Wood v. Moss Brief Amicus Curiae

    No. 13-115

In The

Supreme Court of tfje tHmteb States;

Tim Wood and Rob Savage,
Petitioners,

v.

Michael Moss, et al.,
Respondents.

On Writ of Certiorari to the 
United States Court o f Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENTS

Sherrilyn  I fill 
Director-Counsel 

Christina  Swarns 
ReN ik a C. M oore 
NAACP Legal Defense 

& Educational Fu n d , Inc . 
40 Rector Street, 5th Floor 
New York, NY 10006

JOSHUA ClVIN 
Johnathan  Sm ith  
NAACP Legal Defense & 

Educational Fu n d , In c . 
1444 I Street, NW, 10th Floor 
Washington, DC 20005

Rachel D. G odsil 
Counsel of Record 

J onathan  Romberg 
Seton  Hall U niversity 

School of Law  
Center  for  Social Justice 
833 McCarter Hwy.
Newark, NJ 07102 
(973) 642-8700 
rachel.godsil@gmail.com

mailto:rachel.godsil@gmail.com


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................   iii
INTEREST OF AMICUS...............................................1
INTRODUCTION AND SUMMARY OF THE

ARGUMENT............................................................. 2
ARGUMENT......................................................  6
I. Petitioners’ arguments risk heightening

pleading requirements far beyond Iqbal 
and Twombly by transforming “plausibil­
ity” pleading into “probability” pleading.............6
A. If a complaint raises a plausible infer­

ence of liability, Iqbal and Twombly do 
not authorize dismissal simply be­
cause defendants raise an inference 
they assert to be more plausible................... 7

B. The civil rights implications of this
case emphasize the need for care and 
precision in defining the bounds of 
plausibility pleading.....................................12

C. Respondents’ allegations give rise to a
plausible inference of viewpoint dis­
crimination, and dismissal at the 
pleading stage is therefore unwar­
ranted ............................................................. 22

II. Petitioners distort the pleading require­
ments for intentional discrimination................25
A. Respondents need only plead that 

their political viewpoint played some 
role in petitioners’ actions, not that it 
was petitioners’ sole motivation.................26



11

B. An asserted legal justification for dis­
parate treatment based upon a pro­
tected characteristic differs from an 
“alternative explanation” for such 
treatment....................................................... 30

CONCLUSION.............................................................34



I ll

TABLE OF AUTHORITIES

Cases

Abernathy v. Alabama, 380 U.S. 447 (1965)...........1
Aman u. Furniture Rental Corp., 85 F.3d

1074 (3rd Cir. 1996)................................... 13, 16
Ash v. Tyson Foods, Inc., 546 U.S. 454

(2006)......................................................................  21
Ashcroft v. Iqbal, 556 U.S. 662 (2009)............passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 
(2007)...............................................................passim

Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993)............................................... 26

Conley v. Gibson, 355 U.S. 41 (1957)........................ 7
Crawford-El v. Britton, 523 U.S. 574 (1998).... 11-12
Dura Pharmaceuticals, Inc. v. Broudo, 544 

U.S. 336 (2005)..........................................................9
Gross v. FBL Financial Services, Inc., 557

U.S. 167 (2009)......................................................  27
Hamm v. City of Rock Hill, 379 U.S. 306

(1964) .....   1
Hill v. Colorado, 530 U.S. 703 (2000)..................... 33
Hunter v. Underwood, 471 U.S. 222 (1985).........  27
International Union, United Automobile, 

Aerospace, and Agricultural Implement- 
Workers of America, UAW v. Johnson Con­
trols, Inc., 499 U.S. 187 (1991).......................  30

Korematsu v. United States, 324 U.S. 885 
(1945) 32



IV

Matrixx Initiative, Inc. v. Siracusano,
__U .S .__ , 131 S. Ct. 1309 (2011)............... passim

McReynolds v. Merrill Lynch, Pierce, Fenner 
& Smith, Inc., 672 F.3d 482 
(7th Cir. 2012)...................................................... .18

Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977)...........  27

NAACP v. Button, 371 U.S. 415 (1963)....................2
Personnel Administrator of Mass. v. Feeney,

442 U.S. 256 (1979)............................ 26, 30, 31, 32
Ricci v. DeStefano, 557 U.S. 557 (2009)................  30
Riordan v. Kempiners, 831 F.2d 690 (7th Cir.

1987)........................................................................ 13
Scheuer v. Rhodes, 416 U.S. 232 (1974)................  25
Shuttlesworth v. Biriningham, 394 U.S. 147

(1969).......................................................................... 1
Skinner v. Switzer, __U .S .__ , 131 S. Ct.

1289 (2011).............................................................  25
Swann v. Charlotte-Mecklenburg Board of

Education, 66 F.R.D. 483 (W.D.N.C. 1975).. 16-17
Swierkiewicz v. Sorema N. A., 534 U.S. 506

(2002)............................................................ 2, 24, 25
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308 (2007)................................  6, 9-10, 11
Thomas v. Mississippi, 380 U.S. 524 (1965).............. 1
Turner Broadcasting Systems, Inc. v. F.C.C.,

512 U.S. 622 (1994)............................................... 29
Village of Arlington Heights v. Metropolitan



V

Housing Development Corp., 429 U.S. 252 
(1977)......................................................  5, 13-14,26

Williams v. Wallace, 240 F. Supp. 100 (M.D.
Ala. 1965)....................................................................1

Willis v. Pickrick Restaurant, 234 F. Supp.
179 (N.D. Georgia 1964)..........................................1

Court Filings and Docketed Cases
Settlement Agreement and Release, 

McReynolds v. Merrill Lynch, No. 05-CV- 
6583 (N.D. 111. Dec. 6, 2013).................................. 18

Wilkins v. Maryland State Police, No. MJG-
93-468 (D. Md. 2003)............................................  19

Statutes and Congressional Materials
Private Securities Litigation Reform Act of

1995, Pub. L. No. 104-67, 109 Stat. 737...... . 9, 10
Access to Justice Denied: Ashcroft v. Iqbal: 

Hearing Before the Subcommittee on the 
Constitution, Civil Rights, and Civil 
Liberties of the House Committee on the 
Judiciary, 111th Cong. 79-92 (2009)...............  2, 4

Has the Supreme Court Limited Americans'
Access to Courts?: Hearing Before the 
Senate Committee on the Judiciary, 111th 
Cong. 253-69 (2009)........................................... 2, 4

Federal Rules and Regulations

Fed. R. Civ. P. 8.....................................................L 25



V I

Other Authorities
Debo P. Adegbile & Joshua Civin, Restoring 

Access to Justice: The Impact of Iqbal and 
Twombly on Federal Civil Rights Litiga­
tion, 5 Advance 19 (2011)......................................... 2

Amy Armstrong et al., The High Cost of Seg­
regation: Exploring the Relationship Be­
tween Racial Segregation and Subprime 
Lending, Furman Ctr. for Real Estate &
Urban Policy (2009)............................................... 17

Robert G. Bone, Plausibility Pleading Revis­
ited and Revised: A Comment on Ashcroft 
v. Iqbal, 85 Notre Dame L. Rev. 849 
(2010) ................................................ .............................  15

Dual-Process Theories in Social Psychology 
(Shelly Chaiken & Yaacov Trope eds.,
1999)............................................................... „........  19

Jennifer Eberhardt et al., Looking Deathwor­
thy: Perceived Stereotypicality of Black De­
fendants Predicts Capital-Sentencing Out­
comes, 17 Psychological Sci. 383 (2006).........  17-18

Kurt Eichenwald, Texaco Executives, On 
Tape, Discussed Impeding a Bias Suit,
N.Y. T im e s , N ov. 4, 1996..................................14-15

Kurt Eichenwald, Texaco to Make Record 
Payout In Bias Lawsuit, N.Y. T im e s , N ov.
16, 1996...................................................................  15

Anne Gregory et al., The Achievement Gap 
and the Discipline Gap: Two Sides of the 
Same Coin?, 39 Education Researcher 59 
(2010)........................................................................ 17



Chris Guthrie et al., Blinking on the Bench:
How Judges Decide Cases, 93 Cornell L.
Rev. 1 (2007)....................................................  19, 20

