No. ________
`
`IN THE
`
`Supreme Court of the United States
`
`
`SARAH K. MOLINA and CHRISTINA VOGEL,
`Petitioners,
`
`—v.—
`
`DANIEL BOOK, et al.,
`
`Respondents.
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE EIGHTH CIRCUIT
`
`PETITION FOR WRIT OF CERTIORARI
`
`d A
`
`David D. Cole
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`915 15th Street, N.W.
`Washington, D.C. 20005
`
`Evelyn Danforth-Scott
`Cecillia Wang
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`39 Drumm Street
`San Francisco, CA 94102
`
`nthony E. Rothert
`Counsel of Record
`AMERICAN CIVIL LIBERTIES
`UNION OF MISSOURI
`906 Olive Street, Suite 1130
`St. Louis, MO 63101
`(314) 669-3420
`arothert@aclu-mo.org
`
`Vera Eidelman
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`125 Broad Street, 18th Floor
`New York, NY 10004
`
`Scott Michelman
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION OF THE
`DISTRICT OF COLUMBIA
`915 15th Street, N.W.
`Washington, D.C. 20005
`
`
`
`IN THE
`
`Supreme Court of the United States
`
`
`SARAH K. MOLINA and CHRISTINA VOGEL,
`Petitioners,
`
`—v.—
`
`DANIEL BOOK, et al.,
`
`Respondents.
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE EIGHTH CIRCUIT
`
`PETITION FOR WRIT OF CERTIORARI
`
`d A
`
`David D. Cole
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`915 15th Street, N.W.
`Washington, D.C. 20005
`
`Evelyn Danforth-Scott
`Cecillia Wang
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`39 Drumm Street
`San Francisco, CA 94102
`
`nthony E. Rothert
`Counsel of Record
`AMERICAN CIVIL LIBERTIES
`UNION OF MISSOURI
`906 Olive Street, Suite 1130
`St. Louis, MO 63101
`(314) 669-3420
`arothert@aclu-mo.org
`
`Vera Eidelman
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION
`125 Broad Street, 18th Floor
`New York, NY 10004
`
`Scott Michelman
`AMERICAN CIVIL LIBERTIES
`UNION FOUNDATION OF THE
`DISTRICT OF COLUMBIA
`915 15th Street, N.W.
`Washington, D.C. 20005
`
`
`
`QUESTIONS PRESENTED
`1. Whether words printed on clothing are pure
`speech, and thus presumptively entitled to First
`Amendment protection—as the Fourth, Fifth, and
`Ninth Circuits have held—or whether they are
`protected only if they convey a “particularized
`message,” as the Eighth Circuit below, and the
`Sixth and Seventh Circuits, have held.
`
`2. Whether, in light of important new historical
`evidence, this Court should reconsider the doctrine
`of qualified immunity.
`
`3. Whether the court of appeals erred in holding that
`a First Amendment right to unobtrusively observe
`and record police performing their duties in public
`is not clearly established.
`
`
`
`i
`
`
`
`PARTIES TO THE PROCEEDING
`Petitioners, plaintiffs below, are Sarah K. Molina
`and Christina Vogel. Peter Groce was plaintiff-
`appellee below but does not join the petition.
`Respondents, defendants below, are Daniel Book,
`Joseph Busso, Stephen Dodge, Michael Mayo, Lane
`Coats, Joseph Mader, Mark Seper, and William
`Wethington, in their individual capacities.
`The City of St. Louis is a defendant in the district
`court; proceedings against the city are currently
`stayed. Jason Chambers was initially a defendant in
`the district court, but petitioners moved to voluntarily
`dismiss their claims against him. The County of St.
`Clair, Illinois was also initially a defendant in the
`district court.
`
`
`
`
`
`
`
`ii
`
`
`
`RELATED PROCEEDINGS
`Molina v. City of St. Louis, No. 4:17-cv-02498-
`AGF (E.D. Mo. March 31, 2021) (Memorandum &
`Order denying
`in part and granting
`in part
`Defendants’ motion for summary judgment).
`Molina v. City of St. Louis, No. 21-1830 (8th Cir.
`Feb. 2, 2023) (Panel opinion).
`Molina v. City of St. Louis, No. 21-1830 (8th Cir.
