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No. 09-2002

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT

THEODORE GRISWOLD, et al.,

Plaintiffs-Appellants,
v.

DAVID P. DRISCOLL, Commissioner of Education, et al.,

Defendants-Appellees.

On Appeal from the United States District Court


for the District of Massachusetts, No. 1:05-cv-12147-MLW,
Before the Honorable Mark L. Wolf, Chief District Judge

CORRECTED BRIEF OF AMICI CURIAE ARMENIAN BAR


ASSOCIATION, ARMENIAN NATIONAL COMMITTEE OF AMERICA,
IRISH IMMIGRATION CENTER, INC., JEWISH ALLIANCE FOR LAW
AND SOCIAL ACTION, INC., THE GENOCIDE EDUCATION PROJECT,
AND THE ZORYAN INSTITUTE FOR CONTEMPORARY ARMENIAN
RESEARCH AND DOCUMENTATION, INC. SUPPORTING
AFFIRMANCE

EDWARD J. BARSHAK (#10831) MARK C. FLEMING (#102958)


SUGARMAN, ROGERS, BARSHAK & WILMER CUTLER PICKERING
COHEN, P.C. HALE AND DORR LLP
101 Merrimac Street 60 State Street
Boston, MA 02114 Boston, MA 02109
(617) 227-3030 (t) (617) 526-6000 (t)
(617) 523-4001 (f) (617) 526-5000 (f)

January 13, 2010


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae

Armenian Bar Association, Irish Immigration Center, Inc., Jewish Alliance for

Law and Social Action, Inc., The Genocide Education Project, and the Zoryan

Institute for Contemporary Armenian Research and Documentation, Inc., certify

that they are non-profit corporations exempt from taxation pursuant to Section

501(c)(3) of the Internal Revenue Code and that they are not publicly held

corporations and do not issue stock.

Amicus curiae Armenian National Committee of America certifies that it is a

non-profit corporation exempt from taxation pursuant to Section 501(c)(4) of the

Internal Revenue Code and that it is not a publicly held corporation and does not

issue stock.

No amicus curiae has any parent corporation or and no publicly-held

corporation owns 10% or more of the stock of any amicus curiae.

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TABLE OF CONTENTS
Page

CORPORATE DISCLOSURE STATEMENT ..........................................................i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF INTEREST OF AMICI CURIAE PURSUANT TO


RULE 29(c)(3) OF THE FEDERAL RULES OF APPELLATE
PROCEDURE..................................................................................................1

SUMMARY OF ARGUMENT .................................................................................3

ARGUMENT .............................................................................................................5

I. THE GUIDE’S RECOGNITION AND COMMEMORATION OF


THE ARMENIAN GENOCIDE ARE GOVERNMENT SPEECH ...............5

II. PLAINTIFFS HAVE FAILED TO STATE A FIRST


AMENDMENT CLAIM BECAUSE THE FREE SPEECH
CLAUSE DOES NOT LIMIT THE COMMONWEALTH’S
ABILITY TO CHOOSE THE CONTENT OF ITS OWN SPEECH
REGARDING EDUCATIONAL MATTERS ..............................................10

CONCLUSION........................................................................................................23

APPENDICES

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

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TABLE OF AUTHORITIES

CASES
Page

Ambach v. Norwick, 441 U.S. 68 (1979) .................................................................11

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666


(1998).............................................................................................................11

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ..........................................................22, 23

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).............................................22

Board of Education, Island Trees Union Free School District No. 26 v.


Pico, 457 U.S. 853 (1982) .................................................................21, 22, 23

Board of Regents of University of Wisconsin System v. Southworth, 529


U.S. 217 (2000)........................................................................................10, 20

Brown v. Board of Education, 347 U.S. 483 (1954)................................................11

Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005)........................................................12

Griffin v. Secretary of Veterans Affairs, 288 F.3d 1309 (Fed. Cir. 2002) ...............20

Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515


U.S. 557 (1995)..............................................................................................12

Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005)..................10, 20

Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009)............................................23

Miller v. California Commission on the Status of Women, 198 Cal. Rptr.


877 (Cal. Ct. App. 1984) ...............................................................................15

Movsesian v. Victoria Versicherung AG, 578 F.3d 1052 (9th Cir. 2009) ...............21

PETA, Inc. v. Gittens, 414 F.3d 23 (D.C. Cir. 2005).........................................13, 18

Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819


(1995).................................................................................................10, 11, 18

Rust v. Sullivan, 500 U.S. 173 (1991)................................................................17, 18

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Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).................................13, 18

Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009)...........13, 14, 15, 20

STATUTES AND RULES


Mass. Gen. Laws ch. 6, § 15II ...................................................................................8

1998 Mass. Acts ch. 276 .................................................................................. passim

Fed. R. App. P. 12(b)(6)...........................................................................................21

Fed. R. App. P. 29(a) .................................................................................................1

Gubernatorial Proclamation (Mass. Mar. 23, 1990) ..................................................8

Gubernatorial Proclamation (Mass. Feb. 19, 1986)...................................................8

H. Bill No. 3629, 181st Gen. Ct., 1997 Reg. Sess. (Mass. Jan. 1, 1997) ..................8

S.J. Res. of April 19, 1990, Mass. Gen. Ct., “On the Occasion of a Day of
Remembrance for the Armenian Genocide of 1915-1923”.............................8

Res. of Apr. 13, 2006, Mass. Gen. Ct., “On the Occasion of the Day of
Remembrance of the Armenian Genocide of 1915 to 1923” ..........................8

OTHER AUTHORITIES
Levinson, Sanford, Written In Stone: Public Monuments in Changing
Societies (1998) .......................................................................................15, 16

Tribe, Laurence H., American Constitutional Law (1978)......................................15

Walzer, Michael, On Toleration (1997) ..................................................................16

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STATEMENT OF INTEREST OF AMICI CURIAE


PURSUANT TO RULE 29(c)(3) OF THE FEDERAL RULES OF
APPELLATE PROCEDURE

All parties have consented to the filing of this amicus brief. See Fed. R.