Edward A. Hartnett, Taming Twombly, 158 
U. Pa. L. Rev. 473 (2010)................... .................. 20

Christine Jolls & Cass R. Sunstein, The Law 
of Implicit Bias, 94 Cal. L. Rev. 969 (2006)....... 20

Diane M. Mackie et al., Social Psychological 
Foundations of Stereotype Formation, in 
Stereotypes and Stereotyping (C. Neil 
Macrae et al. eds,, 1996).......................................  21

Lincoln Quillian, New Approaches to Under­
standing Racial Prejudice and Discrimina­
tion, 32 Ann. Rev. Sociol. 299 (2006).................  21

Alexander A. Reinert, The Costs of Height­
ened Pleading, 86 Ind. L. J. 119 (2011).............15

Amos Tversky & Daniel Kahneman, Judg­
ments of and by Representativeness, in 
Judgment under Uncertainty: Heuristics 
and Biases 84 (Daniel Kahneman et al. 
eds., 1982)............................................................... 20

Amos Tversky & Daniel Kahneman, Judg­
ment Under Uncertainty: Heuristics and 
Biases, 185 Sci. 1124 (1974)...........................  19-20

Howard A. Wasserman, Iqbal, Procedural 
Mismatches, and Civil Rights Litigation,
14 Lewis & Clark L. Rev. 157 (2010)........... 14, 15

vii



1

INTEREST OF AMICUS1
The NAACP Legal Defense & Educational Fund, 

Inc., (LDF) is a non-profit corporation established 
under the laws of the state of New York to assist Af­
rican Americans and other people of color in securing 
their civil and constitutional rights through the 
prosecution of lawsuits that challenge racial discrim­
ination. In its mission to achieve a more just society, 
LDF has long been concerned about safeguarding the 
rights of free speech and assembly, through its advo­
cacy on behalf of demonstrations led by Martin Lu­
ther King, Jr., and other civil rights advocates for 
voting rights and equal access to lunch counters, 
buses, restaurants, and other public accommoda­
tions. See, e.g., Shuttlesworth v. Birmingham, 394 
U.S. 147 (1969); Abernathy v. Alabama, 380 U.S. 447 
(1965); Thomas v. Mississippi, 380 U.S. 524 
(1965); Hamm v. City of Rock Hill, 379 U.S. 306 
(1964); Williams u. Wallace, 240 F. Supp. 100 (M.D. 
Ala. 1965); Willis v. Pickrick Rest., 234 F. Supp. 179 
(N.D. Georgia 1964).

In addition, LDF has vigilantly monitored devel­
opments in pleading requirements and other rules of 
civil procedure, including through testimony and in 
filings with this Court, recognizing that these rules 
have a significant effect on individuals’ ability to ac­

1 The parties have consented to the filing of this amicus 
brief, and their letters of consent are on file with the Clerk of 
the Court. Pursuant to Supreme Court Rule 37.6, counsel for 
amicus state that no counsel for a party authored this brief in 
whole or in part, and that no person other than amicus, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief.



2

cess courts and vindicate their civil rights. See, e.g., 
Swierkiewicz v. Sorema NA, 534 U.S. 506 (2002); 
NAACP v. Button, 371 U.S. 415 (1963); Has the Su­
preme Court Limited Americans’ Access to Courts?: 
Hearing Before the Senate Committee on the Judici­
ary, 111th Con. 253-69 (2009) (statement of John 
Payton, LDF President and Director-Counsel); Ac­
cess to Justice Denied: Ashcroft v. Iqbal: Hearing Be­
fore the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties of the H. Comm, on the 
Judiciary, 111th Cong. 79-92 (2009) (statement of 
Debo P. Adegbile, LDF Director of Litigation); Debo 
P. Adegbile & Joshua Civin, Restoring Access to Jus­
tice: The Impact of Iqbal and Twombly on Federal 
Civil Rights Litigation, 5 Advance 19 (2011).

INTRODUCTION AND 
SUMMARY OF ARGUMENT

Secret Service agents are tasked with the solemn 
and significant responsibility of presidential securi­
ty, but their powers remain constrained by the Con­
stitution. This case addresses the constitutionality 
of the decision by Secret Service agents to move a 
multi-generational group of peaceful protesters, 
which included senior citizens and infants, out of the 
hearing and sight of the President, while leaving 
demonstrators supportive of the President and those 
expressing no political opinion in closer proximity.

In this case, the Secret Servant agents, defend­
ants below and petitioners here, assert that they 
were motivated solely by legitimate security con­
cerns in moving the protesters, plaintiffs below and 
respondents here. The agents suggest that the non- 
discriminatory inference that they favor is relatively



3

more plausible than the inference of viewpoint dis­
crimination raised by the facts alleged in the pro­
testers’ complaint—most notably, that the protesters 
were moved, and that demonstrators supporting the 
President and those expressing no political view­
point were not.

Based on this comparative assessment of relative 
plausibility, the agents contend that the protesters’ 
complaint should be dismissed on the pleadings, 
without any opportunity for discovery to support 
their claim. Whether or not the protesters’ claim ul­
timately proves meritorious after an adequate oppor­
tunity for discovery, dismissing their claims at the 
pleading stage, as the agents urge, could set a prece­
dent that would further increase the obstacles facing 
all plaintiffs seeking access to the courthouse to vin­
dicate their constitutional rights. The delicate is­
sues of qualified immunity and Presidential security 
involved in this case should not give the petitioners 
blanket authority to cite legitimate security concerns 
and thereby heighten the pleading standard that 
this Court has established.

In two recent cases, this Court altered the plead­
ing standard in federal lawsuits by imposing a 
“plausibility” requirement that plaintiffs must meet 
in order to survive a defendant’s motion to dismiss 
and proceed with their lawsuit. See Ashcroft v. Iq­
bal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. 
Twombly, 550 U.S. 544 (2007).2 If adopted by this

2 LDF recognizes that Iqbal and Twombly represent the 
current state of the law as to the appropriate pleading standard 
in federal civil litigation, though it has expressed grave con­
cerns about the potential impact of this standard on the effec­



4

Court, petitioners’ insistence on a comparative anal­
ysis of relative plausibility would impose significant 
additional obstacles, in effect transforming the gov­
erning “plausibility” pleading standard into a “prob­
ability” pleading standard.

While LDF endorses the arguments raised by re­
spondents with respect to the application of pleading 
requirements to this case, it writes separately with 
the aim of cautioning against the likely unintended 
consequences imposed upon plaintiffs generally, and 
civil rights claimants particularly, that would arise 
from altering the framework set forth in Iqbal and 
Twombly in the manner petitioners suggest.

Unless the plausibility standard is applied care­
fully for the purpose of screening out only those 
claims that truly lack any sufficient facts suggesting 
a plausible inference of liability—rather than those 
that merely seem on their face to be comparatively 
less likely than defendants’ suggested inferences—a 
heightened pleading standard could bar the court­
house doors to many who have been subjected to un­
lawful discrimination. This is especially true in the 
context of civil rights claims, where plaintiffs face an

tive vindication of civil rights. See, e.g., Has the Supreme 
Court Limited Americans’ Access to Courts?: Hearing Before 
the S. Comm, on the Judiciary, 111th Cong. 253-69 (2009) 
(statement of John Payton, President and Director-Counsel, 
NAACP Legal Defense and Educational Fund, Inc.); Access to 
Justice Denied: Ashcroft v. Iqbal: Hearing Before the Sub- 
comm. on the Constitution, Civil Rights, and Civil Liberties of 
the H. Comm, on the Judiciary, 111th Cong. 79-92 (2009) 
(statement of Debo P. Adegbile, Director of Litigation, NAACP 
Legal Defense and Educational Fund, Inc.).



5

information asymmetry when filing suit because 
many of the underlying facts often remain within a 
defendant’s exclusive control and therefore can likely 
be obtained only through the appropriate use of the 
discovery tools that the Federal Rules of Civil Proce­
dure provide. Moreover, there is a particular danger 
that plausible discrimination claims will be dis­
missed if they must be weighed at the pleading stage 
against a defendant’s claimed alternative narrative, 
because many judges (like citizens more generally) 
intuitively view discrimination as less plausible than 
a non-discriminatory alternative motive. Although 
we have made substantial progress as a nation, 
these intuitions are belied by empirical research and 
evidence of persistent discrimination in many as­
pects of our society. Appropriate factual develop­
ment is therefore essential to ensure that plaintiffs 
have a fair opportunity to seek redress for civil 
rights violations.

