Amicus Curiae Brief — Harper v. Poway Unified School District, 127 S. Ct. 1484 (2007) (No. 06-595)

(3)

No. 06-595

~

Sn The

Supreme Court of the Gnited States

o¢—

TYLER CHASE HARPER, ET AL.,

Petitioners,

v.

POWAY UNIFIED SCHOOL DISTRICT, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

*

BRIEF OF LIBERTY LEGAL INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

+

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 East 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

(972) 423-6570 (FAX)

Counsel for Amicus Curiae

COMKLE LAW BRIEF PRINTING CO > so) 225-6964

OR CALL COLLECT | 402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTRE LL secsericecseccvecsnvecsevessvcnevevete ii

INTEREST OF AMICUS CURIAE............cccsescseeeeeees re

SUMMARY OF ARGUMENT ..ccccccccosssoescvercescsessessosss 2

ARGUMENT AND AUTHORITIEG.................::2ceeseee 3

I. The Ninth Circuit misapplied the “interfer-

ence with the righis of others” guideline from

RAED ciciiccinciascevacibiniaasinssbteluiadusnsbvenaaaiels 3

Il. The government cannot take sides in a

debate by censoring all speech with which it

NOE i scsiicciciciinicciicintcutisicmammoatidenel 5

III. For Poway to institute such a broad and

sweeping prior restraint on speech, it must

meet its governmental burden of proving the

ban is the least restrictive means with an ex-

tensive legislative fact-finding record ............ 9

CICA ABE sesttsncitintecssasincsstatescisteesbiradaan 11

TABLE OF AUTHORITIES

Page

CASES

Bachellar v. Maryland, 397 U.S. 564 (1970) ..............00. 6, 7

Bantam Books Inc. v. Sullivan, 372 U.S. 58 (1968) ........... 9

Baugh v. Judicial Inquiry and Review Comm’n, 907

a 0 cnc ousensnevsenbnicceserssousonece 6

Beauharnais v. Illinois, 343 U.S. 250 (1952)..............0seseee- 3

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)............. 2,4

Bolger v. Youngs Drug Products Corp., 463 U.S. 60

sist sive cesenseeassoonuaveserendncerveneeeveds 6,7

Brown v. Louisiana, 383 U.S. 131 (1966)....................0 6,7

Buckley v. Valeo, 424 U.S. 1 (1976)..........cccccceseseeeereeeeees 6,7

Carey v. Brown, 447 U.S. 455 (1980)... eeeseeesereeeee 6,7

Chaplinsky v. New Hampshire, 314 U.S. 568 (1942) ......... 3

Church on the Rock v. City of Albuquerque, 84 F.3d

SE aus sccevevavenneegsansnesourvancoseorenseunsune 8

City Council of Los Angeles v. Taxpayers for Vin-

i Doon. cocnenntceuvvessensenusvonceserionsetoes 6,7

City of Madison v. Wisconsin Employment Relations

Commitee, 429 U.S. 167 (1976)........ccccccsccccsesscovccccccesess 8

Clark v. Community for Creative Non-Violence, 468

a i ce siduaeasavineondounsenaaers 5

Consolidated Edison Co. v. Public Serv. Comm’n,

a nccemminnpeueorbenenites 7

Cornelius v. NAACP Legal Defense and Education

Se Eee EIER, GOD (LOUIE) ccccnncocecececnsesancovevscacenccsers 6

DeBoer v. Village of Oak Park, 267 F.3d 558 (7th

a cc amecnmuanonuessensinunes 8

TABLE OF AUTHORITIES — Continued

Page

FCC v. Pacifica Found., 438 U.S. 726 (1978) ..............0 6,7

Fowler v. Rhode Island, 345 U.S. 67 (1953) .............00000 6, 8

“Good News Club v. Milford Central School, 533

SC Felile GEE RAI Pnsineeedasiiesialdebbeehnlaecschacunuabiacemiaigeanadinieienetins 7

Grayned v. City of Rockford, 48 U.S. 104 (1972)............06. 7

Hudgens v. N.L.R.B., 424 U.S. 507 (1976)..............ccceereeeees 7

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

CF isriciecccinssinbsnesiiehsitnleitbaitacnpiuibiadivinnieie tettiaiesiviasnadiiedintaondimadlauies 6

Lamb’s Chapel v. Center Moriches Union Free Sch.

