosenberger’s requirement—

that a state university distribute student activity funds in

a content-neutral manner—did not address the constitu-

tionality of the collection of the fees themselves. /d.

(“Finally, although the question is not presented here, |

note the possibility that the student fee is susceptible to

a Free Speech Clause challenge by an objecting student

that she should nct be compelled to pay for speech with

which she disagrees.”). In this regard, the dissenting judges

of the Court of Appeals for the Seventh Circuit, sit-

ting en banc, incorrectly concluded that Rosenberger dic-

tated an opposite outcome in this case. Southworth v.

Grebe, 157 F.3d 1124, 1127-28 (1998) (denial of peti-

tion for rehearing en banc) (Wood, J., dissenting).

Rosenberger only required the University of Virginia to

disburse funds to groups in a content-neutral manner; as

Justice O’Connor’s concurrence notes, Rosenberger ex-

10

pressly did not reach the constitutionality of the collection

of the funds in the first place.

In the absence of any commonalities among union

shops, integrated bars, and universities, this Court should

refuse to expand a narrow exception to the free speech

rights of the nation’s citizens. Union shops and integrated

bars share few, if any, similarities with the university set-

ting. In the former case, compelled association and dues

are necessary order to overcome free-rider problems that

may doom the very purpose of state regulation. Here, by

contrast, there is no vital state interest that requires the

forced collectivization of student efforts and resources.

Petitioners do not claim that respondents benefit from,

without paying for, the efforts of other students in or-

ganizing groups and engaging in campus debate in such a

manner that defeats the objectives of the university. Re-

spondent students do not want to free-ride; they want to

exit.

Further, the state does not have a vital interest in regu-

lating the speech of college and university students by

levying a mandatory speech tax. Achieving the state’s in-

terest does not require the financial contribution of all

university students. There is no showing that campus

organizing and speech would seriously decline in the ab-

sence of a compulsory fee. Mere speculation that a drop

in such activity would occur cannot form the basis for the

infringement of students’ free speech rights. Cf. Eden-

field v. Fane, 507 U.S. 761, 770-71 (1993); Los Angeles

v. Preferred Communications, Inc., 476 U.S. 488, 496

(1986). In fact, unlike other compelled speech cases, here

the state has conditioned the receipt of a public bene-

fit—college and university education—on the payment of

a fee that burdens students’ free speech rights. This Court

should demand that compelling government interests are

il

at stake before it expands an exception to the First

Amendment's guarantee for freedom of speech to the

many public college and university students in the country.

Close examination of the university context shows that

the First Amendment does not permit the state to violate

the free speech rights of university students. Respondents’

status as college students does not provide the state with

greater freedom to trampel their constitutional rights. As

this Court has made clear before, “state colleges and uni-

versities are not enclaves immune from the sweep of the

First Amendment.” Healy v. James, 408 U.S. 169, 180

(1972). “It can hardly be argued that either students or

teachers shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” Tinker v.

Des Moines Independent School District, 393 U.S. 503,

506 (1969). To be sure, this Court has recognized that

First Amendment rights must be analyzed “in light of

the special characteristics of the school environment.”

Ibid. In certain circumstances, the constitutional rights

of students have less force in the face of reasonable reg-

ulations designed to maintain educational goals, discipline

and safety. Jd. at 507; Vernonia School District 47J v.

Acton, 515 U.S. 646 (1995); Hazelwood School District

v. Kuhimeier, 484 U.S. 250 (1988).

For the most part, however, these cases have found

lesser protections for students’ constitutional rights in the

context of primary and secondary schools, not colleges

and universities. Cf. Rosenberger, 515 U.S. at 835-36;

Widmar v. Vincent, 454 U.S. 263 (1981); Papish v.

Board of Curators of the University of Missouri, 410 U.S.

