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1 Case: /21/2014 ID: DktEntry: 39-1 Page: 1 of 7 (1 of 28) APPEAL NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN DARIANO, DIANNA DARIANO, on behalf of their minor child, M.D.; KURT FAGERSTROM, JULIE ANN FAGERSTROM, on behalf of their minor child, D.M.; KENDALL JONES, and JOY JONES, on behalf of their minor child, D.G., Plaintiffs-Appellants, v. MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK BODEN, in his official capacity as Principal, LIVE OAK HIGH SCHOOL; and MIGUEL RODRIGUEZ, in his individual and official capacity as assistant principal, LIVE OAK HIGH SCHOOL, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Civil Case No. 5:10-cv (Honorable James Ware) MOTION FOR LEAVE TO FILE BRIEF OFAMICUS CURIAE ALLIANCE DEFENDING FREEDOM IN SUPPORT OF APPELLANTS PETITION FOR REHEARING EN BANC David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd., NE Suite D1100 Lawrenceville, GA Telephone: (770) Kevin H. Theriot Jeremy D. Tedesco ALLIANCE DEFENDING FREEDOM N. 90th Street Scottsdale, AZ Telephone: (480) Attorneys for Amicus Curiae

2 Case: /21/2014 ID: DktEntry: 39-1 Page: 2 of 7 (2 of 28) Pursuant to Fed. R. App. P. 29 and Circuit Rule 29-2(a), Alliance Defending Freedom respectfully requests leave to file the accompanying Brief Amicus Curiae in support of Appellants petition for rehearing en banc. Undersigned counsel has obtained Appellants consent to Alliance Defending Freedom s filing as amicus. The Appellees, however, have declined to give their consent. Alliance Defending Freedom thus submits this motion to the Court. IDENTIFICATION OF AMICUS CURIAE Alliance Defending Freedom is a not-for-profit public interest legal organization providing strategic planning, training, funding, and direct litigation services to protect First Amendment liberties to speech and religious freedom. Since its founding in 1994, Alliance Defending Freedom has played a role, either directly or indirectly, in dozens of cases before the Supreme Court, including Arizona Christian School Tuition Organization v. Winn, 131 S. Ct (2011); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Good News Club v. Milford Central School, 533 U.S. 98 (2001); and Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); as well as hundreds more in this Court and other lower courts. INTEREST OF AMICUS CURIAE Alliance Defending Freedom and its allies represent thousands of Americans who are concerned that public school officials often characterize students speech 1

3 Case: /21/2014 ID: DktEntry: 39-1 Page: 3 of 7 (3 of 28) on matters of religious, political, or social significance as controversial and therefore target it for censorship. Alliance Defending Freedom and its allies have successfully litigated many cases to protect the right of students to engage in religious expression at school under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). See, e.g., K.A. v. Pocono Mountain Sch. Dist., 710 F.3d 99 (3d Cir. 2013); Gilio v. Sch. Bd. of Hillsborough Cnty., 905 F. Supp. 2d 1262 (M.D. Fla. 2012); Wright ex rel. A.W. v. Pulaski Cnty. Special Sch. Dist., 803 F. Supp. 2d 980 (E.D. Ark. 2011); J.S. ex rel. Smith v. Holly Area Schools, 749 F. Supp. 2d 614 (E.D. Mich. 2010); C.H. v. Bridgeton Bd. of Educ., 2010 WL (D.N.J. Apr. 22, 2010). Because the panel s interpretation of Tinker will potentially have a significant impact on the landscape of students speech rights in the Ninth Circuit and elsewhere, Alliance Defending Freedom has a strong interest in the outcome of this matter. Alliance Defending Freedom is deeply concerned that the panel s decision could undermine students freedom of expression and their opportunity to engage in rigorous debate of controversial ideas within our schools two essential principles of our democratic system that should be jealously guarded in the nation s educational institutions. The decision could also seriously jeopardize Alliance Defending Freedom s widespread efforts to ensure that public schools respect the free speech rights of religious students. 2