`Apr. 24, 2023) (Order denying rehearing en banc).
`
`
`
`
`
`
`
`iii
`
`
`
`TABLE OF CONTENTS
`QUESTIONS PRESENTED ........................................ i
`PARTIES TO THE PROCEEDING ........................... ii
`RELATED PROCEEDINGS ...................................... iii
`TABLE OF AUTHORITIES ..................................... vii
`PETITION FOR A WRIT OF CERTIORARI ............. 1
`OPINIONS BELOW ................................................... 1
`JURISDICTION .......................................................... 1
`RELEVANT CONSTITUTIONAL AND
`STATUTORY PROVISIONS ................................. 1
`INTRODUCTION ....................................................... 3
`STATEMENT OF THE CASE .................................... 4
`I.
`Factual Background ......................................... 4
`II. Procedural Background ................................... 6
`REASONS FOR GRANTING THE WRIT ............... 11
`I.
`The Courts of Appeals Are Divided on
`Whether Written Words Printed on
`Clothing Must Express a Particularized
`Viewpoint in Order to be Protected by
`the First Amendment ..................................... 11
`
`
`
`
`
`
`iv
`
`
`
`A. The Circuits Have Reached
`Conflicting Decisions Over
`Whether Words Printed on
`Clothing Qualify as Pure Speech ........ 12
`B. The Question Presented Is
`Important ............................................. 19
`C. This Case Is an Ideal Vehicle for
`Resolving the Split .............................. 19
`D. The Opinion Below Is Wrong .............. 21
`II. New Historical Evidence Warrants a
`Fresh Look at the Doctrine of Qualified
`Immunity ........................................................ 23
`A. The Anti-Derogation Canon Is
`Not a Proper Means of
`Interpreting Section 1983 ................... 25
`B. The Lost Text of Section 1983
`Confirms that Congress Intended
`to Override Common Law
`Immunities, Including the Good
`Faith Defense ...................................... 27
`III. The Court of Appeals Erred by Holding
`a First Amendment Right to Observe
`Police Officers in Public Had Not Been
`Clearly Established ........................................ 28
`CONCLUSION .......................................................... 32
`
`
`
`
`
`v
`
`
`
`APPENDIX
`Appendix A, Court of Appeals Opinion,
`Feb. 2, 2023 .......................................................... 1a
`Appendix B, District Court Judgement,
`Mar. 31, 2021 ..................................................... 27a
`Appendix C, Court of Appeals Order Denying
`Rehearing En Banc,
`Apr. 24, 2023 ...................................................... 64a
`
`
`
`
`
`
`
`vi
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`303 Creative v. Elenis,
`143 S. Ct. 2298 (2023) ............................. 12, 13, 22
`ACLU of Illinois v. Alvarez,
`679 F.3d 583 (7th Cir. 2012) ............................... 30
`Adickes v. S.H. Kress & Co.,
`398 U.S. 144 (1970) ............................................... 5
`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ............................................... 5
`
`Askins v. U.S. Department of Homeland
`Security,
`899 F.3d 1035 (9th Cir. 2018) ............................. 30
`Baribeau v. City of Minneapolis,
`596 F.3d 465 (8th Cir. 2010) ............................... 13
`Baxter v. Bracey,
`140 S. Ct. 1862 (2020) ......................................... 24
`Brosseau v. Haugen,
`543 U.S. 194 (2004) ............................................. 31
`Bostock v. Clayton County,
`140 S. Ct. 1731 (2020) ......................................... 28
`
`Brandt v. Board of Education of City of
`Chicago,
`480 F.3d 460 (7th Cir. 2007) ................... 14, 15, 20
`
`
`
`vii
`
`
`
`Canady v. Bossier Parish School Board,
`240 F.3d 437 (5th Cir. 2001) ......................... 18, 20
`
`Castorina ex rel. Rewt v. Madison County
`School Board,
`246 F.3d 536 (6th Cir. 2001) ................... 15, 16, 20
`Chestnut v. Wallace,
`947 F.3d 1085 (8th Cir. 2020) ......................... 9, 29
`Cohen v. California,
`403 U.S. 15 (1971) ............................................... 13
`District of Columbia v. Wesby,
`138 S. Ct. 577 (2018) ........................................... 21
`
`Dobbs v. Jackson Women’s Health
`Organization,
