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The issue before the Supreme Court on Monday: whether a federal law that prohibits inducing unlawful immigration for financial gain violates the First Amendment. Kent Nishimura/Los Angeles Times via Getty Imag hide caption

The issue before the Supreme Court on Monday: whether a federal law that prohibits inducing unlawful immigration for financial gain violates the First Amendment.

Look at the the Supreme Court's history, and you will see a lot of cases in which odious defendants bring tough First Amendment questions. Monday's case was one of those.

The issue was whether a federal law that makes it a crime to encourage or induce illegal immigration transforms some speech protected by the Constitution into a crime.

The defendant in this case is Helaman Hansen, who conned 471 noncitizens into believing that they could obtain U.S. citizenship through adult adoption. By enrolling these noncitizens in this nonexistent program, Hansen defrauded these people of more than $1.8 million. In 2017, a jury convicted him on 15 counts of mail and wire fraud, for which he was sentenced to 20 years in prison. But it also found him guilty of two counts of encouraging or inducing these noncitizens to remain in the United States, and it is those two counts that were the focus of Monday's argument.

The Ninth Circuit Court of Appeals ruled in favor of Hansen, declaring that the federal law making it a crime to induce unlawful immigration sweeps up a substantial amount of speech that is protected by the First Amendment. The government appealed, and on Monday Deputy Solicitor General Brian Fletcher sought to thread a tiny legal needle: With one hand he made strategic concessions, while with the other he sought to uphold the statute. He conceded that the jury had not been properly instructed on the defendant's intent, and that the statute could be read too broadly. But, noting that the law has been applied for 70 years, he argued that if it is narrowly construed, it does not run afoul of the First Amendment.

"Prohibitions on soliciting or facilitating both criminal and civil violations have long been common and have never been thought to raise a First Amendment problem," Fletcher said. "The First Amendment does not protect speech that is intended to induce or commence specific illegal activities."

"What do you say to the charitable organizations that say, even under your narrowing construction, there's still going to be a chill or a threat of prosecution for them for providing food or shelter and aid," asked Justice Brett Kavanaugh.

Justice Sonia Sotomayor followed up, saying, "We do know that the Customs Department made a list of all the people, religious entities, the lawyers and others who were providing services to immigrants at the border and was saying they were going to rely on the statute to prosecute them."

Justice Elena Kagan added, "What happens to all the cases where it could be a lawyer, it could be a doctor, it could be a neighbor, it could be a friend, it could be a teacher and could be anybody, says to a noncitizen, 'I really think you should stay.' What happens to that world of cases?"

Responding to a question from Sotomayor about a grandmother who worries that her immigration status might be a burden on her children but stays in the U.S. at their urging, Fletcher acknowledged that when family members urge someone to stay, that is the hardest case. He said there is no way to deal with all the variables that could come up, prompting Sotomayor to ask, "Why should we uphold a statute that criminalizes words . . . that's what we're doing with this statute. It's a first of [its] kind."

Unless the court clips the wings of this statute, she said, "Congress and the states will be free . . . to criminalize speech soliciting violations of the vast range of administrative and regulatory laws that govern us today, from mask and vaccine mandates to parking ordinances."

But she too faced some tough hypotheticals. "What about someone who encourages a person who is intellectually disabled to commit suicide?" asked Justice Samuel Alito.

Bhandari replied that the government has an interest in protecting the vulnerable, and if a statute were narrowly drawn, it could survive.

Justice Neil Gorsuch asked Bhandari how her client's rights are being violated, noting that under just about any standard of intent, he would be convicted.

Bhandari acknowledged that her client had defrauded many people and will go to jail for 20 years. But, she said, the challenge here is to the statute as a whole and how it could inhibit speech about almost anything.

The government, with all its concessions on Monday, tried its best to persuade the court that a decision narrowly construing the statute would allow it to remain on the books. Whether it won the day remains to be seen.