Also of concern, petitioners mischaracterize the 
legal standard for intentional discrimination, con­
tending that they acted unlawfully only if viewpoint 
discrimination was their sole motivation. This Court 
has long held that an action raises constitutional 
concerns if plaintiffs can establish that “a discrimi­
natory purpose has been a motivating factor in the 
decision.” Vill. o f Arlington Heights v. Metro. Hous. 
Dev. Corp., 429 U.S. 252, 265 (1977) (emphasis add­
ed).

Moreover, petitioners misapprehend how plausi­
bility pleading should apply in the context of inten­
tional discrimination claims. Petitioners mistake a 
justification for their viewpoint-conscious decision­
making with an alternative explanation for their



6

conduct. Their asserted justification for viewpoint­
conscious conduct does not render implausible the 
respondents’ asserted inference that petitioners took 
their viewpoint into account, and therefore does not 
warrant dismissal on the pleading.

Determining whether the Secret Service agents’ 
actions in the particular context of this case can ul­
timately be justified, given the security concerns in­
volved, is a far different and more difficult question 
than whether the protesters have plausibly stated a 
claim for viewpoint discrimination on the pleadings. 
Whatever this Court’s view on the ultimate merits of 
the protesters’ claims, or of the role of qualified im­
munity in this dispute, the Secret Service agents’ 
contention that the protesters failed to state a plau­
sible claim of intentional discrimination is fully in­
consistent with the pleading standard established by 
this Court in Iqbal and Twombly.

ARGUMENT

I. Petitioners’ arguments risk heightening 
pleading requirements far beyond Iqbal and 
Twombly by transforming “plausibility” 
pleading into “probability” pleading.
Petitioners misread the plausibility standard that 

this Court established in Twombly and Iqbal. As 
this Court has recognized, those cases did not em­
brace a “probability” requirement in general civil 
pleadings. See Matrixx Initiative, Inc. v. Siracusano,
__ U.S. __, 131 S. Ct. 1309 (2011); Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007). 
Further heightening pleading requirements beyond 
the plausibility standard set forth in Iqbal and 
Twombly would have enormously harmful implica­



7

tions for civil rights plaintiffs in particular. Under 
the proper application of those cases, respondents’ 
second amended complaint makes sufficient factual 
allegations that plausibly suggest they were victims 
of discriminatory conduct; their complaint, therefore, 
is not amenable to dismissal on the basis of a com­
parative assessment of petitioners’ alternative ex­
planation, however plausible it may be.

A. If a complaint raises a plausible infer­
ence of liability, Iqbal and Twombly do 
not authorize dismissal simply because 
defendants raise an inference they assert 
to be more plausible.

In Iqbal, this Court expanded its holding in 
Twombly, which had stepped away from the tradi­
tional, broad understanding of the “fair notice” ap­
proach to pleading that the Federal Rules of Civil 
Procedure had originally promoted when they were 
enacted in 1938. This Court invigorated that stand­
ard in Conley v. Gibson, 355 U.S. 41, 48 (1957), and 
it governed review of complaints filed in federal civil 
lawsuits for over fifty years thereafter. After giving 
Conley’s broad articulation of pleading sufficiency its 
“retirement” in Twombly, 550 U.S. at 563, and Iqbal, 
the Court replaced it with a new “plausibility stand­
ard”: a claim brought under Federal Rule of Civil 
Procedure 8 will survive a motion to dismiss only if it 
alleges “sufficient factual matter, accepted as true, to 
state a claim to relief that is plausible on its face.” 
Iqbal, 556 U.S. at 677-78 (citing Twombly, 550 U.S. 
at 570) (internal quotation marks omitted).

This plausibility standard requires a plaintiffs 
complaint to plead facts that are more than ‘“merely



8

consistent with’ a defendant’s liability” and demands 
more than the “sheer possibility that a defendant 
has acted unlawfully.” Id. at 678 (citing Twombly, 
550 U.S. at 556); see also Matrixx Initiatives, 131 S. 
Ct. at 1322—25 & n.12. Yet the Court expressly cau­
tioned that plausibility pleading “is not akin to a 
‘probability requirement.’” Iqbal, 556 U.S. at 678 
(citing Twombly, 550 U.S. at 556-57).

Notwithstanding this Court’s rejection of proba­
bility pleading in Iqbal and Twombly, however, peti­
tioners appear to invite the Court to adopt the func­
tional equivalent: they urge dismissal on the plead­
ings of discriminatory intent claims whenever a 
court considers defendant’s alternative, innocent ex­
planation for the facts alleged to be “more likely” 
than that advanced by the plaintiff. Pet. Br. 18. 
Applying such a standard at the pleading stage, be­
fore the plaintiff has access to discovery, would not 
only apply a standard more stringent than that per­
mitted at summary judgment, it would be a dramatic 
departure from Twombly and Iqbal, as well as this 
Court’s application of those cases in Matrixx Initia­
tives, 131 S. Ct. at 1322—25.

Nothing in Iqbal or Twombly suggests that mere 
recitation of a plausible, innocent alternative expla­
nation requires dismissal of a complaint containing 
factual allegations that, if true, permit a plausible 
inference of unlawful motive. And nothing suggests 
that it is proper for courts to weigh the relative plau­
sibility of the plaintiff s suggested inferences against 
those of the defendant at the pleading stage. See 
Twombly, 550 U.S. at 556 (stating a claim “may pro­
ceed even if it strikes a savvy judge that actual proof 
of those facts is improbable, and that a recovery is



9

very remote and unlikely”) (internal citation and 
quotations omitted).

All that is needed is for the facts asserted by the 
plaintiff, in their best possible light, to cross the line 
from “sheer possibility” of liability to a ‘“reasonably 
founded hope that the [discovery] process will reveal 
relevant evidence’ to support the claim.” Twombly, 
550 U.S. at 568 & n.8 (quoting Dura Pharm., Inc. v. 
Broudo, 544 U.S. 336, 347 (2005)). Once that line is 
crossed, and an inference of liability is plausible, the 
pleading standard is satisfied and cannot be nullified 
by the relative plausibility of even a compelling al­
ternative inference suggested by defendant.

Indeed, this Court has already so held. In Tell- 
abs, Inc. v. Makor Issues & Rights, Ltd., a case de­
cided after Twombly, this Court held that determin­
ing whether a complaint gives rise to a plausible in­
ference of liability—the standard at issue under the 
Federal Rules’ general pleading requirements—does 
not require a comparative evaluation of plausible in­
ferences. Tellabs, 551 U.S. at 314. In contrast, the 
Court held that determining the existence of a 
“strong” inference—the heightened pleading burden 
for the element of scienter that is specially imposed 
by the Private Securities Litigation Reform Act 
(PSLRA), 15 U.S.C.A. § 78u-4(b)(2)(A)—does require 
weighing the plausibility of competing inferences. 
Id. at 314.

Under the PSLRA’s heightened pleading stand­
ard, “ [i]t does not suffice that a reasonable fact find­
er plausibly could infer from the complaint’s allega­
tions the requisite state of mind.” Id. In other 
words, satisfaction of the general pleading standard



10

is not sufficient to meet “the stricter demand Con­
gress sought to convey in” the PSLRA. Id. “Rather,” 
the Court held, “to determine whether a complaint’s 
scienter allegations can survive threshold inspection 
for sufficiency, a court governed by [the PSLRA] 
must engage in a comparative evaluation; it must 
consider, not only inferences urged by the plaintiff, 
. . . but also competing inferences rationally drawn 
from the facts alleged.” Id. Thus, it follows directly 
from the Court’s reasoning in Tellabs that the ordi­
nary determination of plausibility, in the absence of 
a heightened standard imposed by Congress, turns 
solely on the plausibility of the inferences urged by 
the plaintiff.