`142 S. Ct. 2228 (2022) ......................................... 25
`Fields v. City of Philadelphia,
`862 F.3d 353 (3d Cir. 2017) ................................. 30
`First National Bank v. Bellotti,
`435 U.S. 765 (1978) ....................................... 30, 31
`Frudden v. Pilling,
`742 F.3d 1199 (9th Cir. 2014) ....................... 16, 17
`Harlow v. Fitzgerald,
`457 U.S. 800 (1982) ............................................. 25
`Hope v. Pelzer,
`536 U.S. 730 (2002) ............................................. 30
`Houchins v. KQED, Inc.,
`438 U.S. 1 (1978) ................................................. 31
`
`
`
`viii
`
`
`
`Hurley v. Irish-American Gay, Lesbian and
`Bisexual Group of Boston,
`515 U.S. 557 (1995) ....................................... 10, 22
`Imbler v. Patchman,
`424 U.S. 409 (1976) ............................................. 26
`Irizarry v. Yehia,
`38 F.4th 1282 (10th Cir. 2022) ............................ 30
`Isbrandtsen Co. v. Johnson,
`343 U.S. 779 (1952) ............................................. 26
`Jacobs v. Clark County School District,
`526 F.3d 419 (9th Cir. 2008) ......................... 16, 17
`Kimble v. Marvel Entertainment, LLC,
`576 U.S. 446 (2015) ............................................. 28
`
`Mahanoy Area School District v. B.L.
`ex rel. Levy,
`141 S. Ct. 2038 (2021) ......................................... 20
`McKinney v. City of Middletown,
`49 F.4th 730 (2d Cir. 2022) ................................. 24
`Mills v. Alabama,
`384 U.S. 214 (1966) ............................................. 31
`Morse v. Frederick,
`551 U.S. 393 (2007) ....................................... 20, 22
`N.J. ex rel. Jacob v. Sonnabend,
`37 F.4th 412 (7th Cir. 2022) ................................ 15
`
`
`
`ix
`
`
`
`N.S. ex rel. Lee v. Kansas City Board of Police
`Commissioners,
`143 S. Ct. 2422 (2023) ......................................... 24
`
`Newsom ex rel. Newsom v. Albermarle County
`School Board,
`354 F.3d 249 (4th Cir. 2003) ......................... 17, 18
`
`One World One Family Now v. City of
`Miami Beach,
`175 F.3d 1282 (11th Cir. 1999) ........................... 18
`Pierson v. Ray,
`386 U.S. 547 (1967) ................................. 24, 25, 27
`R.A.V. v. City of St. Paul,
`505 U.S. 377 (1992) ............................................. 12
`Rogers v. Jarrett,
`63 F.4th 971 (5th Cir. 2023) .......................... 24, 25
`Smith v. City of Cumming,
`212 F.3d 1332 (11th Cir. 2000) ........................... 30
`Sorrell v. IMS Health, Inc.,
`564 U.S. 552 (2011) ............................................. 30
`Spence v. Washington,
`418 U.S. 405 (1974) ..................... 13, 17, 18, 21, 23
`Texas v. Johnson,
`491 U.S. 397 (1989) ....................................... 18, 23
`
`Tinker v. Des Moines Independent Community
`School District,
`393 U.S. 503 (1969) ............................................. 13
`
`
`
`x
`
`
`
`Turner v. Lieutenant Driver,
`848 F.3d 678 (5th Cir. 2017) ............................... 30
`United States v. O’Brien,
`391 U.S. 367 (1968) ................................. 13, 21, 22
`Walker v. City of Pine Bluff,
`414 F.3d 989 (8th Cir. 2005) ........................... 9, 29
`Wearry v. Foster,
`33 F.4th 260 (5th Cir. 2022) ................................ 24
`
`CONSTITUTIONAL PROVISIONS & STATUTES
`28 U.S.C. § 1254(1) ..................................................... 1
`42 U.S.C. § 1983 ............... 2, 4, 6, 23, 24, 25, 26, 27, 28
`Civil Rights Act of 1871,
`ch. 22, § 1, 17 Stat. 13 ......................................... 27
`U.S. Const. amend. I ................................................... 1
`
`OTHER AUTHORITIES
`William Baude,
`Is Qualified Immunity Unlawful?,
`106 Cal. L. Rev. 45 (2018) ................................... 24
`Alexander Reinert,
`Qualified Immunity’s Flawed Foundation,
`111 Cal. L. Rev. 201 (2023) ..................... 24, 26, 27
`Joanna Schwartz,
`The Case Against Qualified Immunity,
`93 Notre Dame L. Rev. 1797 (2018) .................... 24
`
`
`
`xi
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`Petitioners Sarah K. Molina and Christina Vogel
`respectfully petition for a writ of certiorari to review
`the judgment of the United States Court of Appeals
`for the Eighth Circuit.
