No. 15-15448 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JON E. FRUDDEN, AS PARENT AND GUARDIAN OF HIS MINOR CHILDREN JOHN DOE AND JANE DOE, Plaintiffs-Appellees, v. KAYANN PILLING, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA The Honorable Robert C. Jones Case No. 3:11-cv-00474-RCJ-VPC BRIEF OF STUDENT PRESS LAW CENTER AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES Eugene Volokh Scott & Cyan Banister First Amendment Clinic UCLA School of Law 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 [email protected]* *

Counsel would like to thank Michael Newborn, Melanie Rollins, Sina Safvati, and Anjelica Sarmiento, UCLA School of Law students who worked on this brief.

RULE 26.1 DISCLOSURE STATEMENT Amicus curiae, the Student Press Law Center, is an IRS 501(c)(3) nonprofit corporation incorporated under the laws of the District of Columbia with offices in Washington, D.C. The Center does not issue stock and is neither owned by nor is the owner of any other corporate entity, in part or in whole. The corporation is operated by a volunteer Board of Directors.

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TABLE OF CONTENTS RULE 26.1 DISCLOSURE STATEMENT ................................................ i TABLE OF CONTENTS........................................................................... ii TABLE OF AUTHORITIES .................................................................... iii INTEREST OF AMICUS CURIAE .......................................................... 1 SUMMARY OF ARGUMENT .................................................................. 2 ARGUMENT ............................................................................................. 5 I.

Requiring Students to Wear Uniforms Bearing the Motto “Tomorrow’s Leaders” Fails Strict Scrutiny.................................5 A. The Motto Requirement Is Not Narrowly Tailored to the Government Interest ..............................................................5 B. The Government Interest in Preventing Bullying Cannot Justify Restrictions on Speech That Indicates Students’ “Differences” ...........................................................9

II. The Content-Based Exemption for “Nationally Recognized Youth Organizations” Also Fails Strict Scrutiny .......................14 III. Frudden Is Entitled to At Least Nominal Damages Because the Frudden Children Had Been Subjected to an Unconstitutionally Content-Based Uniform Policy ...................17 CONCLUSION ....................................................................................... 20

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TABLE OF AUTHORITIES Cases Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004) .......................................................................................................... 6 Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ....................... 7 Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011)............. 4 Burson v. Freeman, 504 U.S. 191 (1992) ............................................. 15, 16 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).......................... 10, 17 Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) ............................... 16 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ....................... 16 Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013) ............................ 9 Draper v. Coombs, 792 F.2d 915 (9th Cir. 1986)....................................... 19 Florida Star v. B.J.F., 491 U.S. 524, 540 (1989)........................... 12, 13, 14 Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) ........................................... 19 Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)............................ passim Frudden v. Pilling, No. 3:11-cv-00474-RCJ-VPC, 2015 WL 540206 (D. Nev. Feb. 10, 2015) ................................................................... passim Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ......................... 15 Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008) ..... 10

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Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982) .......................................... 19 McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014) .................................. 17 Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947 (D.C. Cir. 2013)...................... 9 Police Dep’t v. Mosley, 408 U.S. 92 (1972) ................................................. 16 Reed v. Town of Gilbert, 2015 WL 2473374 (U.S. June 18) ................ 13, 14 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ........... 8 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ........... 5, 6 W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) ................................... 11 Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015)............................. 15 Other Sources Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000) ................... 11

