Case Document

Shaw v. Burke Supplemental Statement of Interest

Date

Thursday, November 9, 2017

Document Type

Statement of Interest

Attachments

Shaw v. Burke Supplemental Statement of Interest

JEFFERSON B. SESSIONS III
Attorney General

JOHN M. GORE
Acting Assistant Attorney General

TARA HELFMAN
Senior Counsel

STEVEN MENASHI
Acting General Counsel, Department of Education

THOMAS E. CHANDLER
Deputy Chief, Appellate Section

VIKRAM SWARUUP
Attorney, Appellate Section
U.S. Department of Justice

Civil Rights Division
950 Pennsylvania Ave., N.W.

Washington, DC 20530
Telephone: (202) 616-5633
Facsimile: (202) 514-8490
Email: vikram.swaruup@usdoj.gov

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

KEVIN A. SHAW, Plaintiff,

v.
KATHLEEN F. BURKE, et al., Defendants.

No. 2:17-cv-02386-ODW-PLA

UNITED STATES' SUPPLEMENTAL STATEMENT OF INTEREST

EXHIBIT A 6

1 SUPPLEMENTAL STATEMENT OF INTEREST
2 OF THE UNITED STATES OF AMERICA
3 The United States submits this Supplemental Statement of Interest under 28
4 U.S.C. § 517.¹ The United States has an interest in this litigation because Plaintiff
5 has brought a First Amendment challenge to speech restrictions at a public college,
6 a place where freedom of expression is "vital." Shelton v. Tucker, 364 U.S. 479,
7 487 (1960); see also Doc. 39 (First Statement of Interest) at 1-2.
8 On October 31, 2017, Defendants filed a brief in Opposition to the United
9 States' Statement of Interest in this case. Doc. 40. In that brief, Defendants
10 materially mischaracterize several of the United States' arguments. Left
11 unrebutted, these mischaracterizations could be prejudicial to the United States'
12 interest in this case and in future cases. The United States therefore wishes to
13 clarify the record and requests that this Court consider this Supplemental Statement
14 of Interest in evaluating Defendants' erroneous arguments.
15 I. DEFENDANTS MISS THE POINT IN ARGUING THAT THEIR
16 PERMITTING REQUIREMENTS ARE NOT "INHERENTLY
17 UNCONSTITUTIONAL"
18 Defendants devote a substantial portion of their Opposition to the
19 irrelevant-and undisputed-contention that, as a general matter, permitting
20 schemes "are [n]ot [i]nherently [u]nconstitutional" under the First Amendment.
21 Doc. 40 at 2-4. But, of course, the United States has never argued otherwise. See
22 Doc. 39 at 9-14. To the contrary, the United States has emphasized the well-
23 settled rule that "the government may impose reasonable restrictions on the time,

24
25 ¹ Section 517 provides: "The Solicitor General, or any other officer of the
26 Department of Justice, may be sent by the Attorney General to any State or district
27 in the United States to attend to the interests of the United States in a suit pending in a
court of the United States, or in a court of a State, or to attend to any other
28 interest of the United States." 28 U.S.C. § 517.

EXHIBIT A 7

1 place, or manner of protected speech." Ward v. Rock Against Racism, 491 U.S.
2 781, 791 (1989) (cited in Doc. 39 at 8, 15, 19). And it has recognized that, in
3 many instances, it is the duty of the government to impose reasonable restrictions
4 on speech to manage competing uses of public spaces. Forsyth Cty., Ga. v.
5 Nationalist Movement, 505 U.S. 123, 130 (1992) (cited in Doc. 39 at 7-8, 10-11).
6 Thus, far from arguing that permitting schemes are unconstitutional per se, the
7 United States instead argues that Plaintiff Kevin Shaw has adequately pleaded a
8 claim that Los Angeles Pierce College's (Pierce College) permitting restrictions
9 are unconstitutional because they give college administrators unbridled discretion,
10 apply to single speakers and small groups without appropriate justification, and
11 effectively ban all spontaneous speech. See Doc. 39 at 9-14.
12 Defendants fall back on objecting that Pierce College's permitting scheme
13 could not have been a prior restraint because Mr. Shaw was granted a speech
14 permit and was authorized to proceed directly to the Free Speech Area
15 immediately after he submitted his application. Doc. 40 at 2-3. This argument
16 misses the point. The question here is not whether Mr. Shaw received a permit to
17 use the Free Speech Area, but why he was required to apply for one in the first
18 place. The Supreme Court has held that "[i]t is offensive-not only to the values
19 protected by the First Amendment, but to the very notion of a free society-that in
20 the context of everyday public discourse a citizen must first inform the government
21 of her desire to speak to her neighbors and then obtain a permit to do so."
22 Watchtower Bible & Tract Soc’y v. Stratton, 536 U.S. 150, 165-166 (2002).
23 Thus, if the government, in the person of Pierce College, wishes to establish
24 a permitting scheme, it must ensure that the policy is reasonable and narrowly
25 tailored to serve a significant governmental interest. Doc. 39 at 14-20.
26 Furthermore, the policy must establish "narrowly drawn, reasonable and definite
27 standards for the officials to follow" in granting such permits. Niemotko v.
28 Maryland, 340 U.S. 268, 271 (1951). The fact that Mr. Shaw received a permit