`
`OPINIONS BELOW
`The opinion of the United States Court of
`Appeals for the Eighth Circuit, App. 1a–App. 26a, is
`reported at 59 F.4th 334. The opinion of the United
`States District Court for the Eastern District of
`Missouri, App.
`27a–63a,
`is
`available
`at
`2021 WL 1222432. The Eighth Circuit’s order denying
`rehearing en banc, App. 64a–69a, is reported at
`65 F.4th 994.
`
`JURISDICTION
`judgment on
`The Eighth Circuit entered
`February 2, 2023. It denied rehearing en banc on
`April 24, 2023. On July 18, 2023, Justice Kavanaugh
`extended the time to file this petition for a writ of
`certiorari up to and including September 7, 2023.
`See No. 23A42. This Court has jurisdiction under
`28 U.S.C. § 1254(1).
`
`RELEVANT CONSTITUTIONAL AND
`STATUTORY PROVISIONS
`The First Amendment to the U.S. Constitution
`provides in relevant part: “Congress shall make no
`law . . . abridging the freedom of speech, or of the
`press.”
`
`
`
`
`1
`
`
`
`As codified, 42 U.S.C. § 1983 provides in relevant
`part:
`Every person who, under color of any
`statute, ordinance, regulation, custom, or
`usage, of any State or Territory or the
`District of Columbia, subjects, or causes to
`be subjected, any citizen of the United
`States or other person within
`the
`jurisdiction thereof to the deprivation of any
`rights, privileges, or immunities secured by
`the Constitution and laws, shall be liable to
`the party injured in an action at law, suit in
`equity, or other proper proceeding for
`redress.
`
`
`
`
`2
`
`
`
`INTRODUCTION
`The court below ruled that written words, a form
`of pure speech, are not presumptively entitled to First
`Amendment protection when they are printed on
`clothing. Instead, it held that they are protected only
`if “everyone” would understand them to express a
`particularized message—here,
`a
`“pro-protest”
`message. App. 12a. On that basis, the court deemed
`the words emblazoned on petitioners’ hats—“National
`Lawyers Guild Legal Observer”—wholly unprotected
`by
`the First Amendment. Remarkably,
`this
`approach—a First Amendment category mistake that
`grafts the test for expressive conduct to pure speech—
`has also been adopted by two other circuits, the Sixth
`and Seventh. By contrast, three circuits, the Fourth,
`Fifth, and Ninth, have correctly recognized that words
`printed on clothing are no less protected than words
`appearing on foolscap, banners, or computer screens.
`Resolving this conflict is critical to safeguard the
`full scope of First Amendment protections across the
`courts of appeals. In the Eighth, Seventh, and Sixth
`Circuits—most of
`the American Midwest—the
`government has license to stifle or retaliate against
`speech simply because a written message appears
`printed on clothing and its substantive meaning is
`arguably unclear. Save for a few narrow categories of
`unprotected speech not implicated here, this Court
`has never permitted that kind of message-based
`cherry-picking in determining which pure speech the
`First Amendment protects. The Court should grant
`review to resolve the conflict and correct the Eighth
`Circuit’s category mistake.
`The Court should also grant review to reconsider
`qualified immunity in light of newly discovered
`
`
`
`3
`
`
`
`evidence about the circumstances of Section 1983’s
`original enactment. That evidence demonstrates that
`the doctrine is fundamentally flawed in two respects.
`First, it relies on an “anti-derogation canon” to read
`words into the statute that were not there, at a time
`when that canon was not accepted. And second, the
`“good faith” or “qualified immunity” defense that it
`judicially superimposed was not just absent from
`Section 1983’s text, but contradicted by the full text
`Congress adopted, sixteen words of which were
`inadvertently
`omitted
`during
`the
`statute’s
`codification. Those words, as much a part of the law
`Congress enacted as those that appear in the U.S.