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At the Supreme Court, when is immigration advice a crime? - NPR

Left: Former President Donald Trump delivers a speech at the Ellipse on Jan. 6, shortly before his mob of supporters ran riot inside the U.S. Capitol. (Photo by Tasos Katopodis/Getty Images). Right: Helaman Hansen via KCRA/YouTube screengrab.

The Supreme Court considered Monday whether it should be a federal crime to encourage someone to remain in the U.S. illegally or whether such speech is protected by the First Amendment.

As they sorted through their analysis in the case of United States v. Hansen, the justices raised hypotheticals about encouraging prostitution, drug dealing, vaccine-mandate protests, and even suicide but they left out one highly-relevant example: Donald Trumps public statements on January 6, 2021 that preceded the riots at the U.S. Capitol.

The case before the court is an appeal of fraudster Helaman Hansen, who was convicted of multiple federal crimes for falsely promising hundreds of undocumented immigrants that they could become U.S. citizens by overstaying their visas, paying a fee, and using adult adoption. Hansen was convicted in 2017 of federal mail and wire fraud for his scheme and sentenced to 20 years in prison.

One of the statutes Hansen was convicted of violating is a subsection of 8 U.S.C. 1324, the federal statute that prohibits bringing in and harboring certain aliens. The subsection being challenged by Hansen makes it a crime to encourage or induce a non-citizen to reside in the United States while knowing that it would be illegal for the non-resident to do so.

Hansen appealed, arguing that his statements to the immigrants are protected by the First Amendment, and that the statute criminalizing encouraging the overstay is overly broad. Hansen noted the disparity in penalties between the overstaying itself which is a civil violation without any applicable penalty of prison time and the encouraging of that overstay, which in his case resulted in the maximum ten-year penalty because he did so for financial gain.

As the justices noted during oral arguments, the Courts ruling in the case has potential implications for everything from civil disobedience to nonprofit advocacy. First Amendment jurisprudence is clear that incitement of imminent lawlessness is not protected as free speech, but the line between incitement and advocacy is not always clear and the justices now have the chance to carve out what kind of encouragement can be constitutionally criminalized without offending the First Amendment.

Principal Deputy Solicitor General Brian Fletcher argued on behalf of President Joe Bidens administration that the law in question only criminalizes aiding or abetting or soliciting a person to unlawfully enter or remain in the U.S., and assured the justices that typically, things like general advocacy would not be prosecuted under the statute.

Fletcher faced questions from Justice Elena Kagan about whether the statute would cover a doctor advising a patient or a lawyer advising a client to stay in the U.S. illegally. Kagan then went even farther.

Do I understand you to be drawing a line from a friend who says, I know exactly what the law is and I really think you should stay, and saying that exact same thing and saying also, Im going to provide you support when you stay? Kagan asked Fletcher. Is that the line?

Fletcher indicated that he would not expect casual conversations or even medical advice to be covered by the statutes definition.

Justice Ketanji Brown Jackson did not seem convinced.

If the purpose [of the communication] is having the person stay here and thats unlawful, why wouldnt giving them food and shelter violate the statute? Jackson asked.

Chief Justice John Roberts allowed Fletcher to point out that there have not been any examples of actual prosecutions involving such examples.

Justice Sonia Sotomayor, however, did not appear willing to hinge her interpretation on the Biden administrations general take on what would and would not be prosecuted.

We do know that the Customs Department made a list of all the people, religious entities, lawyers, and others who were providing services to immigrants at the border, she reminded Fletcher. I know of no other statute where the [punishment for] aiding and abetting is greater than the punishment for committing the crime, she added.

Sotomayor then offered a hypothetical of her own: an undocumented grandmother who expresses her worry at staying in the country illegally to her grandchildren.

Abuelita, you are never a burden to us. Your grandchildren love having you, the justice imagined the hypothetical grandchildren saying, and then asked the Biden administration lawyer: Can you prosecute this?

When Fletcher responded that he thinks such a situation could not give rise to criminal liability, Sotomayor appeared to lose her patience.

