Académique Documents
Professionnel Documents
Culture Documents
NO. 09-2002
v.
Defendants-Appellees.
BRIEF OF DEFENDANTS-APPELLEES
MARTHA COAKLEY
Attorney General
of Massachusetts
TABLE OF CONTENTS
A. The Complaint does not allege any facts that would
demonstrate that the guidelines abridge the plaintiffs’
freedom of speech. ....................................................................20
D. Because the Guide was the Board’s own speech, the
Board was free to revise or alter it, and to remove
background resources, even in response to “pressure”
from elected officials or public groups. ....................................34
ADDENDUM
M.G.L. c. 260, § 2A
Mass. St. 1998, c. 276
Case: 09-2002 Document: 00115980791 Page: 5 Date Filed: 11/25/2009 Entry ID: 5396230
TABLE OF AUTHORITIES
Cases
Carter v. West Pub. Co., 225 F.3d 1258 (11th Cir. 2000) ........................................ 17
Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) .............................................35, 42, 45
Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002) ......................................... 19
Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009) ........................... 24, 29-32
United States v. Am. Library Ass’n, 539 U.S. 194 (2003) ..........................28, 33, 46
Statutes
28 US.C. § 1291 ......................................................................................................... 1
Case: 09-2002 Document: 00115980791 Page: 9 Date Filed: 11/25/2009 Entry ID: 5396230
Constitutional Provisions
U.S. Const., Amend. I .......................................................................................passim
Miscellaneous
Erwin Chemerinsky, Federal Jurisdiction 71 (5th ed. 2007) ...................................... 5
JURISDICTIONAL STATEMENT
This is an appeal from a final judgment entered by the United States District
Court for the District of Massachusetts (Wolf, D.J.) dismissing this action against
question jurisdiction of the district court with respect to “claims under the United
States Constitution and 28 U.S.C. § 1983.” A. 20. Final judgment for the
defendants entered on June 16, 2009. A. 13. Plaintiffs timely filed a notice of
appeal on July 13, 2009. A. 13, 14. This Court has jurisdiction under 28 U.S.C. §
1291.
genocide and human rights issues.” Mass. St. 1998, c. 276. The “Armenian
calling the Armenian genocide into question. After some back-and-forth, the
Board and the Department concluded that recommending (what the Complaint
1
References to the Appendix are hereafter abbreviated as “A. [page #].”
Case: 09-2002 Document: 00115980791 Page: 11 Date Filed: 11/25/2009 Entry ID: 5396230
In this action, the plaintiffs challenge under the Free Speech Clause of the
version of the curriculum guide. They seek an order requiring that the Board now
2. Does the complaint allege a plausible claim for violation of the Free
Speech Clause where (i) it does not allege that the defendants have abridged any
curricular materials on genocide and human rights issues” under Mass. St. 1998, c.
276, are government speech, which is not subject to scrutiny under the Free Speech
Clause?
seeking a declaration that the defendants violated the Free Speech Clause of the
Armenian genocide from a state curriculum guide and an injunction to require that
the materials be “restore[d]” to the guide. A. 7, 42-44. The plaintiffs are three
(now former) high school students, Theodore Griswold, Jennifer Wright, and
Daniel Glanz; their respective fathers and next friends, Thomas Griswold,
Raymond Wright, and Richard Glanz; two high school teachers, William Shechter
pursuant to Fed. R. Civ. P. 12(b)(1) and (6). A. 8 (docket no. 12); Addendum to
2
Plaintiffs sought relief against Peyser and Driscoll only in their official
capacities. A. 43-44.
Case: 09-2002 Document: 00115980791 Page: 13 Date Filed: 11/25/2009 Entry ID: 5396230
limitations, as plaintiffs had waited six years to bring suit to challenge decisions
made by the defendants in 1999; (2) that the plaintiffs had failed to state a claim
for relief under the Free Speech Clause in challenging Board decisions as to the
content of its curriculum guidelines because these are the government’s own
speech, which is not subject to review under that Clause; and (3) that the plaintiffs
lacked standing because none of them alleged injury to a cognizable interest. Br.
Add. 33-35. After briefing was complete, the district court held a hearing on the
On June 10, 2009, the district court entered a Memorandum and Order
allowing defendants’ motion to dismiss, and dismissing the case. Br. Add. 2-32
(Memorandum and Order). The district court first considered defendants’ two
threshold arguments: that this case is barred by the three-year statute of limitations
applicable to Section 1983 actions and that the plaintiffs lack standing to sue. Id.
13-15. The court held that it is “clear from the Complaint” that plaintiff ATAA
from the curriculum guide) and that its claims, filed in 2005, were therefore time-
3
References to pages in the Addendum to the Brief of Plaintiffs-Appellants
are hereafter abbreviated as “Br. Add. [page #].”
Case: 09-2002 Document: 00115980791 Page: 14 Date Filed: 11/25/2009 Entry ID: 5396230
barred. Br. Add. 14, n.2. The court rejected plaintiffs’ argument that this case
earlier alleged violation, and that refusal was not independently actionable. Id.4
As for the defendants’ argument that the plaintiffs lack standing, the court
concluded that it must first examine the merits to determine whether plaintiffs
allege the “invasion of a judicially cognizable interest.” Id. at 15, quoting Bennett
v. Spear, 520 U.S. 154, 167 (1997). The court explained: “[D]eciding whether
there is an injury to a constitutional right often requires an inquiry into the merits
of the case to determine whether a constitutional right was violated.” Id. at 15,
The district court then closely examined the allegations of the Complaint,
and attached exhibits, to determine whether the individual plaintiffs alleged the
violation of a right under the First Amendment, and concluded that they had not.
Br. Add. 16. The court found the curriculum guide to be “a form of government
speech . . . generally exempt from First Amendment scrutiny[,]” Br. Add. 16,
4
The court declined, however, to dismiss the individual plaintiffs’ claims
as time-barred, concluding that “it is not clear from the Complaint when each of
the individual plaintiffs had reason to know of the alleged injury to them.” Br.
Add. 14.