`Code, make clear that Section 1983 provided a right of
`action notwithstanding any existing law to the
`contrary, including common law tort principles like
`the good faith defense.
`Finally, in its application of the qualified
`immunity doctrine here, the court below erred by
`concluding that it was not clearly established that
`citizens have a constitutional right to unobtrusively
`observe and record the police in public. No reasonable
`officer could think that the state can bar its citizens
`from watching what the police do in public, at a
`distance, and unobtrusively. This error is so egregious
`that it justifies summary reversal.
`
`STATEMENT OF THE CASE
`I. Factual Background
`Petitioners Sarah K. Molina and Christina Vogel
`are attorneys who attended a protest organized in the
`wake of a high-profile fatal shooting of a citizen by a
`St. Louis police officer. App. 28a. Both women chose to
`participate in the day’s events as legal observers with
`
`
`
`4
`
`
`
`the National Lawyers Guild—a progressive legal
`organization that defends, among other things, the
`right to protest. Id. at 28a, 43a. To signify their roles,
`Molina and Vogel wore bright green hats emblazoned
`with the words “National Lawyers Guild Legal
`Observer.” Id. at 2a.1
`At one point during the protest, police officers
`issued a series of dispersal orders. Id. at 29a. As the
`crowd began to dissipate, officers riding in a Ballistic
`Engineered Armored Response Counter Attack Truck
`(nicknamed the “BEAR”) pursued and shot projectiles
`at retreating protesters. Id. at 29a–30a. Overhead, a
`police helicopter monitored
`the BEAR’s path.
`Id. at 31a. Witnessing the vehicle’s movements, one
`bystander was captured on film saying, “I think
`they’re chasing some people.” Id. at 30a.
`Molina and Vogel complied with the dispersal
`orders and left the protest site. Id. at 29a. They turned
`off the thoroughfare where the protest took place and
`officers had issued dispersal orders and headed
`toward Molina’s house, located on a side street several
`blocks away from the site of the protest. Id. at 30a.
`Once there, Molina and Vogel stood on the sidewalk in
`front of Molina’s property. Id.
`The BEAR, too, veered away from the protest site
`and proceeded down the same side street. Id. (The
`
`
`1 This case comes before the Court on a motion for summary
`judgment. In that posture, all evidence must be viewed “in the
`light most favorable to the opposing party.” Adickes v. S.H. Kress
`& Co., 398 U.S. 144, 157 (1970). Additionally, “[t]he evidence of
`the non-movant is to be believed, and all justifiable inferences
`are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242, 255 (1986).
`
`
`
`5
`
`
`
`primary liaison between the helicopter and the BEAR
`later acknowledged that he recognized the individuals
`wearing bright hats as legal observers. Id. at 31a.) As
`the vehicle approached Molina’s house, officers flung
`canisters of tear gas from a port hole in the armored
`vehicle. Id. Molina and Vogel sought shelter in a
`gangway shared with a neighboring house, but the
`officers simply re-trained their projectiles toward
`them. Id. Vogel recalled experiencing “the smell of
`tear gas” and “a fog, a cloud of smoke.” Id. She later
`found a spent canister of tear gas in the street. Id.
`
`II. Procedural Background
`1. Molina and Vogel filed suit under 42 U.S.C.
`§ 1983 against the police officers who operated and
`directed the BEAR, as well as the City of St. Louis and
`St. Clair County, Illinois. As relevant here, they
`claimed First Amendment retaliation, alleging the
`officers targeted them with tear gas because they
`engaged in protected speech. App. 3a.2
`At the close of discovery, respondents moved for
`summary
`judgment. Id. at 34a. Among other
`arguments, they raised the affirmative defense of
`qualified immunity. Id. at 38a. Respondents also
`argued that the record, even viewed in the light most
`favorable to petitioners, established that they had
`probable cause to fire the tear gas and failed to
`
`2 A third plaintiff brought similar claims based on police actions
`during the same protest, but rooted in slightly different facts.
`App. 15a. The opinion below agreed with the district court that
`those claims could proceed past summary judgment, Id. at 16a–
`18a; that plaintiff is therefore not a party to this petition.