Stop qualifying with think,' the justice commanded. People have to know what they can talk about.

American Civil Liberties Union attorney Esha Bhandari argued on behalf of Hansen and faced a skeptical Justice Samuel Alito.

Soliciting prostitution, thats unconstitutional? pressed Alito. What about encouraging someone to prostitution?

When Bhandari answered that entering into a transaction could be criminalized, but that something less active would not, Alito raised other examples, such as encouraging a mentally disabled person to commit suicide.

Isnt that the same? asked the justice, commenting that the federal government has a strong interest in preventing illegal immigration just as it has an interest in protecting vulnerable populations.

Justice Neil Gorsuch appeared disinclined to side with the ACLU in this particular case, given Hansens proven wrongdoing. Gorsuch called the case awkward in that Hansens encouraging statements were not innocent, as were many of the examples raised during colloquy.

While the potential for criminalizing political speech and general advocacy was examined from multiple angles, no one in the courtroom Monday raised the particularly relevant example of Donald Trump and the Jan. 6th Capitol riots. The Biden administration has clearly articulated its position: the former president should not be immune from liability for his role in the riot, when scores of Trump supporters overwhelmed law enforcement and forced their way into the building, causing an estimated $2.9 million in damage and forcing Congress to temporarily suspend its certification of Bidens 2020 electoral win.

In court documents filed in early March, the Department of Justice did not take an official position on whether Trumps Jan. 6, 2021 speech reached the level of incitement necessary for criminal prosecution, but did advance legal arguments about how such a determination might be made. Still, any Supreme Court ruling further clarifying the lines between incitement and protected speech could derail any DOJ argument against Trump in a future prosecution.

Should the Court rule in Hansens favor, as the U.S. Court of Appeals for the Ninth Circuit did, it could bolster any potential Trump defense based on the First Amendment. However, given the justices comments from the bench Monday, it appears more likely that the Court will side with the Biden administration and allow Hansen and perhaps eventually, by extension, Trump to be prosecuted for encouraging others to commit non-criminal violations of federal law.

You can listen to the full oral arguments here.

Here is the original post:
Trump strangely not mentioned during SCOTUS hearing on First Amendment case over encouraging violations of federal law - Law & Crime

More than 120 individuals signed up to attend an educational and informative forum entitled Innocence Under Siege, which was organized and funded by No Left Turn in Education (NLTE).

Our children are under siege being universally bombarded to embrace the concept of gender fluidity and to explore changing their gender identities. The purpose of the event was to expose the harm that results when MINORS, whose brains are not yet fully developed, act on this destructive social contagion that is being created and promoted in mainstream and social medias, at the highest levels of our national government, and especially in our schools.

When the location of the event leaked to the public, the hotel received threats that were formidable enough for the local police to urge that it be cancelled. Less than a day before the forum was scheduled to begin, the police told the Sheraton manager and the NLTE organizer that the hotel has been receiving threats and there has been discussion about shutting down the event on social mediaif 100-200 people show up at the protest we cant protect you, and we cant prevent them from entering the hotel. In an abundance of caution and a concern for everyones safety, NLTE agreed to cancel the event at that location.

Although it seemed that the intolerant miscreants had succeeded in their goal to silence speech with which they disagreed, their malicious attempts were a dismal failure. The organizers found a new venue almost immediately; Innocence Under Siege went on exactly as planned and was a rousing success.

The idea for this type of forum originated in 2022 when a district resident asked the West Chester Area School District if they would consider co-hosting an event, funded by NLTE, that would educate students as to the detrimental consequences of gender transitions in MINORS. The purpose was to counteract the numerous documented instances of gender ideology indoctrinations that have occurred over the years at various grade levels in WCASD, including the most egregious that of training teachers in these ideologies (intending to be relayed to students) at Fern Hill Elementary School. When the District refused the offer, NLTE arranged the aforementioned Innocence Under Siege event at the Sheraton.