Case: 09-2002 Document: 00115980791 Page: 15 Date Filed: 11/25/2009 Entry ID: 5396230
students as part of a human rights curriculum.” Id. at 21. The court also found that
“it is not alleged that the Curriculum Guide in any way restricts” the student
plaintiffs’ rights to speak” or that any teacher plaintiff “has been prohibited from
teaching as he wishes about the fate of the Armenians in the Ottoman Empire.” Id.
at 19-20. The Court discerned no allegation that “student or teacher plaintiffs had
been denied access in school to the contra-genocide websites that were removed
from the Curriculum Guide or comparable information.” Id. at 20. And, finally,
the Court thoroughly examined the case upon which plaintiffs mainly rely, Board
of Educ. v. Pico, 457 U.S. 853 (1982) , and concluded that it is not “binding
precedent” because “no opinion commanded five votes” and that even its plurality
opinion “recognized that public officials can prescribe curriculum.” Br. Add. 6,
22-27. Finding no Free Speech Clause violation alleged in the complaint, the
district court allowed the defendants’ motion to dismiss the claims of the
individual plaintiffs “both on the merits and because they lack standing to
On June 16, 2009, the district court entered a separate order of dismissal. A.
13; Br. Add. 1. Plaintiffs filed their notice of appeal on July 13, 2009. A. 13, 14.5
curricular materials on genocide and human rights issues and guidelines for the
teaching of such material.” Mass. St. 1998, c. 276 (“Chapter 276”). The law
stated that the curricular materials and guidelines “may include, but shall not be
limited to, the period of the transatlantic slave trade and the middle passage, the
great hunger period in Ireland, the Armenian genocide, the holocaust and the
Mussolini fascist regime and other recognized human rights violations and
genocides.” Id. The Board’s recommendations were to “be available to all school
5
Two briefs were submitted to the Court by amicae curiae. The brief of
the Turkish American Legal Defense Fund purports to raise a number of issues that
were not raised by plaintiffs below. See, e.g. Arg. §§ I, III, IV. The Court may
not, however, consider issues that are raised only by amicae, and not pressed by the
plaintiffs. Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 205 n.6 (1st Cir.
1999) (“Amici cannot interject . . . issues which the litigants have chosen to
ignore.”).
6
This statement of facts is drawn from the Second Amended Complaint
and its attached exhibits (hereafter “Complaint”). A. 15-252. Solely for purposes
of their motion to dismiss, the defendants accepted as true all well-pleaded
allegations of fact in the Complaint. Gargano v. Liberty Int’l Underwriters, Inc.,
572 F.3d 45, 48-49 (1st Cir. 2009)
Case: 09-2002 Document: 00115980791 Page: 17 Date Filed: 11/25/2009 Entry ID: 5396230
the Board to file its recommendations with the Legislature no later than March 1,
1999. A. 24, quoting Chapter 276 of the Acts of 1998, in Complaint ¶ 15.
Genocide and Human Rights Issues (the "Guide"), as prepared by the Department
meeting. A. 47. The Guide offered school districts both “recommendations for
locating and selecting curriculum materials . . . and guidelines for the teaching of
such materials.” A. 51. The Guide was “to be used in conjunction with the
Reform Act of 1993. A. 51, 52.7 The Guide explained that “[p]articular genocide
and human rights issues are explicitly listed as areas for study in the History and
Social Science Framework.” A. 51. Among the listed areas for study under the
framework topic of World History were the “human toll of 20th century wars and
7
The “frameworks are guides [to school districts] for the development of
coherent and sequential programs of curriculum, instruction, and assessments in
public [schools].” A. 52. The frameworks present “academic content and skills in
the four areas of History, Geography, Economics, and Civics and Government that
are essential to the study of human experience past and present, and to the
development of educated and responsible citizens.” A. 51.
Case: 09-2002 Document: 00115980791 Page: 18 Date Filed: 11/25/2009 Entry ID: 5396230
genocides,” including the Holocaust and the “Armenian genocides, mid-1890’s and
1915.” A. 62. As to these topics, the Guide explained that the “study of episodes
such as the Armenian Genocide and the Holocaust often causes students and
teachers to question why such atrocities occurred, when they would occur
Because only “some” information on genocide and human rights issues “is
these topics in greater depth must find further information in references and [other
sources].” A. 70. Although the Guide did not “endorse or mandate any curriculum
programs” in this area. A. 70.8 In the same vein, the Guide provided a set of
questions that Internet users should ask to evaluate web sites as potential sources of
information on genocide and human rights. A. 71. The Guide also included a list
of resources for teaching about genocide and human rights issues; included among
these were the addresses for two Armenian organizations and several “selected
print resources” on the Armenian genocide. A. 72, 73, 76. Thus, the draft Guide
8
For example, the materials should provide “historically accurate and
complete information based on primary sources,” “coherent arguments and
differing points of view on controversial issues,” be “well-written and organized,”
and contain “[d]escriptions of research methods used.” A. 70.
Case: 09-2002 Document: 00115980791 Page: 19 Date Filed: 11/25/2009 Entry ID: 5396230
276’s recognition of the Armenian genocide. The draft did not include curricular
After reviewing the January 15, 1999 draft Guide, the president of the
consensus that there was in fact a deliberate plan of genocide against the
Armenians by the Ottoman Empire,” and urging that “all perspectives and issues”
meeting the Board “adopt[ed] the draft Guide, as presented” except that the Board
The day after the board vote, Commissioner Driscoll wrote to TACS-NE
explaining that “the Board is sensitive to the complexity of the issues contained in
the [Guide]” and that, “in approving the [Guide]” the Board directed the
February 8, 1999, with additional comments on the Guide, which included the
organization’s objection to use of the term “Armenian Genocide” and its “deep
dismay that the claim of [an Armenian] genocide was accepted in the framework as
undisputed and factual.” A. 27, 103. The TACS-NE letter also proposed
additional resources and web sites for inclusion in the Guide that would set forth a
February 19 in which she stated that “the Board will not be discussing the Guide
. . . at its upcoming meeting” but that she planned to include curricular materials in
the Guide in the form of references to “the organizations and websites” suggested
Although the Board did not vote to alter the Guide, on March, 1, 1999,
revised Guide that left out the website addresses for TACS-NE and the two other
organizations it had recommended, while retaining the website address for the
Turkish Embassy. A. 31. In August 1999, both TACS-NE and the Assembly of
protest. A. 31-32.