4 Case: /21/2014 ID: DktEntry: 39-1 Page: 4 of 7 (4 of 28) DESIRABILITY OF AMICUS CURIAE S BRIEF Since an amicus does not represent the parties but participates only for the benefit of the court, it is solely within the discretion of the court to determine the fact, extent, and manner of [its] participation. Newark Branch of NAACP v. Town of Harriston, 940 F.2d 792, 808 (3d Cir. 1991) (emphasis added and quotation omitted). But courts are usually delighted to hear additional judgments from able amici that will help the court toward right answers. Mass. Food Ass n v. Mass. Alcoholic Beverages Control Comm n, 197 F.3d 560, 567 (1st Cir. 1999). This is particularly true when an amicus provides information on matters of law about which there [is] doubt, especially in matters of public interest. United States v. Michigan, 940 F.2d 143, 164 (6th Cir. 1991). Alliance Defending Freedom is an able amicus that is well-suited to help this Court toward right answers in a case involving important questions of constitutional law on which courts have differed. Unlike most private law firms, Alliance Defending Freedom regularly litigates student speech cases that turn on the proper interpretation of Tinker and its progeny. See supra (citing a few of the many student speech cases amicus has litigated). Consequently, Alliance Defending Freedom possesses legal expertise that would be of particular benefit to 3

5 Case: /21/2014 ID: DktEntry: 39-1 Page: 5 of 7 (5 of 28) this Court in a case involving critical First Amendment rights that indubitably touch upon the public interest. Alliance Defending Freedom offers that expertise to demonstrate to this Court that the panel s opinion conflicts with the Supreme Court s decisions in Tinker and Morse v. Frederick, 551 U.S. 393 (2007). It would also show that the panel s opinion conflicts with decisions from the Supreme Court and this Court holding that the First Amendment prohibits speech restrictions that take the form of a heckler s veto, including in the educational context. Moreover, Alliance Defending Freedom would demonstrate that the panel s decision conflicts with other Circuit Court decisions concerning the important First Amendment question of whether student speech restrictions must be viewpoint neutral under Tinker, and would provide several reasons why this Court should align itself with those Circuits holding that Tinker requires viewpoint neutrality. CONCLUSION Alliance Defending Freedom s strong institutional interest in this case, its expertise in applying the First Amendment, and specifically Tinker, to the educational context, and its concise explanation of the reasons en banc review is warranted justify its filing of an amicus curiae brief in this case. Consequently, Alliance Defending Freedom respectfully requests that this Court grant its motion under Fed. R. App. P. 29(a) and Circuit Rule 29-2(a). 4

6 Case: /21/2014 ID: DktEntry: 39-1 Page: 6 of 7 (6 of 28) Respectfully submitted this the 21st day of March, By: s/ Jeremy D. Tedesco Jeremy D. Tedesco Attorney for Amicus Curiae 5

7 Case: /21/2014 ID: DktEntry: 39-1 Page: 7 of 7 (7 of 28) CERTIFICATE OF SERVICE I hereby certify that on March 21, 2014, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system upon the following: William J. Becker, Jr., Esq. THE BECKER LAW FIRM Olympic Blvd., Ste. 400 Los Angeles, CA Robert J. Muise, Esq. AMERICAN FREEDOM LAW CENTER P.O. Box Ann Arbor, MI Don Willenburg, Esq. Mark S. Posard, Esq. Alyson S. Cabrera, Esq. GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, CA Erin Mersino, Esq. THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI By: s/ Jeremy D. Tedesco Jeremy D. Tedesco Attorney for Amicus Curiae 6

8 Case: /21/2014 ID: DktEntry: 39-2 Page: 1 of 21 (8 of 28) APPEAL NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOHN DARIANO, DIANNA DARIANO, on behalf of their minor child, M.D.; KURT FAGERSTROM, JULIE ANN FAGERSTROM, on behalf of their minor child, D.M.; KENDALL JONES, and JOY JONES, on behalf of their minor child, D.G., Plaintiffs-Appellants, v. MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK BODEN, in his official capacity as Principal, LIVE OAK HIGH SCHOOL; and MIGUEL RODRIGUEZ, in his individual and official capacity as assistant principal, LIVE OAK HIGH SCHOOL, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Civil Case No. 5:10-cv (Honorable James Ware) BRIEF OFAMICUS CURIAE ALLIANCE DEFENDING FREEDOM IN SUPPORT OF APPELLANTS PETITION FOR REHEARING EN BANC David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Rd., NE Suite D1100 Lawrenceville, GA Telephone: (770) Kevin H. Theriot Jeremy D. Tedesco ALLIANCE DEFENDING FREEDOM N. 90th Street Scottsdale, AZ Telephone: (480) Attorneys for Amicus Curiae