EXHIBIT A 8

1 when he applied for one has little bearing on whether such standards existed at
2 Pierce College. It is the United States' view that Plaintiff has sufficiently pleaded
3 facts which, if true, suggest that the College's permitting policy does not pass
4 constitutional muster. See Doc. 39 at 3, 5 (noting that the College's Free Speech
5 Area Policy was unpublished and, according to Mr. Shaw, unevenly enforced).
6 II. DEFENDANTS MISCHARACTERIZE THE WELL-SETTLED LAW
7 GOVERNING THE REGULATION OF FREE SPEECH ON PUBLIC
8 PROPERTY
9 Defendants next claim that the United States "has completely ignored
10 established Supreme Court precedent defining both traditional and designated
11 public fora." Doc. 40 at 4. The United States does no such thing. In fact, even
12 Defendants recognize that the United States has cited the very "Supreme Court
13 precedent" that Defendants view as controlling. Id. at 4-7. Indeed, the United
14 States' first Statement of Interest notes that "the power of the government to
15 regulate speech on college and university campuses is contingent on the character
16 of the forum in question." Doc. 39 at 7 (citing Perry Educ. Ass’n v. Perry Local
17 Educators’ Ass’n, 460 U.S. 37, 44 (1983)). Here, Plaintiff challenges a Los
18 Angeles Community College District rule that renders all areas outside the Free
19 Speech Area non-public fora that are not open to free speech and expression.
20 Doc. 1 ,r 35; id., Ex. A at 31. The United States has explained that, under the
21 governing Supreme Court precedent, such a broad and indiscriminate prohibition
22 on speech cannot pass constitutional muster as a valid time, place, or manner
23 restriction. See Doc. 39 at 14-20.
24 Defendants also attempt to avoid this conclusion by disputing many of Mr.
25 Shaw's factual allegations-but such disputes cannot support dismissal under Rule 26
12(b)(6). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). In
27 particular, they assert that "while the Los Angeles Community College District's
28 campuses may have physical attributes resembling other traditional and designated

EXHIBIT A 9

1 public forums, there is neither a tradition nor a governmental designation turning
2 the campuses into public forums." Doc. 40 at 5. Yet Mr. Shaw has pleaded facts
3 that, if credited, contradict Defendants' characterizations. For example, he alleges
4 that students, himself included, were allowed to engage in expressive activity in
5 campus spaces outside the Free Speech Area on several occasions, notwithstanding
6 the College and District rules. Doc. 1 ,r 66. As noted in the First Statement of
7 Interest, under OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012), the
8 College's acquiescence in these activities, together with the particular physical
9 characteristics of the relevant campus areas, could effectively nullify District and
10 College rules prohibiting speech outside the Free Speech Area. Doc. 39 at 17.
11 To this, Defendant responds that "the United States conveniently disregards
12 a key operative fact in OSU Student Alliance-there was a state regulation which
13 expressly turned the grounds of Oregon State University into a designated public
14 forum." Doc. 40 at 6. Again, the United States does no such thing. The United
15 States argues that in the present case, as in OSU Student Alliance, a college's
16 speech regulations cannot be self-justifying. There, as here, the Defendants'
17 "reasoning is circular: the contention is that the policy placed a limitation on the
18 forum, and that the limitation on the forum in turn justified the policy." OSU
19 Student Alliance, 699 F.3d at 1063; see also Hays Cty. Guardian v. Supple, 969
20 F.2d 111, 117 (5th Cir. 1992). The Constitution demands more. Defendants must
21 show that the challenged policies are narrowly tailored to further a significant
22 government interest and that they leave open sufficient alternative channels for
23 communication. Perry Educ. Ass’n, 460 U.S. at 45; Ward, 491 U.S. at 791.
24 Defendants have failed to do so at the pleading stage, so Mr. Shaw has pleaded
25 First Amendment claims. See Doc. 39 at 14-20. 26
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EXHIBIT A 10

1 III. THE UNITED STATES' PARTICIPATION IN THIS CASE IS
2 PROPER
3 Finally, Defendants take issue with the United States' participation in this
4 case (Doc. 40 at 1, 8-9), but they nowhere dispute that the United States has a
5 statutory right to file statements of interest here, see 28 U.S.C. § 517. Moreover,
6 Defendants' claim that the United States "indicts Defendants as though Plaintiff's
7 factual allegations have not only been proven, but are conclusively indicative of a
8 First Amendment violation" (Doc. 40 at 1) is false. As the United States has
9 explained, it takes Plaintiff's "well-pleaded allegations" as true without taking any
10 view "regarding whether Plaintiff will succeed in proving these allegations at
11 trial." Doc. 39 at 2. And the United States in no way "attempts to distract the
12 Court" by filing a Statement of Interest in this case. Doc. 40 at 9. Rather, the
13 United States simply has explained that Defendants' prohibition of expressive
14 activity on all but 660 square feet of the Pierce College campus and imposition of
15 an unbounded permitting scheme create a plausible claim that they have violated
16 the First Amendment. See Doc. 39.

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EXHIBIT A 11

CONCLUSION

The United States respectfully requests that the Court consider the foregoing in resolving the pending motion to dismiss.

Dated: November 9, 2017

Respectfully submitted,