667 (1973); Healy, 408 U.S. at 180. In contrast to pri-

mary and secondary education, college and university stu-

dents are adults who make many of the education and

12

lifestyle choices that schools and parents make for younger

children. Most college and university students can vote,

and hence they need the full panoply of political rights

guaranteed by the Constitution to allow them to be ac-

tive citizens. They participate in an educational com-

munity based on the free exchange of ideas and criticism.

“The college classroom with its surrounding environs is

peculiarly the ‘marketplace of ideas,’ and we break no

new constitutional ground in reaffirming this Nation's dedi-

cation to safeguarding academic freedom.” Healy, 408

U.S. at 180-81. Allowing students to enjoy the full exer-

cise of First Amendment rights constitutes an important

part of their education and of the pursuit of truth. “The

Nation's future depends upon leaders trained through wide

exposure to that robust exchange of ideas which discovers

truth out of a multitude of tongues, rather than through

any kind of authoritative selection.” Keyishian v. Board

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

While this Court has recognized that the free expres-

sion of ideas is central to the mission of the university,

it has not found that the university can force students to

take part in the vigorous give-and-take of extracurricular

life. To do so would violate the First Amendment rights

of students against compelled speech. In fact, compelled

speech may cause more damage in the university setting,

which is particularly devoted to the development of the

intellect through speech, than in the ordinary public

sphere. As this Court observed in Rosenberger, the “dan-

ger” of the violation of First Amendment rights “is espe-

cially real in the University setting, where the State acts

against a background and tradition that is at the center

of our intellectual and philosophic tradition.” 515 U.S.

at 835. By collecting mandatory fees, and then re-distrib-

uting them according to its own formula, the university

has intervened in the marketplace of ideas. Such interven-

13

tion distorts the natural workings of the market for speech

and ideas, just as surely as it would if the government

taxed individuals and used the revenues to make produc-

tion decisions for a consumer good. Without a showing

of any “market failure” in the unfettered operation of the

campus speech market, such heavy-handed government in-

tervention invariably produces results that will vary from

that which would obtain if students were free to make

their own decisions. It would be ironic, to say the least,

if this Court allowed a student's first introduction to the

First Amendment to take the form of compelled speech,

in the form of mandatory fees to pay for the speech of

others.

Further, while colleges and universities surely must

maintain a certain level of order, it does not approach the

level necessary in the primary and secondary school sys-

tems. It is in regard to the education of the young and

immature where the need of states and school officials to

maintain order and safety is greatest. Even if this also

were true at the college leve!, this Court has rejected the

notion that the need for order justifies restrictions on free

speech rights in the university. As this Court said in

Healy, “the precedents of this Court leave no room for

the view that, because of the acknowledged need for order,

First Amendment proiections should apply with less force

on college campuses than in the community at large.”

Healy, 408 U.S. at 180.

To be sure, this Court also has expressed concern for

the “right of the University to make academic judgments

as to how best to allocate scarce resources,” see Rosen-

berger, 515 U.S. at 833-34; Widmar, 454 U.S. at 276,

which it has recognized as a variant of the right of the

state, when it is the speaker, to make content-based

choices. Thus, the university may determine what courses

to offer. Cf. Rust v. Sullivan, 500 U.S. 173 (1991). To

14

husband its resources, it can impose reasonable time,

place, and manner restrictions on speech, and it can de-

cide to bar the use of university facilities to non-university

personnel. Widmar, 454 U.S. at 268 n. 5. Somewhat re-

lated to this doctrine is the First Amendment's protec-

tion for academic freedom, which “does not tolerate laws

that cast a pall of orthodoxy over the classroom.” Keyi-

shian, 385 U.S. at 603.

These doctrines, however, do not alter the First Amend-

ment rights of adult students against compelled speech.