9 Case: /21/2014 ID: DktEntry: 39-2 Page: 2 of 21 (9 of 28) CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P amicus curiae Alliance Defending Freedom states that it has no parent corporation and issues no stock. Dated March 21, 2014 /s/jeremy D. Tedesco Jeremy D. Tedesco Counsel for Amicus Curiae i

10 Case: /21/2014 ID: DktEntry: 39-2 Page: 3 of 21 (10 of 28) TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF AUTHORITIES... i INTEREST OF AMICUS CURIAE... 1 FED. R. APP. P. 29(c)(5) CERTIFICATION... 2 INTRODUCTION... 2 ARGUMENT... 4 I. The Panel Decision Conflicts with Supreme Court and Ninth Circuit Precedent Holding that the First Amendment Prohibits a Heckler s Veto II. The Panel s Decision Conflicts with Morse III. The Panel s Decision Conflicts with Tinker IV. The Panel s Decision Conflicts with other Circuit Court Decisions Holding that Viewpoint Discrimination Is Barred under Tinker CONCLUSION...14 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) AND CIRCUIT RULE CERTIFICATE OF SERVICE...16 ii

11 Case: /21/2014 ID: DktEntry: 39-2 Page: 4 of 21 (11 of 28) CASES TABLE OF AUTHORITIES Bachellar v. Maryland, 397 U.S. 564 (1970)... 5 Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008) Bethel School District v. Fraser, 478 U.S. 675 (1986)... 7 B.W.A. v. Farmington R-7 School District, 554 F.3d 734 (8th Cir. 2009) Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001) Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, 533 F.3d 780 (9th Cir. 2008) , 11 Forsyth County. v. Nationalist Movement, 505 U.S. 123 (1992)... 4, 6 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) Morse v. Frederick, 551 U.S. 393 (2007) Planned Parenthood of Southern Nevada, Inc. v. Clark County School District, 941 F.2d 817 (9th Cir. 1991) i

12 Case: /21/2014 ID: DktEntry: 39-2 Page: 5 of 21 (12 of 28) Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995) Sorrell v. IMS Health Inc., 131 S. Ct (2011)... 2 Terminiello v. City of Chicago, 337 U.S. 1 (1949) Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)...passim Zamecnik v. Indian Prairie School District No. 204, 636 F.3d 874 (7th Cir. 2011)... 5 ii

13 Case: /21/2014 ID: DktEntry: 39-2 Page: 6 of 21 (13 of 28) INTEREST OF AMICUS CURIAE Alliance Defending Freedom is a not-for-profit public interest legal organization providing strategic planning, training, funding, and direct litigation services to protect First Amendment liberties to speech and religious freedom. Since its founding in 1994, Alliance Defending Freedom has played a role, either directly or indirectly, in dozens of cases before the Supreme Court, this Court, and in hundreds of cases before federal and state courts across the country. Included in these cases are a significant number of student speech cases. Like Plaintiffs speech at issue in this case, students speech on matters of religious, political, or social significance is often characterized by school officials as controversial and therefore targeted for censorship. Recognizing that the panel s interpretation of Tinker will potentially have a significant impact on the landscape of students speech rights in the Ninth Circuit and elsewhere, Alliance Defending Freedom is seeking to ensure that the freedom of expression and the opportunity for rigorous debate of controversial ideas which are essential to our democratic system are jealously guarded within our schools. Pursuant to FED. R. APP. P. 29(a) and CIRCUIT RULE 29-2(b), this Brief is being filed contemporaneously with a motion seeking leave of the Court to appear as Amicus. 1