Board Chairman Peyser explained that the legislative intent of Chapter 276,
namely, “to address the Armenian genocide . . . and not to debate whether or not
this occurred,” meant that “the Board and the Department of Education cannot
knowingly include resources that call this into question.” A. 32-34, 208-10
(original emphasis). They further wrote that “[t]he explicitness of the statute has
also forced us to reverse our earlier decision to include the website listing for the
Turkish Embassy.” Id. The letter emphasized, however, that the Board and
Department “fully recognize the right of the Turkish community to present its
viewpoint on the events of the latter days of the Ottoman Empire. In addition, it
should be noted that individual [school] districts are free to develop their own
276: “We do not . . . . interpret Chapter 276 as authorizing the Board to adopt
curricular guidelines that call into question whether the various atrocities
SUMMARY OF ARGUMENT
The district court correctly dismissed ATAA’s claims as time-barred.
actually occurred and “removing” those materials from a version of the curriculum
guide. Plaintiffs did not file suit, however, until 2005. Under 42 U.S.C. § 1983,
suit had to be brought within the three-year statute of limitations period prescribed
only discrete acts occurring in 1999, the district court correctly rejected the sole
basis plaintiffs argued for tolling the statute of limitations (i.e. that the defendants
engaged in a “continuing violation” of their rights from and after the date the
Guide was revised). Although the district court , on its own, concluded that the
have held that they waived any such argument for failing to raise it. (See pages 15-
19, below).
Case: 09-2002 Document: 00115980791 Page: 23 Date Filed: 11/25/2009 Entry ID: 5396230
This Court should also affirm the dismissal of the complaint because the
recommend to local school districts curricular resource materials that deny the
government interference with private speech; it does not restrict the government’s
own speech. The Board’s exercise of its discretion in selecting and rejecting
curricular resources as appropriate for the Guide is, itself, “speech” by the
government that is not subject to review under the Free Speech Clause for
have alleged no restriction on their own speech, as the curriculum guidelines are
The decision upon which plaintiffs rely, Board of Education v. Pico, has no
precedential value, lacking as it does any holding regarding the First Amendment.
Moreover, Pico addressed only the narrow question of removal of books from a
application to the alleged facts of the present case. (Pages 37-46, below).
Case: 09-2002 Document: 00115980791 Page: 24 Date Filed: 11/25/2009 Entry ID: 5396230
STANDARD OF REVIEW
This Court reviews de novo the grant of a motion to dismiss under Fed. R.
Civ. P. 12(b)(6), “accept[ing] as true all well-pleaded facts in the complaint and
Int’l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). The Court need not,
971 (1st Cir. 1993). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a dismissal under
Rule 12(b)(6), this Court may affirm the judgment on any basis apparent in the
ARGUMENT
Fecliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005).9 There being no “specific
266, 279 (1985). Hence “a federal court adjudicating a section 1983 action must
borrow the forum state’s general statute of limitations for personal injury actions,”
Centro Medico Del Turabo Inc. , 406 F.3d at 6, which in Massachusetts is three
actions of contract to recover for personal injuries, and actions of replevin, shall be
commenced only within three years next after the cause of action accrues.”). See
also, e.g., Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001) (noting parties’
limitation).
P.Br. Add. 14. The complaint alleges that defendants violated plaintiffs’ rights by
removing from the Guide website addresses for organizations supporting (what the
9
In pertinent part, § 1983 provides: “Every person who, under color of any
statute . . . of any State . . ., 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 . . . .”
Case: 09-2002 Document: 00115980791 Page: 26 Date Filed: 11/25/2009 Entry ID: 5396230
contention is that defendants’ “decision to expunge those materials from the Guide
for political, not educational, reasons contravenes the First and Fourteenth
website addresses from the Guide, in 1999. A. 31-33 (Complaint ¶¶ 27, 30.)
Plaintiffs waited more than six years, until 2005, before filing suit. Because they
The plaintiffs’ claims are not saved by the continuing violation doctrine
because no allegedly wrongful act occurred during the limitations period. P.Br.
continuing policy or practice giving rise to new injuries within the limitations
period. “Although the limitations period is determined by state law, the date of
174 (1st Cir. 1997). “And under federal law, the continuing violation doctrine does
not save an otherwise untimely suit when ‘a single event gives rise to continuing
injuries’. . . .” Clark v. City of Braidwood, 318 F.3d 764, 766–67 (7th Cir. 2003),
quoting Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). Accord Carter v.
West Pub. Co., 225 F.3d 1258, 1263–64 (11th Cir. 2000) (distinguishing “between
the present consequence of a one time violation, which does not extend the
Case: 09-2002 Document: 00115980791 Page: 27 Date Filed: 11/25/2009 Entry ID: 5396230
limitations period, and the continuation of that violation into the present, which
does”). The reason is that a discrete discriminatory act occurs only at the time it
takes place. See National Passenger R.R. Corp. v. Morgan, 536 U.S. 101, 114
Plaintiffs’ attempt to convert Board Chairman Peyser’s June 27, 2005, letter
to their counsel into “an ongoing policy and practice [of] excluding any contra-
genocide materials from the Guide[]” (P. Br. 36-37) fails for at least two reasons.
First, the Complaint does not claim that excluding curricular materials from the
Guide violates the First Amendment. Rather, the alleged violation is the 1999
removal of curricular materials from the Guide. A. 20, 31-33, 38. See P. Br. 2, 11-
12 (“This case concerns removals only, without any necessary implication for the
period acts. A. 37, 248-49. Cf. Otero v. Rubero, 820 F.2d 18, 20 (1st Cir. 1987)
The cases plaintiffs cite in their Brief either support defendants’ position or
are distinguishable. Both Muniz-Cabrero v. Ruiz, 23 F.3d 607 (1st Cir. 1994), and
Velazquez v. Chardon, 736 F.2d 831 (1st Cir. 1984), agree that the continuing
Case: 09-2002 Document: 00115980791 Page: 28 Date Filed: 11/25/2009 Entry ID: 5396230
genocide” websites from the Guide since their removal in 1999 -- do not establish
between the occurrence of a discriminatory act and the later effects of that act.’”
23 F.3d at 610, quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st
Cir. 1989). Similarly, Velazquez explains that “‘[a] continuing violation is not
stated if all that appears from the complaint is that the plaintiff continues to suffer
from the ongoing effects of some past act of discrimination.’” 736 F.2d at 833,
quoting Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979).10
contra-genocide materials from the Guide in 1999 -- which occurred more than six
years before this case was filed, the district court correctly rejected the “continuing
violation” approach and dismissed ATAA’s claims as time-barred. P. Br. Add. 12-
14. 11
10
New York Times v. Sullivan, 403 U.S. 713 (1971), is distinguishable
because no plaintiff in this case is subject to an injunction; after the addresses of
the websites were removed from the Guide in 1999, plaintiffs remained free to read
and discuss “contra-genocide” materials obtained from these websites and any
others.
11
The district court declined to find the claims of the individual plaintiffs
time barred, concluding that “it is not clear from the Complaint when each of the
individual plaintiffs had reason to know of the alleged injury to them.” Br. Add.