This Court recently applied precisely this distinc­
tion in a case applying both the Iqbal and Twombly 
standard as to materiality, and the PSLRA’s height­
ened pleading standard for scienter. See Matrixx, 
131 S. Ct. at 1322—25; see also Pub. Justice Ctr., P.C. 
Amicus Br. 16. In Matrixx, this Court’s determina­
tion of materiality, subject to the general pleading 
standard, turned on its conclusion that plaintiffs’ 
suggested inference of materiality was “plausible on 
its face.” Matrixx, 131 S. Ct. at 1322—23 & n.12. In 
contrast, when the Court turned to the issue of sci­
enter, subject to the PSLRA’s heightened pleading 
standard, it observed that “ [t]his standard requires 
courts to take into account ‘plausible opposing infer­
ences.’” Id. at 1324 (citing Tellabs, 551 U.S. at 323. 
The Court held that plaintiffs’ suggested inference of 
scienter was “at least as compelling as any opposing 
inference one could draw from the facts alleged,” af­
ter considering the purported “most obvious infer­
ence” and “most cogent inference” suggested by de­



11

fendant and supporting amici. Id. at 1324-25 & 
n.15. Thus, under Tellabs and Matrixx, a court ap­
plying the ordinary pleading standard assesses the 
plausibility of plaintiffs suggested inference; if that 
inference of liability is plausible, the court does not 
go on to consider plausible opposing inferences.

If, however, a court determines that “the com­
plaint does not set forth a single fact in a context 
that suggests” liability, as this Court did in 
Twombly, 550 U.S. at 561-62, and if a non- 
discriminatory alternative explanation for defend­
ants’ conduct is “obvious,” the obvious innocent al­
ternative explanation renders plaintiffs’ ungrounded 
suggestion of an improper motive implausible. Id.] 
see also Iqbal, 556 U.S. at 683. Thus, under Iqbal 
and Twombly, a court may accept an obvious alter­
native explanation only when it reads the complaint 
as consistent with, but not actually suggestive of, li­
ability. This approach provides no warrant for the 
comparative assessment of alternative plausible in­
ferences when the complaint does suggest a plausible 
basis for liability.

Petitioners claim that Crawford-El u. Britton 
suggests that this Court should be especially wary of 
concluding that a complaint gives rise to a plausible 
inference of “improper intent.” See Pet. Br. 49—50 
(quoting Crawford-El v. Britton, 523 U.S. 574, 584— 
85 (1998)). A careful reading of Crawford-El under­
mines any such suggestion. There, this Court specif­
ically rejected a heightened pleading requirement for 
a prison inmate’s claim that a prison guard had act­
ed with an improper retaliatory motivation. Craw- 
ford-El, 523 U.S. at 577-78. A more rigorous stand­
ard for subjective intent claims, the Court held,



12

would create “a rule that places a thumb on the de­
fendant’s side of the scales when the merits of a 
claim that the defendant knowingly violated the law 
are being resolved.” Id. at 593. For the same rea­
son, this Court should once again acknowledge that 
it is not within its purview to adopt such a height­
ened pleading standard. Id. at 596-97; see also id. at 
601 (Kennedy, J., concurring) (“ [T]he authority to 
propose those far-reaching solutions lies with the 
Legislative Branch, not with us.”).

B. The civil rights implications of this case 
emphasize the need for care and preci­
sion in defining the bounds of plausibil­
ity pleading.

The dangers of the heightened pleading require­
ments advanced by petitioners are especially appar­
ent in the civil rights context. Petitioners’ suggested 
probability pleading standard would be a significant 
step beyond this Court’s decisions in Twombly and 
Iqbal, and adopting petitioners’ approach would run 
the risk of functionally eviscerating some of our 
country’s most fundamental constitutional and stat­
utory protections against discrimination. With its 
decisions in Iqbal and Twombly, this Court estab­
lished a filter to protect defendants from what it con­
sidered to be bare, unsupported allegations of wrong­
ful intent by requiring plaintiffs to allege facts sug­
gestive of not just a conceivable discriminatory mo­
tive, but one that, in context, is plausible. Beyond 
that, this Court did not, and should not, venture.

Petitioners’ proposed revision of Iqbal and 
Twombly could have the unintended consequence of 
creating a safe harbor for certain types of discrimi­



13

nation in which defendants’ discriminatory conduct 
is not accompanied by direct evidence of racial moti­
vation. In such cases, perpetrators of genuine civil 
rights violations could hide behind pretextual— 
though perhaps appealingly plausible—justifications 
for their conduct, pointing to the absence of direct 
evidence of discrimination expressly identified in a 
complaint. Under petitioners’ proposed pleading 
standard, a court weighing a circumstantial but 
plausible inference of covert discrimination against 
the defendant’s seemingly reasonable innocent ex­
planation for its conduct might improperly conclude 
that the plaintiff should not have the opportunity to 
prove his case.

Some courts of appeals have specifically recog­
nized this risk: “ [Wjhile discriminatory conduct per­
sists, violators have learned not to leave the prover­
bial ‘smoking gun’ behind. . . . ‘ [Defendants of even 
minimal sophistication will neither admit discrimi­
natory animus [n]or leave a paper trail demonstrat­
ing it.’” Aman v. Furniture Rental Corp., 85 F.3d 
1074, 1081-82 (3d Cir. 1996) (quoting Riordan v. 
Kempiners, 831 F.2d 690, 697 (7th Cir. 1987)). Peti­
tioners’ improper expansion of Iqbal’s “obvious al­
ternative” language would create an artificially high 
barrier, especially for civil rights plaintiffs.

As this Court has long recognized, intentional 
discrimination claims of the sort at issue here re­
quire a close examination of the totality of the cir­
cumstances surrounding a contested decision or ac­
tion. Arlington Heights, 429 U.S. at 265—27. In or­
der to address the difficulty of discerning discrimina­
tory purpose, this Court “demands a sensitive in­
quiry into such circumstantial and direct evidence of



14

intent as may be available.” Id. at 266. This “sensi­
tive inquiry” compels the consideration of fact­
intensive questions such as the historical back­
ground of the decision, the events leading directly up 
to the decision, the discriminatory effects of the deci­
sion, and any procedural or substantive irregulari­
ties involved in the decision. Id.

Often in civil rights cases, defendants are in ex­
clusive possession of information highly pertinent to 
this “sensitive inquiry”—through their agents, em­
ployees, records, and documents. For a plaintiff to 
establish that she was the victim of a discriminatory 
practice, she typically must expose the defendant’s 
“private, behind-closed-doors conduct,” including 
“particular meetings and conversations, which indi­
viduals were involved, when and where meetings oc­
curred, what was discussed, and, ultimately, who 
knew what, when, and why.” Howard A. Wasser- 
man, Iqbal, Procedural Mismatches, and Civil Rights 
Litigation, 14 Lewis & Clark L. Rev. 157, 168-69 
(2010).

Such evidence often exists, but is rarely in the 
hands of the plaintiff at the pleading stage, given de­
fendants’ ability and willingness to cloak their con­
duct. For example, the lawsuit brought against the 
Texaco Corporation in 1994, asserting that Texaco 
systematically discriminated against minority em­
ployees in promotions, and fostered a racially hostile 
environment, ultimately revealed a particularly viv­
id example of behind-the-scenes discussions among 
senior level executives, but this evidence emerged 
only after the complaint was filed. See Kurt 
Eichenwald, Texaco Executives, On Tape, Discussed 
Impeding a Bias Suit, N.Y. TIMES, Nov. 4, 1996 (de­



15

scribing a tape recording of Texaco officials referring 
to employees as “black jelly beans” and other racial 
epithets). Texaco ultimately settled. See Kurt 
Eichenwald, Texaco to Make Record Payout In Bias 
Lawsuit, N.Y. TIMES, Nov.16, 1996.