14 Case: /21/2014 ID: DktEntry: 39-2 Page: 7 of 21 (14 of 28) FED. R. APP. P. 29(C)(5) CERTIFICATION No party or party s counsel participated in, or provided financial support for, the preparation and filing of this brief, nor has any entity other than Amicus and its counsel participated in or provided financial support for the brief. INTRODUCTION It is an enduring principle of the First Amendment that people must endure speech they do not like. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2669 (2011). The Supreme Court has repeatedly said this principle is a necessary cost of freedom, id., including in our nation s public schools, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969) ( Any word spoken... that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk. ). Yet, unless this Court grants en banc review and reverses, the panel s decision portends the end of this principle within public schools in the Ninth Circuit. Rather than having to tolerate speech they dislike, students now can be the agents of its suppression. By authorizing schools to employ a heckler s veto as a legitimate tool for regulating student speech, the panel decision gives students who are offended by a classmate s expression a perverse incentive to shake their fists, issue threats, and raise a ruckus in response. Under such circumstances, the panel says the speaker may be silenced, rather than the disruptors punished. Such an 2

15 Case: /21/2014 ID: DktEntry: 39-2 Page: 8 of 21 (15 of 28) approach to speech regulation has been uniformly condemned by the federal courts, including the Supreme Court and this Court. The heckler s veto approved by the panel is particularly pernicious because it permits, in addition to clear content-based discrimination, blatant viewpoint discrimination. Indeed, under the panel decision a student s viewpoint opponents have free reign to express their views while at the same time engaging in disruptive behavior that shuts down competing views. Opinion ( Op. ) 14 (noting that students wearing the colors of the Mexican flag were not told to remove their clothing). That is precisely what happened here. The students who reacted in a disruptive manner to Plaintiffs American flag clothing, thereby securing its censorship, were participating in a school-sanctioned Cinco De Mayo event, during which students celebrated Mexican culture by, among other means, wearing clothing that displayed the colors of the Mexican flag. Appellants Br. 8-9 & n.4. Incredibly, even after Cinco De Mayo participants engaged in disruptive behavior the year prior, the school once again sanctioned the event in Op. 4-6; Appellees Ans. Br. 3; Appellants Br & n.7. Turning the First Amendment on its head, the school chose to support the fist-waving agitators on one side of an obvious political controversy and shut down Plaintiffs peaceful and passive speech. 3

16 Case: /21/2014 ID: DktEntry: 39-2 Page: 9 of 21 (16 of 28) En banc review is necessary to maintain uniformity of this Court s decisions, to resolve the conflict between the panel s decision and Supreme Court precedent, and because the panel decision involves a question of exceptional importance that conflicts with decisions of other Circuit Courts. ARGUMENT I. The Panel Decision Conflicts with Supreme Court and Ninth Circuit Precedent Holding that the First Amendment Prohibits a Heckler s Veto. The Supreme Court has time and again ruled that the government may not regulate speech simply because its message may cause offense, fear, or anger. The Court has succinctly summed up this constitutional principle in the following way: Listeners reaction to speech is not a content-neutral basis for regulation. Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134 (1992). Hence, in Forsyth County the Court struck down an ordinance under which town officials assessed a fee on parade organizers based on their measure of the amount of hostility likely to be created by the speech. Id. at 134. A system under which [t]hose wishing to express views unpopular with bottle throwers may have to pay more for their permit could not be tolerated. Id. The Court ruled similarly in Terminiello v. City of Chicago, 337 U.S. 1 (1949). There, a man was convicted of breaching the peace because a speech he gave at an auditorium caused a group of angry protesters to gather outside. Id. at 3. 4

17 Case: /21/2014 ID: DktEntry: 39-2 Page: 10 of 21 (17 of 28) The Court overturned the conviction because the statute permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. Id. at 5. The Court held that under the First Amendment [a] conviction resting on any of those grounds may not stand. Id. Put simply, it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers, or simply because bystanders object to peaceful and orderly demonstrations. Bachellar v. Maryland, 397 U.S. 564, 567 (1970) (internal citations and quotation marks omitted). Critically, in Center for Bio-Ethical Reform, Inc. v. L.A. County Sheriff Department, 533 F.3d 780, 790 (9th Cir. 2008), this Court rebuffed the notion that the heckler s veto principle is less sweeping where the targeted audience is children, emphatically holding that [t]here is no precedent for a minors exception to the prohibition on banning speech because of listeners reaction to its content. 1 In Center for Bio-Ethical Reform, the plaintiff drove a truck displaying pictures of aborted fetuses around a public middle school while students were 1 The Seventh Circuit has likewise held that the heckler s veto ban applies with full force in the public school context. Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) ( Statements that while not fighting words are met by violence or threats or other unprivileged retaliatory conduct by persons offended by them cannot lawfully be suppressed because of that conduct. Otherwise free speech could be stifled by the speaker s opponents mounting a riot, even though, because the speech had contained no fighting words, no reasonable person would have been moved to a riotous response. ). 5