App. P. 29(a).

The Armenian Bar Association was formed in 1989 to provide an arena for

lawyers of Armenian heritage to address the legal concerns of the Armenian

community. The Association’s members have a strong interest in courts’

upholding lawful governmental choices to recognize the Armenian Genocide and

to educate students about the Genocide in hopes of preventing similar tragedies in

the future.

The Armenian National Committee of America (ANCA) is a grassroots

organization representing constituencies in Massachusetts and throughout the

United States on a broad range of genocide education, human rights, civic, and

public policy concerns. ANCA has an interest in recognition and commemoration

of the Armenian Genocide and the education of state citizens about it in hopes of

preventing future genocide.

The Irish Immigration Center, Inc. (IIC) is located in Boston. Founded in

1989 to serve the needs of the Irish immigrant community in New England, the

IIC’s work now includes immigrants from a broad range of countries. Chapter 276

of the Commonwealth’s Acts and Resolves of 1998 specifically refers to the


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“Great Hunger Period in Ireland” as an event worthy of attention in the public

schools of the Commonwealth. IIC endorses this particular goal, but is equally

concerned that the collective memory of the other events covered by the

legislation, including the Armenian Genocide, should not be controlled by those

with an illusory denialist perspective concerning settled historical evidence.

The Jewish Alliance for Law and Social Action, Inc. (JALSA) is a Boston-

based organization dedicated to the civil rights and liberties of all Americans.

JALSA’s members actively pursue legal and economic justice for all through

community action, litigation, and the encouragement of legislation. JALSA has

frequently filed amicus briefs in the state and federal courts in cases involving

equity of resources in public education, employment discrimination, religious

accommodation and separation of church and state. As an active supporter of

public education and quality education for all students, JALSA was active in

promoting the legislation to encourage the study of genocide in schools that

underlies the present case and worked to broaden that legislation to include

genocides of particular relevance to the diverse population of Massachusetts’s

schools. As Jews, JALSA’s members are particularly conscious of the Shoah and

efforts to deny its historicity, but they are equally aware that history has visited

catastrophes on other peoples.

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The Genocide Education Project is a nonprofit organization that assists

educators in teaching about human rights and genocide, particularly the Armenian

Genocide, by developing and distributing instructional materials, providing access

to teaching resources and organizing educational workshops.

The Zoryan Institute for Contemporary Armenian Research and

Documentation, Inc. is an international academic and scholarly center devoted to

the documentation, study, and dissemination of educational material related to

Armenian history and culture. The Zoryan Institute has an interest in recognition

and commemoration of the Armenian Genocide and the education of state citizens

about it in hopes of preventing future genocide.

SUMMARY OF ARGUMENT

The Commonwealth of Massachusetts, through Chapter 276 of the Acts and

Resolves of 1998, expressed its view that major human rights violations, including

the Armenian Genocide and the Holocaust, are worthy of being commemorated

and taught. Chapter 276 charges the Board of Education with providing

“recommendations” and “guidelines” regarding, inter alia, materials that educators

may consult in building a curriculum on genocide and other human rights

violations. The resulting Guide to Choosing and Using Curricular Materials on

Genocide and Human Rights (the Guide) is the Commonwealth’s own expression

of its view that certain materials may be appropriate for that purpose.

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The Guide is a straightforward instance of government speech and,

accordingly, not subject to challenge under the First Amendment, which is

designed to guard against restrictions on private speech. The Commonwealth’s

message about the Armenian Genocide, expressed through the selection of

materials for inclusion in the Guide, is consistent with the position previously

taken by the Commonwealth and at least forty-one other states: that the atrocities

perpetrated upon the Armenian people between 1915 and 1923 were part of the

systematic extermination of a particular race, i.e., a genocide. Nothing in the

Guide prevents plaintiffs (or anyone else) from taking, expressing, studying, or

teaching a different view of the matter. Notably, plaintiffs do not allege that the

Commonwealth’s refusal to include genocide-denying materials in the Guide has

reduced or in any way affected their access to such materials.

Both this Court and the Supreme Court have recently reaffirmed that the

Commonwealth may decide which materials it chooses to “recommend” in its

“guidelines.” The First Amendment does not require it to include, or forbid it from

excluding, materials that express views that the Commonwealth does not wish to

espouse. If plaintiffs are dissatisfied with the content of the Commonwealth’s

speech in the Guide, their remedy is the political process, not a lawsuit. As the

district court recognized, plaintiffs in this case are “fully capable of

participating”—and did participate—in that process, through which the content of

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government speech is properly determined. Add. 7.1 The district court correctly

dismissed the complaint, and this Court should affirm.

ARGUMENT

I. THE GUIDE’S RECOGNITION AND COMMEMORATION OF THE


ARMENIAN GENOCIDE ARE GOVERNMENT SPEECH

Chapter 276 of the Acts and Resolves of 1998 (Chapter 276) directs the

Massachusetts Board of Education to “formulate recommendations on curricular

material on genocide and human rights issues, and guidelines for the teaching of

such material” that would be available “to all school districts in the commonwealth

on an advisory basis.” Chapter 276 identified several specific examples of topics

that might be included in such a curriculum: “the period of the transatlantic slave

trade and the middle passage, the great hunger period in Ireland, the Armenian

[G]enocide, the [H]olocaust and the Mussolini fascist regime and other recognized

human rights violations and genocides.” Id.