Under the guise of making academic choices about teach-

ing and research, petitioners could not force students

to advocate required beliefs. Cf. Barnette, 319 U.S. at

634. Even in the name of academic freedom, professors

and state officials could not use classroom instruction to

force students to adopt specific tenets of belief, nor could

they convert educational resources to advance their pre-

ferred causes. Similarly, vague claims of academic free-

dom or educational goals cannot allow petitioners to force

objecting students to fund political or ideological speech,

when the First Amendment would bar such compelled

speech in the public sphere. This Court owes petitioners

no deference in the definition and advancement of their

compelled speech program.

Furthermore, here neither the State’s right to make aca-

demic choices nor the academic freedom of professors and

students are jeopardized by a bar on mandatory speech

fees. Petitioners’ compelled fee funds student-run activi-

ties that take place outside of the classroom; these student

groups are not under direct faculty supervision, there are

no classroom discussions or lectures, and there are no

formal evaluations of student performance. Prohibition

of the fee does not prevent the university from deciding

what courses to offer, nor does it interfere with classroom

education. At worst, application of the First Amendment's

15

compelled speech doctrine only limits the means by which

the university may establish a certain type of campus at-

mosphere. Petitioners cannot show that, in the absence

of the mandatory fee, vigorous debate and activity by

student groups would cease. These groups are still free

to continue as before; they just cannot force unwilling

students to pay for their activities. Both the university

and student groups are free to use other sources of reve-

nue, so long as they do not originate from a discrete,

mandatory fee to be used for speech purposes.

II. PETITIONERS’ FEE CANNOT SURVIVE FIRST

AMENDMENT STANDARDS OF REVIEW

In order to prevail, therefore, the petitioners have the

burden of showing why the university context is suffi-

ciently analogous to Abood or Keller to justify employing

Abood’s lower standard of review at all. Because the

university context does not justify the reduction of indi-

vidual rights, this Court should apply the usual level of

First Amendment scrutiny to petitioners’ mandatory fee.

Here, petitioners impose a fee that funds political and

ideological speech with which respondent students dis-

agree. First Amendment principles as well as established

case law make clear that such a fee, imposed outside of

a union shop or a bar association, violates the First

Amendment. Wisconsin, for example, could not impose

a discrete speech tax on its citizens to fund speech which

promotes the political or ideological views of the gover-

nor or the legislature. Otherwise, a Democrat- or Repub-

lican-dominated government could fund speech that seeks

to convince voters to join its party. Similarly, Wisconsin

cannot impose a tax to support different interest groups

because of their political or ideological positions, or to

fund a number of interest groups to ensure a diversity

of views in the marketplace of ideas. Such efforts would

16

run counter to the First Amendment ideal that an individ-

ual’s views should be shaped by his mind, rather than

coerced by the st. 2, Abood, 431 U.S. at 235, and the

principle of popular sovereignty that the government

should represent the views of the people, rather than im-

pose its views on the people.

This Court should apply strict scrutiny to petitioners’

mandatory fee. Even though petitioners’ speech programs

do not appear to facially discriminate on the basis of

content in distributing student activity funds—in fact,

under Rosenberger, the First Amendment prohibits peti-

tioners from doing so—nonetheless, strict scrutiny still

applies. In cases where the government has imposed a

mandatory fee to fund speech, this Court has not found

a compelled speech violation to be cured by the funding

of other speech with which the payers might agree. In

Abood, for example, this Court found the First Amend-

ment violated because some of the dues were used to fund

political or ideological speech with which the plaintiffs

disagreed. Plaintiffs in Abood did not need to show that

all of the funds ‘were used for objectionable speech,

Abood, 431 U.S. at 213, nor did the Court ask whether

the plaintiffs agreed with some of the dues-funded causes

and candidates. Similarly, in Keller, plaintiffs did not

need to show that all of the state bar’s lobbying and liti-

gation positions were objectionable, only that some of

them were. As in Abood, the Court did not inquire into

whether the bar’s other litigation and lobbying activities

met with the plaintiffs’ approval.