(footnote continued)
Case: 09-2002 Document: 00115980791 Page: 29 Date Filed: 11/25/2009 Entry ID: 5396230
A. The Complaint does not allege any facts that would demonstrate
that the guidelines abridge the plaintiffs’ freedom of speech.
The first issue that arises in this case is whether plaintiffs have identified
governmental action that abridges a right recognized by the Free Speech Clause; if
they have not, the Court “need go no further.” Cornelius v. NAACP Legal
Defense & Educational Fund, Inc., 473 U.S. 788, 797 (1985). That inquiry should
be especially searching in this case, as the Supreme Court has warned against
(footnote continued)
14. But the individual plaintiffs did not argue below that their claims are timely
under a “discovery” rule, see e.g. Gonzalez v. United States, 284 F.3d 281, 288 (1st
Cir. 2002), nor did they make any such allegations in the Amended Complaint. A.
21-22, 38-42. The individual plaintiffs, like the ATAA, made only the “continuing
violation” argument. See P. Br. 35 (asserting that “[t]he District Court erroneously
rejected the plaintiffs' argument that the constitutional violation is continuing, and
hence the statute of limitations did not run from the date [in 1999] on which the
contra-genocide materials were removed from the Guide.”). Because of the
plaintiffs’ failure to raise a discovery rule argument in opposition to the
defendants’ motion to dismiss, the district court should have treated it as waived,
Iverson v. City of Boston, 452 F.3d 94, 103 (1st Cir. 2006) (theory waived where
plaintiff failed to mention or develop it in response to city’s motion to dismiss)
and, on that basis, dismissed, as untimely, the individual plaintiffs’ claims as well.
See Jones v Alcoa, 339 F.3d 359, 366 (5th Cir. 2003 ) (pleadings need to raise
some basis for tolling to avoid dismissal when it is otherwise obvious that claim
time-barred).
Case: 09-2002 Document: 00115980791 Page: 30 Date Filed: 11/25/2009 Entry ID: 5396230
which do not directly and sharply implicate basic constitutional values.” Epperson
v Arkansas, 393 U.S. 97, 105 (1968). “Judicial interposition in the operation of the
public school system of the Nation raises problems requiring care and restraint.”
Id. at 104.
speech: “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const., Amend. I. See Ysursa v. Pocatello Educ. Ass’n, 129 S.Ct. 1093, 1098
(2009). Nothing in the Complaint, however, alleges that the Board or Department
has abridged the plaintiffs’ speech. Rather, the plaintiffs complain only about the
recommendations are made available “on an advisory basis.” Mass. St. 1998, c.
6), and seek a judicial order requiring the Board to revise its guidelines to include
the “contra-genocide” materials. Thus, while the plaintiffs seek to compel the
Board to speak as they direct, the Board’s guidelines do not require the plaintiffs
(or any school district, teacher, or student) to say, or refrain from saying, anything.
Because they are merely “advisory,” the guidelines do not even require
A. 70 (noting that the Board does not “mandate” any curriculum materials).
Accordingly, the Complaint does not state a valid First Amendment claim.
The student plaintiffs (Griswold, Wright and Glanz) do not claim that their rights
to speak have been restricted or inhibited in any way. Cf., e.g., Bethel Sch. Dist. v.
Fraser, 478 U.S. 675 (1986) (First Amendment claim by student disciplined for
language used in school assembly). The students allege only that they “believe”
that they may have been, or may be, “denied the opportunity to receive contra-
and Aronson, claim that their speech rights have been abridged, or that the Board’s
decisions concerning the guidelines have affected their teaching in any way. Cf.
Conward v. Cambridge School Committee, 171 F.3d 12, 17 (1st Cir. 1999) (First
speech).12 And plaintiffs do not claim that they have been compelled by the
Commonwealth to speak or act against their wishes. Cf. West Virginia State Bd.
12
Although the Complaint makes conclusory references to the “censorship”
of “viewpoints,” A. 22, 40, 41, it alleges no facts, nor could it, to demonstrate that
the Commonwealth has limited plaintiffs’ right to speak in any way. Accordingly,
these conclusions need not be accepted as true. See Washington Legal Foundation
v. Mass. Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993) (on a motion to
dismiss, court “will not accept a complainant’s unsupported conclusions or
interpretations of law”).
Case: 09-2002 Document: 00115980791 Page: 32 Date Filed: 11/25/2009 Entry ID: 5396230
of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (mandatory recitation in school of
That the guidelines are, expressly, “advisory” means that Massachusetts has
not attempted to compel students or teachers “to confess by word or act” their
religion, or other matters of opinion.” Barnette, 319 U.S. at 642. The Complaint
thus does not “directly and sharply implicate basic constitutional values,”
Epperson, 393 U.S. at 105, as it must to justify judicial intervention. Rather, the
plaintiffs assert a novel and unsupportable theory under which a “right” to receive
information would entitle them to demand that their preferred resources be retained
13
The associational plaintiff, Assembly of Turkish American Associations
(ATAA), claims that “defendants’ deletion of the ATAA website [from the Guide]
violated the equal protection component of ATAA’s First Amendment Right to
freedom of speech.” A. 43. (Compl. ¶ 57.) But the Complaint does not allege any
facts supporting a claim that Massachusetts censored the ATAA website. There
are no allegations that Massachusetts has taken ATAA’s website off the worldwide
web, restricted its content, or prevented teachers or students (or anyone at all) from
viewing it. The organization remains as free today to propagate its ideas as it was
before Chapter 276 was enacted or the Guide was published. See Sutliffe v.
Epping School District, 584 F.3d 314, 334 (1st Cir. 2009) (“. . . given the infinitely
open and extensive communication possible on the Internet, exclusion from a
particular governmental unit's web site in no way inhibits a private entity's
expressive opportunities . . . .”) (quoting M.J. Dolan, The Special Public Purpose
Forum and Endorsement Relationships: New Extensions of Government Speech,
31 Hastings Const. L.Q. 71, 134 (2004)). The facts alleged in the Complaint assert
only that Massachusetts is not recommending the ATAA website as a resource for
teaching about genocide and human rights issues. Thus, ATAA has also failed to
state a claim of violation of the First Amendment.
