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No. 20 12152
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT RODNEY KEISTER, Plaintiff-Appellant, v.
STUART BELL, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF ALABAMA; JOHN HOOKS, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE UNIVERSITY OF ALABAMA POLICE DEPARTMENT; MITCHELL ODOM, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE LIEUTENANT FOR THE UNIVERSITY OF ALABAMA POLICE DEPARTMENT,
Defendants Appellees.
Appeal from the United States District Court for the Northern District of Alabama Case No. 7:17 cv 00131 RDP
MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE YOUNG AMERICA’S FOUNDATION SUPPORTING PLAINTIFF APPELLANT’S PETITION FOR REHEARING EN BANC AND URGING REVERSAL
Lincoln Davis Wilson DECHERT LLP
Three Bryant Park 1095 Sixth Avenue New York, NY
(212) 698 3500
John J. Bursch Counsel of Record
Rory T. Gray Tyson C. Langhofer
ALLIANCE DEFENDING FREEDOM
440 First Street NW, Suite 600 Washington, DC 20001 (616) 450-4235
jbursch@adflegal.org
Counsel for Amicus Curiae
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Pursuant to Fed. R. App. P. 29(b) and 11th Cir. R. 29 3, Young America’s Foundation moves this Court for leave to file the accompanying proposed amicus curiae brief supporting Plaintiff Appellant’s petition for rehearing en banc and urging reversal. Young America’s Foundation’s counsel requested the consent of the parties to the filing of its proposed amicus curiae brief on March 30, 2022. Counsel for Appellant consented to the brief’s filing. Counsel for Appellee failed to provide a timely response. Regardless of the parties’ positions, Fed. R. App. P. 29(b)(2) and 11th Cir. R. 29 3 require amicus curiae to file a motion and grant this Court unfettered discretion to allow the filing of Young America’s Foundation’s brief.
INTEREST OF AMICUS
Young America’s Foundation (“YAF”) is a national nonprofit organization committed to ensuring that increasing numbers of young Americans understand and are inspired by the ideas of individual freedom, a strong national defense, free enterprise, and traditional values. Young Americans for Freedom is YAF’s chapter affiliate on high school and college campuses across the country.
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YAF leads the Conservative Movement on college campuses throughout the country by sponsoring campus lectures and other activities that are often the most well attended events of the school year. YAF’s advocacy for free speech and conservative ideas on college campuses often results in conflict with university administrators and student government leaders who disagree with the content of YAF’s messages.
Time and again, YAF has seen public universities take every opportunity to suppress speech in traditional public fora, both explicitly and under cover of supposedly viewpoint-neutral regulations. These
actions injure the rights of non students like Mr. Keister, but they work even greater harm to students. This is especially true for conservative students like YAF’s members.
The culture of free speech at public universities is such that, just weeks ago, a mob of 200 students physically attacked a male YAF member and chased one of YAF’s female members through campus, forcing her to hide in a men’s bathroom stall. Their transgression?
These YAF members welcomed Lieutenant Colonel Allen West to speak
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on campus on the subject “America Is Not Racist.”1 Yet despite this hostile attitude towards the open exchange of ideas, public universities often do little to protect free expression. Instead, they have contended their “streets, sidewalks, quadrangles, plazas, and park like lawns” are “non public fora” even for students,2 and that students’ speech about their religious beliefs in those fora “arguably rose to the level of ‘fighting words.’” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797 (2021).
It is bad enough that those anti speech policies control on campus. But if public universities can also control the public, city sidewalks beyond, as the panel’s ruling here allows, they will take it as permission to further silence student expression.
DESIRABILITY AND RELEVANCE OF THE 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.”
1 See Kara Zupkus, BREAKING: Allen West Escorted From YAF Event By Police, Irate Mob Chases and Assaults Conservative Student, Young America’s Foundation (Apr. 7, 2022), https://bit.ly/3vydPL4.
2 See Mem. of Law in Supp. of Def.’s Mot. to Dismiss Pl.’s Am. Compl. at 13, Uzuegbunam v. Preczewski, No. 1:16-cv-04658 (N.D. Ga. Mar. 17, 2017), ECF No. 18 1.
