Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

AND

BRIEFS

preme ni, U.

FILED

SEP 18 2017

No. 16-1436 and No. 16-1540 OFFICE OF THE CLERK |

—_ eee

: IN THE

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL.,

Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT,

ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES, ET AL..,

Petitioners.

Vv.

HAWAII, ET AL..,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE PEN AMERICAN CENTER

AND OTHER ORGANIZATIONS IN SUPPORT OF

RESPONDENTS

Robert D. Balin Robert Corn-Revere*

Abigail B. Everdel! Davis Wright Tremaine LLP

Jaya Kasibhatla 1919 Pennsylvania Ave., NW,

Davis Wright Tremaine LLP Ste. 800

1251 6th Ave., 21st FI. Washington, DC 20006

New York, NY 10020 (202) 973-4200

(212) 489-8230 bobcornrevere@dwt.com

Counsel for Amuci C ‘riae *Counsel of Record

LEGAL PRINTERS LLC, Washington DC e 202-747-2400 e legalprinters.com

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES .. ................0.0.0...0.00...01

I. INTEREST OF AMICI CURIAE.................. 1

{I. INTRODUCTION AND SUMMARY OF

PEE ons 600s vvonsecscececcescecens eens. phe e ee 2

ee is saccienaaennnadsapiauiemensias 5

A. EO-2 Impermissibly Burdens The

First Amendment Rights of Amici

and Other U.S. Citizens to Receive

in Seslaee 5

B. Americans Have a First Amendment

Right To Receive Information and

Ideas Via In-Person [nteractions ..... 11

C. By Any Standard of Review, EO-2’s

Burdens on Free Speech Must be

Found Unconstitutional ................... 16

CONCLUSION .......... eee ee ee eee ee 18

isc in. cs cacipsbunspenees sddnyecekscaeaseincaaainen

il

TABLE OF AUTHORITIES

Page(s)

Cases

City of Ladue v. Gilleo,

BES UD, OB Co cessies onus 0v:s0nasithaana 17

Edenfield v. Fane,

gtk RB 9) ee sa ee 16

First Nat. Bank of Boston v. Bellotti,

BE Fe Cr in caiccnnsvevcetsdemtdeiataiaiiic eee 12

Griswold v. Connecticut,

381 U.S. 479 (1965).................... sinkosedaniues aaa ll

Intl Refugee Assistance Project v.

Trump,

JA-236, as amended (May 31, 2017),

as amended (June 15, 2017), cert.

granted, 1378S. Ct. 2080, 198 L. Ed.

Ly : AR SNES APT eS © y:

Kleindienst v. Mandel

UE TE, FO Ct lee cenieciss sce ictniticnee passim

Martin v. City of Struthers,

ee, ee a ee 4,12,14

McCullen v. Coakley,

SO TD, Ce a Cee nas kasd 15

Red Lion Broad. Co. v. F.C.C.,

is Be 2, | ee ne 12

ii

Roe v. Wade,

EE 7

Se. Promotions, Ltd. v. Conrad,

ET 13

Stanley v. Georgia,

BN, HI IDs vccnccccccsccosncessceseecss Aa see Ra 12

Terminiello v. Chicago,

I sanastunmncsasesueneeens 13

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council,

Ine.,

RE ee 12

Whitney v. California,

274 U.S. 357 (1927).......... Ril acid aah htsisatiinioa 11

Constitutional Provisions

United States Constitution

Nee i as axssensuangnsnenssens passim

Other Authorities

Alexis de Tocqueville, DEMOCRACY IN

AMERICA 11 (Henry Reeve trans.

2006), available at

http://www.gutenberg.org/files/815/8

a ceadeunenetanneeen 3

iv

Being There, FORBES (Feb. 9, 2011),

available at

https://www.forbes.com/forbes/2011/

0228/travel-teleconferencing-

polycom-john-medina-being-

ERR EEE EAS NOSES TN eee Ae em EED rs OS 15

Benjamin Sutton, “[ranian Gallery

Drops Out of AIPAD Photo Fair

Over Trump's Travel Ban,”

Hyperallergic, March 28, 2017,

available at

https://hyperallergic.com/368526/ira

nian-gallery-drops-out-of-aipad-

photo-fair-over-trumps-travel-ban/....................... 8

Cisco, Power of In-Person: The

Business Value of In-Person

Collaboration (White Paper

conducted by the Economist

Intelligence Unit) (2012), available

at

https://www.cisco.com/c/dam/global/e

n_in/assets/pdfs/45808_Economist_w

REESE SS eer ea 15

Developments in the Law-The National

Security Interest and Civil Liberties,

85 Harv.L.Rev. 1130 (1972)..........cccccecccececeeeeeeeees 18

The Hijab/Veil Series,” avazlable at:

http://muslima.globalfundforwomen.

org/content/hijab-veil-series .......................000000-- 10

https://www.behance.net/farescachoux ...................+:. 9

v

James Madison to W.T. Barry, Aug. 4,

1822, 9 Writings of James Madison

a I I I ainda cccctesashietenneeneseneneeenneiensts 4

Laura Vanderkam, JVhe Science of

When You Need In-Person

Communication, FAST COMPANY

(Sept. 30, 2015),

https://www.fastcompany.com/30515

18/the-science-of-when-you-need-in-

I I iiirtidecincinvrcncescesesssocntesnedes 14

Marc Hogan, “Here’s What Musicians

Hurt by the Muslim Ban Have to

Say to Trump,” January 31, 2017,

avaulable at:

http://pitchfork.com/thepitch/1428-

heres-what-musicians-hurt-by-the-

muslim-ban-have-to-say-to-trump? ..................... 9

PEN AMERICA, PEN Worla Voices

Festival, https://pen.org/world-

voices-festival/ (last visited Sept. 12,

6 Ra RANI se REE 98 IEE REE ORR 6

The PEN and the Sword, The New York

IE i CE ideiicetndiadetiocsndecnencvimnsentinets 6, 7

vi

Steve Dove, “Asghar Farhadi Oscar

2017 Winner Speech Delivered By

Anousheh Ansari”, THE OSCARS

(Feb. 27, 2017, 6:30am)