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INTEREST OF AMICUS CURIAE 1 The Student Press Law Center is a nonprofit, non-partisan organization founded in 1974 with the mission of promoting youth involvement in civic life through journalism. The Center provides free educational materials and workshops to students across the country about the First Amendment and about ways to protect their free-expression rights, and its attorneys are the authors of the widely used reference text, Law of the Student Press. The Center regularly appears in state and federal No party or party’s counsel has authored this brief in whole or in part, or contributed money that was intended to fund preparing or submitting the brief. No person has contributed money that was intended to fund preparing or submitting the brief, except that UCLA School of Law paid the expenses involved in filing this brief. Counsel for amicus acted as pro bono counsel for the Fruddens when the case first came up to this Court. Both the Fruddens and amicus have agreed to counsel’s change of role. All parties have consented to the filing of this brief. Respondents asked amicus to “note that the Respondents inquired into the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case,” and to “note that based on the answer provided by the Student Press Law Center, the Respondents believe that the Student Press Law Center failed to provide any facts or arguments that have not already been made in the Opening Brief and, thus, the amicus is likely redundant and unnecessary.” But respondents nonetheless do “consent to the filing of an amicus brief so as to not burden the Court with extra filings,” “understanding that the filing of an amicus brief is within the discretion of the Ninth Circuit and the Student Press Law Center was permitted to file an amicus brief in the last appeal after the Center provided similar reasons.” 1

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appellate courts, including this Court, to provide additional perspective and context as an advocate with many years of experience working directly with students who are prevented by their schools from speaking out on matters of public concern. The Center has an interest in protecting the ability of students to address matters of public policy using all communication platforms without fear of disciplinary reprisal. The ruling of the district court below would—were it to become binding precedent in this Circuit—risk exposing students to disciplinary sanctions for peaceful, non-disruptive expressions of dissent from school policies. SUMMARY OF ARGUMENT 1. Forcing students to display ideological messages on their clothing presumptively violated the First Amendment right to be free from speech compulsions; so this Court held in an earlier appeal in this very case. Frudden v. Pilling, 742 F.3d 1199, 1203 (9th Cir. 2014). To be constitutional, any such compulsion must pass strict scrutiny, which is to say that it must be necessary to serve a compelling interest. But even if requiring students to wear a uniform is necessary to serve compelling interests in “boost[ing] test scores and . . . prevent[ing] bullying of chil2

dren from lower socioeconomic stations,” 2 defendants have offered no evidence that requiring students to display a motto on their uniforms was necessary to serve this interest. The district court thus erred in upholding the school policy. Moreover, the district court wrongly distinguished ideological speech from nonideological speech, holding that the school motto was nonideological and thus entitled to less protection. This distinction ignored this Court’s holding that such a distinction in this case can make no difference, as both types of speech deserve protection. Compare Frudden, 742 F.3d at 1206, with Frudden, 2015 WL 540206, at *9. 2. The school district’s exemption for nationally recognized youth organization uniforms was content-based, and was likewise unconstitutional unless it passed strict scrutiny. Frudden, 742 F.3d at 1207. The district court said that it “would . . . be inclined” to conclude that the policy did pass strict scrutiny, reasoning that the interest in letting students and parents attend organizational meetings “without having to change clothes at the end of the school day in classrooms, school bath-

Frudden v. Pilling, No. 3:11-cv-00474-RCJ-VPC, 2015 WL 540206, *7 (D. Nev. Feb. 10, 2015). 2

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rooms, or parents’ cars” was likely “compelling.” Frudden, 2015 WL 540206, at *9. Yet this too is not sound. This Court has never found a compelling interest in parental convenience, let alone the convenience of bringing their children to after-school activities. Cf. Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2740-41 (2011) (concluding that “modest” assistance to parental control over children’s video game watching “can hardly be a compelling state interest”). Moreover, the policy is not narrowly tailored to that interest: there is no compelling justification for exempting only nationally recognized youth organizations and not local or lesser known national youth organizations. 3. The district court ultimately rejected the challenge to the exception for nationally recognized youth organizations on the grounds that “the Children suffered no damages as a result of the previous contentbased exemption.” Id. But the imposition of a content-based speech restriction violated the Fruddens’ First Amendment rights, and thus entitled them to at least nominal damages. For these reasons, this Court should reverse the district court’s decision. 4

ARGUMENT I.

Requiring Students to Wear Uniforms Bearing the Motto “Tomorrow’s Leaders” Fails Strict Scrutiny

A.