POOR. , GD TI FG CAD sevcsrsnsnicctsensttinnquedemnemetnveniins 7,8

NAACP v. Button, 371 U.S. 415 (1963)..............ceecceeeeeeeeees 7

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)......... 9

Niemotko v. Maryland, 340 U.S. 268 (1951)...............06 6,8

Organization for a Better Austin v. Keefe, 402 U.S.

GS CI viccctccicintcneiincieniiaiaciaaiaieapia aati iscsi iii 9

Perry Educ. Assoc. v. Perry Local Educators’ Ass’n

OE. A Waele A ED Macon ointnccieesitiiatinn bhiblceeeiain 6

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) .... 6, 7

RA.V. v. St. Paul, 505 U.S. 377 (1992).......ccccsessesesserseses 2,3

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

3) Bis Bs Lc): SARMMRe Rene esi cee snetea neavennnoMne ti 7,8

Roth v. United States, 354 U.S. 476 (1957) ........... cece eeeeeees 3

Sable Comm. of California v. FCC, 492 U.S. 115

CI Risssicinssbiviniitsigiuisithiclercensbhgniaatesioiaaaelanaadeiiaaniemadaanea seas 10

Southeastern Promotions, Lid. v. Conrad, 420 U.S.

Ee iesikticcsncinestnivitcioeiasieneeniicheinnsenchecitntnitiinledsbiiedsiteaiincats 9

iV

TABLE OF AUTHORITIES — Continued

Page

Stromberg v. California, 283 U.S. 359 (1931) ............0.. 6,7

Student Coalition for Peace v. Lower Merior Sch.

Diat., T76 F.2d 431 (Grd Cir, 1986) ....cccccresccsresscsoccesecaseeee 6

Texas v. Johnson, 491 U.S. 397 (1989)...........ecsceseecerrenses 6,7

The Bronx Household of Faith v. Board of Educa-

tion, 331 F.3d 342 (2nd Cir. 2003)......cccscccscorsovecssevesseseese 8

Thomas v. Collins, 323 U.S. 516 (1945).............:cccsecseesseeees 7

Thornhill v. Alabama, 310 U.S. 88 (1940)............cceeceeeeeeeee 7

Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503

Ce hi ciiscisesushtasdisvkscidneabinsniiandedinienuivanasnonetentaiin passim

Turner Broadcasting System, Inc. v. FCC, 520 U.S.

ee F iciiecieicda apcseicaieihceinailnasesedaeenieahtainasiinhenteiaaceaebsitielinteeaphiviaiiabiiian 10

United States v. Eichman, 496 U.S. 310 (1990) ............. 6,7

United States v. O’Brien 391 U.S. 367 (1968)..............0. 5,7

Uni‘ed States v. Playboy Entertainment Group, Inc.,

Be is Ge CN iicivacicdinconsadsisenpsiniensinisnniniebniennanianctiniea 10

Ward v. Rock Against Racism, 491 U.S. 781 (1989)........... 5

Widmar v. Vincent, 454 U.S. 263 (1981) ........... ceeeeeseeseeseees 7

Young v. American Mini Theatres, Inc., 427 U.S. 50

INTEREST OF AMICUS CURIAE'’

Amicus Curiae Liberty Legal Institute (“Institute”) is

a non-profit law firm dedicated to the preservation of first

amendment rights. The Institute has appeared before this

Court and federal appellate and district courts numerous

times in numerous cases. In its commitment to the protec-

tion of expressive freedom and the religious liberty of all

faiths, the Institute represents individuals and institu-

tions nationwide. As a result, the Institute has repre-

sented and currently represents students in numerous

- cases involving governmental actions by school districts.

Tinker’ is often the only protection for the Institute’s .

clients, whether the student is simply expressing a differ-

ent idea or the student is sharing his or her religious faith

with friends.