http-//oscar.go.com/news/winners/asg

har-farhadi-oscar-2017-winner-

speech-delivered-by-anousheh-

“The Vulnerability Series” available at:

http://www.abdallaomari.com/thevul

Ik leceenlpeenlerminigiaiapncnnionnin

1

I. INTEREST OF AMICI CURIAE

Amici, described in Appendix A, include a

broad array of organizations working to advance

cultural and artistic exchange in this country.'! Lead

amicus PEN American Center (“PEN America”) is a

non-profit association of writers that includes

novelists, journalists, editors, poets, essayists,

playwrights, publishers, translators, agents, and

other professionals. PEN America stands at the

intersection of literature and human rights to

protect open expression in the United States and

worldwide. It champions the freedom to write,

recognizing the power of the word to transform the

world. Its mission is to unite writers and their allies

to celebrate creative expression and defend the

liberties that make it possible, working to ensure

that people everywhere have the freedom to create

literature, to convey information and ideas, to

express their views, and to make it possible for

everyone to access the views, ideas, and literatures

of others. PEN America has approximately 5,000

members and is affiliated with PEN International,

the global writers’ organization with over 100

Centers in Europe, Asia, Africa, Australia, and the

Americas.

In one of the two decisions here on review, the

Court of Appeals for the Fourth Circuit held that

| All parties have consented to this amici curiae brief and

letters of consent have been filed with the Clerk. Pursuant to

this Court’s Rule 37.6, anni affirm that no counsel for a party

authored this brief in whole or in part, and no person or entity

other than anuci and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

Executive Order No. 13780 (“EO-2” or the “Order”)

was not enacted for a “bona fide” purpose, but rather

“to exclude persons from the United States on the

basis of their [Muslim] religious beliefs.” Jnt7

Refugee Assistance Project v. Trump, JA-236, as

amended (May 31, 2017), as amended (June 15,

2017), cert. granted, 137 S. Ct. 2080, 198 L. Ed. 2d

643 (2017) (“JRAP v. Trump”). This finding by the

Fourth Circuit should be affirmed, as well as its

finding that EO-2 violates the Establishment Clause

of the First Amendment. But amici contend that

EO-2 also violates the First Amendment right of

Americans to receive information. By preventing our

citizens from receiving in-person transmission of

ideas, expression, and speech, EO-2 impermissibly

burdens the free interchange of information

necessary to the proper functioning of our

democracy.

Amici have a vital mission to foster rich

intellectual and artistic discourse in this country,

and that mission is directly impaired by EO-2.

Amici therefore urge this Court to affirm the

judgment of the Fourth Circuit Court of Appeals not

only because EQO-2 violates the Establishment

Clause, but also because it violates the free speech

rights of Amici and other citizens of this country.

Il. INTRODUCTION AND SUMMARY

OF ARGUMENT

For the reasons outlined in Respondents’ brief,

this Court should affirm the [ourth Circuit's

determination that because there has been “an

affirmative showing of bad faith” underlying EO-2, a

3

full inquiry into the constitutionality of the Order is

warranted. JRAP v. Trump, JA-212. While the

principal Constitutional argument Respondents

press is that EO-2 violates the Establishment Clause

of the First Amendment (and Amici concur that it

does), Amici contend that the Order also

impermissibly burdens the Free Speech rights of

ainici and other U.S. citizens, and should be found

unconstitutional for that independent reason.

The United States is singularly unafraid to

hear voices that have been silenced elsewhere. From

this nation’s founding, visitors from abroad have

regarded our uncharacteristically open society as a

model for the world and for democracy. As Alexis de

Tocqueville wrote of our experiment in_ self

governance: “When the right of every citizen to co-

operate in the government of society is

acknowledged, every citizen must be presumed to

possess the power of discriminating hetween the

different opinions of his contemporaries, and of

appreciating the different facts from which

inferences may be drawn.” Moreover, the United

States has always defined itself as nation of

immigrants, built by those seeking freedom of

thought and action. Throughout our history, we

have benefited immeasurably from the contributions

immigrants have made to all spheres of knowledge

and culture in this country. It is no coincidence —

but rather an animating principle — that refugees

—_———

2 Alexis de Tocqueville, DEMOCRACY IN AMERICA 11 (Henry

Reeve trans. 2006), available at http://www.gutenberg.org

/files/815/815-h/815-h.htm.

A

have created many of the works that define what it

means to be an American. From the films of Billy

Wilder, the novels of Isaac Bashevis Singer, the

political philosophy of Hannah Arendt and the

poetry of Joseph Brodsky, the contributions of

visitors, immigrants, and refugees to American arts

and letters make up the very cultural fabric of our

nation.

KO-2 threatens this legacy, and upends our

deeply American commitment to the free and

fearless exchange of ideas. The First Amendment

presumes that a free people can and must choose the

ideas they deem worthy of adherence, rather than

receiving a state-mandated diet of acceptable views.

American citizens must be allowed to engage in in-

person dialogue with nationals from the six banned

countries, experience their work, test their ideas,

and learn first-hand from their perspectives. As this

Court has repeatedly recognized, the First

Amendment right to free speech is meaningless

without a concomitant right to receive information,

and the latter right must be as zealously protected

as the first. See, e.g., Martin v. City of Struthers,

319 U.S. 141, 143 (1943). “A popular Government,

without popular information, or the means of

acquiring it, is but a Prologue to a Farce or a

Tragedy; or, perhaps both. Knowledge will forever

govern ignorance: And a people who mean to be their

own Governors, must arm themselves with the

power which knowledge gives.” James Madison to

W.T. Barry, Aug. 4, 1822, 9 Writings of James

Madison 103 (G. Hunt ed. 1910).

5

This Court has also recognized that there is no

substitute for live, in-person interaction. Yet EO-2

severely restricts the right of Americans to receive

information by preventing our citizens from hearing

and interacting with the ideas and viewpoints of

nationals of the targeted countries. By prohibiting

the admission of these nationals without a bona fide

reason, EO-2 hinders the free marketplace of ideas.

Our civil society depends on the ability of

American arts and literary organizations, museums,

universities, and cultural foundations to receive and

share ideas, and to amplify voices that are being

silenced by repression, civil war and censorship

abroad. The message that EO-2 sends the world is

one of retreat from our history as an open society.