18 Case: /21/2014 ID: DktEntry: 39-2 Page: 11 of 21 (18 of 28) arriving. Id. at 784. The display reduced several students to tears, caused others to stop in the street and gawk, invited numerous expressions of anger, and incited a group of students to plan to throw rocks at the truck. Id. at 785. Noting that these incidents were all reactions to the message displayed on [p]laintiffs truck, id. at 788, this Court stressed that any restriction imposed on the plaintiffs based on these reactions would be an impermissible heckler s veto, id. at The school officials in this case plainly violated this principle. Indeed, [i]f listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech in response to listeners objections, then the restriction is content-based. Id. at 789 (emphasis in original). That is precisely what occurred here. School officials prohibited Plaintiffs from wearing American flag clothing because an offended audience was opposed to their patriotic message. Defendants prohibited the students passive display of the American flag based on a measure of the amount of hostility likely to be created by the speech, which resulted in [t]hose wishing to express views unpopular with bottle throwers being forbidden to speak. Forsyth County, 505 U.S. at 134. In Center for Bio-Ethical Reform, this Court observed that carving out a minors exception to the heckler s veto principle would be an unprecedented 2 The Court ultimately did not decide the issue by narrowly construing the statute so as to avoid the constitutional question. Ctr. for Bio-Ethical Reform, 533 F.3d at

19 Case: /21/2014 ID: DktEntry: 39-2 Page: 12 of 21 (19 of 28) departure from bedrock First Amendment principles. 533 F.3d at 790. Yet the panel s decision represents just such a departure. This Court should thus grant en banc review, resolve the panel s conflict with the above Supreme Court precedent, and restore uniformity to this Court s rulings. II. The Panel s Decision Conflicts with Morse. The panel decision endorses exactly what the Supreme Court condemned in its most recent student speech decision: using offense as a standard for regulating student speech. Morse v. Frederick, 551 U.S. 393, 408 (2007). Indeed, in Morse the Court rejected the school s argument that Bethel School District v. Fraser, 478 U.S. 675 (1986), permits schools to regulate speech that they deem offensive because such a standard would imperil much political and religious speech. Morse, 551 U.S. at 409. Moreover, as Justices Alito and Kennedy pointed out in their concurrence, some schools define their educational mission to include the inculcation of particular political and social views. Id. at 423. For example, they raised the specter of a school in the Tinker era defining its educational mission to include solidarity with our soldiers and their families and thus outlaw[ing] the wearing of black armbands on the ground that they undermined this mission. Id. In the alternative, a Tinker-era school could have defined its mission to include the promotion of world peace and thus ban[ned] the wearing of buttons expressing 7

20 Case: /21/2014 ID: DktEntry: 39-2 Page: 13 of 21 (20 of 28) support for the troops on the ground that the buttons signified approval of war. Id. The Justices rightly observed that this approach to student speech regulation which gives public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed strikes at the very heart of the First Amendment. Id. The concurring Justices concerns have come to fruition in the panel s decision. At its core, this case involves a political controversy regarding student patriotic expression. The school clearly favored the pro-mexican views of the Cinco de Mayo participants, while silencing the Plaintiffs pro-american viewpoint. Worse, it favored the students who expressed their views in a disruptive manner, while shutting down the speech of students who expressed a different viewpoint in a peaceful and passive way. It is difficult to conceive of a student speech restriction that strikes at the very heart of the First Amendment more than the one approved by the panel in this case. III. The Panel s Decision Conflicts with Tinker. In addition to conflicting with the above Supreme Court precedent, the panel s decision also conflicts with Tinker. Tinker permits school officials to regulate student speech only when there is an actual or forecasted material disruption due to the time, place, or manner of the speakers presentation. That is all. Nowhere in Tinker can support be found for 8