Case: 09-2002 Document: 00115980791 Page: 33 Date Filed: 11/25/2009 Entry ID: 5396230
among the Board’s curricular recommendations, simply because they were in the
guidelines for about six months in 1999, until state officials concluded that
retaining them was inconsistent with Chapter 276. As explained below, because
these allegations do not state a claim for relief under the Free Speech Clause, the
speech.” Pleasant Grove City v. Summum, 129 S.Ct. 1125, 1131 (2009). “[T]he
Ass’n, 544 U.S. 550, 553 (2005)). See Sutliffe v. Epping School Dist., 584 F.3d
314, 329-30 (1st Cir. 2009) (discussing government speech doctrine). Thus, “when
the State is the speaker, it may make content-based choices,” and “it is entitled to
say what it wishes.” Rosenberger v. Rector & Visitors of the Univ. of Virginia,
Under Chapter 276, the Board was required to develop and provide
curriculum guidelines are “the Government’s own speech.” Johanns, 544 U.S. at
557. In Johanns, the Court held that generic advertising under the federal Beef
Promotion and Research Act of 1985 is government speech because the “message
itself.” Id. at 560. Under the Act, Congress set the basic promotional message by
statute and the specifics of the advertising were approved by the Secretary of
Agriculture. Id. at 560-61. 14 Similarly, Chapter 276 sets the “basic message” of
for teaching “genocide and human rights issues,” and may include “the Armenian
genocide” and other “recognized human rights violations and genocides”) and their
The plaintiffs concede that “Chapter 276 delegates authority to the Board to
P. Br. 24. The plaintiffs argue, however, that the Board should have interpreted
Chapter 276 to permit the inclusion of contra-genocide materials in the Guide and
that the Board was, therefore, not engaged in government speech when it revised
14
Consequently, Johanns held the advertising “exempt from First
Amendment scrutiny,” rejecting a claim by ranchers who argued that assessments
they were required to pay to fund the advertising compelled them to subsidize
speech to which they objected. Id. at 553, 560-67.
Case: 09-2002 Document: 00115980791 Page: 35 Date Filed: 11/25/2009 Entry ID: 5396230
the Guide in 1999 (to remove such materials) under a mistaken view of the statute.
P.Br. 25-28. This argument does not assist plaintiffs’ First Amendment claim
statutory delegation, even if the Board was mistaken (according to plaintiffs) about
the breadth of that delegation. The plaintiffs do not argue that the Board exceeded
its delegation or was acting ultra vires. Instead, plaintiffs say only that the Guide
does not contain as much material as Chapter 276 would have permitted.15
Whether or not that is the case, the government speech doctrine protects the
Board’s right not to speak; no authority would support an injunction under the First
Amendment to compel the Board to say more, even if the statute would have
15
Under plaintiffs’ view of Chapter 276, not including contra-genocide
materials in the Guide is also permissible. See P. Br. 24 (under Chapter 276 “no
topic is made mandatory” in the Guide); Br. 25, n.13 (Chapter 276 “delegates to
the Board what topics to include [in the Guide] and how to present them.”). Thus,
plaintiffs do not contend that Chapter 276 compelled the Board to include contra-
genocide materials in the Guide.
16
And, of course, any claim by plaintiffs that would “enforce” Chapter
276 by requiring the Board to include contra-genocide materials would be barred
by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman,
465 U.S. 89, 121 (1984) (federal courts lack jurisdiction over “a claim that state
officials violated state law in carrying out their official responsibilities,” because
such a claim is “a claim against the State that is protected by the Eleventh
Amendment.”).
Case: 09-2002 Document: 00115980791 Page: 36 Date Filed: 11/25/2009 Entry ID: 5396230
recognized that “when the [respondent public University] determines the content of
the education it provides, it is the University speaking, and we have permitted the
speaker or when it enlists private entities to convey its own message.” 515 U.S. at
recommend “the curriculum for its public schools.” Epperson, 393 U.S. at 107.17
See Conward, 171 F.3d at 23 (school has broad “right to design curricula and
select textbooks”). Cf. Brown v Hot, Sexy and Safer Productions, Inc., 68 F.3d
525, 533 (1st Cir. 1995) (declining to hold that parents have a “fundamental
constitutional right to dictate the curriculum at the public school to which they
have chosen to send their children”). In designing curriculum, state and local
Pico, 457 U.S. 853, 882 n.1 (1982) (Blackmun, J., concurring). Indeed, the
17
That right is, of course, subject to limitation under the Establishment
Clause of the First Amendment. See, e.g., Epperson, 393 U.S. at 105-109
(Establishment Clause violated by state law prohibiting teaching of evolution
because of perceived conflict with Biblical account of creation).
Case: 09-2002 Document: 00115980791 Page: 37 Date Filed: 11/25/2009 Entry ID: 5396230
lecture series, or a public school prescribing its curriculum” by their nature “will
Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998). Thus, in implementing
education policy under Chapter 276, it was permissible for the Commonwealth,
through the Board, to express its own views to the exclusion of others it does not
accept. See Finley, 524 U.S. at 598 (“It is the very business of government to
“resources for teaching about genocide and human rights issues,” A. 72-77 – is
Forbes, 523 U.S. 666, 674 (1998), the Court explained that “[w]hen a public
engages in speech activity.” Thus, even when “compil[ing] the speech of third
United States v. Am. Library Ass'n, 539 U.S. 194, 204-05 (2003) (plurality
provides to its patrons”); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569,
art projects to fund); see also People for the Ethical Treatment of Animals, Inc. v.
Gittjens, 414 F.3d 23, 28-30 (D.C.Cir.2005) (government arts commission “spoke”
when it exercised its discretion to decide which private submissions to accept, and
which to reject, for a public art exhibit, even though the “message” of any artistic
submission was not, itself, that of the government). Thus, the Board’s selection or
background resources in the Guide, and its rejection or “removal” of others, is not
speech because the Guide “does not endorse or mandate any curriculum materials.”
A. 70, 183. Pl. Br. 29-32.18 This position has been squarely and recently rejected
18
By taking this approach in the Guide, the Board promoted greater
academic freedom and flexibility; the Board provided advice and recommendations
– but not a mandate – to school districts on curricular materials. Cf. Asociación de
Educación Privada de Puerto Rico, Inc. v. García-Padilla, 490 F.3d 1 (1st Cir.
2007) (regulation restricting private schools’ selection of textbooks violated free
speech and academic freedom rights). Ironically, the plaintiffs would apparently
concede that if the Board mandated that Massachusetts school districts only use
(footnote continued)
Case: 09-2002 Document: 00115980791 Page: 39 Date Filed: 11/25/2009 Entry ID: 5396230
by the Supreme Court and this Court. In Pleasant Grove City v. Summum, 129
S.Ct. 1125 (2009), the Court held that “the City's decision to accept certain
privately donated monuments [for permanent placement in its public park] while
government speech[,]” that is “not subject to the Free Speech Clause.” Id. at 1138.