The sweeping restriction that EO-2 imposes on our

citizens First Amendment right to _ receive

information is contrary to this Court’s precedent and

this country’s ideals. Accordingly, this Court should

not only affirm the judgment of the Fourth Circuit

Yourt of Appeals that EKQO-2 violates’ the

Establishment Clause, but should also affirm for the

independent reason that the Order violates the First

Amendment Free Speech rights of U.S. citizens.

Ill. ARGUMENT

A. EO-2 Impermissibly Burdens The First

Amendment Rights of Amici and Other

U.S. Citizens to Receive Information

Amici are cultural institutions in the United

States whose mission depends on the freedom to

engage in intellectual and cultural exchange.

6

Amicus PEN America has provided an unparalleled

forum for open expression and exchange of ideas,

inviting writers, artists and dissidents from around

the world to speak and debate their views in this

country. PEN and its fellow amici give American

citizens the opportunity to hear voices (often voices

of dissent) that may never have been heard

otherwise.+ EQO-2 jeopardizes this vital mission by

banning Americans from experiencing first-hand the

work of nationals from the six banned countries, to

hear their perspectives in face-to-face

3 Among other conferences, PEN America hosts the PEN World

Voices Festival, founded by Salman Rushdie, Esther Allen, and

Michael Roberts after the events of September 11, 2001, “with

the aim of broadening channels of dialogue between the United

States and the world.” PEN AMERICA, PEN World Voices

Festival, https://pen.org/world-voices-festival/ (last visited Sept.

12, 2017). Since its founding, the annual World Voices Festival

has hosted more than 1,500 writers from 118 countries who

participate in a weeklong series of events and discussions with

a focus on human rights issues.

4 Reflecting on the 48th International PEN Congress of 1986, a

weeklong gathering of writers from around the world, Salman

Rushdie wrote:

In those last years of the cold war, it was important

for us all to hear Eastern European writers like

Danilo Kis and Czestaw Milosz, Gyérgy Konrad and

Ryszard Kapuscinski, setting their visions against the

visionless Soviet regime. Omar Cabezas, Nicaragua’s

deputy interior minister at the time, who had just

published a memoir of his life as a Sandinista

guerrilla, and Mahmoud Darwish, the Palestinian

poet, were there to articulate views not often heard on

American platforms |.]

The PEN and the Sword, The New York Times, April 17, 2005.

7

communications, and to ask what is happening in

their countries of origin, and why.

EO-2 may be styled by the government as a

“temporary ban on travel, but unless it is held

unconstitutional now, cach “temporary” ban may be

replaced with another, making advance planning

impossible.6 EO-2 sends a clear message to U.S.

5 Describing the purpose of the 48th International PEN

Congress in 1986, Norman Mailer (then President of PEN

America) wrote:

One purpose of our PEN Congress will be to enhance

relations rather than smash them. We are not going

to seek for invidious comparisons of governments.

PEN was founded on the attractive notion that

writers speak across national boundaries more

gracefully and instinctively than povernments. So

when they get together there is, one may hope, a real

possibility that new solutions, even surprisingly

creative solutions, can be found,

Participants of that conference included Susan Sontag, Amos

Oz, Joseph Brodsky, Ginter Grass, Saul Bellow, Wole Soyinka,

Danilo Kis, Czeslaw Milosz, Gyorgy Konrad, Ryszard

Kapuscinski, Mario Vargas Llosa, Raymond Carver, E. L.

Doctorow, Toni Morrison, Edward Said, William Styron, John

Updike, Kurt Vonnegut, Nadine Gordimer, J. M. Coetzee, Sipho

Sepamia, and Grace Paley.

®In Roe v. Wade, 410 US, 113, 125 (1973), this Court rejected a

mootness argument on the basis that the injury to plaintiff was

“capable of repetition yet evading review,” because a 266-day

gestation period is “so short that the pregnancy will come to

term before the usual appeilate process is complete.” /d. EO-2,

with its at most 120-day duration, fits squarely intu this same

category: The injury it inflicts cannot be redressed in the

courts before each “temporary” iteration of the ban expires.

The Order should thus be treated not as a temporary measure,

but an infinitely repeatable one, designed specifically to

discourage travel to the United States far beyond its ostensibly

limited duration.

8

organizations and citizens: Efforts to bring over

artists and thinkers from the six affected countries

to engage in cultural exchange — even on a

temporary basis — will be frustrated.’

KO-2’s adverse effects upon Americans’ access

to vital cross-cultural exchange are already being

felt. To take but a few examples: Ag Galierie, based

in Tehran, recently announced that it will no longer

be participating in the annual Association of

International Photography Art Dealers (AIPAD)

show in New York, scheduled for April of 2018. Asa

result, Americans will see an empty booth instead of

the photographs of Iranian photographer Bahman

Jalali documenting the Iran-Iraq war from 1980

through 1988.8 Legendary Syrian musician Omar

7 Iranian filmmaker Asghar Farhadi would have been blocked

under EO-1 from traveling to the United States to attend the

2017 Academy Awards, in which his film The Salesman won

the Oscar for Best Foreign Language Film. He declined to seek

an exemption from the ban. His acceptance speech, which was

read by Iranian-American CEO Anousheh Ansari, read in part:

I'm sorry I’m not with you tonight. My absence is out

of respect for the people in my country and those of

[the] other six nations ... Filmmakers can turn their

cameras to capture shared human qualities and break

stereotypes of various nationalities and religions.

They create empathy between “us” and “others,” an

empathy which we need today more than ever.

Steve Dove, “Asghar Farhadi Oscar 2017 Winner Speech

Delivered By Anousheh Ansari”, THE OSCARS (Feb. 27, 2017,

6:30am) http://oscar.go.com/news/winners/asghar-farhadi-oscar-

2017-winner-speech-delivered-by-anousheh-ansari.

8 See Benjamin Sutton, “Iranian Gallery Drops Out of AIPAD

Photo Fair Over Trump’s Travel Ban,” Hyperallergic, March

28, 2017, available at https://hyperallergic.com/368526/iranian-

gallery-drops-out-of-aipad-photo-fair-over-trumps-travel-ban/.