Innocence Under Siege conveyed a wealth of valuable information and personal experiences in its 3 hour program. Dr. Elana Fishbein, NLTEs founder, chronicled the history of the transgender movement. A forensic nurse examiner discussed the detrimental impacts of puberty blockers and hormones on children who opt to change their genders, and also described the irreversible damage caused by mutilating surgeries that are occasionally performed on minors. Chloe Cole, an 18-year-old female, recounted the innumerable physical and emotional problems she still endures after beginning her transition to a male: taking puberty blockers and testosterone at 13, having a double mastectomy at 15, and then re-transitioning to a female at 16.

Sara Higdon, an impressive biological male who transitioned to a female at 31, works with Trans against Groomers and opines that MINOR children should not be making irreversible lifestyle decisions until their brains are fully developed. There was absolutely no attempt by any speaker or attendee to judge or condemn adults who choose the transgender lifestyle.

Exposing WCASD students to the information presented in this outstanding educational forum would have been a valuable balance to the gender ideology indoctrinations that are currently being imposed on them. Its too bad the District refused NLTEs 2022 offer to co-host this type of event with them.

Joanne Yurchak

East Goshen

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LETTER: The First Amendment under attack in Chester County - Daily Local News

Some public officials want to roll back long-standing legal protections for journalists. Might they succeed? Here's everything you need to know:

Before the Revolutionary War, any criticism of colonial officials was considered "seditious libel" a criminal offense under English common law. It did not matter if critical statements about authorities were true. That changed with America's first landmark libel case, in 1735. John Peter Zenger, printer of the New York Weekly Journal, had angered the crown-appointed governor, William Cosby, with frequent criticism and mockery. Cosby had Zenger jailed and tried for sedition but his lawyer argued that people have a "natural right" to complain about malevolent or incompetent rulers, and convinced a jury to acquit Zenger on the grounds that the paper's criticisms were true. The principle that the truth cannot be libelous became a bedrock of American free-speech law, and was incorporated into the laws of many states after the U.S. was founded. But until the mid20th century, state laws put the burden of proof on defendants to show their statements were true. That changed with the 1964 Supreme Court case New York Times v. Sullivan, which set a groundbreaking precedent.

L.B. Sullivan was a city commissioner in Alabama who sued The New York Times for defamation over an ad placed by civil rights activists accusing Alabama police of mistreating protesters. Sullivan said the ad got several minor details wrong, and won a $500,000 jury verdict. But the Supreme Court unanimously overturned that verdict and set a new libel standard: Plaintiffs must prove "actual malice" that the defendant published a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Erroneous statements are "inevitable in free debate," wrote Justice William Brennan, declaring that "debate on public issues should be uninhibited, robust, and wide-open." Subsequent rulings extended the "actual malice" standard to public figures as well as government officials. (The standard for libeling private individuals is lower: The news organization or accuser must be found to have acted with "negligence" in making a false, damaging statement.) Free speech advocates say Sullivan's standards have been crucial to the functioning of a free press. But some Republicans say the ruling should be overturned.

They say the "actual malice" standard makes it too hard for public officials to successfully sue news organizations. Donald Trump, who last year sued CNN for libel for airing statements that he's "a racist" and "Russian lackey," has frequently said legislators or courts should "open up" libel laws so he and others could sue news outlets that "write purposely negative and horrible and false articles." Florida Gov. Ron DeSantis (R), a frequent press combatant, has also assailed the Sullivan standards, saying they enable the press to "smear" public figures. Two bills his allies recently introduced in the Florida legislature would drastically weaken reporters' legal protections.