The decision below does great damage to the interests

of Amicus and to the clients it represents nationwide. The

Ninth Circuit decision not only creates a conflict in the

circuits, but turns Tinker on its head and eviscerates its

protections by allowing the government to now ban stu-

dent ideas or speech with which it disagrees.

¢

" The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, none of the counsel for the parties authored this bref

in whole or in part and no one other than amicus or its counsel contrib-

uted money or services to the preparation and submission of this brief.

* Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).

SUMMARY OF ARGUMENT

The Ninth Circuit decision below strikes at the very

heart of Tinker. It will create problems throughout lower

courts nationwide in an area of law, heretofore, remarka-

bly clear for decades, and will lead to great confusion.

Under Tinker*® and Bethel Sch. Dist. v. Fraser’, a school

district may only ban speech if that speech is causing a

material or substantial disruption, it is lewd, obscene or

vulgar, or the speech violates the rights of others by falling

into one of the limited unprotected categories of speech

listed in R.A.V. v. St. Paul, 505 U.S. 377, 383 (1992).

Speech short of these limitations cannot be restricted,

even if the school district does not like the message being

expressed or even if a majority of students do not like the

message.

Our free society is willing to tolerate speech, beliefs

and ideas which are repugnant to many or even all others

except the speaker. The reason is obvious: one day one of

us may be that speaker and our opinion may be equally

offensive to the vast majority of others. From the abolition-

ist living in Savannah, Georgia in 1855, to the civil rights

leader in 1955 Mississippi, to the student in West Virginia

in 1943 who refused to say the Pledge of Allegiance, there

has been and will always be voices among us who are at

odds with the official government message. It is incumbent

upon this Court to act as the guardian against government

oppression of ideas with which the government disagrees.

This case is not just important because there is an

obvious circuit split or because a wrong must be righted.

* Id.

* 478 U.S. 675 (1986).

This case is important because the Ninth Circuit, the

designated guardian of the right to peacefully dissent,

created new law eviscerating Tinker and justifying gov-

ernment censorship because it also disagreed with the

ideas being expressed. The decision cracks a fundamental

pillar of First Amendment law, in fact, of American juris-

prudence. The government may not set up a debate, take

sides, and then punish those who express an opposing

message. Certiorari should be granted.

+

ARGUMENT AND AUTHORITIES

I. The Ninth Circuit misapplied the “interfer-

ence with the rights of others” guideline from

Tinker.

The case below strikes at the very core of Tinker, will

create problems nationwide in an area of, heretofore,

remarkable clarity, and will result in great confusion

throughout all lower courts. There are clearly defined

limitations within which the government may regulate the

content of speech because of its effect on the hearer or

observer. These limitations, identified in R.A.V. v. St. Paul,

505 U.S. 377, 383 (1992), include obscenity, defamation

and “fighting words.” See Roth v. United States, 354 U.S.

476 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S.

250 (1952) (defamation); Chaplinsky v. New Hampshire,

314 U.S. 568, 572 (1942) (“fighting words”). These three

cases have one thing in common. They were decided prior

to Tinker.

It is impossible to conceive that Tinker, in articulating

the “material and substantial disruption” standard,

intended to swallow the protection the Court afforded

4

student speech by unconsciously inserting what amounts

to a heckler’s veto. In fact, the Ninth Circuit’s decision

below, which reinterprets “interference with the rights of

others” to allow censorship of student speech which might

connect to another person’s identity, would directly gut

Tinker. Does anyone truly believe that children in families

with military servicemen in Tinker did not feel a connec-

tion and even personally attacked by the black arm bands

worn against their parents and relatives? Of course. Yet,

the speech was still protected, even though it offended.

The rationale of the decision below would literally gut

Tinker itself and overturn decades of precedent. Tinker

never sanctioned punishing speech because it offended

others.

The “material and substantial disruption” standard

may be seen as a summation or articulation of long estab-

lished free speech jurisprudence. Speech may not be

regulated unless it is causing harms unrelated to the

message itself. Therefore, through the prism of Tinker and

free speech cases upholding state regulation just a short

time prior to Tinker, Bethel Sch. Dist. v. Fraser, involving

obscene references and disruption, may be seen as a mere

affirmation of these pre-existing constitutional norms. The

school must simply show up to court with objective evi-

dence of a reasonable forecast of material and substantial

disruption or obscenity, fighting words, defamatory words

or speech that is, in the normal course of constitutional

jurisprudence, deemed of lesser value because of its non-

communicative harms.