9

Souleyman, who fled Syria for Turkey in 2011 after

the onset of the civil war, and has since performed at

the 2013 Nobel Peace Prize Concert, has stated

publicly that he is uncertain if he will be allowed to

enter the United States to perform several upcoming

tour dates. Reacting to what they perceive as the

arbitrariness of the ban, other musicians such as

Kazakhstan-born violinist Aisha Orazbayeva, have

cancelled their American shows.!

There are many other artists, writers, and

dissidents whose work explores the conditions of life

in the banned countries, but whose invaluable

perspectives cannot be fully understood, appreciated,

or tested by U.S. citizens under the unique

conditions of an in-person interaction. These

include, as a small sampling, Syrian designer Fares

Cachoux, whose minimalist posters tell the story of

the Syrian revolution!'; Abdalla Al Omari, a Syrian

refugee living in Belgium whose images of world

leaders (including Bashar al-Assad) as refugees are a

stark reminder of the gap between policymakers and

the people whose lives are in their hands!2; and

Yemeni photographer Boushra Almutawakel, whose

® See Marc Hogan, “Here’s What Musicians Hurt by the Muslim

Ban Have to Say to Trump,” January 31, 2017, available at:

http://pitchfork.com/thepitch/1428-heres-what-musicians-hurt-

by-the-muslim-ban-have-to-say-to-trump/.

‘0 “Cancelling concerts in US because of the #MuslimBan. Why

can | enter when Syrians can’t? What's the difference? They

seek help & I entertain”. @AishaOrazbayeva, Twitter, January

28, 2017.

1! See https://www.behance.net/farescachoux.

2 See “The Vulnerability Series” available at

http://www.abdallaomari.com/thevulnerabilityseries.

10

portraits explore the experience of Muslim women. !*

The Order bars these individuals and countless

others from traveling to the United States without

regard for the valuable contributions they could

make to political, intellectual, and artistic discourse

in this country. Because of EO-2, U.S. citizens are

deprived the opportunity to fully inform themselves

of current conditions in the banned countries, and

the manner in which those conditions are reflected

in art and discourse.

In the short time it has existed, EO-2 has

directly and adversely burdened the _ First

Amendment rights of Amici and other U.S. citizens

to receive information through face-to-face

interactions. But beyond this, the Order more

generally and perniciously depletes the richness of

our country’s cultural wellspring. Historically,

refugees and immigrants have contributed to every

facet of American life, creating celebrated works of

arts and letters and helping to define our country’s

identity.'4 America has traditionally welcomed

13 See “The Hijab/Veil Series,” available at:

http://muslima.globalfundforwomen.org/content/hijab-veil-

series.

14 Refugees and immigrants who have shaped American

cultural and political life are too numerous to name, and

include such luminaries as Albert Einstein, Hannah Arendt,

Leo Strauss, Bertolt Brecht, Thomas Mann, Marlene Dietrich,

Jacob Riis, Elie Wiesel, Vladimir Nabokov, Isabel Allende,

Czeslaw Milosz, Reinaldo Arenas, Nuruddin Farah, Milos

Forman, Yaa Gyasi, Masha Gessen, Gary Shteyngart, Viet

Thanh Nguyen, Khaled Mattawa, Henry Kissinger, Zbigniew

Brzezinski, Madeline Albright, Ilhan Omar (the first Somali-

American woman to be elected to a state legislature), Ted Cruz,

and Elaine Chao. No less than fourteen individuals on the

11

writers, thinkers, and others whose work bears

witness to state repression, so that we can better

understand and value our own freedoms. With EKO-

2, we risk abandoning our identity as a nation of

immigrants, and our role as a global defender of the

right to free expression.

B. Americans Have a First Amendment Right To

Receive Information and Ideas Via In-Person

Interactions

For more than three-quarters of a century,

this Court has recognized that the First Amendment

protects not only the freedom to speak, but also the

freedom to receive ideas and information, ensuring

that “the State may not, consistently with the spirit

of the First Amendment, contract the spectrum of

available knowledge.” Griswold v. Connecticut, 381

U.S. 479, 482 (1965). The principle animating our

constitutional guarantee of free speech — that “the

power of reason as applied through public

discussion” can “free men from the bondage of

irrational fears,” Whitney v. California, 274 US.

357, 375-76 (1927) (Brandeis, J., concurring) — is

rendered meaningless without a robust pool of

knowledge to inform speakers and drive intellectual,

artistic, and political discourse. Thus, while the

First Amendment operates by limiting government

foregoing list came to this country as refugees. Under a

blanket, nationality-based travel ban comparable to EO-2,

those individuals - who include refugees from extremism in

forms such as German national socialism (Albert Einstein,

Hannah Arendt, Henry Kissinger) and totalitarian communism

(Vladimir Nabokov, Madeline Albright, Reinaldo Arenas)

would not have been allowed entry.

12

restrictions on speech, its mandate is far broader:

“It is the purpose of the First Amendment to

preserve an uninhibited marketplace of ideas in

which truth will ultimately prevail.” Red Lion

Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969).

Recognizing that, in order to be “free,” speech

must be not only uninhibited but also fully informed,

this Court has enshrined a constitutional “right to

receive [information],” and has reiterated that right

wherever it has been challenged. See Martin, 319

U.S. at 143. See also Stanley v. Georgia, 394 U.S.

557, 564 (1969) (“it is now well established that the

[First Amendment] protects the right to receive

information and ideas”); First Nat. Bank of Boston v.

Bellotti, 435 U.S. 765, 783 (1978) (“[T]he First

Amendment goes beyond protection of the press and

the self-expression of individuals to _ prohibit

government from limiting the stock of information

from which members of the public may draw.”);

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 756 (1976)

(“Freedom of speech presupposes a willing speaker.