One provision would establish a presumption that "statements by anonymous sources" are false, and compel reporters to reveal such sources. Accusing public officials or religious leaders of "discrimination" against gays, women, or racial minorities would be deemed libelous. The bills put the onus on news organizations to "validate or corroborate the alleged defamatory statement"; plaintiffs who won such suits would get all legal fees paid by losing media organizations. Critics of the proposal say that if that new standard were established, the press could face a blizzard of lawsuits that would lead to financial ruin even if the suits failed. It's "a deliberative effort to punish media organizations" that criticize DeSantis, said Thomas Julin, a Florida First Amendment attorney. If the bills became law, their constitutionality would be challenged giving conservatives on the U.S. Supreme Court a chance to revisit the Sullivan ruling and possibly overturn it. There's "a growing sense" among Sullivan opponents that "this is their day," said veteran First Amendment lawyer Floyd Abrams.

Justices Clarence Thomas and Neil Gorsuch have both criticized the Sullivan standard. It has "evolved into an ironclad subsidy for the publication of falsehoods," wrote Gorsuch last year. How many other justices might potentially vote to overturn Sullivan is unclear, but First Amendment lawyers believe it's a matter of time before the court chooses to hear a challenge to that precedent.

If libel standards are lowered, say First Amendment advocates, it would lead to a flood of lawsuits designed to stifle criticism of government officials and inhibit investigative journalism. "It would have a chilling effect on the press," said Samantha Barbas, a University of Buffalo law professor who wrote a book on the Sullivan case. Under a lowered standard, however, conservative media outlets like Fox News which routinely attack people on the left in very caustic, personal terms would also become vulnerable, said Edward Birk, a First Amendment lawyer in Florida. "These kinds of changes will cut far right and far left and everywhere in between," he said.

The "actual malice" standard set in New York Times v. Sullivan sets a high bar for libel plaintiffs that is rarely cleared. But legal experts say a possible exception might be the $1.6 billion suit against Fox News by Dominion Voting Systems. Dominion says it suffered serious reputational damage when the network aired false statements by Donald Trump's lawyers that it was part of a plot to rig voting machines to change Trump votes to votes for Joe Biden in the 2020 election. Uncovered texts and emails have revealed that Fox hosts and executives called the claims "ludicrous" and "mind-blowingly nuts," with Fox owner Rupert Murdoch calling them "terrible stuff damaging everybody." These statements are the kind of smoking-gun evidence plaintiffs can rarely find, say libel experts. "I have never seen a defamation case with such overwhelming proof" that the defendant "was making up fake information," said Harvard Law professor Laurence Tribe. In its defense, Fox's lawyers say the network simply covered newsworthy claims that election machines were rigged a "fundamental" right "protected by New York Times v. Sullivan."

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Targeting the press - The Week

From the brief in support of motion for TRO in Spectrum WT v. Wendler (N.D. Tex.), filed Friday (see the brief for more factual details, and some further analysis); the argument seems correct to me:

Introduction

West Texas A&M University's President, Defendant Walter Wendler, has declared that he will not obey "the law of the land." Instead, he insists on banning a recognized student group's event from campus simply because he dislikes the event's entirely lawful message. By moving for a temporary restraining order and preliminary injunction, Plaintiffs ask this Court to put a swift end to Wendler's disdain for the First Amendment and prevent further irreparable harm to Plaintiffs' constitutional freedoms.

On March 20, 2023, President Wendler announced to the campus community that he is forbidding Plaintiff Spectrum WT from holding its scheduled PG-13 charity drag show because he disagrees with the show's viewpoint. Making matters worse, President Wendler has all but confessed that he is knowingly violating the Constitution: "A harmless drag show? Not possible. I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it." (Dkt. 1, Verified Compl., Ex. A.) That is textbook viewpoint discrimination. And it violates the First Amendment.

The Supreme Court has concluded that even controversial live theater is protected First Amendment expression. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 55758 (1975). If officials in Tennessee could not exclude a group from presenting the provocative play Hair in a public theatre because they disagreed with Hair's message, then surely President Wendler and the other Defendants cannot exclude students wanting to put on a PG-13 charity drag show in a campus space open to student groups for expressive activities, simply because the show does not match Wendler's worldview. Id.