The Massachusetts legislature thus directed the Board of Education to issue

guidelines that would implement the Commonwealth’s judgment regarding the

importance of educating Massachusetts students about “recognized human rights

violations and genocides,” such as the “Armenian [G]enocide.” Id. The Board

complied with Chapter 276’s mandate by developing and promulgating the

1
Citations to “Add.” refer to the Addendum to the Brief of Plaintiff-Appellants;
citations to “A__” refer to Appellants’ Appendix.

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Massachusetts Guide to Choosing and Using Curricular Materials on Genocide

and Human Rights (the Guide).

Echoing Chapter 276, the Guide states at its outset that it “offers

recommendations for locating and selecting curriculum materials on genocide and

human rights issues, and guidelines for the teaching of such materials.” A218

(emphasis added). The Guide also repeats the Commonwealth’s view that

Massachusetts students should be taught history to educate them about their role

and responsibilities as citizens: “Knowing the past is a precondition to making

responsible choices in the present.’” A227 (quoting the Department of Education’s

History and Social Science Framework). With respect to the history of genocide in

particular, the Guide states the following position of the Commonwealth:

Learning about genocide in history and its persistence into the present
day is important for today’s students. Although most students learn
about the Nazi Holocaust, they may regard it as an isolated
phenomenon, and do not learn that many such incidents of intentional
mass killings have occurred all over the world and throughout history.

In the study of genocide and human rights issues, students and their
teachers confront some of the most difficult and dreadful aspects of
human behavior: hatred, prejudice, cruelty, suffering, legalized
discrimination, and mass murder. The study of episodes such as the
Armenian Genocide and the Holocaust often causes students and
teachers to question why such atrocities occurred, whether they could
occur elsewhere, and how they might be prevented.

A218, 219.

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To this end, the Guide contains recommendations of specific materials that

teachers may (but need not) consult in building a curriculum. The Guide states that

“[t]he Massachusetts Department of Education does not endorse or mandate any

curriculum materials, but offers the guidelines below.” A232 (emphasis added).

The Guide then provides a series of recommended criteria for educators to consider

in choosing curricular materials (A232-233), questions that Internet users should

ask in conducting independent research (A233), and a selection of resources for

teaching about genocide and human rights issues (A233-238). The Guide therefore

contains the Commonwealth’s affirmative expression of its view that

Massachusetts educators should teach the history of human rights violations and

provides “recommendations” (or “guidelines”) as to how educators could construct

such a curriculum.

By the same token, the Commonwealth does not recommend materials that

deny the occurrence of the Armenian Genocide, just as it does not recommend

materials that deny the occurrence of the Holocaust, the transatlantic slave trade, or

the Mussolini fascist regime. To do so would undermine the Commonwealth’s

stated message that past genocides and human rights violations should be studied

for insight into “why such atrocities occurred, whether they could occur elsewhere,

and how they might be prevented.” A219; see also Add. 3-4 (district court

opinion).

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The Commonwealth’s message about the Armenian Genocide, as expressed

in Chapter 276 and the Guide, is consistent with the official position expressed by

both the legislative and executive branches of the Massachusetts state government

long before the passage of Chapter 276 and dating back to at least 1978. See, e.g.,

Res. of Apr. 13, 2006, Mass. Gen. Ct., “On the Occasion of the Day of

Remembrance of the Armenian Genocide of 1915 to 1923”; H. Bill No. 3629,

181st Gen. Ct., 1997 Reg. Sess. (Mass. Jan. 1, 1997) (“An Act Relative To The

Instruction Of The Great Hunger Period in Ireland, The Armenian Genocide, And

The Holocaust”); S.J. Res. of April 19, 1990, Mass. Gen. Ct., “On the Occasion of

a Day of Remembrance for the Armenian Genocide of 1915-1923”; Gubernatorial

Proclamation (Mass. Mar. 23, 1990) (“Since 1915, April 24th of every year has

been imprinted in the memory of the Armenian people worldwide. It was then that

the mass genocide of the Armenian people began in the Ottoman Turkish

Empire …. Our prayers … will serve to remind governments of the world that

persecution, torture, and killing must cease forever.”); Gubernatorial Proclamation

(Mass. Feb. 19, 1986) (similar); Mass. Gen. Laws ch. 6, § 15II (“The governor

shall annually issue a proclamation setting apart the twenty-fourth day of April as

Armenian Martyrs’ Day, and recommending that said day be observed in an

appropriate manner by the people.”).

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Massachusetts is not alone in its determination that the events of 1915-1923

were genocide and should be acknowledged and commemorated as such. At least

forty-one other states have explicitly recognized the Armenian Genocide, whether

by legislative resolution, executive proclamation or both; often such resolutions or

proclamations are renewed annually. See Appendix A (listing official recognitions

by U.S. states). Recognition of the Armenian Genocide has been similarly

widespread abroad. See Appendix B (listing official recognitions by foreign

governments).

However, it is undisputed that the Commonwealth does not require any

student to agree that the Armenian Genocide and the Holocaust were in fact

genocide, just as it does not compel teachers to employ, or students to read, any of

the materials recommended in the Guide. It certainly does not forbid teachers or

students from accessing, reading, or teaching materials other than those

recommended in the Guide and that may deny that the Holocaust or the Armenian

Genocide ever happened. As the district court found, plaintiffs have never alleged

that the Guide has impeded their access to whatever materials they would choose

to study or teach. Add. 20 (complaint does not allege that “either the student or

teacher plaintiffs has been denied access in school to the contra-genocide websites

that were removed from the Curriculum Guide or comparable information”).