21 Case: /21/2014 ID: DktEntry: 39-2 Page: 14 of 21 (21 of 28) the panel s rule authorizing schools to restrict student speech based on listeners reactions to it. In fact, like the Supreme Court precedent cited in Sections I & II, Tinker directly proscribes such restrictions. Under Tinker, the material disruption evaluation focuses on the speaker s manner of expression. The Court stressed this multiple times in its opinion, observing that: the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it, 393 U.S. at 505 (emphasis added); the silent, passive expression of opinion of the armbands was unaccompanied by any disorder or disturbance on the part of petitioners, id. at 508 (emphasis added); and there was no evidence of petitioners interference with school operations or the rights of others, id. (emphasis added). Plainly, Tinker s material disruption test focuses on the speaker s manner of expression. Moreover, and critically in light of the panel s opinion, the Court in Tinker expressly rejected audience reaction as a relevant factor in the material disruption analysis: Any departure from absolute regimentation may cause trouble. Any variation from the majority s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk. Id. at 508 (emphasis added). Accordingly, the Court specifically enjoined schools 9

22 Case: /21/2014 ID: DktEntry: 39-2 Page: 15 of 21 (22 of 28) from censoring student speech based on a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Id. at 509. Simply put, the controversy of a message (a necessarily content-based evaluation) and the manner of its presentation (a necessarily content-neutral evaluation) are categorically distinct considerations. Tinker says only the latter is considered under the material disruption test. The former is irrelevant, which is evident from the fact that the Court found the Tinkers controversial anti-vietnam War speech was protected by the First Amendment. See id. at , 524 (noting that disputes over the wisdom of the Vietnam War have disrupted and divided this country as few other issues ever have and that the Tinkers armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. ). Illustrating this critical distinction, the Court in Tinker employed a contentneutral assessment of petitioner s conduct in determining that there was no basis for administrators to have forecasted a substantial disruption or material interference with school activities : These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide.... They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. 10

23 Case: /21/2014 ID: DktEntry: 39-2 Page: 16 of 21 (23 of 28) Id. at 514. Because the time, place, and manner of petitioners speech did not materially disrupt school operations, the Court held that their speech could not be proscribed. 3 In Tinker, the Supreme Court stated that prohibition of expression of one particular opinion is not allowed unless that speech otherwise may be regulated under the material disruption standard set out in that case. 393 U.S. at Which is to say, student speech may not be prohibited because of its particular message, but only for the substantial disruption potential deriving from its time, place, or manner of presentation. [S]chool officials cannot suppress expressions of feelings with which they do not wish to contend. Id. at 511 (quotation marks omitted.) Plaintiffs silent, passive display of an American flag image on their clothing was appropriate for and compatible with the school context. Indeed, school officials permitted students to display the colors of the Mexican flag while simultaneously shutting down Plaintiffs American flag speech. Moreover, Defendants censorship of Plaintiffs speech was predicated on opposition to their 3 The heckler s veto prohibition set out by this Court in Center for Bio-Ethical Reform faithfully adheres to Tinker s pivotal manner versus message distinction: Here if [the speech regulation] applies only to disruptions caused by the manner and not the content of speech, our First Amendment concerns are resolved. A statute that restricts speech only when it is disruptive because of its manner, not its content, is an example of content-neutral regulation that has been affirmed time and again. 533 F.3d at 790 (emphasis in original). 11

24 Case: /21/2014 ID: DktEntry: 39-2 Page: 17 of 21 (24 of 28) message, not on any disruptive conduct that Plaintiffs engaged in while expressing their views. In fact, the record shows that Plaintiffs were not disruptive at all. Appellants Br Instead, it was those students who opposed Plaintiffs peaceful expression that engaged in disruptive conduct. Op Tinker condemns this type of speech regulation. The panel s decision thus directly conflicts with Tinker. This Court should grant en banc review and resolve this conflict. IV. The Panel s Decision Conflicts with other Circuit Court Decisions Holding that Viewpoint Discrimination Is Barred under Tinker. The panel held that [s]chools may, under Tinker, ban certain images even though such bans might constitute viewpoint discrimination. Op. 13. In so doing, it landed on the wrong side of a circuit conflict concerning the critical First Amendment question of whether viewpoint discrimination is barred under Tinker. For example, the Sixth Circuit has held that schools regulation of student speech must be consistent with both the Tinker standard and Rosenberger s prohibition on viewpoint discrimination. Barr v. Lafon, 538 F.3d 554, 571 (6th Cir. 2008); see also Castorina v. Madison Cnty. Sch. Bd., 246 F.3d 536, 544 (6th Cir. 2001) (holding that even if there is a history of material disruption regarding a particular topic sufficient to justify restricting student speech, a school does not have the authority to enforce a viewpoint-specific ban ). The Eighth and Fifth Circuits disagree. In B.W.A. v. Farmington R-7 School District, 554 F.3d 734, 740 (8th Cir. 2009), the Eighth Circuit held that viewpoint 12

