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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1670%3A5. Public record. Not legal advice.