Appellants do not challenge this conclusion on appeal. Accordingly, this Court’s

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review proceeds on the settled proposition that the Guide does not affect the ability

of students and educators to examine, study, or teach any material, including the

genocide-denying materials plaintiffs have put forward.2

II. PLAINTIFFS HAVE FAILED TO STATE A FIRST AMENDMENT


CLAIM BECAUSE THE FREE SPEECH CLAUSE DOES NOT LIMIT
THE COMMONWEALTH’S ABILITY TO CHOOSE THE CONTENT
OF ITS OWN SPEECH REGARDING EDUCATIONAL MATTERS

The Supreme Court has repeatedly held that “the Government’s own speech

… is exempt from First Amendment scrutiny.” Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550, 553 (2005). Accordingly, “when the State is the speaker, it may

make content-based choices.” Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819, 833 (1995). These choices include the discretion to control what

is—or, as here, “what … is not expressed”—when the government is the speaker.

Id. “It is inevitable that government will adopt and pursue programs and policies

within its constitutional powers but which nevertheless are contrary to the

profound beliefs and sincere convictions of some of its citizens.” Board of Regents

of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000).

2
In their complaint, Plaintiffs alleged only that they “may be denied the
opportunity to receive contra-genocide viewpoints in school.” A39 (emphasis
added). Given that the original student plaintiffs who brought this case in 2005
have presumably graduated by now, one would have expected that any actual
denial of access to genocide-denying viewpoints could and would have been
alleged.

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The Commonwealth’s chosen message in the Guide is particularly worthy of

protection from First Amendment challenge because of the educational context in

which it arose. As the district court correctly recognized, “decisions concerning

the content of public education are, except in limited circumstances not applicable

here, to be left to the exercise of discretion by state and local officials rather than

made by federal judges.” Add. 29-30 (collecting cases). Public education “fulfills

a most fundamental obligation of government to its constituency” by preparing

students “for participation as citizens” and by “preserv[ing]” the “values on which

our society rests.” Ambach v. Norwick, 441 U.S. 68, 76 (1979) (internal quotation

marks omitted). In addition to its importance in acquainting students with their

environment and preparing them for a productive life in society, education is “the

very foundation of good citizenship.… [I]t is a principal instrument in awakening

the child to cultural values.” Brown v. Board of Educ., 347 U.S. 483, 493 (1954);

see also Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998)

(comparing a broadcaster’s permissible content-based choices to “a university

selecting a commencement speaker … or a public school prescribing its

curriculum”); Rosenberger, 515 U.S. at 833 (noting that when the state

“determines the content of the education it provides, it is the [state] speaking, and

we have permitted the government to regulate the content of what is or is not

expressed when it is the speaker”).

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For this reason, government speech principles apply with particular force in

the educational context. For example, Chiras v. Miller, 432 F.3d 606, 609-610

(5th Cir. 2005), properly relied upon by the district court, involved an

environmental science textbook that had been rejected by the Commissioner of

Education for use in public schools after “conservative think-tank organizations”

had requested and received a reopening of the period for public comment. Id. The

Fifth Circuit held that the state’s selection of textbooks for use in the curriculum

was “to facilitate transmission of its own approved message” and that the

textbook’s author had no right of access to the curriculum. Id. at 616. So too here.

The state must be free to “recommend,” “guide,” or “advise” the use of particular

materials and not others when it is acting as speaker. To hold otherwise would

forcibly dilute the government’s ability to educate and influence its citizens in the

manner contemplated by our system of public education.

The fact that the Guide consists in part of recommendations of the speech of

third parties does not make the Guide any less government speech. The state need

not “generate, as an original matter, each item featured in the communication” in

order to be regarded as a speaker entitled to convey its message. Hurley v. Irish-

American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 570 (1995).

For example, “‘compilation of the speech of third parties’ is a communicative act,”

and by applying its discretion in the selection and presentation of particular

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materials, a government entity engages in speech activity. PETA, Inc. v. Gittens,

414 F.3d 23, 28 (D.C. Cir. 2005) (quoting Forbes, 523 U.S. at 674).

This Court rejected a First Amendment challenge in a recent case with facts

strikingly similar to this one. In Sutliffe v. Epping School District, 584 F.3d 314

(1st Cir. 2009), a town’s board of selectmen had included a link on the town

website to an external site promoting a community event, but then refused a

request by the plaintiff that the town provide a link to the plaintiff’s own web page,

which expressed contrary views. Id. at 318-319. The plaintiff alleged that, by

posting an external link, the town had converted its own website into a designated

public forum and engaged in improper viewpoint discrimination. Id. at 323-324.

This Court rejected that argument, holding that the town’s actions “in setting up

and controlling a town website and choosing not to allow the [plaintiff’s]

hyperlinks, constituted government speech.” Id. at 329.

The Court was emphatic that a government entity “is entitled to say what it

wishes” and “to select the views that it wants to express.” 584 F.3d at 330

(internal quotation marks omitted). Moreover, “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 may constitute an expressive act by the government that is

independent of the message of the third-party speech.” Id. (citing Pleasant Grove

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City v. Summum, 129 S. Ct. 1125, 1131, 1133-1136 (2009)). Finally, the majority

rejected the plaintiff’s attempt to avoid the government speech doctrine by treating

the website as a public forum. As the Court noted, such an approach would “risk

flooding the Town website with private links, thus making it impossible for the

Town to effectively convey its own message and defeating the very purpose of the

website and the hyperlinks chosen by the Town.” Id. at 334.

Plaintiffs’ only response is to distort their own allegations. They accuse the

Commonwealth of “censorship” (Br. 20)—a claim utterly unsupported by the

complaint, which (as noted above) undisputedly does not allege that the Guide has

affected anyone’s access to any materials, much less “censor[ed]” any of them.