Id. at 1134. The selection and display of privately donated monuments was,
therefore, speech even though “a government entity does not necessarily endorse
the specific meaning that any particular donor sees in the monument.” Id. at 1136.
that the City “must ‘adopt’ or ‘embrace’” the “message” of a privately donated
monument before the City’s decision to accept and display the monument in its
(footnote continued)
certain curricular materials (for example, from Armenian organizations) for
courses on genocide and human rights it would receive greater protection for its
speech. P. Br. 29-30.
Case: 09-2002 Document: 00115980791 Page: 40 Date Filed: 11/25/2009 Entry ID: 5396230
In Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir. 2009), this Court
rejected a free speech claim by residents who insisted that their group’s web
address appear as a hyperlink on the Town of Epping web site. The Court
explained that, under Pleasant Grove, “when the government uses its discretion to
select between the speech of third parties for presentation through communication
channels owned by the government and used for government speech, this in itself
message of the third-party speech.” 584 F.3d at 330. Under this reasoning, “the
important message about itself.” Id. “This expressive activity was independent of
the specific content of the websites that were hyperlinked from the Town's
website.” Id. Thus, under both Pleasant Grove and Sutliffe, the Board need not
the Guide; the Board’s selection of certain resources for the Guide, and its
exclusion of others, was, itself, government speech not subject to scrutiny under
the Free Speech Clause. See also Page v. Lexington County Sch. Dist. One, 531
F.3d 275, 280 (4th Cir.2008) (school district’s placement of hyperlinks on its web
site to the web sites of private groups was government speech, even though the
Case: 09-2002 Document: 00115980791 Page: 41 Date Filed: 11/25/2009 Entry ID: 5396230
district did not incorporate the contents of the linked websites into its own
website).
Plaintiffs also argue that the Guide section on “Resources for Teaching
about Genocide and Human Rights Issues” should be treated as a limited public
forum – wherein the Board could not reject proposed resources based on
the Board was “encouraging” a “diversity of views from private speakers.” P.Br.
2, 30.19 Contrary to this rhetoric, the Complaint alleges no facts that could
forum for public discourse[]” in the educator-resources section of the Guide. Del
Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.2009) (quoting Ridley v. Mass. Bay
Transp. Auth., 390 F.3d 65, 76 (1st Cir.2004)) (internal quotation mark omitted).
Substantially similar arguments were rejected in both Pleasant Grove, 129 S.Ct. at
The purpose of the Guide – including its resources section – was not public
and guidelines for the teaching of such material” to “school districts in the
19
Even plaintiff concedes, however, that this “library” was created on an
“advisory” basis for educators. P.Br. at 30
Case: 09-2002 Document: 00115980791 Page: 42 Date Filed: 11/25/2009 Entry ID: 5396230
plaintiffs point out, was that teachers present “differing points of view on
controversial issues” and explore “the complexity and ambiguity of the human
condition,” when they select curriculum materials for use in their classrooms. A.
70. P.Br. at 30-31. The fact that this advice to teachers appears in the Guide does
not, as plaintiffs contend, mean that the Board itself dedicated the educator-
resources section of the Guide, A. 72-77, to the public as a platform for debate.
The resources identified in the Guide were those that the Board recommended that
educators consult in preparing to teach about genocide and human rights issues.
These recommendations would be lost entirely if, under the “open access and
forced over its objection to accept any number of resource listings from third
parties. Sutliffe, 584 F.3d at 334. The fact that application of the public forum
doctrine would “defeat the very purpose” of the Guide – as a source of Board
out of place in the context of this case.” Id. at 333, quoting Am. Library Ass'n,
D. Because the Guide was the Board’s own speech, the Board was
free to revise or alter it, and to remove background resources,
even in response to “pressure” from elected officials or public
groups.
Plaintiffs gain nothing by alleging that the Guide was revised as a result of
interest groups. A. 16, 18, 29-32, 42. Participation by elected officials and the
public in the formulation of education policy is expected. For example, the Board
the January 1999 meeting at which it approved the Guide. A. 25-26. Although
vigorously lobbied the Board and Department at the January 1999 meeting and in
With respect to government speech, the Court has recognized that the
opportunity to object to, or influence, the content of such speech, which otherwise
promote its own policies or to advance a particular idea, it is, in the end,
accountable to the electorate, and the political process for its advocacy.” Board of
Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 235 (2000). “If the
Case: 09-2002 Document: 00115980791 Page: 44 Date Filed: 11/25/2009 Entry ID: 5396230
citizenry objects, newly elected officials later could espouse some different or
contrary position.” Id. See Br. Add. at 7. See Sutliffe, 584 F.3d at 331, n.9 (“If
the voters do not like those in governance or their government speech, they may
vote them out of office or limit the conduct of those officials by law, regulation, or
Two federal circuits have dismissed First Amendment claims that bear
striking similarities to the claims in this action; in each case the court held that
positions taken by the state or local school authority on matters of curriculum and
analysis. In Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005), a textbook author and a
high school student challenged the refusal of the Texas State Board of Education to
approve the author’s text book (on environmental science) for state-funded
had recommended the book’s adoption, after further public comment resulting
from the request of two “conservative think tank organizations,” the Board voted
not to adopt the book. Id. at 609-10. Rejecting the plaintiffs’ claim of
accomplishes the states’ educational objectives.” Id. at 611, citing Bd. of Educ. v.
Pico, 457 U.S. 853, 864 (1982) and Ambach v. Norwick, 441 U.S. 68, 76, 77
[W]hen the [Board] devises the state curriculum for Texas and selects
the textbook with which teachers will teach to the students, it is the
state speaking, and not the textbook author. [* * *] It is necessary for
the Board to exercise editorial judgment over the content of the
instructional materials it selects for use in the public school
classrooms, and the exercise of that discretion will necessarily reflect
the viewpoint of the Board members. [* * *] Further, the Board has a
statutory obligation under Texas law to exercise [its] discretion in
order to promote the state’s chosen message through the Board’s
educational policy.
432 F.3d at 614-15. Accordingly, the Texas Board had the discretion to reject
Massachusetts Board had equally broad discretion to decline the request of Turkish
Similarly, in Downs v. Los Angeles School Dist., 228 F.3d 1003 (9th Cir.
2000), cert. denied 532 U.S. 994 (2001), the Ninth Circuit rejected a claim by a
high school teacher that school officials violated his First Amendment rights by
sponsored bulletin board set up to recognize Gay and Lesbian Awareness Month.