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Newark Branch, NAACP v. Town of Harriston, 940 F.2d 792, 808 (3d Cir. 1991) (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) (emphasis added). 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). YAF and its counsel are well suited to aid the Court in considering an en banc petition that raises critical First Amendment questions of vital importance to students, as well as the general public. The proposed amicus brief is desirable for four reasons.
First, the amicus brief illustrates the panel opinion’s severe chilling effect on conservative students’ and student organizations’ expression not merely on non students’ speech.
Second, the amicus brief explains the depth of the panel opinion’s conflict with Supreme Court precedent, which has deemed sidewalks along public streets to be traditional public fora for over 80 years, regardless of whether those sidewalks border school property. The brief
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also describes why the Supreme Court’s rare exception for sidewalks within government enclaves does not apply.
Third, the amicus brief highlights the panel opinion’s radical expansion of Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011), which dealt with interior sidewalks inside a university’s secluded campus, not perimeter sidewalks along city streets. And it describes how that extension errors by (1) ignoring Bloedorn’s plain language and the presumption against destroying the public forum status of public sidewalks, (2) mischaracterizing the access sought by Mr. Keister, and (3) neglecting objective traditional-public-forum analysis and employing a subjective test reserved for designated public fora instead.
Fourth, the proposed amicus brief details the split the panel’s ruling creates between this Court and the Fifth and Sixth Circuits, which if left unresolved calls out for Supreme Court review.
CONCLUSION
This Court should grant amicus curiae leave to file its proposed brief supporting Appellant’s petition for rehearing en banc and urging
reversal of the district court’s judgment.
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Respectfully submitted this 21st day of April, 2022.
/s/ John J. Bursch
John J. Bursch Counsel of Record Rory T. Gray Tyson C. Langhofer
ALLIANCE DEFENDING FREEDOM 440 First Street NW, Suite 600 Washington, DC 20001 (616) 450 4235 jbursch@adflegal.org
Lincoln Davis Wilson DECHERT LLP Three Bryant Park 1095 Sixth Avenue New York, NY 10036 (212) 698-3500
Counsel for Amicus Curiae
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed electronically with the Court’s CM-ECF system on April 21, 2022. Service will be effectuated by the Court’s electronic notification system upon all parties and counsel of record.
/s/ John J. Bursch John J. Bursch Counsel for Amicus Curiae
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No. 20 12152
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
RODNEY KEISTER, Plaintiff-Appellant, v.
STUART BELL, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF ALABAMA; JOHN HOOKS, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE UNIVERSITY OF ALABAMA POLICE DEPARTMENT; MITCHELL ODOM, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE LIEUTENANT FOR THE UNIVERSITY OF ALABAMA POLICE DEPARTMENT,
Defendants Appellees.
Appeal from the United States District Court for the Northern District of Alabama Case No. 7:17-cv-00131-RDP
BRIEF OF AMICUS CURIAE YOUNG AMERICA’S FOUNDATION SUPPORTING PLAINTIFF-APPELLANT’S PETITION FOR REHEARING EN BANC AND URGING REVERSAL
Lincoln Davis Wilson DECHERT LLP Three Bryant Park 1095 Sixth Avenue New York, NY 10036 (212) 698 3500
John J. Bursch
Counsel of Record Rory T. Gray Tyson C. Langhofer
ALLIANCE DEFENDING FREEDOM
440 First Street NW, Suite 600 Washington, DC 20001 (616) 450 4235
jbursch@adflegal.org
Counsel for Amicus Curiae
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CERTIFICATE OF INTERESTED PERSONS
Pursuant to 11th Cir. R. 26.1-1 through 26.1-3, the undersigned certifies that they believe that the Certificate of Interested Persons set forth in the Petition for Panel Rehearing and Rehearing En Banc of Appellant Rodney Keister (April 15, 2022) is complete, subject to the following amendments:
Added:
Alliance Defending Freedom Counsel for Amicus Curiae
Bursch, John J. Counsel for Amicus Curiae
Dechert LLP Counsel for Amicus Curiae
Gray, Rory T. Counsel for Amicus Curiae
Langhofer, Tyson C. Counsel for Amicus Curiae
Wilson, Lincoln Counsel for Amicus Curiae
Young America’s Foundation Amicus Curiae
The undersigned will enter this information in the Court’s web based CIP contemporaneously with filing this Certificate of Interested Persons. Young America’s Foundation is a national non-profit organization. It has no parent company and no publicly held company holds 10% of its stock.