Similarly, the claim that the Commonwealth’s recommendation of materials

suitable for teaching the Armenian Genocide or the Holocaust constitutes an

“imposition of orthodoxy by political fiat in contravention of the First

Amendment” (id. at 21) is, when stripped of its rhetoric, merely a disagreement

with settled government speech jurisprudence. As Sutliffe makes plain, the

government may express its own views and recommendations on an issue of public

concern without violating the First Amendment. As the district court rightly

pointed out, “[f]ailing to include the websites among materials which may be

presented to students is not tantamount to restricting access to them.” Add. 20.

Because Appellants’ complaint did not allege that they were denied access to the

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contra-genocide materials excluded from the Guide, or that a single teacher or

student was prevented from expressing a contra-genocide viewpoint in school, no

First Amendment interest is implicated. See Miller v. Cal. Comm’n on the Status

of Women, 198 Cal. Rptr. 877, 882 (Cal. Ct. App. 1984) (noting the distinction—

critical for First Amendment purposes—between the government’s addition of its

own voice and the government’s silencing of others (citing Laurence H. Tribe,

American Constitutional Law 588 (1978))).

Like the hyperlinks in Sutliffe, the Commonwealth’s selection of materials

for inclusion in the Guide constituted its own speech. “That government must

regulate expressive activity with an even hand if it regulates such activity at all

does not mean that government must be ideologically neutral.” Miller, 198 Cal.

Rptr. at 882 (internal quotation marks omitted). Through a set of policies—

including legislative resolutions, Chapter 276, and the Guide—Massachusetts, like

many other governments, has chosen to commemorate the Armenian Genocide.

“To commemorate is to take a stand, to declare the reality of heroes (or heroic

events) worthy of emulation or, less frequently, that an event that occurred at a

particular place was indeed so terrible that it must be remembered forever after as a

cautionary note.” Sanford Levinson, Written In Stone: Public Monuments in

Changing Societies 137 (1998). The commemorative function lies at the core of

government’s use of speech to transmit expressive messages, which may include

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“the full set of political doctrines, historical narratives, exemplary figures,

celebratory occasions, and memorial rituals through which the state impresses

itself on the minds of its members.” Michael Walzer, On Toleration 76 (1997).

In selecting those events or ideas that they will celebrate, commemorate, or

endorse, governments in the United States are not required to give equal

recognition to opposite or even different points of view. Without this basic

freedom to choose the content of their official messages, governments would lose

the ability to express views on the importance of various historical events. For

instance, the City of Boston has chosen to display monuments that commemorate

several events identified by Chapter 276 as “recognized human rights violations

and genocides”:

• The Soldiers’ and Sailors’ monument on Boston Common states: “To the

Men of Boston/Who Died for their country/On Land and Sea in the

War/Which Kept the Union Whole/Destroyed Slavery/And Maintained the

Constitution/The Grateful City Has Built this Monument/That Their

Example May Speak to Coming Generations”;3

3
See Levinson 57 (photograph of the monument).

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• The 54th Regiment Memorial on Boston Common near the corner of Beacon

and Park Streets celebrates the first African-American regiment in the Civil

War;

• The Irish Famine Memorial monument stands at the corner of Washington

and School Streets in downtown Boston;

• The Boston National Historic Park maintains the site housing the New

England Holocaust Memorial.4

Boston, while displaying these monuments, is not required to erect

monuments to other human rights violations that many may consider no less

worthy of commemoration, such as the genocide in Rwanda, the massacre of

Bosnian Muslims at Srebrenica, or the millions of deaths caused by Joseph Stalin

or Mao Zedong. Boston is certainly not required to match its remembrance of

fallen Union troops and Holocaust victims with memorials to the Confederacy and

the Third Reich. See, e.g., Rust v. Sullivan, 500 U.S. 173, 194 (1991) (“When

Congress established a National Endowment for Democracy to encourage other

countries to adopt democratic principles, it was not constitutionally required to

fund a program to encourage competing lines of political philosophy such as

communism and fascism.” (citation omitted)).

4
See http://www.nehm.com/intro.html.

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The official recommendations expressed by the Commonwealth regarding

curricular materials are no less protected from First Amendment challenge than the

city government’s decision to recognize and remember particular historical events

in monuments. In the Guide, as in a monument, the Commonwealth has the

governmental authority to determine which messages it does and does not express

and what other materials it does and does not recommend. See Rosenberger, 515

U.S. at 833. To hold otherwise would lead to absurd and untenable results such as

requiring a National Endowment for Communism (Rust, 500 U.S. at 194), or

placement of a statute of Robert E. Lee next to every statute of Ulysses S. Grant

(PETA, 414 F.3d at 29).

Plaintiffs fasten onto the fact that the recommendations in the Guide are not

“mandatory” (Appellants’ Br. 24), but that does not change the analysis.

Monuments are not mandatory either; they do not require citizens to take any

particular action and, indeed, the governmental message they convey may vary

with each observer. Summum, 129 S. Ct. at 1135. Yet their non-mandatory nature

does not make them any less government speech, nor does it give plaintiffs any

First Amendment right to insist on judicial control of their content. The same is

true of the “advisory” message expressed in the Guide; that it reflects the

Commonwealth’s “advice” or “guidance” regarding potential curricular materials,

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rather than an unequivocal command, does not make it any less the

Commonwealth’s message.