25 Case: /21/2014 ID: DktEntry: 39-2 Page: 18 of 21 (25 of 28) discrimination by school officials is not violative of the First Amendment if the Tinker standard requiring a reasonable forecast of substantial disruption or material interference is met. And in Morgan v. Swanson, 659 F.3d 359, 379 (5th Cir. 2011), the Fifth Circuit held that in the public schools there is no categorical prohibition on viewpoint discrimination. Amicus respectfully submits that this Court should grant en banc review and align itself with the Sixth Circuit s ruling that viewpoint discrimination is barred under Tinker. Such a ruling would be in line with Supreme Court precedent. See I & II, supra; see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (characterizing the rule against viewpoint discrimination as axiomatic ). And, as demonstrated above, it would also restore uniformity within this Court s rulings, by aligning the outcome in this case with Center for Bio- Ethical Reform. Further, this Court has held that restrictions on school-sponsored student speech, which is governed by the more deferential standard set out in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), must be viewpoint neutral. Planned Parenthood of S. Nev., Inc. v. Clark Cnty. Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991). It makes little doctrinal sense to require viewpoint neutrality within a category of student speech entitled to less First Amendment protection than pure student speech, which is governed by Tinker. Yet that is exactly the type 13

26 Case: /21/2014 ID: DktEntry: 39-2 Page: 19 of 21 (26 of 28) of doctrinal anomaly that will result if the panel s decision stands. CONCLUSION Mary Beth Tinker, one of the plaintiffs in the Supreme Court s landmark Tinker decision, is presently on a national tour, encouraging students to exercise the free speech rights she and her siblings played such an enormous role in pioneering. See Tinker Tour USA Home Page, (last visited March 10, 2014). It just so happens that the Tinker Tour is currently on its West Coast leg, including stops at several high schools within the Ninth Circuit. Id. If the panel s decision stands, Mary Beth will have to inform Ninth Circuit students that their free speech rights have been significantly diminished because their schools can now shut down their expression if it stirs up controversy and upsets fellow classmates. Mary Beth should not have to deliver a message so contrary to established Supreme Court case law and this Court s precedent, especially when her case, like the Plaintiffs, involved controversial speech that some of her classmates found offensive. This Court can, and should, keep that from happening by granting en banc review and ruling in Plaintiffs favor. Respectfully submitted this the 21st day of March, By: s/ Jeremy D. Tedesco Jeremy D. Tedesco Attorney for Amicus Curiae 14

27 Case: /21/2014 ID: DktEntry: 39-2 Page: 20 of 21 (27 of 28) CERTIFICATE OF COMPLIANCE WITH RULE 32(a) AND CIRCUIT RULE 29-2(C) This brief complies with the type-volume limitation of CIRCUIT RULE 29-2(c)(2) because this brief contains 3295 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2007 in 14-point Times New Roman. Dated: March 21, 2014 s/ Jeremy D. Tedesco Jeremy D. Tedesco Attorney for Amicus Curiae 15

28 Case: /21/2014 ID: DktEntry: 39-2 Page: 21 of 21 (28 of 28) CERTIFICATE OF SERVICE I hereby certify that on March 21, 2014, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system upon the following: William J. Becker, Jr., Esq. THE BECKER LAW FIRM Olympic Blvd., Ste. 400 Los Angeles, CA Robert J. Muise, Esq. AMERICAN FREEDOM LAW CENTER P.O. Box Ann Arbor, MI Don Willenburg, Esq. Mark S. Posard, Esq. Alyson S. Cabrera, Esq. GORDON & REES LLP 275 Battery Street, Suite 2000 San Francisco, CA Erin Mersino, Esq. THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI s/ Jeremy D. Tedesco Jeremy D. Tedesco Attorney for Amicus Curiae 16