Neither Abood nor Keller deemed it relevant whether

the collected funds were used for speech with which the

plaintiffs agreed, as well as for speech with which they

disagreed. This Court found that the rights of the object-

ing employees were violated if some—not necessarily all

17

—of the speech, funded by the mandatory dues, was of

a political or ideological nature with which they disagreed.

Abood recognized an exception from this bar on the use

of mandatory fees only for speech that is germane to the

purpose of the institution collecting the fee. For speech

that is non-germane—in other words, political and ideo-

logical speech—this Court implicitly subjected the man-

datory dues to strict scrutiny and invalidated them. Peti-

tioners cannot cure the violation of respondents’ right

against compelled speech by arguing that the funds go to

non-objectionable as well as objectionable speech.

Intermediate scrutiny, normally reserved for content-

neutral regulations that impact upon speech, is not ap-

propriate here. The state’s mandatory fee scheme orders

students to support certain kinds of speech, and it pre-

vents students from choosing for themselves the speech

that they would prefer to fund. Students may not wish

to support speech by the formula chosen by petitioners—

forcing students to obey that formula distorts the message

that the students themselves might choose were they mak-

ing their own funding decisions. The mandatory fee forces

objecting students to replace the speech that they would

support with their funds with speech chosen by the uni-

versity and its student groups, which amounts to a con-

tent-based restriction. Cf. Riley v. Nat'l Fed. of the Blind

of North Carolina, 487 U.S. 781, 795 (1988).

Furthermore, the state pursues a goal that itself repre-

sents a regulation of speech in regard to its content. To

be sure, respondents established the speech scheme here

to encourage the expression of a diversity of viewpoints,

rather than to suppress speech. Even if the state, how-

ever, were to possess a benign, rather than malign, moti-

vation in choosing to fund certain classes of sneech, that

does not entitle it to intermediate scrutiny. Cf. R.A.”.

18

v. St. Paul, 505 U.S. 377, 386 (1992). Although the

state may not have an interest in suppressing speech, it

still has engaged in the regulation of speech in relation

to the content of the speech. Here, petitioners have sought

to promote speech that it believes adds to the diversity of

viewpoints expressed on campus, Promoting speech for

the sake of diversity represents regulation based on the

communicative impact of the speech as much as a law

that barred certain speech for the purpose of suppressing

diversity in the marketplace of ideas.

Petitioners have not even shown that the fees are dis-

tributed in a neutral manner. Every registered student

organization that seeks funding is not guaranteed fund-

ing; rather, the university is distributing funds in order

to ensure that certain viewpoints are represented on cam-

pus. In fact, the great majority of funds regularly goes

to a relatively small number of groups. If the government

collects a fee to fund speech, it cannot distribute the funds

on the basis of content. Therefore, even if this Court

were to allow mandatory fees that force payers to support

speech with which they disagree, it should not do so in

this case. While increasing the amount of campus speech

arguably might rise to the level of an important govern-

ment interest, it is by no means a compelling one. The

lack of a compelling, or even a substantial, interest is

demonstrated by the lack of evidence that any problems

exist involving the level or diversity of campus speech in

the absence of petitioners’ mandatory activities fee.

Even if this Court were to conclude that the state had

a compelling interest in promoting speech, petitioners have

failed to demonstrate that their program is narrowly tail-

ored to achieve this goal. Student groups, which have

their own incentives and resources to engage in speech.

are not going to disappear in the absence of petitioners’

compelled speech program. The state also has failed to

19

demonstrate that the university lacks alternati

student activities that Soa dite ain

spondents right against compelled speech. For example,

the university could seek voluntary contributions from

students or donations from alumni or outside organiza-

tions. If this Court is to allow the state to engage in

programs that promote certain types of speech, its cases

require that the state do so in a manner that is least in-

trusive upon the free speech rights of dissenting students.

The First Amendment rights of respondents require peti-

tioners to resort to alternative means to fund their speech

program that do not compel contributions from unwill-

ing students.