`
`
`
`6
`
`
`
`establish that the officers’ deployment of tear gas
`canisters was in retaliation for petitioners’ exercise of
`First Amendment rights. Id. at 38a–42a.
`The district court denied summary judgment on
`petitioners’ First Amendment retaliation claim.
`Id. at 51a. First, it found the officers lacked even
`arguable probable cause to deploy the tear gas against
`Molina and Vogel. Id. at 40a. Next, it held respondents
`were not entitled to qualified immunity because
`petitioners’ First Amendment right to participate in a
`protest that criticized police conduct was clearly
`established by the time of the events in question.
`Id. at 45a. It also determined a jury could reasonably
`find the officers retaliated against petitioners based
`on their participation in the protest as legal observers.
`Id. at 44a.
`2. A divided panel of the Eighth Circuit reversed.
`Id. at 18a. It did so on grounds not raised by the
`parties, nor addressed by the district court. Instead,
`following oral argument, the panel sua sponte ordered
`supplemental briefing on two questions: (1) whether
`petitioners had engaged in any First Amendment
`protected activity by participating in the protest as
`legal observers and, if so, (2) whether the protected
`nature of that speech was clearly established when
`officers tear gassed Molina and Vogel.
`Molina and Vogel’s supplemental brief identified
`several forms of First Amendment protected activity
`associated with their participating in the protest as
`legal observers. As relevant here, the first was that
`they engaged in protected expression by wearing hats
`
`
`
`7
`
`
`
`bearing the words “National Lawyers Guild Legal
`Observer.” Id. at 11a. The second was that, by acting
`as legal observers, Molina and Vogel exercised a First
`Amendment right to unobtrusively observe and record
`police officers while the officers executed their duties
`in public. Id. at 5a.
`The panel majority rejected both theories. Id. at
`8a, 13a. With respect to petitioners’ argument that the
`written words on their hats constituted protected
`speech, the majority reasoned that only “some symbols
`and words carry a clear message”—and only those
`words that are “intended” and “likel[y]” to “convey a
`particularized message” warrant
`constitutional
`protection. Id. at 12a–13a (internal quotation marks
`omitted). Applying this test, the majority concluded
`that the phrase on the hats, “National Lawyers Guild
`Legal Observer,” contained “no obvious pro-protest
`message” and therefore was not protected by the First
`Amendment. Id. at 13a.
`Additionally, the panel majority held that
`because the fact that the hats bore a “pro-protest”
`message was not “beyond debate,” the officers were
`entitled to qualified immunity. Id.
`The panel also rejected Molina and Vogel’s theory
`of retaliation based on their exercise of a First
`Amendment right to unobtrusively observe and record
`police officers in public. Id. at 5a. The panel majority
`held that even if this activity motivated the officers to
`tear gas petitioners, respondents were entitled to
`qualified immunity because it was not clearly
`established at the time that people have a First
`
`
`
`8
`
`
`
`Amendment right to observe the police unobtrusively
`in public. Id. Although previous Eighth Circuit
`precedents had identified a right to record police, the
`majority discounted those cases as arising under the
`Fourth Amendment, not the First Amendment.
`Id. at 6a–8a (citing Chestnut v. Wallace, 947 F.3d
`1085, 1090–91 (8th Cir. 2020); Walker v. City of Pine
`Bluff, 414 F.3d 989 (8th Cir. 2005)).
`3. Judge Benton dissented from the relevant
`portions of the majority opinion. He concluded that
`there was a clearly established First Amendment
`right to unobtrusively record and observe on-duty
`police
`in
`public,
`noting
`prior
`Eighth
`Circuit precedents establishing such a right. App.
`18a–19a. The fact that those cases raised Fourth
`Amendment claims did not support qualified
`immunity, because their reasoning was inextricably
`tied to the scope of First Amendment freedoms. Id. at
`24a–26a. As he put it, “the Fourth Amendment makes
`it unreasonable to arrest or detain someone for
`conduct that, because the constitution protects it, could
`never be criminal.” Id. at 26a (emphasis added).