The factual asymmetry inherent at the pleading 
stage precludes plaintiffs from having access to a full 
complement of such facts at the pleading stage. 
Wasserman, 14 Lewis & Clark L. Rev. at 168. With­
out depositions and other discovery tools, or the all- 
too-rare revelations from a whistleblower, it is ex­
tremely costly— and often impossible—for plaintiffs 
to obtain specific facts to substantiate a defendant’s 
state of mind, even with support from the most ca­
pable and committed lawyers. See id. A heightened 
approach to pleading ignores these unfortunate real­
ities and therefore places meritorious civil rights 
claims in serious jeopardy. See Robert G. Bone, 
Plausibility Pleading Revisited and Revised: A 
Comment on Ashcroft v. Iqbal, 85 Notre Dame L. 
Rev. 849, 879 (2010) (“ [SJtrict pleading will screen 
some meritorious suits, even ones with a high proba­
bility of trial success but a probability that is not ev­
ident at the pleading stage before access to discov­
ery.”); Alexander A. Reinert, The Costs o f Heightened 
Pleading, 86 Ind. L. J. 119 (2011) (providing empiri­
cal evidence to demonstrate that stricter pleading 
standards do not improve lawsuit quality). In many 
cases, the merits of a plaintiffs allegations of dis­
crimination simply cannot be adjudged at the plead­
ing stage as they would at a later phase of litigation, 
after a plaintiff has been afforded the critical benefit 
of discovery.



16

Here, Petitioners’ suggested weighing of relative 
plausibility at the pleading stage puts an unfair 
burden on respondents to do more than establish a 
plausible inference of liability. If petitioners’ sug­
gested standard were adopted, it would turn plausi­
bility pleading into a pre-discovery proxy for trial. 
Such an approach is inconsistent with Iqbal, and is 
entirely unwarranted.

Petitioners’ approach would also create serious 
obstacles for plaintiffs who, already challenged by 
the information asymmetry that they face at the 
pleading stage, must establish the plausibility of dis­
crimination claims of a sort that may be initially 
counterintuitive to the personal experience of the 
judges evaluating them. The Third Circuit has rec­
ognized the dangers of prematurely appraising a 
claim of discrimination. See Aman, 85 F.3d at 1081— 
82 (“Discrimination continues to pollute the social 
and economic mainstream of American life, and is 
often simply masked in more subtle forms. It has 
become easier to coat various forms of discrimination 
with the appearance of propriety, or to ascribe some 
other less odious intention to what is in reality dis­
criminatory behavior.”). In civil rights cases, it is 
particularly important for judges to have the oppor­
tunity to review factual evidence before rendering 
judgments about the relative probability of even 
equally plausible alternatives.

A powerful example of the necessity of facts to 
overcome the personal experience of a particular 
judge arose in Swann v. Charlotte-Mecklenburg 
Board of Education, a landmark school desegrega­
tion case litigated by LDF. In a published opinion, 
the district judge explained the evolution of his own



17

perspective as the facts were developed through liti­
gation of the case:

The case was difficult. The first and greatest 
hurdle was the district court. The judge, who 
was raised on a cotton farm which had been 
tended by slave labor in his grandfather’s 
time, started the case with the uninformed 
assumption that no active segregation was be­
ing practiced in the Charlotte-Mecklenburg 
schools, that the aims of the suit were ex­
treme and unreasonable, and that a little bit 
of push was all that the Constitution required 
of the court.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 66 
F.R.D. 483, 484-85 (W.D.N.C. 1975). Yet, after the 
plaintiffs presented reams of evidence to support 
their claims, “they produced a reversal in the origi­
nal attitude of the district court.” Id.

Thankfully, few judges today have to overcome 
the background assumptions common in the Jim 
Crow era. Despite the progress that our nation has 
made, however, discrimination persists in education, 
employment, the housing market, and the criminal 
justice system. See, e.g., Anne Gregory et al., The 
Achievement Gap and the Discipline Gap: Two Sides 
of the Same Coin?, 39 Education Researcher 59 
(2010); Amy Armstrong et al., The High Cost of Seg­
regation: Exploring the Relationship Between Racial 
Segregation and Subprime Lending, Furman Ctr. for 
Real Estate & Urban Policy (2009) (discussing dis­
crimination in mortgage markets); Jennifer Eber- 
hardt et al., Looking Deathworthy: Perceived Stereo­
typicality of Black Defendants Predicts Capital-



18

Sentencing Outcomes, 17 Psychological Sci. 383 
(2006) (finding that “in cases involving a White vic­
tim, the more stereotypically Black a defendant is 
perceived to be, the more likely that person is to be 
sentenced to death.”). In McReynolds v. Merrill 
Lynch, the continued salience of race in the work­
place was aptly described by Judge Posner, who con­
cluded that Merrill Lynch’s policy of allowing bro­
kers to form their own teams potentially constituted 
a discriminatory policy:

The teams, they say, are little fraternities 
(our term but their meaning), and as in fra­
ternities the brokers choose as team members 
people who are like themselves. If they are 
white, they, or some of them anyway, are 
more comfortable teaming with other white 
brokers. Obviously they have their eyes on 
the bottom line; they will join a team only if 
they think it will result in their getting paid 
more, and they would doubtless ask a super- 
star broker to join their team regardless of his 
or her race. But there is bound to be uncer­
tainty about who will be effective in bringing 
and keeping shared clients; and when there is 
uncertainty people tend to base decisions on 
emotions and preconceptions, for want of ob­
jective criteria.

McReynolds v. Merrill Lynch, Pierce, Fenner & 
Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012). The 
case subsequently settled. Settlement Agreement 
and Release, McReynolds v. Merrill Lynch, No. 05- 
CV-6583 (N.D. 111. Dec. 6, 2013) (outlining $160 mil­
lion settlement of systematic discrimination claims).



19

No one doubts that all federal judges believe in 
principles and norms of anti-discrimination, and 
some even have firsthand experience with civil 
rights litigation, as attorneys or even plaintiffs. See 
Wilkins v. Maryland State Police, No. MJG-93-468 
(D. Md. 2003) (Robert Wilkins, now a Judge on the
D.C. Circuit, was the named plaintiff in a class ac­
tion contending that the Maryland State Police vio­
lated constitutional rights by stopping, detaining, 
and searching African Americans pursuant to a ra­
cial profiling policy used by defendants as part of 
their drug interdiction efforts).

Yet empirical studies have shown that judges, re­
gardless of their background and just like everyone 
else, are susceptible to errors if they rely too heavily 
on intuitive rather than deliberative decision­
making. Intuition tends to be heavily influenced by 
personal experiences, which may or may not vary 
from those of the plaintiff in a particular case. If un­
checked, these intuitive, cursory decision-making 
processes can then preclude the appropriate, delib­
erate evaluation of a complaint. See generally Dual- 
Process Theories in Social Psychology (Shelly 
Chaiken & Yaacov Trope eds., 1999) (providing a col­
lection of articles on various dual-process theories). 
Intuitive processes occur quickly and automatical^, 
while deliberative processes are “rule-governed, ef­
fortful, and slow.” Chris Guthrie et al., Blinking on 
the Bench: How Judges Decide Cases, 93 Cornell L. 
Rev. 1, 27 (2007). While necessary in our everyday 
lives, intuitive thinking, as researchers have long 
observed, can result in “severe and systematic er­
rors.” Amos Tversky & Daniel Kahneman, Judg-



20

merit Under Uncertainty: Heuristics and Biases, 185 
Sci. 1124 (1974).

Judges are not immune to either the lure of intui­
tive decision-making or the errors that often follow. 
Guthrie et al., 93 Cornell L. Rev. at 27. In cases in­
volving familiar legal issues, for example, or statisti­
cal inferences, empirical research demonstrates that 
judges were more likely to engage in intuitive rather 
than deliberative decision-making process—and to 
reach incorrect outcomes. Id. at 122; see also Amos 
Tversky & Daniel Kahneman, Judgments of and by 
Representativeness, in Judgment under Uncertainty: 
Heuristics and Biases 84, 84-85 (Daniel Kahneman 
et al. eds., 1982). Intuitive decision-making is also 
the route by which factors like race or gender may 
affect the legal system. See Christine Jolls & Cass 
R. Sunstein, The Law of Implicit Bias, 94 Cal. L. 
Rev. 969, 976 (2006) (describing how race operates to 
trigger intuitive judgments).