Indeed, the Constitution's bar against viewpoint discrimination is vital to preserving freedom of speech at public colleges and universities. "[N]o matter how offensive to good taste" some may find it, expression "on a state university campus may not be shut off in the name alone of 'conventions of decency.'" Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973). So, whether students gather on campus to support a political candidate, talk about the Bible, or put on a drag show, public college administrators cannot censor student expression just because they find it disagreeable or offensive.

Yet that is exactly what President Wendler is doing by refusing to let the show go on. The result is ongoing irreparable harm to Spectrum WT and its student officers, Plaintiffs Barrett Bright and Lauren Stovall. Above all, the eleventh-hour cancelation of their March 31 charity drag showand President Wendler's moratorium on campus drag shows altogetherare depriving Spectrum WT's members of their First Amendment rights, which is always an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). What's more, Spectrum WT carefully followed West Texas A&M's process for getting event approvalwith the full backing of campus staffonly for Wendler to pull the rug out at the last minute. If Spectrum WT cannot hold its March 31 event on campus, or similar events it plans to hold in the future, it will suffer significant injury to its mission of advocating for the LGBTQ+ community at West Texas A&M.

[I.] Plaintiffs Are Substantially Likely to Succeed on the Merits Against the University's Brazen Censorship of Protected Expression.

"The First Amendment is not an art critic," and drag shows, like other forms of theatrical performance, are expressive conduct that the First Amendment prohibits President Wendler from censoring. Norma Kristie, Inc. v. City of Okla. City, 572 F. Supp. 88, 91 (W.D. Okla. 1983) (holding drag shows are protected First Amendment expression).

The freedom of expression enshrined in the First Amendment "does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404 (1989). Whatever the mode of expression, the First Amendment protects conduct "inten[ded] to convey a particularized message," (id. at 404, 406), and it prohibits public university officials from suppressing student expression simply because they disagree with its viewpoint or find the message offensive. Papish, 410 U.S. at 670. If anything, whether speech is protected by the First Amendment is a legal, not moral, analysis. Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). President Wendler imposing his morals at the expense of free expression violates the First Amendment.

The First Amendment also bars public university officials from denying student groups access to campus public forums because of the content or viewpoint of a group's message. Widmar v. Vincent, 454 U.S. 263, 26770 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 82829 (1995). And messaging within a broader genresuch as art, theater, and dancingis also protected even if it does not convey a "narrow, succinctly articulable message." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995). Indeed, "[e]ven crude street skits come within the First Amendment's reach." Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 390 (4th Cir. 1993) (fraternity "ugly woman contest" is protected expression). See also Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985) (holding a blackface performance is protected First Amendment expression, even when it is "sheer entertainment" without a political message).

Under core First Amendment principles, Defendants' ongoing suppression of a peaceful charity drag show constitutes unlawful viewpoint and content discrimination. The Court should stop the ongoing injury to Plaintiffs' First Amendment freedoms and restore constitutional order on West Texas A&M's campus by issuing a temporary restraining order and preliminary injunction.

[A.] President Wendler's Censorship of a Drag Show Based on Personal Disagreements with the Expression's Message Is Textbook Viewpoint Discrimination.

President Wendler's abuse of his powers to quash a PG-13 charity drag show because he disagrees with the show's messagereal or perceivedviolates the First Amendment. It is "axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger, 515 U.S. at 828. "Viewpoint discrimination is censorship in its purest form," and government action "that discriminates among viewpoints threatens the continued vitality of free speech." Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 248 (6th Cir. 2015) (en banc) (cleaned up). Indeed, government officials like college administrators are "inherently" incapable of making "principled distinctions" between offensive and inoffensive speech, and the state has "no right to cleanse" public expression such that it is "palatable to the most squeamish among us." Cohen v. California, 403 U.S. 15, 25 (1971).