Case: 09-2002 Document: 00115980791 Page: 46 Date Filed: 11/25/2009 Entry ID: 5396230
Id. at 1005. 20 The Court concluded that “[b]ecause the bulletin boards were a
manifestation of the school board’s policy to promote tolerance, and because [the
principal] had final authority over the content of the bulletin boards, all speech that
occurred on the bulletin boards was the school board’s and LAUSD’s speech.” Id.
at 1012. Because the gay awareness bulletin boards contained only “government
speech,” the Court held that “Downs had no First Amendment right to dictate or to
contribute to the content of that speech. Thus, [the school district] did not act
also government speech to which the plaintiffs may not “contribute” over the
Commonwealth’s objection.
20
By formal action, the Los Angeles Unified School District had
designated June of each year as “a time to focus on gay and lesbian issues.” Id. at
1005. Because Downs objected to this, he posted materials near his classroom
“testing” the District’s tolerance position on homosexuality. Id. at 1006. The
school principal later removed Downs’ materials, which the principal considered
“inconsistent with” the purposes of the District’s policy. Id. at 1007.
Case: 09-2002 Document: 00115980791 Page: 47 Date Filed: 11/25/2009 Entry ID: 5396230
plaintiffs are left to claim, instead, that the Commonwealth has “abridge[d their]
– indeed must – articulate its viewpoints to discharge its many functions. And, as
explained below, if citizens have a “right to receive information” under the First
21
Despite this conclusory allegation, the individual plaintiffs’ allegations
show no abridgment. The student plaintiffs allege only that they “believe[]” they
“may be denied the opportunity to receive contra-genocide viewpoints in school.”
A. 39 (Compl., ¶ 44a, 44b). The teacher plaintiffs, Schechter and Aaronson,
believe the contra-genocide view should be presented and are free to do so in their
classes, absent restrictions imposed in their districts, which they do not allege. A.
39-41 (Compl., ¶¶ 45-48).
Case: 09-2002 Document: 00115980791 Page: 48 Date Filed: 11/25/2009 Entry ID: 5396230
the First Amendment’s explicit guarantee of freedom of speech, a right on the part
of the listener “to receive” information. See Griswold v. Connecticut, 381 U.S.
teach that the right “to receive” information does not exist in the abstract; it is
recognized because, without it, the rights of the speaker “would be less secure.”
Id. at 483. Thus, “[f]reedom of speech presupposes a willing speaker. But where a
speaker exists . . . the protection afforded is to the communication, to its source and
Consumer Council, Inc., 425 U.S. 748, 756 (1976). See, e.g., Martin v. City of
Struthers, 319 U.S. 141, 143 (1943) (free speech guarantee “embraces the right to
would like to hear, but the speaker objects to saying. Indeed, “the fundamental
rule of protection under the First Amendment [is] that a speaker has the autonomy
Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995). And “one who
chooses to speak may also decide what not to say.” Id. (internal quotations
Case: 09-2002 Document: 00115980791 Page: 49 Date Filed: 11/25/2009 Entry ID: 5396230
omitted). See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977) (invalidating
state law forbidding New Hampshire citizens from covering up state motto “Live
Free or Die” on license plates as violating “right to refrain from speaking”). See
Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47, 63 (2006)
speaker’s message”).
In Downs, the Ninth Circuit recognized that these principles are equally
applicable where, as here, the government speaks through its education officals:
“Were we to invoke the Constitution to protect Downs’s ability to make his voice a
part of the voice of the government entity he served, Downs would be able to do to
the government what the government could not do to Downs: compel it to embrace
a viewpoint.” 228 F.3d at 1015. See also Sutliffe, 584 F.3d at 332 n.10
(explaining that “plaintiffs are trying to dictate to the government what it must
the Board’s decision not to incorporate the plaintiffs’ materials violates the First
Amendment. A. 20. This remarkable assertion turns the First Amendment on its
head, wrongly suggesting that “listeners” have a civil right to compel a State to
express a view that contradicts its own position as embodied in state law.
Case: 09-2002 Document: 00115980791 Page: 50 Date Filed: 11/25/2009 Entry ID: 5396230
Nothing in Board of Education, Island Trees Union Free School District No.
26 v. Pico, 457 U.S. 853 (1982), suggests that students or teachers have a right
under the First Amendment to insist that the State insert – or retain – specific
teachers. In Pico, the Island Trees Board of Education, after rejecting the
of nine books from high school and junior high school libraries in the district on
the grounds that the books presented a “moral danger” and were “anti-American,
anti-Christian, anti-sem[i]tic, and just plain filthy.” Id. at 857. The Board’s
removal order was challenged by several students, who claimed that it violated the
First Amendment. Id. at 859. Although the case produced no majority opinion, a
three-judge plurality of the Court referred to, inter alia, the students’ “right to
receive” information in support of its holding that the First Amendment placed
certain limitations on the Board’s exercise of its discretion to remove books from
the district libraries. Id. at 866-69.22 The “limited . . . question” decided by the
plurality concerned only the removal of books from the library; the plurality made
22
This rationale was not, however, embraced by the six concurring and
dissenting Justices. See id. at 878 (Blackmun, J., concurring); 883 (White, J.,
concurring in the judgment); 887-89 (Burger, C.J., dissenting with Powell, J.,
Rehnquist, J., and O’Connor, J.); 895 (Powell, J., dissenting); 910 (Rehnquist, J.,
dissenting, with Burger, C.J., and Powell, J.).
Case: 09-2002 Document: 00115980791 Page: 51 Date Filed: 11/25/2009 Entry ID: 5396230
clear that the plaintiffs “[did] not . . . seek to impose limitations on their school
Board’s discretion to prescribe the curricula of the Island Trees schools.” Id. at
862. Indeed, the plurality stated that a school board “might well defend their claim
made the same point in his concurring opinion, stating that “[i]t is difficult to see
the First Amendment right that I believe is at work here playing a role in a school’s
(Blackmun, J., concurring).23 Thus, the Pico plurality was concerned with
the “unique role of the school library,” id. at 869, where students can “discover
areas of interest and thought not covered by the prescribed curriculum.” Id.
23
In addition, Pico was concerned with the removal of books properly
acquired by a school library. In the present case, the draft guidelines initially
prepared by the Commissioner – and approved by the Board in January 1999 --
contained no reference to contra-genocide web sites. A. 25-26, 72-75. After
lobbying by Turkish-American interests, contra-genocide resources were added to
the Guide, although that revision was never submitted to the Board for a vote. A.
25-28, 114. The resources were then removed when the Commissioner and Board
chair concluded that their inclusion violated Chapter 276. A. 32-33.