Just as a judge must understand economic con­
text to determine the plausibility of an antitrust 
claim, rather than merely rely upon personal experi­
ence, a judge considering a discrimination claim may 
be required to rethink the “baseline assumption that 
unlawful discrimination is rare and that when em­
ployees are fired . . . the natural explanation is that 
their employers had a perfectly legal reason to do 
so. . . .” Edward A. Hartnett, Taming Twombly, 158 
U. Pa. L. Rev. 473, 502 (2010). And to the extent 
that Iqbal and “Twombly suggest[ ] that litigants 
seek directly to undermine this baseline assumption 
[about what unlawful discrimination looks like] with 
social science research,” id. at 503, this Court should 
confirm the relevance of such evidence, and allow



21

plaintiffs to demonstrate plausibility through what­
ever means are reasonably calculated to do so. This 
Court itself has noted the importance of context 
when assessing claims of discriminatory intent. See 
Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) 
(per curiam) (overturning the court of appeals’ con­
clusion that supervisors’ act of calling a black man 
“boy” had no racial implications, and urging consid­
eration of “context,” “local custom,” and “historical 
usage”).

Otherwise, a civil rights plaintiff—placed in a 
factually disadvantageous position and forced to 
overcome what may be a judge’s personal intuition 
about the prevalence of discrimination in contempo­
rary society—will be expected to provide more direct 
and damning evidence than is feasible or practical at 
the pleading stage, and may be functionally denied 
judicial recourse for more clandestine or subtle forms 
of discrimination. See, e.g., Diane M. Mackie et al., 
Social Psychological Foundations of Stereotype For­
mation, in Stereotypes and Stereotyping 41, 42-43 
(C. Neil Macrae et al. eds., 1996); Lincoln Quillian, 
New Approaches to Understanding Racial Prejudice 
and Discrimination, 32 Ann. Rev. Sociol. 299 (2006).

This Court’s pleading standard should ensure 
that individuals alleging forms of discrimination 
that may be meritorious under constitutional and 
statutory norms have an opportunity to proceed be­
yond the pleading stage. See Twombly, 550 U.S. at 
558. Adopting petitioners’ approach has the poten­
tial to inadvertently shield from liability perpetra­
tors of discrimination that this Court and this coun­
try have a compelling interest in eradicating.



22

C. Respondents’ allegations give rise to a 
plausible inference of viewpoint discrim­
ination, and dismissal at the pleading 
stage is therefore unwarranted.

Petitioners’ argument that this case fails to satis­
fy Iqbal’s plausibility standard should be rejected in 
light of the factual allegations proffered by respond­
ents in their Second Amended Complaint (“SAC”), 
for the reasons explained in more details by Re­
spondents. See Resp. Br. 15—31. Secret Service 
agents possess unquestioned authority to establish a 
security perimeter to protect the President, and an 
undoubtedly compelling interest in Presidential se­
curity. Respondents, however, assert specific allega­
tions plausibly suggesting that petitioners inten­
tionally treated them differently because of their 
viewpoint. Petitioners’ invocation of security as a 
plausible explanation for their behavior does not 
render implausible respondents’ suggested inference 
that petitioners took respondents’ viewpoint into ac­
count.

Respondents allege in the SAC that petitioners 
ordered peaceful demonstrators to move two blocks 
away from the Inn where President George W. Bush 
was dining, and did so in close temporal proximity to 
when their chants became audible to the President; 
this forced movement kept the President from hear­
ing respondents’ protest message during dinner, or 
from seeing their protest signs when he departed the 
restaurant in his motorcade. SAC tlf 42, 61, 55 77.

According to the SAC, petitioners required the 
anti-Bush protesters to move from their original lo­
cation, which was screened from the President’s din­



23

ner by several buildings and a wooden fence. Id. at 
50-51. Petitioners allowed demonstrators support­
ing the President to remain where they stood, only a 
matter of feet farther from where the President 
dined than respondents’ original location, where 
their demonstration in favor of the President could 
be heard at dinner, and observed by the President 
upon his departure. Id. at 48, 55—57. Moreover, Pe­
titioners did not in any way move, or even screen, 
diners in the Inn where the President dined. Id. at 
52, 55. Petitioners targeted only the anti-Bush 
group, moving them, and only them, out of the Pres­
ident’s earshot and out of sight of the President, and 
of the media, when the President’s motorcade pulled 
away from the Inn. SAC 53, 56. These factual 
allegations present a plausible basis to infer that pe­
titioners were not motivated solely by grave security 
concerns with no connection to respondents’ view­
point.

Respondents further allege that Secret Service 
agents had engaged in a pattern and practice of 
similar viewpoint discrimination on a dozen recent 
occasions; they also allege that an official training 
manual of the President’s Advance Team specifically 
directed the Team to “work with the Secret Service” 
to have protestors placed out of view of the President 
and the media, and to place supportive “rally 
squads” in front of the media. Pet. App. 219a.3

3 Petitioners argue that the manual only applies to “ticket­
ed events,” Pet. Br. 19, failing to acknowledge that the preface 
to the manual states that “the principles and guidelines cov­
ered in [this] manual can be applied to any type of event,” Pet. 
App. 215a, and thus are not limited to ticketed events.



24

These factual allegations, taken as true, buttress 
the plausibility of the agents’ viewpoint discrimina­
tion in this case. In a similar circumstance, this 
Court has held relevant to assessing the plausibility 
of materiality various allegations in a complaint that 
were admittedly not statistically significant, were 
only suggestive of causation, and were based on 
studies of what defendants asserted to be the effect 
of different chemicals and in fish rather than hu­
mans. Matrixx, 131 S. Ct. at 1319-24 & n.13. None­
theless, these factual allegations were held to estab­
lish a plausible inference of materiality, and, “taken 
collectively,” id. at 1324, to provide compelling evi­
dence of scienter.

Accordingly, respondents readily meet Iqbal’s 
plausibility pleading standard. Petitioners’ claim 
that respondents were moved only because they 
happened to be the group closest to, and therefore 
most dangerous to, the President, see Pet. Br. 17, is a 
competing inference that need not be considered at 
the pleading stage, given the plausible inference in 
favor of respondents.

Petitioners’ proffered explanation for their chal­
lenged conduct is one possible way to understand 
their conduct, but it is not the only plausible infer­
ence arising from the facts. This Court has specifi­
cally affirmed that a complaint may be plausible 
“even if doubtful in fact.” Twombly, 550, U.S. at 556; 
see also Swierkiewicz u. Sorema N. A., 534 U.S. 506, 
515 (2002) (“Indeed it may appear on the face of the 
pleadings that a recovery is very remote and unlike-



25

ly but that is not the test.”) (quoting Scheuer v. 
Rhodes, 416 U.S. 232, 236 (1974)).4

Whatever this Court’s eventual disposition of this 
case, or its approach to qualified immunity, respond­
ents have established the plausibility of differential 
treatment on the basis of viewpoint.
II. Petitioners distort the pleading require­

ments for intentional discrimination.

In addition to misapplying the pleading standard 
under Twombly and Iqbal, petitioners advance ar­
guments founded upon misapprehensions of the law 
governing the substance of respondents’ allegations. 
Specifically, petitioners mischaracterize the legal 
standard for intentional discrimination, contending 
that they acted unlawfully only if viewpoint discrim­
ination was their sole motivation, and misconstrue 
how plausibility pleading functions in the context of 
intentional discrimination claims.

Petitioners mistake a justification for their view- 
point-conscious decision-making with an alternative 
explanation for their conduct. A legal justification 
for viewpoint-conscious conduct does not render im­
plausible the respondents’ asserted inference that 
petitioners took their viewpoint into account; indeed, 
petitioners’ arguments justifying such viewpoint­
conscious conduct make the inference of that conduct

4 Twombly and Iqbal reaffirm the continuing vitality of 
Swierkiewicz. Both decisions cite favorably to Swierkiewicz. 
See Iqbal, 556 U.S. at 662; Twombly, 550 U.S. at 544. This 
Court has also subsequently cited favorably to Swierkiewicz in
other cases involving Rule 8. See, e.g., Skinner v. Switzer, __
U.S. 131 S. Ct. 1289, 1296 (2011).



26

more plausible. The plausible inference of view- 
point-conscious conduct ends the inquiry; petitioners’ 
legal justifications regarding security concerns are 
complex, fact-intensive, and thus unsuitable for reso­
lution at the pleading stage.