Similarly, plaintiffs’ allegations that the Guide’s proposed content changed

part-way through the process, such that references to plaintiffs’ desired materials

were initially included and then removed (see, e.g., Appellants’ Br. 19-20), does

not change the fact that the final Guide reflects the Commonwealth’s chosen

message. It would be nonsensical if the government were free to make content-

based decisions in choosing its message only in its first draft, but had no freedom

to revise the message thereafter. The fact that contra-genocide materials were at

one point included in the draft Guide did not somehow estop the government from

reconsidering the content of its speech going forward; if it did, then removal of any

material from the Guide could spawn additional litigation. Notably, the Board also

removed certain non-denialist materials from the Guide in response to objections

by a Turkish group; were this Court to accept plaintiffs’ view of the law, that

decision could be challenged as well. See, e.g., A97 (Letter from Commissioner

Driscoll to TACS-NE President identifying certain non-denialist materials that

were also included and then removed from the Guide); see also Appellees’ Br. 10

(discussing removal of non-denialist materials as a result of lobbying by a Turkish

group). And the allegation that the change occurred through “political” means

(Appellants’ Br. 20-21) does not advance plaintiffs’ case at all. On the contrary, it

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is precisely through political mechanisms (not judicial ones) that the content of

government speech should be determined. See Sutliffe, 584 F.3d at 331 n.9; Add.

7, 29-30 (district court opinion).5

If citizens—including plaintiffs—are dissatisfied with what the government

chooses to say, their recourse is the political process. Southworth, 529 U.S. at 235

(“When the government speaks, … it is, in the end, accountable to the electorate

and the political process for its advocacy.”). “Democracy, in other words, ensures

that government is not untouchable when its speech rubs against the First

Amendment interests of those who object to supporting it; if enough voters

disagree with what the government says, the next election will cancel the

message.” Johanns, 544 U.S. at 575 (Souter, J., dissenting); accord Griffin v.

Secretary of Veterans Affairs, 288 F.3d 1309, 1324-1325 (Fed. Cir. 2002) (“The

government is entitled to full control over its own speech, whether it speaks with

its own voice or enlists private parties to convey its message, and the remedy for

dissatisfaction with its choices is political rather than judicial.”). Indeed, as the

district court recognized (Add. 7, 30-31), the record in this case shows that

denialist groups are well aware of how to use the political process to their

advantage, and indeed did so in this case by lobbying for the inclusion of denialist

5
Government speech may also be limited by the Establishment Clause, the Equal
Protection Clause, or other constitutional provisions. Sutliffe, 584 F.3d at 331 n.9.
No such claim is raised in this case.

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materials that were not in the first draft of the Guide. See, e.g., A93-112 (Compl.

Exs. 2-7).6

The plurality opinion in Board of Education, Island Trees Union Free

School District No. 26 v. Pico, 457 U.S. 853 (1982), does not compel a different

result, and this Court can affirm the district court here without questioning Pico’s

precedential value. Even taking the well-pleaded allegations in this complaint as

true, this case falls well outside Pico because the choice of materials for inclusion

in an advisory curricular Guide does not affect any student’s or teacher’s “access”

to any particular ideas or materials. Id. at 868 (plurality opinion). Plaintiffs are

wrong to suggest that the district court was required to accept as true the

“allegation” that the Guide was “liken[ed] … to an electronic school library” and

thus governed by Pico. Appellants’ Br. 12. Rule 12(b)(6) only requires the district

6
Plaintiffs’ suggestion that Massachusetts’s statements that the Armenian Genocide
should be recognized and taught could somehow be “preempted” (Br. 20-21) is
meritless. Plaintiffs never asserted a preemption claim below, so the issue is not
before this Court. Moreover, the decision plaintiffs cite involved a California
statute that extended the limitations period for certain causes of action arising out
of the Armenian Genocide, which a divided Ninth Circuit panel held was
preempted by the federal foreign affairs power. Movsesian v. Victoria
Versicherung AG, 578 F.3d 1052, 1053 (9th Cir. 2009). The Ninth Circuit
nowhere suggested that the preemption doctrine could prevent a state from
engaging in government speech recognizing the Armenian Genocide. Indeed, the
Movsesian panel specifically did not consider the numerous state resolutions and
enactments doing just that (see Appendix A); rather, the court noted that the parties
had not cited such materials. See Movsesian, 578 F.3d at 1061-1062. Amici
Armenian Bar Association, Armenian National Committee of America, and Zoryan
Institute have submitted a brief in support of a petition for rehearing in Movsesian.

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court to take well-pleaded facts as true; it is not required to accept plaintiffs’ legal

conclusions. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-1950 (2009) (“[T]he

tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions .… Although for the purposes of a motion to

dismiss we must take all of the factual allegations in the complaint as true, we ‘are

not bound to accept as true a legal conclusion couched as a factual allegation.’”

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). The statement

that the Guide is “indistinguishable from a school library” (Appellants’ Br. 2) is

just that—a legal conclusion. Plaintiffs’ own amicus calls it a “contention.”

ACLU of Massachusetts Br. 5. The district court properly rejected that contention

because the factual allegations in the complaint do not support treating the Guide

like a library. Among other reasons, the complaint does not allege that the Guide,

a publication of the state Board of Education, occupies the same or a similar

position to a library, whose “unique role” is as a “regime of voluntary inquiry”

separate from the “compulsory environment of the classroom.” Pico, 457 U.S. at

869. Exclusion of materials from the Guide was never alleged to have “den[ied]

[students] access to ideas with which [the Commonwealth] disagreed.” Id. at 871;

see Add. 22-23 (district court opinion). Unlike the students in Pico, plaintiffs

retain exactly the same ability to read and consult the genocide-denying materials

as they would have if the Guide had never been published. The ability of local

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school committees and teachers to shape their own curriculum is likewise

unaffected by the Guide. Thus, the district court was fully entitled to conclude that

plaintiffs had failed to allege facts sufficient to bring this case within the sphere of

Pico, notwithstanding their conclusory legal assertion to the contrary. Iqbal, 129

S. Ct. at 1950; see also Maldonado v. Fontanes, 568 F.3d 263, 268, 273-274 (1st

Cir. 2009) (applying Iqbal).