The Motto Requirement Is Not Narrowly Tailored to the Government Interest

The Roy Gomm Elementary School (RGES) policy of requiring students to wear uniforms bearing the motto “Tomorrow’s Leaders” was presumptively unconstitutional. Frudden v. Pilling, 742 F.3d 1199, 1201, 1207 (9th Cir. 2014). “Because RGES compels students to endorse a particular viewpoint, strict scrutiny applies—that is, inclusion of the written motto on the RGES uniform shirts must be ‘a narrowly tailored means of serving a compelling state interest.’” Id. at 1207 (internal quotation marks omitted). And one component of the narrow tailoring requirement is that the policy must be the “least restrictive means” of achieving the interest. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). When a government action is subjected to strict scrutiny under the First Amendment, this requires that the action be “‘narrowly tailored to serve an overriding state interest’”—which, “[m]ore specifically,” indicates that the action “‘must use the least restrictive means to further the ar5

ticulated interest.’” Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979, 992-93 (9th Cir. 2004) (internal citations omitted). Though Playboy and ACLU of Nevada said this as to content-based speech restrictions, strict scrutiny of content-based restrictions is the same as strict scrutiny of speech compulsions. Frudden, 742 F.3d at 1207. The district court thus erred in saying that, “Defendants are not required to have used the least restrictive means of serving [their] purposes, but only ‘narrowly tailored’ means, as noted by the Court of Appeals.” Frudden, 2015 WL 540206, at *9. This Court’s reference in the earlier Frudden decision to the “narrow[] tailor[ing]” requirement was itself a reference to the least restrictive means requirement, as Playboy and ACLU of Nevada make clear. Even if the defendants’ stated purposes of improving test scores and preventing bullying of children with a lower socioeconomic status are compelling, Frudden, 2015 WL 540206, at *6, requiring the students to wear uniforms with the motto “Tomorrow’s Leaders” was not the least restrictive means of serving these purposes. Merely requiring a uniform bearing the school logo serves these interests just as well as requiring a uniform with the motto on it. It is the uniformity of the underlying 6

clothing—not the inclusion of the motto—that might potentially reduce bullying caused by socioeconomic differences, and that might improve test scores by ensuring students focus on academics rather than their clothing. The government has offered no evidence at all that letting students omit the motto (while still enforcing the uniform policy) would have materially undermined the government interests, or would have “permitted students to wear clothing of differing quality or price.” Frudden, 2015 WL 540206, at *9. And it follows that such an alternative uniform policy, under which students could avoid having to display the motto, would be “available [and] effective,” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004), and would not “undermin[e]” the purportedly “compelling purposes of adopting the uniform dress.” Frudden, 2015 WL 540206, at *9. The district court relied on Morse v. Frederick, 551 U.S. 393 (2007), to justify the defendants’ not using the least restrictive means, on the theory that “First Amendment rights are not as extensive in the school context as in broader society.” Frudden, 2015 WL 540206, at *9. But Morse did not apply strict scrutiny; indeed, Morse was decided using a 7

standard even more relaxed than the “substantial disruption” standard in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969). Morse, 551 U.S. at 405, 410 (holding that principal’s decision to suspend student holding banner did not violate First Amendment because “[i]t was reasonable . . . to conclude that the banner promoted illegal drug use,” and noting that “the mode of analysis set forth in Tinker is not absolute” (emphasis added)). This Court’s decision in Frudden, on the other hand, mandated the application of strict scrutiny, a much more demanding standard. Frudden, 742 F.3d at 1201. To be sure, this Court recognized that the school context might be relevant in applying strict scrutiny: “On remand, the elementary school context may be relevant in weighing RGES’s interest in including the motto on the uniform shirt.” Id. at 1205 n.3. But the least restrictive means requirement remains part of strict scrutiny; and in this case, requiring the motto is not the least restrictive means of serving any compelling government interest. The district court also concluded that, because the compelled speech at issue was not “political in nature,” “[t]he Policy was sufficiently narrowly tailored to serve the compelling purposes at issue.” Frudden, 2015 8

WL 540206, at *9. This, too, is incorrect. As this Court’s earlier decision in this case made clear, the ideological nature of the compelled speech is immaterial to First Amendment analysis. “[W]e do not believe the First Amendment analysis turns on an examination of the ideological message (or lack thereof) of ‘Tomorrow’s Leaders.’” Frudden, 742 F.3d at 1206. “The right against compelled speech is not, and cannot be, restricted to ideological messages.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 957 (D.C. Cir. 2013). “[T]he Supreme Court’s case law suggests that ideological speech is not the only form of forbidden compelled speech.” Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013). B.