TABLE OF CONTENTS
Bloedorn
from the
The panel opinion created a
for interior
with the Fifth and Sixth
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TABLE OF CITATIONS
Cases
Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)
Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011)
Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000)
Flanigan’s Enterprises, Inc. v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017)
Frisby v. Schultz, 487 U.S. 474 (1988)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Greer v. Spock, 424 U.S. 828 (1976)
Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)
Keister v. Bell, 879 F.3d 1282 (11th Cir. 2018)
Keister v. Bell, 29 F.4th 1239, 2022 WL 881771 (11th Cir. Mar. 25, 2022)... passim
McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012)
New York Times v. United States, 403 U.S. 713 (1971)
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)
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United States v. Grace, 461 U.S. 171 (1983)
United States v. Kokinda, 497 U.S. 720 (1990)
United States v. Stevens, 559 U.S. 460 (2010)
Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021)
Uzuegbunam v. Preczewski, 781 F. App’x 824 (11th Cir. 2019)
Other Authorities
Kara Zupkus, BREAKING: Allen West Escorted From YAF Event By Police, Irate Mob Chases and Assaults Conservative Student, Young America’s Foundation (Apr. 7, 2022), https://bit.ly/3vydPL4.......................................................................3
Rules
11th Cir. R. 35-3
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STATEMENT OF THE ISSUE
Whether a state university may exercise pervasive control over free speech on public sidewalks running along city streets merely because those sidewalks border university property.
INTEREST OF AMICUS CURIAE1
Young America’s Foundation (“YAF”) is a national nonprofit organization committed to ensuring that increasing numbers of young Americans understand and are inspired by the ideas of individual freedom, a strong national defense, free enterprise, and traditional values. Young Americans for Freedom is YAF’s chapter affiliate on high school and college campuses across the country.
YAF leads the Conservative Movement on college campuses throughout the country by sponsoring campus lectures and other activities that are often the most well attended events of the school year. YAF’s advocacy for free speech and conservative ideas on college campuses often results in conflict with university administrators and student government leaders who disagree with the content of YAF’s messages.
1 Under Fed. R. App. P. 29(a), amicus curiae states that this brief was not authored in whole or in part by counsel for any party, and no person or entity other than amicus curiae and its counsel made a monetary contribution to the preparation or submission of this brief.
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INTRODUCTION
The panel’s conclusion that public university buildings next to a public sidewalk make speech on that sidewalk less free is a “precedent setting error of exceptional importance” that merits en banc review. 11th Cir. R. 35-3. Speaking freely in traditional public fora, like sidewalks along city streets, “is a privilege inherent in citizenship of the United States which the [First] Amendment protects.” Hague v. Comm. For Indus. Org., 307 U.S. 496, 512 (1939) (opinion of Roberts, J.); accord id. at 515 16. Yet the panel’s ruling strips that right from the public. Its analysis conflicts with decades of Supreme Court precedent, radically expands Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011), and creates a split with the Fifth and Sixth Circuits.
Time and again, YAF has seen public universities take every opportunity to suppress speech in traditional public fora, both explicitly and under cover of supposedly viewpoint neutral regulations. These actions injure the rights of non-students like Mr. Keister, but they work even greater harm to students. This is especially true for conservative students like YAF’s members.
The culture of free speech at public universities is such that, just weeks ago, a mob of 200 students physically attacked a male YAF member and chased one of YAF’s female members through campus, forcing her to hide in a men’s bathroom stall. Their transgression?