Case: 09-2002 Document: 00115980791 Page: 52 Date Filed: 11/25/2009 Entry ID: 5396230
identify as potentially suitable curricular resources. Cf. id. at 882 (educators retain
even if First Amendment places limits on removal of library books) (Blackmun, J.,
concurring).
Thus, Pico does not suggest that a “right to receive” information can support
contrary to the position the Legislature has adopted in Chapter 276. As the Downs
Court explained, in Pico the plurality “was not faced with a case of ‘school board
speech’ or ‘government speech.’” 228 F.3d 1015. Instead, the Pico plurality
library and the regime of voluntary inquiry that there holds sway.” Downs, 228
F.3d at 1015, quoting Pico, 457 U.S. at 869. In Chiras, the Fifth Circuit found Pico
Moreover, the relief plaintiffs seek would interfere with the role of
values. In Pico, the plurality “acknowledged that public schools are vitally
democratic political system.’” 457 U.S. at 864, quoting Ambach v. Norwick, 441
U.S. 68, 76-77 (1979). In Chapter 276, the Commonwealth advances these
“guidelines” for “teaching on genocide and human rights issues,” which may
address “the transatlantic slave trade . . . the Armenian genocide, the holocaust”
and “other recognized human rights violations and genocides.” St. 1998, c. 276.
The Pico plurality was careful to explain that courts should not interfere when
school officials address curriculum and promote civic values, even if (in the
containing individual viewpoints that might undermine such values. Thus, there is
would give students, teachers, or private citizens a right to compel the government
to add their voices when it sets out its curriculum policies and priorities.
Court,” where “no single rationale explaining the result enjoys the assent of five
Justices.” Marks v. United States, 430 U.S. 188, 193 (1977). Justice Brennan
wrote the plurality opinion for himself and Justices Marshall, Stevens, and (in part)
Case: 09-2002 Document: 00115980791 Page: 54 Date Filed: 11/25/2009 Entry ID: 5396230
Blackmun. Pico, 457 U.S. at 855. Justice Blackmun concurred in part and in the
judgment. Id. at 875. Justice White concurred only in the judgment. Id. at 883.
O’Connor. Id. at 885. Justices Powell and Rehnquist also wrote separate
The “settled jurisprudence” where there is no opinion for the Court is that
“‘the holding of the Court may be viewed as that position taken by those Members
Plain Dealer Publishing Co., 486 U.S. 750, 764 n. 9 (1988) (opinion by Brennan,
J.) (bracketed insertion by the Court), quoting Marks v. United States, 430 U.S. at
193. In Pico, Justice Brennan mustered only three votes supporting recognition
which a school board’s discretion to remove books from school libraries might be
limited. 457 U.S. at 866-69.24 Thus the proposition that forms the cornerstone of
this action – that plaintiffs have a constitutional right “to receive speech without
viewpoint discrimination practiced by the government,” Am. Compl., ¶ 52, was not
embraced by six Justices. See id. at 878 (Blackmun, J., concurring); 883 (White,
24
Plaintiffs’ claim that “the First Amendment rights of students may be
directly and sharply implicated by the removal of books from the shelves of a
school library,” Pl. Opp. at 2, quoting Pico, 457 U.S. at 866, is found in Part II-A-
(1) of the plurality opinion, which Justice Blackmun did not join.
Case: 09-2002 Document: 00115980791 Page: 55 Date Filed: 11/25/2009 Entry ID: 5396230
J., concurring in the judgment); 887 (Burger, C.J., dissenting); 895 (Powell, J.,
expressly refused to reach any constitutional question and voted only to remand the
case for a trial on the reasons for the Board’s removal of the books. Pico, 457 U.S.
so, or at least until there is better reason to address them than is evident here.”).
Because his opinion provides the narrowest grounds for the judgment, “Pico is of
Alabama Educ. Television Comm’n, 688 F.2d 1033, 1045 n. 30 (5th Cir. 1982).
See American Civ. Liberties Union v. Miami-Dade County School Board, 557
F.3d 1177, 1200 (11th Cir. 2009) (“Pico is a non-decision so far as precedent is
principles”). The Pico dissenters were of the same opinion: “[T]here is no binding
holding of the Court on the critical constitutional issue presented.” Pico, 457 U.S.
has ever relied on Pico as authority for either the constitutional innovation
proposed in the plurality opinion or for plaintiffs’ even broader claim in this case.25
any right under the First Amendment, or suffered any constitutional harm, it is also
apparent that they lack standing to bring this suit. Whether a plaintiff has standing
“is the threshold question in every federal case, determining the power of the court
to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “Standing
questions.” Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962,
971 (1st Cir. 1993), citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541–42 (1986).
suffered an injury in fact[,] which means an injury to himself that is distinct and
25
In United States v. American Library Assoc., Inc., 539 U.S. 194 (2003),
the Court rejected a First Amendment challenge to a federal law forbidding public
libraries from receiving federal funds for Internet access unless they install
software to block pornographic images and to prevent minors from accessing
Internet material harmful to them. Notably, the Court majority did not cite Pico in
holding that public libraries’ use of Internet filtering software does not violate the
First Amendment rights of library patrons, save for a passing reference in Justice
Breyer’s concurrence to one of Pico’s dissenting opinions. 539 U.S. at 216
(Breyer, J., concurring in judgment).
Case: 09-2002 Document: 00115980791 Page: 57 Date Filed: 11/25/2009 Entry ID: 5396230
palpable, as opposed to merely abstract, and the alleged harm must be actual or
Massachusetts Bar Found., 993 F.2d at 971 (court’s internal quotation marks,
ellipses, and brackets deleted), quoting Whitemore v. Arkansas, 495 U.S. 149, 155
(1990). For all the reasons explained above, no plaintiff alleges that the defendants
have limited either their ability to speak freely or to hear the speech of any willing
speaker. Not having suffered or being in danger of suffering any concrete injury,
CONCLUSION
For the foregoing reasons, the judgment dismissing this action should be
affirmed.
Respectfully submitted,
MARTHA COAKLEY
ATTORNEY GENERAL
________________________________
William W. Porter, First Cir. No. 15033
David Guberman, First Cir. No. 5564
Assistant Attorneys General
Government Bureau
One Ashburton Place, 20th Floor
Boston, MA 02108
(617) 727-2200, ext. 2976
_________________________________
William W. Porter
Assistant Attorney General
Case: 09-2002 Document: 00115980791 Page: 59 Date Filed: 11/25/2009 Entry ID: 5396230
ADDENDUM
M.G.L. c. 260, § 2A
§ 2A. Tort, contract to recover for personal injuries, and replevin actions