But where a speaker exists . . .the protection

afforded is to the communication, to its source and to

its recipients both”). Indeed, in the very decision

that provides the framework for this Court's

analysis, A/eindienst v. Mandel, 408 U.S. 753, 765

(1972), which concerned the visa application of

Belgian journalist and intellectual Ernest Mandel,

this Court explicitly recognized that in denying

Mandel’s visa application the government had

burdened the First Amendment rights of those who

sought to hear him lecture in the United States. The

majority opinion only found this burden on the right

13

to receive information permissible because Mandel’s

visa application had been denied for a “facially

legitimate and bona fide” reason. /d. at 770. In his

dissent, Justice Marshall elaborated on the vital free

speech rights to which the majority had alluded:

The freedom to speak and the freedom

to hear are inseparable; they are two

sides of the same coin. But the coin

itself is the process of thought and

discussion. The activity of speakers

becoming listeners and listeners

becoming speakers in the vital

interchange of thought is the “means

indispensable to the discovery and

spread of political truth.”

408 U.S. 753, 775-76 (1972) (Marshall, J. dissenting)

(quoting Terminiello v. Chicago, 337 US. 1, 4

(1949)). In short, this Court has long recognized

that, even in the sphere of immigration policy, any

law which restricts the pool of knowledge available

to United States citizens directly implicates their

freedom of speech.

The right to receive information is not media-

agnostic: each medium -— _ written, spoken,

interactive— provides unique and _ valuable

contributions to the quality of a communication.

See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S.

546, 557 (1975) (“Each medium of expression, of

course, must be assessed for First Amendment

purposes by standards suited to it”). In-person

interactions -— which permit free, improvised

exchange of thoughts and reactions, observation of

14

facial expressions, body language, and gestures, and

the tailoring of one’s message to the mood or energy

of the recipients — carry a value that cannot be

replicated by any other form of speech or

expression.'5 This Court recognized the distinctive

First Amendment value of face-to-face interactions

in Martin v. City of Struthers (concerning the door-

to-door distribution of literature by a Jehovah's

Witness), holding that the “widespread use of this

method of communication by many groups espousing

various causes attests its major importance.” 319

U.S. at 145. Indeed, the truism that there is no

substitute for live, face-to-face exchange of

information and ideas finds voice in the explicit

Constitutional right of assembly, which is set out

separately and distinctly from the rights to speak

and publish. U.S. CONST. amend. I.

Technological advancements in_ remote

communications do not provide a constitutionally

sufficient alternative to live, in-person exchanges.

In Mande/, the majority rejected the government's

argument that “technological developments” could

provide a substitute for physical presence, citing the

“particular qualities inherent in sustained, face-to-

face debate, discussion and questioning.” 408 U.S. at

765. Justice Marshall elaborated on this principle:

‘8 See Laura Vanderkam, The Science of When You Need In-

Person Communication, Fast COMPANY (Sept. 30, 2015),

https://www.fastcompany.com/3051518/the-science-of-when-

you-need-in-person-communication (citing extensive research

supporting the unique and positive social value of face-to-face

interaction).

15

The availability to appellees of

Mandel’s books and taped lectures is

no substitute for live, face-to-face

discussion and debate, just as the

availability to us of briefs and exhibits

does not supplant the essential place

of oral argument in this Court’s work.

Id. at 776 n. 2 (Marshall, J., dissenting). While

Mandel was decided some time ago, recent advances

in technology do not undercut this Court’s prescient

recognition that remote communication (be it via

email, video chat, or tweet) is no substitute for live

academic conferences or lectures — much less for live

concerts, plays, and other performances. This

recognition is exemplified by our courts’ continuing

emphasis on in-person hearings, trials, and appellate

arguments. If anything, advances in technology

have only thrown into sharp relief the inimitable

qualities of live, face-to-face interaction.'6 Indeed,

since Mandel, this Court has consistently continued

to acknowledge that government bans on in-person

interactions violate the First Amendment. See e.g.,

McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014)

‘6 A Forbes article from 2011 cited the “growing pile of data

frorn psychologists, biologists and computer scientists” showing

that even the most advanced form of teleconferencing cannot

replicate the unique benefits of an in-person interaction. Susan

Adams, Being There, FORBES (Feb. 9, 2011), available at

https://www.forbes.com/forbes/20 1 1/0228/travel-

teleconferencing-polycom-john-medina-being-there.html. See

also Cisco, Power of In-Person’ The Business Value of In-

Person Collaboration (White Paper conducted by the Economist

Intelligence Unit) (2012), available at

https://www.cisco.com/c/dam/global/en_in/assets/pdfs/45808 Kc

onomist_wplc_HR.pdf.

16

(“When the government makes it more difficult to

engage in [‘one-on-one communication’], it imposes

an especially significant First Amendment burden.”):

Edenfield v. Fane, 507 U.S. 761, 766 (1993) (aw

prohibiting “direct, in-person, uninvited solicitation”

by certified public accountants was

unconstitutionally overbroad).

There is simply no substitute for in-person

conversation, debate, gathering, or live performance.

American citizens have a constitutional right — and

duty — to engage in robust intellectual and artistic

discourse. EQO-2, by preventing citizens of Lran,

Libya, Somalia, Sudan, Syria, and Yemen from

presenting their knowledge and viewpoints in the

United States, places an unjustifiable burden on the

First Amendment right of U.S. Citizens to receive

information and exchange ideas.'’

C. By Any Standard of Review, EO-2’s Burdens

on Free Speech Must be Found

Unconstitutional

The Fourth Circuit Court of Appeals found

that EO-2 was enacted with an “anti-Muslim

religious purpose,” and was not therefore “facially

legitimate and bone fide.” /JRAP v. Trump JA-215-

216. Because of this, the Court of Appeals was not

'T This burden on the First Amendment right of all Americans

to engage in in-person interchanges with nationals from the six

banned countries is impermissibly onerous regardless of

whether a foreign national meets the “bona fide relationship”

test set forth by this Court in its order granting the petitions

for certiorari. See Order Granting Petitions for Writ of

Certiorari, 582 U.S.___, at 9 (2017).