Even if this Court were to conclude that petiti ,

funding scheme was content-neutral, recent oth an peeard

affirmance of the decision below. Petitioners, and the dis-

senting en banc judges below, claim that the mandatory

fee is entitled to intermediate scrutiny because the funds

are used to create a virtual public forum that does not

discriminate on the basis of the content of speech. This

Court has never held, however, that the state can achieve

the goal of creating a virtual public forum by compelling

dissenting citizens to contribute to-it financially. In the

most analogous case to address government-subsidized

third-party speech, this Court suggested that a voluntary

contribution system saved the legislative scheme from

First Amendment problems. In Buckley v. Valeo, 424

US. 1 (1976), this Court upheld the 1974 Federal Elec-

tion Campaign Act’s provision for the public financing

of presidential election campaigns. Under the statute, the

federal government agreed to fund a presidential cam-

paign if the candidate accepted spending and contribu-

tion limitations. Id. at 88. The Court found that the

law did not involve any “compulsion upon individuals to

finance the dissemination of ideas with which they dis-

20

agree,” id. at 91 n.124, because the federal campaign

contribution was funded by a voluntary check-off box on

individual income tax returns. The Buckley Court also

noted that taxpayers had no broad right to object to the

expenditure of general revenue taxes for the general wel-

fare. Id. at 90-92. A challenge to a spending program,

however, could prove quite different if only a certain class

of taxpayers were forced to pay by means of a specific,

mandatory fee.

Turner Broadcasting System v. F.C.C., 512 U.S. 622

(1994), also should not be read to eae eat an nein

in h-promoting activities paid for by dissenti

fedividuall. | aa Foateer Broadcasting, this Court upheld

the “must-carry” provisions of the 1992 Cable Act, even

though they amounted to compelled speech on the part

of cable operators. Id. at 643-44. The Court concluded

that the legislative scheme burdened speech without ref-

erence to content. Turner Broadcasting, however, did not

address whether the government could impose a discrete

fee, rather than dip into general revenues, for the specific

creation of a speech-promoting program. In this respect,

Turner Broadcasting was consistent with Buckley's effort

to protect the federal government's control over its gen-

eral revenues, without reaching the question of the con-

stitutional rights of dissenting taxpayers when a specific

fee is levied to pay for speech.

The government programs in Buckley and Turner, and

public forum cases generally, are different from petitioners

compelled speech scheme in another important respect. In

Buckley and Turner, the central object of the legislative

program was not simply to enhance speech. In Buckley,

Congress regulated the federal~ Campaign contributions

and expenditures in order to prevent corruption and ew

guard the integrity of the electoral process. Buckley, 42

21

U.S. at 23-28. In Turner, Congress enacted the Cable

Act's must-carry provisions to sustain the local television

broadcast industry, which plays an important role in the

dissemination of information and in the competition over

television programming. Turner, 512 U.S. at 662-64.

Taxes that pay for physical public forums, such as sta-

diums, parks, government buildings, and sidewalks, cer-

tainly create public spaces that can be used for speech,

but the purpose for their construction is not solely, or

even primarily, devoted to the promotion of speech.

Rather, in all of these circumstances, the government has

created a system, mechanism or place that benefits the

public in ways that are unrelated to speech, but which

also has speech-enhancing side effects. Thus, a sidewalk

can be used for a public demonstration, but the govern-

ment built the sidewalk in the first place for foot traffic

and safety reasons.

Behind these examples is a distinction between a con-

duit for speech and the content of the speech itself. In

a normal public forum case involving a physical forum,

such as a park or a government building, or even a case

involving an intangible forum, such as the realm of tele-

vision programming, the government has created a facility

that serves as the conduit for the expression of different

ideas, without regard to the speech itself or its content.