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These YAF members welcomed Lieutenant Colonel Allen West to speak on campus on the subject “America Is Not Racist.”2
Yet despite this hostile attitude towards the open exchange of ideas, public universities often do little to protect free expression. Some have contended their “streets, sidewalks, quadrangles, plazas, and park like lawns” are “non public fora” even for students,3 and that students’ speech about their religious beliefs in those fora “arguably rose to the level of ‘fighting words.’” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797 (2021). It is bad enough that those anti speech policies control on campus. But if public universities can also control the public, city sidewalks beyond, as the panel’s ruling here allows, they will take it as permission to further silence student expression.
Free speech on city sidewalks is a matter of fundamental right, not of “noblesse oblige” from public universities. United States v. Stevens, 559 U.S. 460, 480 (2010). If anything, proximity to a public university building should make speech on a public sidewalk more free, not less. The Court should grant en banc review.
2 See Kara Zupkus, BREAKING: Allen West Escorted From YAF Event By Police, Irate Mob Chases and Assaults Conservative Student, Young America’s Foundation (Apr. 7, 2022), https://bit.ly/3vydPL4.
3 See Mem. of Law in Supp. of Def.’s Mot. to Dismiss Pl.’s Am. Compl. at 13, Uzuegbunam v. Preczewski, No. 1:16-cv-04658 (N.D. Ga. Mar. 17, 2017), ECF No. 18 1.
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ARGUMENT
I. The Supreme Court has never deviated from the foundational rule that public sidewalks along city streets are traditional public fora.
Mr. Keister wants to preach and pass out literature on a sidewalk located at the intersection of University Boulevard and Hackberry Lane two “Tuscaloosa city streets.” Keister v. Bell, 29 F.4th 1239, 2022 WL 881771, at *3 (11th Cir. Mar. 25, 2022). “Sidewalks run alongside these two streets both within and outside the [university’s] campus, and [the] campus is not fenced off, gated, or otherwise self contained to prevent public access.” Keister v. Bell, 879 F.3d 1282, 1285 (11th Cir. 2018). These sidewalks are “open to the public.” Keister, 2022 WL 881771, at *3. University buildings surround the intersection, but only two blocks away there are “some private businesses.” Id.
The Supreme Court has held time and again that public sidewalks along city streets are traditional public fora. Most recently, in Schenck v. Pro-Choice Network of W. N.Y., the Court classified “public sidewalks” as “a prototypical . . . traditional public forum.” 519 U.S. 357, 377 (1997). Before that, in United States v. Kokinda, the Court observed that “municipal sidewalk[s] that run[ ] parallel to the road” are traditional public fora. 497 U.S. 720, 727 28 (1990) (plurality opinion). Even further back, in Frisby v. Schultz, the Court noted its historical “decisions identifying public streets and sidewalks as traditional public
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fora are not accidental invocations of a ‘cliché,’ but recognition that … they have immemorially been held in trust for the use of the public.” 487 U.S. 474, 480 81 (1988) (quotation omitted). Those prior decisions include United States v. Grace, which held that “[s]idewalks” are “traditionally . . . open to the public for expressive activities” and judged them “generally without further inquiry, to be public forum property.” 461 U.S. 171, 179 (1983); accord Grayned v. City of Rockford, 408 U.S. 104, 115 (1972).
Based on these precedents, the panel should have held the sidewalk here was a traditional public forum “automatically from [its] identification” as a public sidewalk along city streets. Frisby, 487 U.S. at 480; accord Grace, 461 U.S. at 179. Instead, the panel assumed (without explanation) that quintessential city sidewalks are somehow different when university buildings happen to be nearby. Keister, 2022 WL 881771, at *7 *8. That is gravely mistaken. Public sidewalks do “not lose [their] historically recognized character” just because they “abut[ ] government property that has been dedicated to a use other than . . . public expression.” Grace, 461 U.S. at 180.
Nothing in the Supreme Court’s precedents supports the notion that city sidewalks somehow cease to be public fora if they adjoin public university buildings. Of course, it would be risible to maintain that the presence of private university buildings destroys the traditional public
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forum status of a sidewalk. So it makes even less sense to reach that conclusion where public universities are at issue.