To that end, "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180 (1972). And that includes the First Amendment prohibition on viewpoint discrimination. Rosenberger, 515 U.S. at 83536 (invalidating college's denial of funding to Christian student newspaper). True, courts often employ "forum analysis" to determine when public university administrators "in regulating property in [their] charge, may place limitations on speech." Christian Legal Soc'y Chapter of the Univ. of Cali, Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010). But regardless of the forum's classification, "any access barrier must be viewpoint neutral." Id. (citing Rosenberger, 515 U.S. at 829).

By picking and choosing which performances fit his moral tastes, President Wendler is engaging in viewpoint discrimination. Indeed, "the essence of viewpoint discrimination" is "the Government's disapproval of messages it finds offensive." Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (quoting Matal v. Tam, 582 U.S. 218, 24849 (2017) (Kennedy, J., concurring)). And as President Wendler proclaims, he personally finds that "drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent." (Verif. Compl., Ex. A.)

President Wendler's stance mirrors that of the censorial officials in Southeastern Promotions. 420 U.S. 546. There, a group petitioned to use a city- operated municipal auditorium to present the rock musical "Hair." Id. at 547. The auditorium directors denied the application, reasoning that allowing the play "was not in the best interest of the community" and the board would only "allow those productions which are clean and healthful and culturally uplifting, or words to that effect." Id. at 549. The Supreme Court struck down the directors' censorship as an unconstitutional prior restraint. To the same end, this Court should put a stop to Defendants' ongoing viewpoint-based censorship of Plaintiffs' PG-13 charity drag show.

The Fourth Circuit's decision in Iota Xi also shows why the Court should enjoin Defendants' censorship. 993 F.2d 386. There, George Mason University imposed sanctions on a fraternity for hosting an "ugly woman contest" riddled with "racist and sexist" overtones, including contestants "dressed as caricatures of different types of women[]" (i.e., in drag). Id. at 38788. George Mason's administrators cited many of the same concerns President Wendler relies onthat the event was degrading, amounted to harassment, and conflicted with the institution's mission. Id. at 388; Verif. Compl., Ex. A.

The Fourth Circuit had no trouble brushing aside the administrators' excuses. As the court explained, "First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected." Iota Xi, 993 F.2d at

389 (collecting cases). The court likewise held the fraternity's drag skit was constitutionally protected, since it intended to convey a message, both through the mode of dress and use of a theatrical medium. Id. at 392. The court held GMU engaged in unconstitutional viewpoint discrimination by sanctioning the fraternity as the sanction arose from the fact that "the 'ugly woman contest' ran counter to the views the University sought to communicate to its students and the community." Id. at 393.

Even if President Wendler's opinion were shared by all but the students here, he cannot justify stifling Plaintiffs' expression on moral grounds. That argument lost in Southeastern Promotions. It lost in Iota Xi. And it must lose here. See also Gay Student Servs. v. Tex. A & M Univ., 737 F.2d 1317, 132227 (5th Cir. 1984) (holding Texas A&M violated the First Amendment by refusing to recognize a gay student organization when the official responsible for the denial justified the decision "based on his perception that the organization would attempt to convey ideas" he found morally repugnant).

This Court should refuse Wendler's viewpoint-driven reasons for violating the First Amendment, grant Plaintiffs' motion, and put a stop to Wendler and the other Defendants' ongoing censorship of Plaintiffs' protected expression.

President Wendler's denial of use of a campus public forum to Plaintiffs also violates the First Amendment, to their ongoing injury. Legacy Hall is a designated public forum for First Amendment purposes. West Texas A&M opens its facilities, like Legacy Hall, to West Texas A&M students and student organizations for exactly these expressive purposes: theatrical performances before a willing audience, music, dancing, and banter. (Verif. Compl. 3132, 4142.) Thus, because "the University has created a forum generally open for use by student groups," "the University must therefore satisfy the standard of review appropriate to content-based exclusions." Widmar, 454 U.S. at 270. See also Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d 575, 582 (S.D. Tex. 2003) ("When as here a University by policy and practice opens up an area for indiscriminate use by some segment of the public, such as student organizations, such area may be deemed to be a designated public forum").