In this case, however, the petitioners’ compelled speech

program funds the favored speech itself, not the method

for its communication. Without the petitioners’ scheme,

different student groups would simply engage in less

speech overall, vis-a-vis other student groups on campus.

A true public forum—one that served as a communica-

tions conduit that operated without regard to the content

of speech—would raise the amount of speech for all

groups in an equal proportion. Petitioners’ speech scheme

thus stands in sharp contrast to a system, akin to the one

22

in Rosenberger, in which the university funds a facility

for the printing of leaflets or the creation of web pages

that are equally available to all student groups.

Also unlike a normal public forum, here the petitioners

have imposed a discrete, mandatory fee solely to promote

a diversity of speech on campus. Creating speech is the

only purpose of the state’s program. In such circum-

stances, the use of the mandatory fee is all the more in-

vasive of dissenting students’ rights against compelled

speech, because none of the fee goes toward other uses

that might benefit them, as with the construction of a

public facility or a communications network. Petitioners

have not shown that the achievement of this goal is im-

portant enough to justify a fee that forces students to

support speech with which they disagree. If the govern-

ment intends to promote political and ideological speech,

even if it does so in a content-neutral manner, it either

should pay for it out of general revenues or, if it chooses

to use a discrete fee, it should impose the fee only on

those who agree with the speech. In the absence of any

showing of a vital problem or need to create political

speech, the First Amendment requires that the govern-

ment promote speech in a manner that avoids the forced

contributions of those who disagree. At the very least,

this Court should make clear that if the government is

going to fund speech for the sake of speech, it must do

so in a content-neutral manner.

Ill. THE FIRST AMENDMENT’S ORIGINAL UNDER-

STANDING SUPPORTS THE PROHIBITION ON

THE USE OF MANDATORY FEES TO FUND

POLITICAL SPEECH

The limited evidence that we have concerning the origi-

nal understanding of the First Amendment supports the

principle that the government cannot use mandatory fees

intentions and beliefs of those who wrote the First Amend-

ment. See, e.g., Everson v. Board of Ed. of Ewing, 330

U.S. 1, 74 (1947) (appendix to dissent of Rutledge, J.);

Abood, 431 U.S. at 234 n.31; Rosenberger, 515 U.S. at

853 (Thomas, J., concurring); id. at 868 (Souter, J., dis-

senting). While the Assessment Controversy occurred five

years before the ratification of the Bill of Rights, its in-

volvement of many of the leading founders, in the most

important state of the early republic, and its airing of

many of the key arguments and issues, justifies its rele-

vance for interpretation of the First Amendmént. Close

examination of the Assessment Controversy indicates that

some of the leading framers would have understood the

First Amendment to bar the imposition of discrete taxes

to fund political or ideological speech.

In the 1786 Assessment Controversy, Thomas Jefferson,

the author of the Declaration of Independence, and James

Madison, the future father of the Constitution and the

drafter of the Bill of Rights, successfully convinced the

Virginia legislature to enact a statute guaranteeing reli-

gious freedom and to reject a tax assessment bill for the

support of an established church. In light of Jefferson

and Madison’s involvement and the political importance

of Virginia in the early years of the Republic, judges and

scholars properly have considered the events of the Assess-

ment Controversy to be an important piece of evidence in

construing the First Amendment. See, e.g., Thomas

Curry, The First Freedoms 134 (1986); Robert L. Cord,

Separation of Church and State: Historical Fact and

24

Current Fiction 20-23 (1982); The Virginia Statute for

Religious Freedoms: Its Evolution and Consequences in

American History (Merrill D. Peterson & Robert C.

Vaughn eds., 1988); Leonard Levy, The Establishment

Clause 51-60 (1986); Leo Pfeffer, Church State and

Freedom 104-14 (revised ed. 1967); Dumas Malone,

Jefferson: The Virginian 274-85 (1948).