Even for elementary schools, where the government actually has some interest in controlling speech, the Supreme Court has treated “public sidewalk[s] adjacent to school grounds” as traditional public fora. Grayned, 408 U.S. at 118 19. Based on that conclusion, it has approved “picketing and handbilling” in these locations and allowed government to quell free expression only when it “disrupts or is about to disrupt normal school activities.” Id. So if high school students in Illinois can handle peaceful speech activities on public sidewalks, college students in Alabama can too. Id. at 115 19.
The panel tried to sidestep these public-sidewalk precedents by applying the Supreme Court’s rules for interior sidewalks in govern ment enclaves, such as on “military base[s]” and between a post office’s “parking lot and . . . front door.” Keister, 2022 WL 881771, at *8 (discussing Greer v. Spock, 424 U.S. 828 (1976), and Kokinda). But the shoe doesn’t fit. Even if public university buildings constitute an enclave, the sidewalks here run along public streets that go beyond the university’s property and lie at worst at the perimeter and at best outside that enclave altogether. Id. at *2. That was what both a university police officer and Mr. Keister understood. See id. Sidewalks
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along Tuscaloosa streets (or any public university’s hometown) aren’t comparable to sidewalks inside Fort Knox.
II. The panel opinion extended Bloedorn’s exception for interior campus sidewalks beyond the campus.
The panel veered further off course in applying this Court’s precedent in Bloedorn, which dealt with “interior sidewalks falling within the geographic boundaries” of a university’s isolated campus. 631 F.3d at 1234 n.2 (emphasis added). Even if government enclave analysis applies in that context, id. at 1233 34, Mr. Keister’s case concerns “perimeter sidewalks on [municipal] public streets,” which Bloedorn explicitly said it did not consider. Id. at 1234 n.2 (emphasis added). Yet, the panel opinion applied Bloedorn’s strictures beyond the university’s purported enclave and onto municipal sidewalks, radically expanding universities’ authority to restrict free speech. Keister, 2022 WL 881771, at *9 *10. In so doing, it made three critical errors. First, the panel wrongly deferred to the university’s claim of authority over external, public sidewalks. Government officials may not by their “own ipse dixit destroy the ‘public forum’ status of streets and parks.” Grace, 461 U.S. at 180 (quotation omitted). The university’s effort to demolish the “public forum status” of public sidewalks along city streets “is at least presumptively impermissible, ” no matter who owns them. Id.
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Second, the panel failed to perform the traditional-public-forum analysis accorded to property that “by long tradition . . . has been devoted to assembly and debate.” Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998) (quotation omitted). “‘[P]ublic places’ historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be ‘public forums.’” Grace, 461 U.S. at 177. Instead of following that presumption, the panel focused on subjective considerations reserved for designated public fora that are “not traditionally open to” public expression. Ark. Educ. Television Comm’n, 523 U.S. at 677 (quotation omitted). This again resulted in deferring to the university’s assertion of authority over a traditional public forum it did not own. The panel reasoned that, “[g]iven the University’s control over the Sidewalk, it’s the University’s intent that matters with respect to that property.”
Keister, 2022 WL 881771, at *10. Not so for a traditional public forum. Just as city streets running past university property are open to anyone’s car, public sidewalks bordering those streets are traditionally open to anyone’s expression.
Third, the panel opinion reaches conclusions that defy the record. To bring this case within Bloedorn, the panel described the sidewalks as “unambiguously within campus” or “on campus.” Id. at *9, *11 (emphasis added). This finds no support in the record. Mr. Keister
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sought access to perimeter sidewalks running along two city streets, not interior sidewalks within a university’s campus. It is undisputed that a university police officer and Mr. Keister believed the sidewalks were “not part of the University’ s campus.” Keister, 2022 WL 881771, at *2. III. The panel opinion created a split with the Fifth and Sixth Circuits.
This Court is not the first to confront a dispute about free expression on public sidewalks along city streets that abut university property. But it is the first to exalt university control, rather than free speech, as the preeminent value in those cases. Keister, 2022 WL 881771, at *8 *11. And by doing so, the panel created a split with the Fifth and Sixth Circuits in the process, despite its claims to the contrary.4 Id. at *11.