The Government Interest in Preventing Bullying Cannot Justify Restrictions on Speech That Indicates Students’ “Differences”

Even apart from the motto requirement not being narrowly tailored, the government interests supporting it cannot be viewed as compelling enough to pass strict scrutiny under the First Amendment. To be sure, “[t]aking measures to prevent bullying,” Frudden, 2015 WL 540206, at *6, is a worthy goal. But, as the Supreme Court noted in deciding whether a restriction on political parties was constitutional, the determination of whether an interest is compelling “is not to be made in the 9

abstract, by asking whether fairness, privacy, etc.” (or, here, avoiding bullying) “are highly significant values.” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000). Rather, the question is “whether the aspect of fairness, privacy, etc.”—or, here, risk of bullying—“addressed by the law at issue is highly significant.” Id. In this context, the supposed risk of bullying stems simply from students indicating “socioeconomic differences,” 2015 WL 540206, at *6, from each other. But a critical aspect of the First Amendment is precisely the right to express difference from others. Even if, given Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008), schools can restrict expression of socioeconomic difference through clothing choices, expression of ideological difference through refusal to display a motto— or through refusal to say the Pledge of Allegiance—must be protected. Indeed, under the defendants’ argument and the reasoning of the court below, the “compelling” interest in “prevent[ing] bullying” would justify even a compulsory flag salute. After all, classmates might bully students who refuse to salute the flag, and refusal to salute the flag might certainly stem from social differences, including ones correlated with economic differences. (In the years before, W. Va. Bd. of Ed. v. 10

Barnette, 319 U.S. 624 (1943), was decided, Jehovah’s Witnesses adults were routinely attacked for their refusal to salute, Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution 72-95 (2000), and schools could certainly forecast that Jehovah’s Witnesses children would be similarly attacked if they refused to salute.) Given Barnette, though, that cannot be right: the interest in preventing bullying cannot be compelling enough to justify mandated flag salutes. Even if dissent and difference can sometimes lead to bullying, that cannot justify prophylactic mandates to express what the school prescribes as orthodox. Likewise, given Barnette coupled with this Court’s earlier decision in Frudden, 742 F.3d at 1203-06, the interest in preventing bullying cannot be compelling enough to justify rules requiring mandatory display of a motto on a uniform. And beyond this, the strict scrutiny test is the one applicable to all speech restrictions and speech compulsions, whether within school or outside it. If a compulsion to wear a motto can be upheld under strict scrutiny, on the theory that such a compulsion can “detract from socioeconomic differences,” and thus “prevent bullying,” 2015 WL 540206, at 11

*7, then presumably even speech outside school could be restricted or compelled on the grounds that it accentuates social or economic “differences” that can yield bullying. The district court’s theory would, for instance, allow schools to bar students from prominently participating in religious, political, or charitable outside-school events that highlight their differences from other students, or from wearing clothing outside school that accentuates such differences. Of course, such restrictions cannot be constitutional. But that conclusion simply reflects the fact that restricting or compelling speech to prevent display of “differences” cannot pass strict scrutiny— the most demanding test known to First Amendment law. Finally, the exemption in the uniform policy for the uniforms “Nationally Recognized Youth Organizations” helps illustrate that the government’s interest here is not compelling. The decision in Florida Star v. B.J.F., 491 U.S. 524, 540 (1989), offers a helpful analogy. In that case, a Florida statute barred mass media from publishing the names of rape victims, in order to serve government interests in protecting victim privacy, protecting victims from further attack by their assailants, and encouraging victims to come forward. Id. at 537. 12

