First Amendment Law

• Sidley represented an advocacy group of manufacturers and other businesses in the U.S. Court of Appeals for the District of Columbia Circuit, contesting a Securities and Exchange Commission (SEC) rule that required sellers of certain conflict minerals to state on their website that their products were not “DRC conflict free.” The court ultimately sided with the manufacturers, finding that the compelled speech violated the First Amendment.
• Sidley defended two advertising companies against claims brought by an unsuccessful candidate for office and an affiliated PAC, who alleged that the companies’ removal of billboard advertisements that had been publicly criticized as offensive amounted to a violation of the plaintiffs’ First Amendment rights. Sidley secured dismissal of these claims, confirming that advertisers retain the editorial discretion to publish or not to publish speech on their platforms and do not become arms of the state for First Amendment purposes when public officials are critical of their speech.
• Sidley represents outdoor advertising companies and a related association in challenges to municipal taxes targeting off-premises commercial advertising. Taxes targeting a small group of speakers or a single medium of speech are constitutionally suspect and subject to heightened scrutiny as they could be used to punish disfavored speech, even if facially content-neutral. Appeals are currently pending on these issues in multiple state supreme courts.
• Since 2006, Sidley has served as counsel to a private, non-governmental entity comprising major manufacturers of prescription drugs, biological products, and medical devices. In that role, Sidley has submitted amicus briefs in several important First Amendment cases (including Caronia and Amarin) as well as several successful petitions to the Food and Drug Administration (FDA) regarding First Amendment and related issues.

Free Exercise and Establishment

• Sidley represented religious institutions in Minnesota and Wisconsin challenging the validity of COVID-19 shutdown and reopening plans that treated religious worship differently than comparably situated secular activities. In both jurisdictions, religious worship services were subjected to strict numerical or percentage-based caps, while secular gatherings including restaurants, bars, and shopping malls were permitted to reopen without such strict restrictions. In both jurisdictions, Sidley was successful in securing revised plans that applied congruent standards.
• Sidley represented a diverse group of Roman Catholic, Christian, and Orthodox Jewish schools challenging the constitutionality of California’s pandemic-related executive order closing all schools in the state in Samuel A. Fryer Yavneh Academy v. Newsom. The restrictions required religious schools to close, while allowing similar secular activities such as day camps, tutoring centers, special education activities, and other comparable gatherings of students and teachers to continue operating in person. After Sidley filed suit, California agreed to a stipulated order allowing religious schools in California to open at 100% capacity, as long as the schools follow “cohort” guidance subsequently applied to comparable religious and nonreligious activities.
• Sidley filed amicus briefs in the U.S. Supreme Court in Hosanna Tabor and Our Lady of Guadalupe on behalf of religious institutions advocating in favor of the “ministerial exception,” the doctrine that recognizes that religious institutions are free to define those persons and activities that constitute ministerial or pastoral duties within that faith tradition.
• Sidley represented a non-profit association of local lawyers in filing a U.S. Supreme Court amicus brief in American Legion v. American Humanist Society. The brief successfully advocated against the removal of the Bladensburg World War I Veterans Memorial on Establishment Clause grounds. In preserving the Bladensburg Cross, the Supreme Court also vindicated Sidley’s position as amicus in a prior, separate, but similar Establishment Clause case in the 11th Circuit, City of Pensacola v. Kondrat'yev.
• Sidley counsels religious entities on matters of corporate structure and regulatory compliance. For example, Sidley helped a religious reading room revise its corporate documents and its employment and premises policies. Sidley similarly assists community churches develop and manage corporate charters, bylaws, and policies, and otherwise understand and comply with their legal obligations.
• The Yale Law School Free Exercise Clinic: Sidley supports Yale Law School’s free exercise clinic. Sidley lawyers supervise students representing clients participating in appellate matters raising issues under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, and Title VII of the Civil Rights Act of 1964, as well as analogous state constitutional provisions and laws. The clinic has filed amicus curiae briefs on behalf of clients including the Sikh Coalition, the Jewish Coalition for Religious Liberty, the National Committee for Amish Religious Freedom, the Lipan Apache Tribe, Muslim Public Affairs Council; the General Conference of Seventh Day Adventists; the Orthodox Union; Church of Jesus Christ of Latter Day Saints; and the Sisters of Saint Francis of Perpetual Adoration. The clinic has filed amicus briefs in numerous cases including Mast v. County of Filmore (US 2021) (Amish community’s right to not be forced to use modern septic systems); Tanzin v. Tamvir (US 2020) (RFRA right to money damages), Redeemed Christian Church of God v. Prince Georges County (4th Cir. 2021) (RLUIPA zoning dispute); Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc. (5th Cir. 2021) (Free Exercise right of equal access to a public site); Johnson v Baker (9th Cir. 2021) (Inmate’s RLUIPA right to possess anointing oil); Christian Mission John 3:16 v. Passaic City (NJ 2020) (entitlement to tax deduction for religious entity). As a testament to the strength of our briefing, Sidley has been invited to present oral argument on behalf of its client after appearing as amicus through the clinic.

Right to Assemble and Petition the Government

• Sidley successfully defended scrap metal company appellees in the 4th Circuit under the Noerr-Pennington doctrine, guaranteeing them their First Amendment right to petition the government for redress without fear of antitrust liability. This case confirmed that funding of litigation by a non-party can be petitioning for purposes of the Noerr-Pennington doctrine. In another 4th Circuit Noerr-Pennington case, Sidley represented a pharmaceutical company that was accused of unfair competition after continuing to pursue a patent lawsuit. Sidley successfully persuaded the court to uphold the client’s First Amendment right to petition and in so doing, the court vacated a $400 million judgment against the client.
• Sidley filed an amicus brief in the 4th Circuit on behalf of First Amendment Legal Scholars supporting the plaintiff, who had been blocked from the official social media page of the chair of the county’s board of supervisors. The court agreed with amici curiae that the chair engaged in viewpoint discrimination in violation of the First Amendment by banning a county resident from posting on the webpage, which was a public forum for First Amendment purposes.
• Sidley represented an appellant at the U.S. Court of Appeals for the District of Columbia Circuit who was sued for intentional interference with a prospective contractual relationship after writing a letter to a government agency regarding the appellee’s fitness for a law enforcement position. Sidley was able to secure a reversal of the lower court’s judgment against the appellant and the court held that the First Amendment provides citizens full protection from liability arising out of comments that are substantially true or not provably false when they regard official conduct of a public official.