In brief, the Assessment Controversy had its roots in

revolutionary Virginia’s struggle over the proper relation-

ship between church and state. Following the break with

Great Britain, Thomas Jefferson led efforts to break the

state’s ties with the Anglican church, which was the estab-

lished church of the colony. In 1779, Jefferson’s Bill for

Establishing Religious Freedom, which prohibited the

state from compelling any citizen from attending or sup-

porting religion and which guaranteed each individual's

freedom to profess his own religious beliefs, was intro-

duced in the state legislature but did not pass. 2 Papers

of Thomas Jefferson 545 (Julian P. Boyd ed. 1950).

That same year, other legislators proposed a bill provid-

ing for a general assessment to fund the operations of

Christian churches throughout Virginia. After British op-

erations in the state had ceased, the state legislature in

1784 turned to consideration of the proposed assessment.

Assuming Jefferson’s mantle, James Madison led the fight

in the legislature against the assessment. In June, 1785,

he issued his famous Memorial and Remonstrance Against

Religious Assessments as part of a successful strategy that

defeated the tax. 8 Papers of James Madison 298-306

Robert A. Rutland ed. Once Madison had organized a

groundswell of popular opposition to the assessment, the

legislature tabled it and instead enacted Jefferson’s Statute

for Religious Freedom, which ended efforts in Virginia to

impose a mandatory fee for the support of an established

church.

25

In Abood, this Court correctly recognized that the roots

of the Assessment Controversy concerned not just religion,

but the larger issues of freedom of speech and of thought.

At the time of the framing, organized religion was one

of the primary means whereby the state engaged in speech,

and, in the absence of modern ideologies and permanent

political parties, religion was one of the few organized

systems of thought. To Jefferson and Madison, however,

religious belief—like political and ideological belief—

ought to be the product of the workings of the rational

mind, not the command of the state. The same intellec-

tual freedom from state-imposed orthodoxy allowed the

individual citizen to develop and maintain both religious

and political beliefs. Religious freedom thus became in-

tertwined with freedom of thought, of conscience, and of

speech, a development that recent cases have recognized

in prohibiting the state from discriminating against reli-

- gious speech. See, e.g., Rosenberger, 515 U.S. at 830-37:

Lamb's Chapel v. Center Moriches Union Free School

Dist., 508 U.S. 384, 393 (1993).

Jefferson’s Statute for Religious Freedom provided the

philosophical and political justification not just for the

idea of religious toleration, but for the broader right of

the individual to intellectual liberty. Protecting religious

liberty was simply one component of the protections for

political and ideological liberty and speech. “Our civil

rights have no dependence on our religious opinions, any

more than our opinions in physics or geometry.” 2 Papers

of Jefferson at 545-46. Jefferson wrote that religion had to

be independent of the state because “the opinions and be-

lief of men depend not on their own will, but follow invol-

untarily the evidence proposed to their minds,” and that

“all attempts to influence [the mind] by temporal punish-

ments or burthens, or by civil incapacitations, tend only to

beget habits of hyprocrisy and meanness.” 2 id. at 545. As

26

Madison wrote in his Remonstrance, “[t]he Religion then

of every man must be left to the conviction and con-

science of every man; and it is the right of every man to

exercise it as these may dictate.” 8 Madison Papers at

298. Madison believed this right to be “inalienable” be-

cause “the opinions of men, depending only on the evi-

dence contemplated by their own minds cannot follow the

dictates of other men.” Jd. The human mind, Jefferson,

and Madison believed, must remain free from the power

of the state. Declared Jefferson’s bill: “the opinions of

men are not the object of civil government, nor under

its jurisdiction.” 2 Papers of Jefferson at 546.

If the state is barred from influencing the opinions of

its citizens, Jefferson and Madison concluded, it should

also be prohibited from imposing a specific tax for the

support of speech designed to propagate certain beliefs.