17

limited to the deferential standard of review set

forth by Mandel, see 408 U.S. at 770, and correctly

engaged in a searching constitutional inquiry into

whether the Order violated the Establishment

Clause of the First Amendment. For the reasons

stated above, Amici contend that the Order also

burdens free speech rights guaranteed under that

Amendment. Regardless of the standard of review

applied, this burden is constitutionally

impermissible. The Fourth Circuit determined that

EO-2 was enacted with the unmistakable and bad

faith purpose of targeting and excluding foreign

Muslims from this country, its ostensible national

security rationale was only formulated after

enactment, and even then, “internal reports from

DHS contradictled]” that rationale. JRAP v. Trump

at JA-225. Under these circumstances, the

government can make no claim to even a rational

basis underlying the Order.

But even if there was a legitimate justification

for EO-2, and assuming that it could even be defined

as a content-neutral law (a categorization of which

Amici are deeply skeptical), the Order would s¢ti// not

pass constitutional muster because it suppresses too

much speech. The Order operates to foreclose

Americans’ access to an entire channel! of

communication — in-person interaction — with

nationals of six countries, and thus impermissibly

burdens First Amendment free speech rights. |

Our prior decisions have _ voiced

particular concern with laws that

foreclose an entire medium of

expression. ... Although prohibitions

18

foreclosing entire media may be

completely free of content or viewpoint

discrimination, the danger they pose to

the freedom of speech is readily

apparent — by eliminating a common

means of speaking, such measures can

suppress too much speech. City of

Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

In its overbreadth, EO-2 cuts off access to

whole swaths of information that we, as citizens, are

entitled to hear and consider in exercising self-

government. Only an informed citizenry can

properly judge its government’s policies and actions,

and our citizenry cannot be fully informed without

an opportunity to engage in face-to-face interactions

with nationals from the six countries targeted by

EO-2. In the words of Albert Einstein, “(i)n these

unfinished things, people understand one another

with difficulty unless talking face to face.” *

CONCLUSION

For the foregoing reasons, the judgment of the

Fourth Circuit Court of Appeals should be affirmed

for the separate and independent reason that EO-2

violates the First Amendment’s freedom of speech

guarantee.

‘8 As quoted by Justice Marshall in his Mande/ dissent, 408

U.S. at 776 n. 2 (citing Developments in the Law-The National

Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130,

1154 (1972)).

September 18, 2017

19

Respectfully submitted,

Robert Corn-Revere

Counsel of Record

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Ave., NW

Ste. 800

Washington, DC 20006

(202) 973-4200

bobcornrevere@dwt.com

Robert D. Balin

Abigau B. Everdell

Jaya Kasibhatla

DAVIS WRIGHT TREMAINE LLP

1251 6th Ave., 21st FI.

New York, NY 10020

(212) 489-8230

Counsel for Amici

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APPENDIX A

PEN American Center (“PEN America”) is a

non-profit association of writers that includes

novelists, journalists, editors, poets, essayists,

playwrights, publishers, translators, agents, and

other professionals. PEN America stands at the

intersection of literature and human rights to

protect open expression in the United States and

worldwide. It champions the freedom to write,

recognizing the power of the word to transform the

world. Its mission is to unite writers and their allies

to celebrate creative expression and defend the

liberties that make it possible, working to ensure

that people everywhere have the freedom to create

literature, to convey information and ideas, to

express their views, and to make it possible for

everyone to access the views, ideas, and literatures

of others. PEN America has approximately 5,000

members and is affiliated with PEN International,

the global writers’ organization with over 100

Centers in Europe, Asia, Africa, Australia, and the

Americas.

Future of Music Coalition (“FMC”) is a

Washington D.C.-based nonprofit organization

supporting a musical ecosystem where artists

flourish and are compensated fairly and

transparently for their work. FMC works with

musicians, composers and industry stakeholders to

identify solutions to shared challenges. Founded in

June 2000 by musicians, artist advocates,

technologists and legal experts, FMC promotes

strategies, policies, technologies and educational

initiatives that always put artists first while

A-2

affirming the role music fans play in shaping the

future. FMC works to ensure that diversity, equality

and creativity drives artist engagement with the

global music community, and that values of free

expression and fair compensation for artists as well

as the public’s ability to hear the creative work of

diverse voices are reflected in laws, licenses, and

policies.

International Association of Art Critics

(““AICA” signing as the AICA International

Committee on Censorship) was founded in 1950 and

was admitted in 1951 as a non-governmental

organization. AICA comprises various’ experts

anxious to develop international co-operation in the

fields of artistic creation, dissemination and cultural

development.

Americans for the Arts is the nation’s leading

nonprofit organization for advancing the arts and

arts education. Americans for the Arts serves,

advances, and leads the diverse networks of

organizations and individuals who cultivate,

promote, sustain, and support the arts in America.

Its work helps build environments in which the arts

and arts education thrive and contribute to more

vibrant and creative communities. With more than

fifty years of service, it is dedicated to representing

and serving local communities and _ creating

opportunities for every American to participate in

and appreciate all forms of the arts, including the

cultural exchange of ideas. Its work demonstrates

that collaboration in the arts and culture builds

bridges among people of different countries, cultures,

and faiths.

A:-3

CASH Music is a nonprofit organization

registered in the state of Oregon, and focused on

educating & empowering artists & their fans to

foster a viable & sustainable future for music. CASH

Music believes the best way to ensure a sustainable

future for music is to invest in its creators. Artists

are leaders and keepers of our culture, and CASH is

committed to defending creative expression.

Chamber Music America, the national

network for ensemble music professionals, was

founded in 1977 to develop, support, and strengthen

the chamber music field. CMA’s membership of

nearly 6,000 includes musicians, ensembles,

composers, presenters, artist managers, educators,

music businesses, and advocates of ensemble music,

who perform and present myriad styles ranging from

historic to contemporary, Western to non-Western,

American jazz, and evolving traditions. CMA

provides the field with grant programs, consulting

services, a national conference, professional

development seminars and workshops, access to

instrument and other insurances, and _ several

publications, including Chamber Music magazine,

the weekly Accent e-newsletter, and a member-

driven website, www.chamber-music.org.