Under the First Amendment, "a government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" unless it satisfies strict scrutiny. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (cleaned up). To meet that high bar here, Defendants "must show that [their] regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar, 454 U.S. at 270. They cannot meet that burden. See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions").

For starters, a ban on drag shows is content-based (if not outright viewpoint- based, as shown above). It singles out a particular type of expressiondragfor differential treatment. That is textbook content discrimination. Reed, 576 U.S. at 169 (content discrimination exists when the government "singles out a specific subject matter for differential treatment").

Defendants' content-based ban of campus drag showsincluding canceling Plaintiffs' March 31 showfails strict scrutiny. And Widmar shows why. In Widmar, the University of Missouri at Kansas City denied an evangelical Christian student group the use of university facilities otherwise "generally available for registered student groups." Id. at 26465. The Supreme Court explained that such restrictions, which single out a particular subject for differential treatment, are subject to "the most exacting scrutiny." Id. at 276. The Court held that the university unlawfully "discriminated against student groups and speakers based on their desire to use a generally open forum to engage in" protected expression and that the university's stated goal, "achieving greater separation of church and State," was not sufficiently "'compelling' to justify content-based discrimination against respondents' religious speech." Id. at 269, 278.

Here, advancing President Wendler's belief that drag shows promote "misogyny" is not a compelling state interest. (Verif. Compl. Ex. A.) As a threshold matter, banning drag shows does not prevent tangible harm to women. Any women (or men) who might take offense from a drag show can simply opt to not attend. Likewise, those who agree with President Wendler's estimation of the value of the students' expression can exercise a time-honored means of "effectively avoid[ing] further bombardment of their sensibilities simply by averting their eyes." Cohen, 403

U.S. at 21.

Rather, President Wendler, like the administrators in Iota Xi, seeks to suppress Plaintiffs' speech "because it r[uns] counter to the views the University s[eeks] to communicate to its students and the community." 993 F.2d at 393. That is not redressing a harm. It is big-brother government insisting it "knows what's best" for women and that it can silence dissenting expression. But "[t]he state may not ordain preferred viewpoints [about women and femininity] in this way. The Constitution forbids the state to declare one perspective right and silence opponents." Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985).

Nor is Defendants' ban on drag shows narrowly tailored or the least restrictive means of furthering their goals. See Playboy Ent. Grp., 529 U.S. at 813 (content regulation permissible only if the government "chooses the least restrictive means to further the articulated interest") (cleaned up). Neither President Wendler nor the other Defendants have banned any other type of expression from campus which might tend to disparage or demean women. And a content-based law is not narrowly tailored if it leaves untouched a significant amount of expression causing the same problem. Reed, 576 U.S. at 172. Plus, the government's objection to a speaker's message is not even a legitimate government interest, let alone a compelling one.

America's college campuses are no stranger to censorship, which is often visited upon students and faculty who find themselves among the minority viewpointincluding, in many cases, conservative and religious groups. See, e.g., Widmar, 454 U.S. at 265; Rosenberger, 515 U.S. at 830. From Central Washington University threatening to defund the College Republicans for protected speech, to Iowa State University threatening to punish the College Republicans for protected speech, to pro-life groups having to fight for recognition at the University of Arizona, censorship of expression on public campuses continues to fester. But students' expressive rights should not, and do not, turn on the whims of college administrators. The First Amendment does not play favorites.

President Wendler's censorship singles out one type of artistic expression out of manydrag showsfor differential treatment and censorship simply because he dislikes the message he perceives. It is unconstitutional viewpoint discrimination for the reasons explained. And putting aside President Wendler's confessed motives, the ban is unlawful content discrimination. A temporary restraining order and preliminary injunction are necessary to secure Plaintiffs' First Amendment rights.

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FIRE Sues West Texas A&M Over Its Blocking of Student Group's Drag Show - Reason