A. Respondents need only plead that their 
political viewpoint played some role in 
petitioners’ actions, not that it was peti­
tioners’ sole motivation.

In order to state a claim for intentional discrimi­
nation, a plaintiff “must plead sufficient factual mat­
ter to show” that a policy or action was adopted or 
implemented on the basis of a protected characteris­
tic. Iqbal, 556 U.S. at 677. This Court has long 
made clear that, in order to demonstrate discrimina­
tory intent, a plaintiff must establish that the chal­
lenged actions occurred because of, and not merely in 
spite of, a protected characteristic. See id. (quoting 
Pers. Admin’r of Mass. v. Feeney, 442 U.S. 256, 279 
(1979)) (“ [Pjurposeful discrimination requires more 
than . . . ‘intent as awareness of consequences.’”). 
Moreover, the Court has never required a showing of 
malice. See, e.g., Bray v. Alexandria Women’s Health 
Clinic, 506 U.S. 263, 269—70 (1993). It simply re­
quires a purpose that focuses upon a protected group 
by reason of the protected characteristic itself. Id.

Further, for constitutional claims, a discriminato­
ry motive need not be the only, or even predominant, 
factor in the ultimate action—a plaintiff need only 
show that “a discriminatory purpose has been a mo­
tivating factor in the decision.” Arlington Heights, 
429 U.S. at 265 (emphasis added). Once discrimina­
tion “has been shown to be a ‘substantial’ or ‘moti­



27

vating’ factor,” a defendant becomes responsible for 
establishing that the same decision would have been 
made without the impermissible motivation. Hunter 
u. Underwood, 471 U.S. 222, 228 (1985) (citing 
Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 
429 U.S. 274, 287 (1977)); see also Gross v. FBL Fin. 
Servs., Inc., 557 U.S. 167, 179 n.6 (2009) (noting the 
motivating factor approach in Mt. Healthy and other 
constitutional cases).

Petitioners present at least two arguments that 
contravene this well-established standard. First, 
they imply that respondents are required to show 
that they were “moved . . . solely to suppress a disfa­
vored viewpoint, and not for any security reason.” 
Pet. Br. 38. Second, they suggest that, by ordering 
“all persons” beyond a specified perimeter, petition­
ers were necessarily acting in a viewpoint-neutral 
manner. Id. at 40. The first argument misstates the 
doctrine; the second mischaracterizes the facts al­
leged by respondents in the SAC.

Both arguments disregard the possibility that pe­
titioners had mixed motivations, and imply that re­
spondents’ factual allegations must entirely preclude 
the role of legitimate, non-discriminatory security 
concerns. See Hunter, 471 U.S. at 232 (holding that 
a parallel, permissible motive does not “render nuga­
tory” a discriminatory purpose). To the contrary, in 
order to prevail on their motion to dismiss under the 
plausibility standard, petitioners, as defendants be­
low, must establish that their actions were obviously 
and entirely non-discriminatory. Accepting the facts 
alleged by respondents as true, petitioners cannot 
make any such definitive showing.



28

From the facts alleged by respondents, at least 
five inferences can be drawn: (1) petitioners moved 
respondents because of entirely viewpoint-neutral 
security concerns arising from respondents’ proximi­
ty to the President; (2) petitioners moved respond­
ents because they personally disagreed with re­
spondents’ viewpoint and subjectively desired to 
suppress their message; (3) petitioners moved re­
spondents because they believed it was their profes­
sional duty to avoid having the President, and the 
media covering the President, exposed to respond­
ents’ speech, at dinner or on the motorcade route; (4) 
petitioners moved respondents for security reasons, 
but made those security determinations at least par­
tially as the result of a viewpoint-conscious belief 
that those expressing an anti-Bush viewpoint pre­
sented an increased security risk; or (5) petitioners 
moved respondents as the result of a combination of 
these various motives.

Respondents’ complaint should be dismissed only 
if the first inference is so obvious as to render the 
other four possibilities all utterly implausible. It is 
entirely plausible that discovery might lead to rele­
vant evidence of something other than the first pos­
sibility, given the doubts and questions regarding 
petitioners’ viewpoint-neutral explanation—-most no­
tably, the differential treatment of respondents as 
compared to the pro-Bush supporters and those not 
expressing any viewpoint— and taking into account 
the viewpoint-conscious Advance Manual, as well as 
the twelve analogous incidents of Secret Service 
viewpoint discrimination. See Section I.C supra. In 
order to survive a motion to dismiss, respondents 
need not allege, as petitioners intimate, that legiti­



29

mate security concerns did not play any role in peti­
tioners’ actions, but merely that viewpoint plausibly 
played some role.

Even petitioners’ problematic framing of the is­
sues is less troubling, though, than the erroneous 
views of the judges dissenting from denial of rehear­
ing en banc in the Ninth Circuit. The dissenters la­
mented the “complaint’s lack of plausible allegations 
showing that the Secret Service agents in this case 
explicitly acted with a subjective intent to suppress 
the protestors’ message. . . .” Pet. App. 21a. This 
blunt characterization of discrimination fully ignores 
the last three of the possible inferences described 
above, misconstruing the substantive scope of view­
point discrimination and therefore failing to properly 
evaluate the plausibility of respondents’ claims. Fo­
cusing on what they considered to be a questionable 
proposition that petitioners themselves personally 
harbored a subjective intent to suppress respond­
ents’ message, the Ninth Circuit dissenters improp­
erly disregarded other, non-malicious but still view­
point-conscious, explanations for the conduct de­
scribed in respondents’ complaint.

Although viewpoint discrimination requires that 
a speech restriction be motivated by the considera­
tion of viewpoint, the plaintiff need not demonstrate 
“hostility to particular points of view, or a desire to 
suppress certain subjects.” Turner Broad. Sys., Inc. 
v. F.C.C., 512 U.S. 622, 677 (1994) (“ [Bjenign moti­
vation . . .  is not enough to avoid the need for strict 
scrutiny of content-based justifications.”). In this 
and other contexts, the Court’s definition of inten­
tional discrimination extends far beyond actions tak­
en maliciously or with a bare desire to harm. Even



30

an occupational restriction that seeks to protect 
women and their health is still a sex-based classifi­
cation requiring sufficient justification to withstand 
judicial scrutiny. Int’l Union, United Auto., Aero­
space, and Agric. Implement Workers of Am., UAW v. 
Johnson Controls, Inc., 499 U.S. 187, 197 (1991).

In any intentional discrimination suit, the 
threshold question is not whether the actor seeks to 
harm through the use of a protected characteristic, 
but whether consideration of the protected charac­
teristic was a motivating factor in the course of ac­
tion. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 579 
(2009); Johnson Controls, 499 U.S. at 197; Feeney, 
442 U.S. at 277. By mischaracterizing the nature of 
discriminatory intent— and, more importantly, ob­
fuscating the scope of decision-making by petitioners 
that would qualify as viewpoint discrimination— 
petitioners misstate the necessary substantive ele­
ments of a viewpoint discrimination claim and mis­
construe the plausibility of an inference that peti­
tioners’ conduct was, at least in part, motivated by 
respondents’ viewpoint.

B. An asserted legal justification for dispar­
ate treatment based upon a protected 
characteristic differs from an “alterna­
tive explanation” for such treatment.

Petitioners also confuse the law regarding claims 
of intentional discrimination by conflating a defend­
ant’s asserted legal justification for disparate treat­
ment with an alternative, non-discriminatory expla­
nation for that conduct. What petitioners offer in 
their alternative argument in Sections B.3 and B.4 of 
their brief is a possible legal justification, given the



31

purported connection between viewpoint and securi­
ty, for treating respondents differently because of 
their viewpoint, not a non-discriminatory explana­
tion for their conduct.