Yet the Supreme Court held that, among other things, the statute’s “facial underinclusiveness”—its coverage only of mass communications and not private communications—“raises serious doubts about whether Florida is, in fact, serving, with this statute, the significant interests which appellee invokes in support of affirmance.” Id. at 540. “When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.” Id. As the Supreme Court recently reaffirmed in Reed v. Town of Gilbert, 2015 WL 2473374, *11-*12 (U.S. June 18) (citations and internal quotation marks omitted), such underinclusive speech restrictions fail strict scrutiny because a “law cannot be regarded as protecting an interest of the highest order” “when it leaves appreciable damage to that supposedly vital interest unprohibited.” The same reasoning applies here. The wearing of youth organizations’ uniforms can also be seen as a signal of social and perhaps economic “difference,” possibly dividing students into insiders and outsiders, and thus promoting the development of cliques. Yet the school dis13

trict allowed the wearing of such group uniforms, despite insisting that even slight departures from the school uniform policy (by omitting the motto) damaged its supposedly compelling interests. For the school district to attempt the extraordinary measure of compelling students to become a walking billboard for a pro-school motto, and to support that measure on the theory that this compulsion is narrowly tailored to a truly “compelling” government interest, the school district had to at least show its commitment to advancing the interest by applying its prohibition evenhandedly. The recognized youth group exception, like the personal communication exception in Florida Star and like the political and ideological sign exceptions in Reed, shows that the school did not show such a commitment—and that its compelling interest argument must fail. II.

The Content-Based Exemption for “Nationally Recognized Youth Organizations” Also Fails Strict Scrutiny As this Court has already held, the exemption from the RGES policy

for uniforms of “nationally recognized youth organizations” on organization meeting days was content-based and therefore subject to strict scrutiny. See Frudden, 742 at 1206-08. The district court said that it

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“would . . . be inclined” to conclude that the exemption did pass strict scrutiny. Frudden, 2015 WL 540206, at *9. This is an unsound inclination. The school district’s stated purpose for the exemption was convenience: making it easier for students to attend the meetings without having to change clothes in bathrooms, cars, or classrooms at the end of the day. Id. Yet to be “compelling,” a government interest has to go beyond just making things slightly more convenient. Indeed, the only majority or plurality precedents from the Supreme Court upholding content-based restrictions are Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), which involved a compelling interest in preventing terrorism, Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), which involved a compelling interest in “preserving public confidence in the integrity of the judiciary,” id. at 1666, and Burson v. Freeman, 504 U.S. 191 (1992) (plurality opinion), which involved “[the] fundamental right . . . to cast a ballot in an election free from the taint of intimidation and fraud.” “‘[I]t is the rare case’ in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest.” Williams-Yulee, 135 S. Ct. at 1666 (quoting Burson, 504 15

U.S. at 211). Fighting terrorism, preserving public confidence in the judiciary, and preventing voter intimidation and fraud are one thing; but helping students and parents save a few minutes on organization meeting days is not the sort of crucial government concern that is compelling enough to justify a content-based exemption. “[I]t is axiomatic that we ‘apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.’” Frudden, 742 F.3d at 1207 (emphasis added) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)). Mere interests in modest convenience, whether government convenience or private convenience, cannot satisfy such “most exacting scrutiny.” See Police Dep’t v. Mosley, 408 U.S. 92, 102 n.9 (1972) (holding that, in free speech cases, “small administrative convenience” is not a compelling governmental interest); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 508 (1989) (rejecting an interest in convenience when applying strict scrutiny to racial classifications); Carey v. Population Servs. Int’l, 431 U.S. 678, 691 (1977) (likewise, as to the right to use contraceptives). The interest in “mere convenience” would not even qualify as a “significant” interest 16

justifying a content-neutral restriction, McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014); a fortiori, it would not qualify as compelling. Indeed, even significant interests in, for instance, “reducing the allegedly skyrocketing costs of political campaigns,” “preserving party unity during a primary,” and assuring privacy of a voter’s party affiliation have been found not to be compelling for First Amendment purposes. See, re-