There are two approaches to achieving tolerance. One

is to allow all sides to speak, to teach everyone to respect

different ideas, and to treat one another with grace, even if

you strongly disagree with their ideas or worldview. A

second approach is to ban dissenting ideas so no one feels

challenged or offended and thus tension is avoided. The

latter approach is repugnant in American law. The latter

approach strikes at the core of Tinker. The latter approach

is the decision below. The government may not set up a

debate, take sides, and then ban those with different

beliefs from responding.

II. The government cannot take sides in a debate

by censoring all speech with which it dis-

agrees.

A central theme of all First Amendment jurisprudence

is whether the government regulation under review is an

attempt to suppress a message because of the message and

who is the messenger. To expose unlawful content-based

policies and practices, an inquiry must be made into the

legitimacy of the government’s justifications furthered by

the speech regulations. Disagreement with the message is

obviously content-based, as are regulations which have no

non-communicative conduct purposes. The Court has

stated that “[t]he principal inquiry in determining content

neutrality, in speech cases generally ... is whether the

government has adopted a regulation of speech because of

disagreement with the message it conveys,” and if so,

strict scrutiny applies. Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989); see also Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 295 (1984).

First Amendment law both before and since United

States v. O’Brien 391 U.S. 367 (1968), contains at its core the

elemental proposition that an intent to stifle a message

6

because of disagreement with it simply cannot be recon-

ciled with the Constitution.’ According to O’Brien, the

® See, e.g., Texas v. Johnson, 491 U.S. 397, 413 (1989) (“If there is a

bedrock principle underlying the First Amendment, it is that the

Government may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable.”); United States v.

Eichman, 496 U.S. 310, 319 (1990) (same); Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46, 55-56 (1988) (refusing to allow a public figure to

maintain a cause of action for intentional infliction of emotional

distress arising from a vulgar satire); Cornelius v. NAACP Legal

Defense and Education Fund, Inc., 473 U.S. 788, 806 (1985) (“Control

over access to a nonpublic forum can be based on subject matter and

speaker identity so long as the distinctions drawn are reasonable in

light of the purpose served by the forum and are viewpoint neutral.”),

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804

(1984) (“[T]he First Amendment forbids the government to regulate

speech in ways that favor some viewpoints or ideas at the expense of

others.”); Perry Educ. Assoc. v. Perry Local Educators’ Ass’n et al., 460

U.S. 37, 46 (1983) (“the State may reserve the forum for its intended

purposes, communicative or otherwise, as long as the regulation on

speech is reasonable and not an effort to suppress expression merely

because public officials oppose the speaker’s view”); Bolger v. Youngs

Drug Products Corp., 463 U.S. 60, 72 (1983); Carey v. Brown, 447 U.S.

455, 462-63 (1980); FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978),

Young v. Ameriean Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976);

Buckley v. Valeo, 424 U.S. 1, 16-17 (1976), Grayned v. City of Rockford,

48 U.S. 104, 115 (1972); Police Dep’t of Chicago v. Mosley, 408 U.S. 92,

95 (1972); Bachellar v. Maryland, 397 U.S. 564, 567 (1970); Brown v.

Louisiana, 383 U.S. 131, 142-43 (1966); Stromberg v. California, 283

U.S. 359, 368-69 (1931); Niemotko v. Maryland, 340 U.S. 268 (1951)

(City cannot deny Jehovah’s Witnesses permit to use a city park for

Bible talks when other religious and political groups had been allowed

to use the park for similar purposes), Fowler v. Rhode Island, 345 U.S.

67 (1953) (same); Student Coalition for Peace v. Lower Merior Sch. Dist.,

776 F.2d 431, 437 (3rd Cir. 1985) (“Viewpoint discrimination...is

impermissible regardless of the nature of the forum.”); Baugh uv.

Judicial Inquiry and Review Comm’n, 907 F.2d 440, 443-44 (4th Cir.