The Guide, developed for use in public education pursuant to a legislative

mandate, neither compels nor curtails any private speech, nor does it restrict

anyone’s right to access denialist materials. Plaintiffs remain free to ignore the

Guide’s recommended resources, to read materials that express contrary views, and

to express such views themselves, just as they may ignore the Holocaust Memorial,

read books that side with the Confederacy, or deny the relevance of the Irish

Famine to our national heritage. But they cannot force the Commonwealth of

Massachusetts to issue a recommendation in favor of materials denying that the

Armenian Genocide occurred.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be

affirmed.

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Respectfully submitted,

/s/ Mark C. Fleming

MARK C. FLEMING (NO. 102958)


WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000 (t)
(617) 526-5000 (f)

Counsel for the Armenian Bar Association,


Armenian National Committee of America,
The Genocide Education Project, and the
Zoryan Institute for Contemporary
Armenian Research and Documentation

/s/ Edward J. Barshak

EDWARD J. BARSHAK (NO. 10831)


SUGARMAN, ROGERS, BARSHAK
& COHEN, P.C.
101 Merrimac Street
Boston, MA 02114
(617) 227-3030 (t)
(617) 523-4001 (f)

Counsel for Jewish Alliance for Law and


Social Action and Irish Immigration Center

January 13, 2010

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APPENDIX A

Selected State Authorities Officially Recognizing The Armenian Genocide1

State Citation

Alaska Legis. Resolve No. 13, Source SR-20 (Alaska 1990)


Gubernatorial Proclamation (Alaska Apr. 19, 1990)

Arizona Gubernatorial Proclamation (Ariz. Apr. 23, 1990)

Arkansas Gubernatorial Proclamation (Ark. Mar. 27, 2001)

California Assemb. Con. Res. 78, 1967-68 Reg. Sess. (Cal. Apr. 15, 1968)
Assemb. J. Res. 14, 1978-89 Reg. Sess. (Cal. Mar. 6, 1979)
Assemb. Con. Res. 130, 1979-80 Reg. Sess. (Cal. Apr. 18, 1980)
Assemb. Con. Res. 51, 1980-81 Reg. Sess. (Cal. Apr. 23, 1981)
Assemb. J. Res. 73, 1989-90 Reg. Sess. (Cal. Mar. 13, 1990)
S. Res. 19, 1991-92 Reg. Sess. (Cal. Apr. 11, 1991)
Assemb. J. Res. 84, 1993-94 Reg. Sess. (Cal. Apr. 24, 1994)
Assemb. Con. Res. 19, 1995-96 Reg. Sess. (Cal. May 4, 1995)
Assemb. Con. Res. 26, 1995-96 Reg. Sess. (Cal. Apr. 24, 1995)
Assemb. Con. Res. 82, 1995-96, Reg. Sess. (Cal. Apr. 24, 1996)
Assemb. Con. Res. 51, 1997-98 Reg. Sess. (Cal. May 7, 1997)
Assemb. Con. Res. 138, 1997-98 Reg. Sess.. (Cal. Apr. 23, 1998)
Assemb. Con. Res. 20, 1999-2000 Reg. Sess. (Cal. May 3, 1999)
S. Con. Res. 62, 1999-2000 Reg. Sess. (Cal. May 11, 2000)
S.J. Res. 5, 2001-02 Reg. Sess. (Cal. Apr. 30, 2001)
Assemb. J. Res. 44, 2001-02 Reg. Sess. (Cal. Apr. 26, 2002)
S.J. Res. 1, 2003-04 Reg. Sess. (Cal. Apr. 10, 2003)

1
This list is not intended to be exhaustive. For a more complete list, please see
Armenian National Institute, International Affirmation of the Armenian Genocide,
http://www.armenian-genocide.org/affirmation.html (last visited Oct. 26, 2009).
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Cal. Gov’t Code § 6720 (2005)

Gubernatorial Proclamation (Cal. Apr. 8, 1986)


Gubernatorial Proclamation (Cal. Apr. 2, 1987)
Gubernatorial Proclamation (Cal. Apr. 18, 1990)
Gubernatorial Proclamation (Cal. Apr. 16, 1991)
Gubernatorial Proclamation (Cal. Apr. 22, 1994)
Gubernatorial Proclamation (Cal. Apr. 2, 1997)
Gubernatorial Proclamation (Cal. Apr. 20, 2000)
Gubernatorial Proclamation (Cal. Apr. 11, 2001)
Gubernatorial Proclamation (Cal. Apr. 3, 2003)
Gubernatorial Proclamation (Cal. Apr. 22, 2004)
Gubernatorial Proclamation (Cal. Apr. 24, 2005)
Gubernatorial Proclamation (Cal. Apr. 21, 2006)
Gubernatorial Proclamation (Cal. Apr. 6, 2007)
Gubernatorial Proclamation (Cal. Apr. 7, 2008)
Gubernatorial Proclamation (Cal. Apr. 13, 2009)