In the course of defending the freedom of the human

mind, Jefferson’s bill declared “[t]hat to compel a man

to furnish contributions of money for the propagation

of opinions which he disbelieves and abhors, is sinful

and tyrannical.” 2 id. at 545. Mandatory fees violated

the individual’s freedom of thought, even if some of the

funds supported speech with which an individual agreed,

because they deprived the citizen of the freedom to choose

which speech to support. Even if it were only forcing the

citizen to contribute to a “teacher of his own religious

persuasion,” the bill declared, the government still violates

the citizen’s rights because it “is depriving him of the

comfortable liberty of giving his contributions to the par-

ticular pastor whose morals he would make his pattern,

and whose powers he feels most persuasive to righteous-

ness.” Id. Jefferson and Madison feared that any govern-

ment interference at all in the area of speech would dis-

tort what we today call the marketplace of ideas: “truth

is great and will prevail if left to herself; that she is the

>

27

to fear from the conflict, unless by human interposition

disarmed of her natural weapons, free argument and de-

Id. at 546. Civil government should interfere

ciples break out into overt acts against peace and good

order.” /d. In the end, these arguments carried the day

and convinced Virginia's legislature to reject the assess-

ment in favor of Jefferson's declaration of religious free-

_ Efforts by founders such as Jefferson and Madison to

dis-establish the Anglican church represented a broader

belief that the state should not be in the business of shap-

ing a citizen’s mind and views. To be sure, other states

in the revolutionary and critical periods maintained estab-

lished churches, and we cannot definitively conclude that

all of the framers who voted for the First Amendment in

Congress and the state ratifying conventions believed it

to codify the lessons of the Virginia experience. Nonethe-

less, this Court has and should take the Assessment Con

troversy as a guide to the understandings of two of the

principle motivating minds behind the Declaration of

Independence, the Constitution of 1787, and of the Bill

of Rights concerning the concepts of freedom of religion,

freedom of speech, and freedom of thought. Jefferson

and Madison believed that these rights prohibited the

State from imposing a mandatory fee on its citizens to

be used to fund political or ideological speech with which

they disagreed. As such, their views lend important sup-

port from the framing for the same principle in this

Court’s case law.

Indeed, the facts of this case underscore the interrelated

purposes of the religion and speech clauses of the First

Amendment. Out of their religious convictions, respond-

ent students do not wish to support the political speech

disseminated by some student groups. Respondent stu-

dents’ religious views give rise to certain political and

ideological views; political and ideological speech can

offend an individual's religious as well as his or her politi-

components of the freedom of thought at the core of the

First Amendment.

Any asserted public forum justification would not have

altered this application of Jefferson and Madison’s views.

Both Jefferson and Madison opposed the general assess-

ment, even though it would have benefited all Christian

churches, rather than only the Anglican church. A

broader funding scheme did not alleviate the violation of

individual rights that arose from compulsory fees to pay

for views with which the payers disagreed. Jefferson and

Madison would not have believed the violation of the

. dissenting students’ rights to be cured if the state took a

portion of the money and provided it to student groups

whose views the students shared, just as Jefferson and

Madison would not have thought the general assessment

to have been constitutional if Virginia had distributed the

tax dollars to each Christian sect. To them, the constitu-

tional violation would have occurred when the state

coerced any citizen to provide a single dollar to support

views with which he or she disagreed. Where, as here,

this is what the government has done, the original under-

standing of the First Amendment suggests that this Court

must invalidate the mandatory payments.

29

CONCLUSION

For the reasons stated above, the judgment of the

United States Court of Appeals for the Seventh Circuit

should be affirmed.

Respectfully submitted,

RENEE GIACHINO *

NATIONAL SMOKERS ALLIANCE

901 N. Washington St.

Suite 400

Alexandria, VA 22314

(703) 739-1324

JOHN Yoo

BoALT HALL SCHOOL oF LAW

University of California

Berkeley, CA 94720

(510) 643-5089

Institutional Affiliation for

* Counsel of Record Identification Purposes Only