Take Brister v. Faulkner, which involved public sidewalks along university property “surrounded . . . by public streets.” 214 F.3d 675, 678 (5th Cir. 2000). Although the sidewalks there were university owned and the city merely held an easement, id., the Fifth Circuit followed the Supreme Court’s decision in Grace and ruled they were traditional public fora for two reasons. First, if there was a government
4 Even though the panel opinion asserts that the Fifth and Sixth Circuits’ decisions involved “clearly municipal sidewalks,” Keister, 2022 WL 881771, at *11, both decisions (as described above) involved public sidewalks that were located on university property.
enclave, “members of the public” could not “be certain when they ha[d] entered” it, thus “chilling otherwise constitutionally protected speech.” Id. at 682. Second, the university retained the ability to “remove anyone who [actually] interferes with the flow of traffic” or similar neutral and genuine “university[ ] interests.” Id. at 683.
If Mr. Keister’s case is distinguishable from Brister, it is only because the traditional public forum here is even more clear. In Brister, the city held only an easement, but in this case the sidewalks are city owned and even more distinct from the university’s campus. Keister, 2022 WL 881771, at *3. By classifying them as limited public fora generally closed to public expression, the panel opinion puts this Court in conflict with Brister. Id. at *11.
The panel’s holding is equally impossible to reconcile with McGlone v. Bell, 681 F.3d 718, 726 (6th Cir. 2012). In McGlone, similar to Brister, the Sixth Circuit considered a sidewalk “on university property” but adjacent to public streets. It too applied Grace and held that “perimeter sidewalks along [a university’s] campus are traditional public fora.” Id. at 732. Placing the burden on the university, the Sixth Circuit explained that government officials must show sidewalks are “overwhelmingly specialized” so as “to negate [their] traditional forum status.” Id. Because the sidewalks in McGlone were “physically
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indistinguishable from public sidewalks, they constitute[d] traditional public fora.” Id. at 733.
Again, the only difference between Mr. Keister’s case and McGlone cuts in his favor. The sidewalks are not just “indistinguishable from public sidewalks,” id., they are public sidewalks, and they are owned by the city. Keister, 2022 WL 881771, at *3. Yet the panel opinion closed municipal sidewalks to public speech unless individuals comply with the university’s prior restraints. Id. at *12 *16, That presumptively violates the First Amendment. McGlone, 681 F.3d at 733 (relying on New York Times v. United States, 403 U.S. 713, 714 (1971)).
This Court’s precedents on matters of central importance to First Amendment expression at public universities have previously created circuit splits that required the Supreme Court to intervene. Uzuegbunam v. Preczewski, 781 F. App’x 824 (11th Cir. 2019) (relying on Flanigan’s Enters., Inc. v. City of Sandy Springs, 868 F.3d 1248 (11th Cir. 2017) (en banc)), rev’d by Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). The Court should avoid a similar and wholly unnecessary split of authority here by granting en banc review and reversing the decision below.
CONCLUSION
The Court should grant en banc review.
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Respectfully submitted this 21st day of April, 2022.
/s/ John J. Bursch
John J. Bursch Counsel of Record Rory T. Gray Tyson C. Langhofer ALLIANCE DEFENDING FREEDOM 440 First Street NW, Suite 600 Washington, DC 20001 (616) 450 4235 jbursch@adflegal.org
Lincoln Davis Wilson DECHERT LLP Three Bryant Park 1095 Sixth Avenue New York, NY 10036 (212) 698 3500
Counsel for Amicus Curiae
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 29(b)(4). Exclusive of the sections exempted by Fed. R. App. P. 32(f), the brief contains 2,421 words, according to the word count feature of the software (Microsoft Word 365) used to prepare the brief. The brief has been prepared in proportionately spaced typeface using Century Schoolbook 14 point.
/s/ John J. Bursch John J. Bursch Counsel for Amicus Curiae
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed electronically with the Court’s CM-ECF system on April 21, 2022. Service will be effectuated by the Court’s electronic notification system upon all parties and counsel of record.
/s/ John J. Bursch John J. Bursch Counsel for Amicus Curiae