`4. A divided Eighth Circuit denied rehearing en
`banc. Four of the circuit’s eleven active-status judges
`would have granted the petition. App. 65a. Dissenting
`from denial, Judge Colloton criticized the panel’s
`conclusion
`that no
`clearly established First
`Amendment right to unobtrusively record police
`officers performing their jobs in public existed at the
`time of the protest. Id. He reasoned that the right was
`obvious, noting that no reasonable officer could believe
`the Constitution would tolerate an ordinance making
`
`
`
`9
`
`
`
`it “unlawful for any person to watch police-citizen
`interactions at a distance and without interfering.” Id.
`Yet under the majority’s reasoning, “a reasonable
`public official” at the time of the protest “could have
`believed that this hypothetical ordinance is consistent
`with the First Amendment.” Id. Judge Colloton then
`emphasized
`prior Eighth Circuit
`precedent
`demonstrating
`that
`citizens
`have
`such
`a
`constitutional right, as well as a “robust consensus of
`cases” from outside the circuit reinforcing that
`conclusion. Id. at 66a.
`The dissent from denial of rehearing also
`disputed the panel’s conclusion that Molina and
`Vogel’s neon green hats bearing the message
`“National Lawyers Guild Legal Observer” were not
`speech entitled to First Amendment protection. Id. at
`67a. Drawing on this Court’s decision in Hurley v.
`Irish-American Gay, Lesbian and Bisexual Group of
`Boston, 515 U.S. 557, 569 (1995), as well as binding
`circuit precedent, Judge Colloton explained that
`constitutionally protected speech is not limited to
`“expressions conveying a ‘particularized message.’”
`App. 67a (quoting Hurley, 515 U.S. at 569). Otherwise,
`the First Amendment “would never reach the
`unquestionably shielded painting of Jackson Pollock,
`music of Arnold Schöenberg, or Jabberwocky verse of
`Lewis Carroll.” Id. (quoting Hurley, 515 U.S. at 569).
`In his view, the panel majority erred in denying First
`Amendment protection to written words simply
`because it did not read them as expressing a pro-
`protest message. Id.
`
`
`
`10
`
`
`
`REASONS FOR GRANTING THE WRIT
`I. The Courts of Appeals Are Divided on
`Whether Written Words Printed on
`Clothing Must Express a Particularized
`Viewpoint in Order to be Protected by the
`First Amendment.
`By holding that the words written on Molina and
`Vogel’s hats lacked First Amendment protection
`because they failed to adequately communicate a pro-
`protest viewpoint, the Eighth Circuit deepened a
`conflict in the courts of appeals over when words
`printed on clothing deserve constitutional protection.
`Three circuits hold that such words, as pure speech,
`are protected without regard to whether they express
`a particular viewpoint. Three others hold that First
`Amendment protection extends only to words that
`express a particularized message. That division is
`longstanding and shows no signs of going away on its
`own.
`Addressing this conflict is important, and the
`Eighth Circuit’s resolution of it is plainly wrong.
`Central to the First Amendment is the principle that
`the government must permit nearly all speech to
`flourish, without regard to its substantive content,
`ideological valence, or particular viewpoint. By
`denying any protection to words appearing on clothing
`unless they express a particularized message, the
`Eighth Circuit and other courts on its side of the split
`have eroded that basic tenet for a significant portion
`of the country. The Constitution protects speech
`regardless of whether it expresses a pro-protest, anti-
`protest, or protest-agnostic message. Yet the court
`below held that petitioners’ speech, because it was
`
`
`
`11
`
`
`
`written on their clothing, was unprotected unless it
`expressed a “pro-protest” message. App. 13a.
`Moreover, petitioners’ case gives the Court an
`excellent
`vehicle
`to
`address
`this
`division.
`Distinctively, it comes before the Court unburdened
`by the additional doctrinal considerations that may
`complicate this question when it arises—as it often
`has—in the context of public schools.
`This Court should grant review, reverse the
`erroneous reasoning that led the Eighth Circuit to
`deny First Amendment protection to “pure speech,”
`and
`reassert
`the Constitution’s
`historically
`comprehensive protection of written words regardless
`of where they appear or whether they express a
`particular viewpoint.
`A. The Circuits Have Reached Conflicting
`Decisions Over Whether Words Printed
`on Clothing Qualify as Pure Speech.