spectively, Buckley v. Valeo, 424 U.S. 1, 57 (1976); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 228 (1989); Cal. Democratic Party v. Jones, 530 U.S. 567, 585 (2000). The interest in promoting parent convenience thus cannot be compelling, either. III. Frudden Is Entitled to At Least Nominal Damages Because the Frudden Children Had Been Subjected to an Unconstitutionally Content-Based Uniform Policy The district court ultimately rejected Frudden’s content discrimination challenge on the grounds that the Frudden children supposedly “suffered no damages as a result of the previous content-based exemption.” Frudden, 2015 WL 540206, at *9. This conclusion apparently stemmed from the court’s view that the Frudden children were not damaged by the content-based nature of the policy because they had no

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group meetings (even meetings of non-nationally-recognized groups) on the day that they wore the non-uniform clothing: Plaintiff does not allege . . . that the Children’s rights were violated because Defendants punished them due to the AYSO uniforms not being within the content-based exception, but only that their rights were violated because they wore AYSO uniforms rather than school uniforms on a day when there was no AYSO meeting or event. Id. But the district court’s argument misunderstands the nature of the “content-based exception” in the policy, and of the way that exception made the policy as a whole content-based. The policy “contain[ed] a content-based exemption for ‘nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days.’” Frudden, 742 F.3d at 1201. As this Court pointed out, the policy thus “favor[ed] the uniforms of certain youth organizations over all other clothing that the students may choose to wear in the absence of the exemption,” id. at 1206, which made it content-based, id. at 1207. If the policy with the exemption was unconstitutionally contentbased, then students should have been free to “choose to wear” other clothing, at least until some constitutional content-neutral policy were

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implemented instead. Perhaps a policy that exempted students who wore clothing needed for any after-school meetings would be constitutionally content-neutral—but that is not the policy that RGES had in force. Defendants’ actions therefore violate the Fruddens’ constitutional rights and entitle them at least to nominal damages. “By making the deprivation of [constitutional] rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed . . . .” Carey v. Piphus, 435 U.S. 247, 266 (1978); Kincaid v. Rusk, 670 F.2d 737, 746 (7th Cir. 1982) (applying this principle in a First Amendment case); Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986) (citing Kincaid with approval as an example of the holding that, even though Piphus involved the Due Process Clause, “[f]or purposes of Piphus it does not matter whether the underlying claim involves a deprivation of a procedural or substantive constitutionally-based right”). As this Court noted in Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991), “[i]f the jury finds a constitutional violation, an award of nominal damages is mandatory, not permissive.” Id. at 1402. 19

Indeed, in Jacobs, 526 F.3d at 426-27, this Court held that lack of sufficient evidence of actual damages did not prevent the plaintiffs from bringing a claim for nominal damages. Plaintiffs had standing to pursue nominal damages because they had alleged an “injury in fact” caused by deprivation of their First Amendment rights. Id. Likewise, here Frudden alleged an injury in fact caused by the deprivation of the Frudden children’s rights to be free from content-based speech restrictions. This Court should therefore decide whether the content discrimination in the policy was indeed unconstitutional; conclude, for the reasons given in Part II, that the policy was indeed unconstitutional; and award Frudden damages, at least including nominal damages. CONCLUSION Because neither the requirement of the motto “Tomorrow’s Leaders” on the RGES uniforms nor the exemption for nationally recognized youth organizations passes strict scrutiny, Amicus respectfully requests that this Court reverse the district court’s decision.

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Respectfully Submitted,

s/ Eugene Volokh Attorney for Amicus Curiae Student Press Law Center

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,927 words, excluding the 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 2010 in 14-point New Century Schoolbook. Dated: June 24, 2015 s/ Eugene Volokh Attorney for Amicus Curiae Student Press Law Center

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Brief Amicus Curiae with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on June 24, 2015. All participants in the case are registered CM/ECF users, and will be served by the appellate CM/ECF system. Dated: June 24, 2015 s/ Eugene Volokh Attorney for Amicus Curiae Student Press Law Center