1990) (“Viewpoint-neutrality is concerned with limitations of speech on

the basis of the viewpoint expressed and ‘the First Amendment forbids

the government to regulate speech in ways that favor some viewpoints

or ideas at the expense of others.’ ”).

actions of Defendants must be “unrelated to the suppres-

sion of free expression.” O’Brien, 391 U.S. at 377 (empha-

sis added).

A core principle of the First Amendment is that

“government has no power to restrict expression because

of its message, its ideas, its subject matter, or its content.”

Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

The Court has reiterated this principle on so many occa-

sions, often in lengthy and eloquent statements, that it

requires no extended analysis.° Moreover, the First

Amendment not only prohibits the government from

favoring one viewpoint over another, but also prohibits the

government from seeking to avoid public controversy by

banning speech on an entire subject — i.e., “religious” —

and prohibits the government from granting a monopoly to

one side of an issue.° As the Court has stated: “To permit

* See, e.g., Hudgens v. N.L.R.B., 424 U.S. 507, 520 (1976); NAACP

v. Button, 371 U.S. 415, 444-45 (1963); Carey v. Brown, 447 U.S. 455

(1980); Thomas v. Collins, 323 U.S. 516, 537 (1945); Thornhill v.

Alabama, 310 U.S. 88, 104 (1940); Consolidated Edison Co. v. Public

Serv. Comm'n, 447 U.S. 530, 535-37 (1980).

" Widmar v. Vincent, 454 U.S. 263, 269-270 (1981) (citing Carey,

447 U.S. at 464-465) (absolutely forbids the government from engaging

in viewpoint censorship); Good News Club v. Milford Central School,

533 U.S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995); Lamb’s Chapel v. Center Moriches Union Free

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

* See, e.g., Johnson, 491 U.S. at 413; United States v. Eichman, 496

U.S. 310 (1990) (same), Cornelius, 473 U.S. at 806; City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. at 804 (“[T]he First Amendment

forbids the government to regulate speech in ways that favor some

viewpoints or ideas at the expense of others.”),; Bolger, 463 U.S. at 72;

Carey, 447 U.S. at 462-63; Pacifica Found., 438 U.S. at 745-46; American

Mini Theatres, Inc., 427 U.S. at 63-65, 67-68, Buckley, 424 U.S. at 16-17;

Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Mosley, 408 U.S. at

95; Bachellar, 397 U.S. at 567; Brown, 383 U.S. at 142-43; Stromberg, 283

(Continued on following page)

one side of a debatable public question to have a monopoly

in expressing its views ... is the antithesis of constitu-

tional guarantees.” City of Madison v. Wisconsin Employ-

ment Relations Committee, 429 U.S. 167, 175-76 (1976).

Clear legal precedent holds that religious speech viewpoint

discrimination is an impermissible violation of the Speech

Clause of the First Amendment. Rosenberger, 515 U.S. at

828; Good News Club, 533 U.S. at 111-12; Lamb’s Chapel,

508 U.S. 384 (1993); The Bronx Household of Faith v.

Board of Education, 331 F.3d 342, 345-46 (2nd Cir. 2003);

DeBoer v. Village of Oak Park, 267 F.3d 558, 561 (7th Cir.

2001); Church on the Rock v. City of Albuquerque, 84 F.3d

1273, 1281 (10th Cir. 1996).

In Poway Unified School District (“Poway”), the

government allowed the debate. Then, it took sides. Then

it banned anyone from responding. Worse than that, it

punished a student for presenting an opposing belief.

Nothing could be more repugnant under First Amendment

jurisprudence. This is not to say Poway could not have

positioned itself better for outsiders in banning Harper’s

speech. Poway could have banned all speech on the subject

of homosexuality. While amicus believes such a position

would still be in conflict with Tinker and bedrock constitu-

tional jurisprudence, since speech is protected absent a

material and substantial disruption, banning all speech on

the subject would have at least had the imprimatur of _

fairness to the casual observer. One wonders if the school

district or the Ninth Circuit gave any consideration to how

some students and parents may have felt seeing tax

U.S. at 368-69; Niemotko v. Maryland, 340 U.S. 268 (1951); and, Fowler

v. Rhode Island, 345 U.S. 67 (1953).