Petitioners apparently recognize the plausibility 
of respondents’ factual allegation that they consid­
ered respondents’ viewpoint in determining to move 
them farther from the President. Indeed, in addition 
to their contention that there is no plausible basis to 
believe viewpoint played any role in their conduct, 
Sections B.3 and B.4 of petitioners’ brief provide an 
asserted legal justification for viewpoint playing a 
role in their conduct: it was constitutionally legiti­
mate for petitioners to move respondents, they ar­
gue, because those peacefully opposing the Presi­
dent’s policies raise more security concerns than 
those supporting those policies or those not express­
ing a political viewpoint. Petitioners expressly argue 
that, even if “petitioners’ decision to relocate re­
spondents’ group had some connection to the group’s 
anti-Bush message . . . the general principle against 
Viewpoint discrimination’ would still fail to clearly 
establish the unconstitutionality of petitioners’ ac­
tions.” Pet. Br. 17.

If respondents’ viewpoint was a motivating factor 
in petitioners’ course of action, however, viewpoint 
discrimination occurred. See, e.g., Feeney, 442 U.S. 
at 277. The discrimination might ultimately prove 
legally justifiable—if, e.g., petitioners show that re­
spondents’ viewpoint, given their location, presented 
a legitimate security concern, and that there was no 
way to address that concern that was less restrictive 
of respondents’ First Amendment interests. But be­
cause it is entirely plausible that petitioners’ securi­



32

ty concerns took respondents’ viewpoint into account, 
as petitioners’ alternative argument effectively 
acknowledges, Iqbal does not authorize a reviewing 
court to make the fact-intensive assessment of the 
legitimacy of security justification and the existence 
of less restrictive alternatives at the pleading stage.

In Iqbal, this Court reiterated its longstanding 
view that intentional discrimination involves a 
course of action taken “because o f ’ its effects on an 
identifiable group, not merely “in spite o f ’ those ef­
fects. Iqbal, 556 U.S. at 676-77 (quoting Feeney, 442 
U.S. at 279). In the wake of the September 11 ter­
rorist attacks, this Court observed that “ [i]t should 
come as no surprise that a legitimate policy directing 
law enforcement to arrest and detain individuals be­
cause of their suspected link to the attacks would 
produce a disparate, incidental impact on Arab Mus­
lims, even though the purpose of the policy was to 
target neither Arabs nor Muslims.” Iqbal, 556 U.S. 
at 682.

In this Court’s view, the defendants’ non- 
discriminatory motivation to find those responsible 
for September 11 provided an “obvious alternative 
explanation” for a high number of arrests of Arab 
Muslims. Id. (citing Twombly, 550 U.S. at 567). Yet 
this Court in no way authorized a program targeting 
Arab Muslims as a group based upon some general­
ized belief that they were more likely to be involved 
in acts of terrorism. That scenario would present a 
modern-day version of Korematsu v. United States, 
324 U.S. 885 (1945). Such decision-making would 
cross firmly into the realm of intentionally discrimi­
natory conduct, or at the very least raise complex,



fact-sensitive issues not amenable to resolution on a 
motion to dismiss.

Neither Iqbal, nor any other precedent, suggests 
that a defendant may invoke a plausible, valid con­
cern such as security, and thereby earn a free pass 
from potential liability for having acted, at least in 
part, on the basis of a protected characteristic. Peti­
tioners’ contention that they moved respondents for 
security-related reasons, even if true, does not pro­
vide an “alternative” to respondents’ claims; rather, 
it plausibly encompasses what may be a justification 
for their viewpoint-conscious decision. Just as Iqbal 
stops well short of sanctioning the disparate treat­
ment of Arab Muslims as a group based on some 
presumed heightened threat, the Constitution does 
not allow for the wholesale differential treatment of 
anti-Bush demonstrators (or, more precisely, those 
standing with anti-Bush demonstrators), as com­
pared to pro-Bush protesters and those not express­
ing any political viewpoint.

This Court “time and again has held content- 
based or viewpoint-based regulations to be presump­
tively invalid,” Hill v. Colorado, 530 U.S. 703, 769 
(Kennedy, J., dissenting) (citations omitted), and has 
never suggested wholly eschewing freedom of speech 
concerns at the pleading stage at the plausible men­
tion of security. Determining whether petitioners’ 
actions in this particular context can ultimately be 
justified, given the security concerns involved, is a 
far different and more difficult question than wheth­
er respondents have plausibly stated a claim for 
viewpoint discrimination. While the latter question 
is properly the focus of the analysis at the pleading

33



34

stage, the former requires further review at subse­
quent stages in the litigation.

When a plaintiff approaches the courthouse doors 
with a factually specific and plausible claim that she 
has been treated differently on the basis of her view­
point or other protected characteristic, this Court 
should ensure a careful, analytical, and full assess­
ment of the rights and interests involved. Petition­
ers’ suggested revision of plausibility pleading short 
circuits such an analysis.

CONCLUSION
For the foregoing reasons, if the Court reaches 

the issue of whether respondents satisfied the plau­
sibility pleading requirement set forth in Iqbal and 
Twombly, it should affirm the judgment of the Ninth 
Circuit.

Respectfully submitted,
Sh e r r il y n  If il l  

Director- Counsel 
Ch r is t in a  Sw a r n s  
R eN ik a  C. M o o r e  
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  F u n d , In c . 
99 Fludson St., 16th Floor 
New York, NY 10013

J o sh u a  C iv in  
J o h n a t h a n  Sm it h  
NAACP L e g a l  D e fe n se  & 

E d u c a t io n a l  F u n d , In c . 
1444 I St., NW, 10th Floor 
Washington, DC 20005



35

February 18, 2014

R a c h e l  D. G o d sil  
Counsel of Record 

J o n a th a n  R o m b e r g  
S e to n  H a l l  U n iv e r s it y  

S c h o o l  o f  L a w  
C e n te r  fo r  S o c ia l  J u s ­

tic e

833 McCarter Hwy. 
Newark, NJ 07102 
(973) 642-8700 
rachel.godsil@gmail.com 
Counsel for Amicus Curiae

mailto:rachel.godsil@gmail.com




No. 13-115

In  The

Supreme (Emir! of tlio Imtrb Stairs

T im  W ood and R ob Savage ,
Petitioners,

v.

M ichael M oss et al.,
Respondents.

AFFIDAVIT OF SERVICE

I HEREBY CERTIFY that all parties required to be served, have been served, on this 
18th day of February, 2014, in accordance with U.S. Supreme Court Rule 29.5(c), three 
(3) copies of the foregoing BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC. IN SUPPORT OF RESPONDENTS by placing said 
copies with U.S. Mail, First Class Mail, postage prepaid, addressed as listed below. I 
further certify that in accordance with U.S. Supreme Court Rule 29.5 an electronic 
version of the foregoing was sent to the parties listed below:

Donald B. Verrilli, Jr.
Solicitor General of the United States 
United States Department of Justice 
950 Pennsylvania Avenue, NW 
Washington, DC 20530-0001 
SupremeCtBriefs@usdoj.gov

Steven M. Wilker 
Torikon Torp LLP 
888 SW Fifth Avenue 
Suite 1600 
Portland, OR 97204 
steven.wilker@tonkon.com

B^ron S. A dams, Legal & Commercial Printers 
1hl5 L Street, NW, Suite 100 
Washington, DC 20036 
(202) 347-8203

Sworn to and subscribed before me this 18th day of February, 2014.

My commission expires April 30, 2014.

W illiam  R. Pierangeli 
Notary Public 
District of Columbia

mailto:SupremeCtBriefs@usdoj.gov
mailto:steven.wilker@tonkon.com


CERTIFICATE OF COMPLIANCE
No. 13-115

T im  W o od  a n d  R ob Sa v a g e ,
Petitioners,

v.

M ic h a e l  M o s s , e t  a l .,
Respondents.

As required by Supreme Court Rule 33.1(h), I 
certify that the Brief of Amicus Curiae NAACP Legal 
Defense and Educational Fund, Inc. in Support of 
Respondents Michael Moss, et ah, contains 8,208 
words, excluding the parts of the brief that are 
exempted by Supreme Court Rule 33.1(d).

Per 28 U.S.C. § 1746, I declare under penalty of 
perjury that the foregoing is true and correct.
Executed on February 18, 2014.

Joshua Civin 
NAACP Legal Defense 

& Educational Fund, Inc. 
1444 I Street, NW, 10th FI. 
Washington, DC 20005 
(202) 682-1300 
j civin@naacpldf. org

Counsel for Amicus Curiae