`1. “From 1791 to the present,” the First
`Amendment has protected pure speech regardless of
`its content, save for a “few limited areas.” R.A.V. v.
`City of St. Paul, 505 U.S. 377, 382–83 (1992). Written
`words are incontrovertibly pure speech, and thus
`presumptively entitled to significant constitutional
`protection. 303 Creative v. Elenis, 143 S. Ct. 2298,
`2312 (2023).
`In the opinion below, however, the Eighth Circuit
`reasoned that the words printed on petitioners’ hats
`deserved First Amendment protection only if they
`“directly conveyed a pro-protest message.” App. 11a.
`To reach the surprising conclusion that some written
`words are not protected speech, the Eighth Circuit
`
`
`
`12
`
`
`
`erroneously grafted this Court’s test for “expressive
`conduct,” which identifies when conduct receives First
`Amendment protection, United States v. O’Brien, 391
`U.S. 367, 375 (1968), onto pure speech—a category of
`expression that receives “comprehensive protection
`under the First Amendment,” Tinker v. Des Moines
`Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); 303
`Creative, 143 S. Ct. 2312. Because the phrase
`“National Lawyers Guild Legal Observer” did not, in
`the majority’s view, communicate a “particularized
`message” that was “easily identifiable,” the court
`concluded that the message written on petitioners’
`hats was not entitled to any First Amendment
`protection. App. 12a.
`Limiting protection for written words in this way
`is a category mistake. The expressive conduct test
`provides as a threshold matter that conduct must
`express a “particularized message” to trigger First
`Amendment protection. Spence v. Washington, 418
`U.S. 405, 411 (1974) (per curiam). The Eighth Circuit
`applied that test to petitioners’ written words
`seemingly because they appeared on clothing, and
`denied First Amendment protection because they did
`not meet the threshold required for expressive
`conduct. See App. 12a (lumping together Cohen v.
`California, 403 U.S. 15, 16 (1971) (jacket inscribed
`with anti-draft words) with Baribeau v. City of
`Minneapolis, 596 F.3d 465, 470–71 (8th Cir. 2010)
`(assessing whether zombie costumes worn to express
`anti-consumerism message are protected)). But this
`Court has never applied the “expressive conduct” test
`to pure speech, nor suggested that pure speech is
`
`
`
`13
`
`
`
`entitled to First Amendment protection only if it
`expresses a “particularized message”—no matter
`where it appears.
`2. The Eighth Circuit is not the first federal
`appellate court to make this fundamental mistake.
`Like the majority below, the Seventh and Sixth
`Circuits protect words written on clothing only if they
`express an identifiable idea or opinion.
`In Brandt v. Board of Education of City of
`Chicago, 480 F.3d 460 (7th Cir. 2007), a group of
`eighth graders placed in their school’s gifted program
`faced discipline for wearing T-shirts to school in
`protest of what they considered a rigged class election.
`The T-shirts in question largely replicated a school-
`sanctioned design: a print of an animal, a baseball cap,
`and each student’s last name. Id. at 463. But the
`plaintiffs added a slogan designating their inclusion
`in the gifted program: “Gifties 2003.” Id. School
`officials banned the shirts, reasoning that the added-
`on slogan would “disrespect” the principal and “create
`a risk to the good order of the school.” Id.
`The court of appeals held that the T-shirts,
`notwithstanding the words “Gifties 2003” printed on
`them, were not speech deserving any First
`Amendment protection. Id. at 465. The opinion began
`from the uncontroversial premise that “clothing as
`such
`is not—not normally at any
`rate—
`constitutionally protected
`expression.”
`Id.
`It
`acknowledged that “there can be speech printed on
`clothing.” Id. But it concluded that the “few words
`imprinted” on the plaintiffs’ T-shirts were not speech
`
`
`
`14
`
`
`
`within the meaning of the First Amendment because
`the slogan was insufficiently “expressive of an idea or
`opinion.” Id. at 466. Thus, the written words “Gifties
`2003” were “no more” worthy of constitutional
`protection than “a young child’s talentless infantile
`drawing.” Id.
`Just last year, another Seventh Circuit panel,
`considering whether the First Amendment protected
`a plaintiff’s pro-gun T-shirt, cited Brandt for the
`proposition that speech printed on clothing warrants
`constitutional protection only if it “convey[ed] a
`politica
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