The International Committee for Museums

and Collections of Modern Art (“CIMAM”) is an

affiliated committee of ICOM, the International

Council of Museums created in 1946 to represent the

needs of the museum community. Founded in 1962,

CIMAM’s vision is a world where the contribution of

museums, collections and archives of modern and

contemporary art to the cultural, social and

A-4

economic well-being of society is recognized and

respected. CIMAM’s aim is to foster a global network

of museums and museum professionals in the field of

modern and contemporary art in order to raise

awareness and respond to the evolving needs of

modern and contemporary museums, and to take a

leadership role on issues of concern. By generating

debate and encouraging co-operation between art

institutions and individuals at different stages of

development around the world, CIMAM plays a key

role in growth of the sector. Current membership

includes over five hundred contemporary art

curators and directors of contemporary art museums

and collections, independent curators and

researchers from 85 different countries.

The Content Creators Coalition is a non

profit, artist-run, advocacy organization for

musicians. With chapters in five cities, we are

dedicated to working with songwriters, performers,

and musicians for equity in the digital world. If

music generates money for anyone, therein lies the

proof of its value and c3 is devoted to artists and

creators receiving what theirs is. There is a

groundswell of musicians banding together to

demand action and see laws put into place and c3

will continue to protect and support those creators as

changes are made.

Dance/USA believes that dance is essential to

a healthy society, demonstrating the infinite

possibilities for human expression and potential, and

facilitating communication within and _ across

cultures. Dance/USA _ sustains and _ advances

professional dance by addressing the needs,

A’5

concerns, and interests of artists, administrators,

and organizations. By providing national leadership

and services, Dance/USA enhances the

infrastructure for dance creation and distribution,

education, and dissemination of information.

Fractured Atlas is a non-profit arts service

organization based in New York. We serve a diverse

national membership of more than 60,000 primarily

low-budget and independent artists and arts

organizations located in all 50 states. We also have

approximately 3,500 international members. Our

core mission is to empower artists, arts

organizations, and other cultural sector stakeholders

by eliminating practical barriers to artistic

expression, so as to foster a more agile and resilient

cultural ecosystem. We are committed to ensuring

that individuals are able to express themselves

freely, and believe strongly that the government

should not put up barriers to lawful expression or

the free movement and sharing of ideas.

globalFEST believes that music can be a

driving force toward a society that values cultural

diversity as a source of unity rather than division.

Over the last decade, globalFEST has become one of

the most dynamic global music platforms in North

America, growing from an acclaimed

festival/showcase into a catalytic non-profit service

organization for curators, artists, and the performing

arts field. Through its work, gk encourages

networking and cultural diplomacy; deepens cultural

understanding among its constituents; builds

audiences for international music and creates new

opportunities for artists leading to a more robust and

A’6

sustainable ecosystem for world music in the United

States. Artists that participate in gF programs

represent diverse musical styles from all corners of

the globe, ranging from traditional to contemporary,

and everything in between. Programs include: the gF

Touring Fund, which provides direct support to

artists to develop new markets and audiences;

Wavelengths World Music Conference, a free annual

gathering of the global music community in New

York that includes networking and professional

development opportunities; gF On the Road, tours

that brings creatively programmed lineups to venues

nationwide; and guest curating for both commercial

and performing arts settings, including such

influential events as SXSW, Bonnaroo, Lincoln

Center and beyond, that serve to raise the profile

and visibility of the artists gf works with, and world

music overall.

Guitar Mash, a non-profit organization in

New York, was founded with the belief that playing

& singing music with other people connects us in a

unigue & profound way, and with the mission of

bringing communal music-making experiences to as

diverse a community as possible. Founded in 2012,

Guitar Mash coordinates large and small-scale jams

and workshops, which have brought together

thousands of players and music lovers — of all ages,

backgrounds, socio-economic levels and musical

abilities — to share and create. We work closely with

community-based organizations to provide

underserved teens opportunities for communal

playing and songwriting.

A-7

The Institute of Contemporary Art (“ICA”) at

the University of Pennsylvania believes in the power

of art and artists to inform and inspire. The ICA is

free for all to engage and connect with the art of our

time. Founded in 1963 by the visionary dean of the

school of architecture, Holmes Perkins, who wanted

to expose students to what was “new and happening”

in art and culture, ICA is now a preeminent venue

for contemporary art and culture. A non-collecting

museum, ICA is also one of the only kunsthalles (a

facility dedicated to mounting exhibitions) in

America. The ICA has historically been an important

entrée for international artists to share their work

with America, and has a compelling interest in

protecting and promoting the free flow of

information across international borders.

Founded in 2011, Live Sounds produces,

creates and curates international music and dance

programs in New York and across the country.

Devoted to preserving and cultivating innovative,

thought-provoking traditional and contemporary

performing arts from around the world to build

bridges and engage audiences and communities. Live

Sounds projects promote cultural understanding and

appreciation for global traditions while supporting

and preserving artists and their art forms.

The National Alliance for Musical Theatre,

founded in 1985, is a not-for-profit organization

serving the musical theatre community. Our mission

is to advance musical theatre by: nurturing the

creation, development, production and presentation

of new and classic musicals; providing a forum for

the sharing of resources and information relating to

A’8

professional musical theatre through

communication, networking and programming; and

advocating for the imagination, diversity and joy

unique to musical theatre.

The National Coalition Against Censorship

(“NCAC”) is an alliance of 56 national non-profit

organizations that promotes freedom of thought,

inquiry and expression and opposes all forms of

censorship. Founded in 1974, NCAC engages in

direct advocacy and education to support First

Amendment principles. Its participating

organizations include literary, artistic, religious,

educational, professional, labor, and civil liberties

groups.

A national community of artists and arts

organizations dedicated to collaborative creation, the

Network of Ensemble Theaters (“NET”) exists to

propel ensemble theater practice to the forefront of

culture and society. NET links a diverse array of

ensembles and practitioners to one another and the

performing arts field, encouraging collaborations and

knowledge building/dissemination. NET is

committed to the advancement of the ensemble form

and strives to bring about change in the world

beyond ourselves through the transformative power

of collaborative theater and ensemble practice. We

support bold artistic and civic experiments and aim

to heighten the impact and excellence of ensemble

theater.

The New England Foundation for the Arts

(“NEFA”) is a non-profit organization that invests in

the arts to enrich communities. NEFA plays a

Ag

unique role in New England by connecting our

creative people and cultural communities, and

promoting greater access to the arts. We accomplish

our work by granting funds to artists and cultural

organizations; connecting them to each other and

their audiences; and analyzing their economic

contributions. NEFA’s' mission is_ to _ build

connections among artists, arts organizations, and

funders, powering the arts to energize communities

in New England, the nation and the world.