9

dollars and precious education time being spent on pro-

moting beliefs and conduct with which they fundamentally

disagree. In any event, Poway chose to ban only one side of

the debate. Such a decision is fundamentally at odds with

longstanding constitutional jurisprudence, and certainly

even the most casual observer would perceive the Orwel-

lian quality of Poway’s censorship.

Ill. For Poway to institute such a broad and

sweeping prior restraint on speech, it must

meet its governmental burden of proving the

ban is the least restrictive means with an ex-

tensive legislative fact-finding record.

Poway bears a heavy burden to uphold its prior

restraint scheme on speech it disapproves. The Court has

stated that “[a]ny system of prior restraints comes to this

Court bearing a heavy presumption against its constitu-

tional validity.” Bantam Books Inc. v. Sullivan, 372 U.S.

58, 70 (1963). Poway “thus carries a heavy burden of

showing justification for the imposition of such a re-

straint.” Organization for a Better Austin v. Keefe, 402 U.S.

415, 419 (1971) (emphasis added). The Court has noted

that “(t]he thread running through all these cases is that

prior restraints on speech and publication are the most

serious and the least tolerable infringement on First

Amendment rights.” Nebraska Press Ass’n v. Stuart, 427

U.S. 539, 559 (1976). Thus, the Court observed, it is “clear

that the barriers to prior restraint remain high unless we

are to abandon what the Court has said for nearly a

quarter of our national existence and implied throughout

all of it.” Jd. at 561. The Supreme Court has tended to

recognize only a narrow number of situations in which

prior restraints might be permissible. See Southeastern

10

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

(“In order to be held lawful, [a prior restraint], first, must

fit within one of the narrowly defined exceptions to the

prohibition against prior restraints”).

In order for Poway to justify its censorship, it cannot

rely upon “undifferentiated fear or apprehension.” Tinker,

393 U.S. at 508. Under Tinker, Poway needs hard objective

evidence forecasting disruption because of non-disruptive

student speech, especially speech of students such as the

Harpers who are of or near the legal age to vote or put

their life on the line on the battlefields of Iraq. The stu-

dents of Poway deserve at least the same level of constitu-

tional protection afforded commercial purveyors of

pornography.

When regulating pornographic speech, the govern-

ment must develop an extensive record to justify such

sweeping prohibitions on speech. See United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 822

(2000) (holding that “[nJo support for the restriction ... in

the near barren legislative record relevant to this provi-

sion” is fatal to the Government’s case), contrast Turner

Broadcasting System, Inc. v. FCC, 520 U.S. 180, 187

(1997) (reviewing “a record of tens of thousands of pages’ of

evidence” developed through “three years of pre-enactment

hearings, ... as well as additional expert submissions,

sworn declarations and testimony, and industry docu-

ments” in support of complex must-carry provisions).

Anecdotal evidence and conclusory statements will not

suffice. See Playboy, 529 U.S. at 822 (“the Government

must present more than anecdote and supposition”); see

Sable Comm. of California v. FCC, 492 U.S. 115, 129-30

(1989) (“|A]side from conclusory statements during the

debates by proponents of the bill ... the congressional

11

record presented to us contains no evidence of how effec-

tive or ineffective the ... regulations were or might prove

to be.” (footnote omitted)). -

Thus, in this case, Poway may only present evidence it

considered during its board meeting when it adopted the

prior restraint speech policies to demonstrate how these

incredibly broad policies are absolutely necessary to

prevent an imminent material and substantial disruption.

In addition, this evidence must be extremely extensive.

Neither the court of appeals below, nor Poway, is able to

point to any evidence considered at the time the school

board adopted the policies at issue to support their sweep-

ing prohibitions on speech. Therefore, Poway must be

enjoined and the Ninth Circuit reversed.

+

CONCLUSION

The decision below eviscerates this Court’s holding in

Tinker and decades of case law, strikes against the most

fundamental freedom of every citizen against government

censorship, and is supported by no evidence. Certiorari

should be granted.

Respectfully submitted,

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 East 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

(972) 423-6570 (Fax)

Counsel for Amicus Curiae