OPERA America draws on resources and

expertise from within and beyond the opera field to

advance a mutually beneficial agenda that serves

and strengthens the field through programs in the

following categories: Creation: Artistic services that

help artists and companies increase the creativity

and excellence of opera productions, especially North

American works; Presentation: Opera company

services that address the specific needs of staff,

trustees and volunteers; Enjoyment: Education,

audience development and community services that

increase all forms of opera appreciation.

The Performing Arts Alliance envisions a

United States in which the diverse ecology of the

performing arts is deeply-valued and supported,

adequately and equitably resourced, and where

participation is accessible to all. The Performing

Arts Alliance is uniquely able to achieve this mission

and vision on behalf of the nonprofit performing arts

sector: (1) through the directors who lead our

coalition, and through our highly- skilled staff and

government affairs directors who implement the

advocacy work of the Alliance; (2) by coordinating

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federal advocacy efforts and aligning interests

among organizations, artists, and allies in the

nonprofit performing arts sector to create a more

powerful, unified voice before Congress, the White

House, and federal agencies; (3) by operating as a

learning organization where our Board members,

staffs, and member networks are engaged in sharing

and building knowledge for an informed performing

arts field; (4) by exploring how the values of

diversity, equity, and inclusion affect the work of

PAA members and the field; the policies for which

we advocate; the leadership learning agenda through

which our directors share and build knowledge; and

PAA’s operations and activities.

Sundance Institute is a nonprofit organization

that provides and preserves the space for artists in

film, theatre, and new media to create and thrive.

The Institute’s signature Labs, granting, and

mentorship programs, dedicated to developing new

work, take place throughout the year in the U.S. and

internationally; the Sundance Film Festival and

other public programs connect audiences to artists in

igniting new ideas, discovering original voices, and

building a community dedicated to independent

storytelling and freedom of expression.

Tamizdat is a nonprofit organization with the

mission of facilitating international cultural

exchange. Founded in 1998 by a_ group of

international musicians, Tamizdat is motivated by

the conviction that artist mobility and _ the

international exchange of culture are fundamental to

a flourishing civil society and that the American

people’s access to international culture should not be

A-ll

encumbered. We have recently published a draft

“White Paper on Artist Mobility tu the United

States,” and we lead a coalition of domestic and

international organizations and private

stakeholders, committed to improving the U.S. artist

visa process. Tamizdat also runs an “Artist Visa

Assistance and Information Line” for the

international performing arts community.

Teachers & Writers Collaborative (T&W) is a

nonprofit organization that provides creative writing

programs at New York City schools and community-

based organizations and that publishes resources to

support learning through the literary arts. We have

also hosted readings by authors and poets, including

writers from outside the United States. In the last

50 years, our programs have reached more than

750,000 young people and more than 25,000

educators. Our writing programs utilize work by

diverse authors from around the world as models

and inspiration for student writing. This modeling is

important to the population we serve, which includes

many young people whose families are from the

countries affected by the travel ban. The ban hinders

our ability to identify and share the work of both

established and emerging literary artists from the

affected countries, and to support a_ thriving

international literary community by introducing

children, teens, and their teachers to work by a

broad range of poets and writers.

Theatre Communications Group, the national

organization for the American theatre, is dedicated

to nurturing, strengthening and promoting the

professional non-profit theatre in the United States.

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TCG’s membership includes over 700 theatres and

Affihate organizations and more than _ 12,000

individual members nationwide. TCG offers its

members networking and _ knowledge-building

opportunities through our conferences, events,

research, and communications; grants approximately

$2 million per year to theatre companies and

individual artists; advocates on the federal level; and

through the Global Theater Initiative, TCG's

partnership with the Laboratory for Global

Performance and Politics, serves as the U.S. Center

of the International Theatre Institute. TCG is the

nation’s largest independent publisher of dramatic

literature, with 15 Pulitzer Prizes for Best Play on

our booklist; it also publishes the award-winning

American Theatre magazine and ARTSEARCH®,

the essential source for a career in the arts. In all of

its endeavors, TCG seeks to increase. the

organizational efficiency of its member theatres,

cultivate and celebrate the artistic talent and

achievements of the field, and promote a larger

public understanding of, and appreciation for, the

theatre.

Trudel | MacPherson LLC is a consulting

partnership that. helps nonprofits, arts

organizations, public agencies, and membership

organizations with branding, stakeholder

engagement, and other marketing and

communications needs. Trudel | MacPherson LLC

believes strongly in the importance of artistic and

cultural exchanges, and the importance of the free

flow of art, culture and ideas across national borders.

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Western Arts Alliance (“WAA”), serves the

field of performing arts touring and presenting in

the Western United States and Canada, with 460

members and 1,500 affiliated professionals including

presenting organizations, individual artists,

companies, agents, and managers. Western Arts

Alliance was established in 1967 by sixteen

universities, and universities remain the backbone of

our network. Members are given a multitude of

resources to help them in their careers, and are part

of a supportive community of fellow professionals. As

an organization, WAA speaks to a diverse field and

promotes inclusive participation. Many of WAA’s

members are actively engaged in international

exchange with Muslim artists, companies, and

producers. The members of Western Arts Alliance

and the communities they serve, seek out these

opportunities with the gzoals of strengthening

understanding, trust, cooperation, and peace.

The Yerba Buena Gardens Festival (““YBGF”)

is a presenting organization dedicated to enhancing

the vitality and quality of life in the parks and open

spaces of Yerba Buena Gardens and San Francisco

through the curated presentation of admission-free

artistic, community and cultural programs. Artistic

excellence, inclusion, diversity and innovation are at

the heart of our mission. YBGF strives to ensure

that our audiences have the opportunity to gain

greater understanding of diverse art forms and

cultural heritages. By presenting art that meets the

highest standards of excellence, our intention is to

foster cross-cultural understanding, respect, and

appreciation among our communities, towards a

A-14

more civil, more enlghtened and more pleasing

urban environment where art and people thrive.