Colorado S.J. Res. 22, 63d Gen. Assemb., 2d Reg. Sess. (Colo. Apr. 24, 2002)
H.J. Res. 1049, 64th Gen. Assemb., 1st Reg. Sess. (Colo. Apr. 24,
2003)
H.J. Res. 1050, 64th Gen. Assemb., 2d Reg. Sess. (Colo. Apr. 16,
2004)
S.J. Res. 22, 65th Gen. Assemb., 1st Reg. Sess. (Colo. Apr. 24, 2005)
S.J. Res. 23, 65th Gen. Assemb., 2d Reg. Sess. (Colo. Apr. 10, 2006)
S.J. Res. 30, 66th Gen. Assemb., 1st Reg. Sess. (Colo. Apr. 24, 2007)
S.J. Res. 24, 66th Gen. Assemb., 2d Reg. Sess. (Colo. Apr. 24, 2008)
S.J. Res. 41, 67th Gen. Assemb., 1st Reg. Sess. (Colo. Apr. 24, 2009)

Gubernatorial Proclamation (Colo. Mar. 14, 1990)

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Connecticut Gubernatorial Proclamation (Conn. Apr. 24, 1990)


Gubernatorial Proclamation (Conn. Apr. 24, 2001)
Gubernatorial Proclamation (Conn. Apr. 26, 2008)
Gubernatorial Proclamation (Conn. Apr. 25, 2009)

Delaware Sen. Con. Res. 19, 138th Gen. Assemb. (Del. Apr. 11, 1995)
H. Res. 14, 144th Gen. Assemb. (Del. Apr. 5, 2007)

Florida Gubernatorial Proclamation (Fla. Apr. 27, 1990)


Gubernatorial Proclamation (Fla. Apr. 7, 2006)

Georgia S. Res. 118, 145th Gen. Assemb., 1999-2000 Reg. Sess. (Ga. Feb.
8, 1999)

Hawaii H.R. Res. 192, 25th Leg. (Haw. Apr. 6, 2009)

Idaho Gubernatorial Proclamation (Idaho Apr. 20, 2004)

Illinois H.R. Res. 1470, 86th Gen. Assemb., 1989-90 Reg. Sess. (Ill. Apr. 3,
1990)
S. Res. 870, 86th Gen. Assemb., 1989-90 Reg. Sess. (Ill. Apr. 5,
1990)
S. Res. 50, 89th Gen. Assemb., 1995-96 Reg. Sess. (Ill. Apr. 20,
1995)
H.R. Res. 113, 90th Gen. Assemb., 1997-98 Reg. Sess. (Ill. Apr. 24,
1997)
105 Ill. Comp. Stat. 5/27-20.3 (2005)

Gubernatorial Proclamation (Ill. Apr. 19, 1990)


Gubernatorial Proclamation (Ill. Mar. 23, 1999)
Gubernatorial Proclamation (Ill. Apr. 27, 2000)
Gubernatorial Proclamation (Ill. Mar. 11, 2005)

Kansas Gubernatorial Declaration (Kan. Apr. 20, 2005)

Kentucky Gubernatorial Declaration (Ky. Apr. 28, 2008)

Louisiana Gubernatorial Proclamation (La. Apr. 18, 2004)

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Maine H.R.J. Res. 1204, 119th Leg., 2d Reg. Sess. (Me. Apr. 7, 2000)
H.R.J. Res. 1373, 120th Leg., 1st Reg. Sess. (Me. June 13, 2001)

Maryland H.R. J. Res. 3, 415th Gen. Assemb., 2001 Reg. Sess. (Md. May 18,
2001)
S.J. Res. 5, 2001 Reg. Sess. (Md. Mar. 26, 2001)

Gubernatorial Proclamation (Md. Apr. 24, 1987)


Gubernatorial Proclamation (Md. Apr. 24, 1990)

Massachusetts S. J. Res. of April 19, 1990, Mass. Gen. Ct. (Mass. Apr. 19, 1990)
H. Bill No. 3629, 181st Gen. Ct., 1997 Reg. Sess. (Mass. Apr. 24,
1997)
Mass. Gen. Ct. (Mass. 2006)
Mass. Gen. Laws ch. 6, § 15II (1978)

Gubernatorial Proclamation (Mass. Feb. 19, 1986)


Gubernatorial Proclamation (Mass. Mar. 23, 1990)

Michigan H.R. Con. Res. 640 (Mich. Mar. 27, 1990)


H. Res. 74, 90th Leg., 1999 Reg. Sess. (Mich. Apr. 22, 1999)
S. Res. 44, 90th Leg., 1999 Reg. Sess. (Mich. Apr. 20, 1999)
Act No. 558, 91st Leg., 2002 Reg. Sess. (Mich. Aug. 28, 2002)

Gubernatorial Proclamation (Mich. Mar. 13, 1986)


Gubernatorial Proclamation (Mich. Apr. 16, 1990)

Minnesota Gubernatorial Proclamation (Minn. Mar. 16, 2001)


Gubernatorial Proclamation (Minn. Apr. 20, 2005)

Missouri H. Con. Res. 4, 91st Gen. Assemb., 2d Reg. Sess. (Mo. May 8,
2002)

Montana Letter from Mont. Governor to Armenian Nat’l Comm. of Am.


(Apr. 2004)

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Nebraska Gubernatorial Proclamation (Neb. Apr. 23, 2004)

Nevada Gubernatorial Proclamation (Nev. Apr. 11, 2000)

New S. Res. 7, 1990 Sess. (N.H. Apr. 24, 1990)


Hampshire Gubernatorial Proclamation (N.H. Apr. 22, 2005)

New Jersey Gen. Assemb. Res. (N.J. Apr. 1, 1975)


Assemb. J. Res. 113 (N.J. Apr. 5, 1990)
Assemb. J. Res. 125, 211th Leg. (N.J. May 5, 2005)

Gubernatorial Proclamation (N.J. Apr. 7, 1986)


Gubernatorial Proclamation (N.J. Apr. 1, 2002)
Gubernatorial Proclamation (N.J. Mar. 15, 2004)
Gubernatorial Proclamation (N.J. Apr. 18, 2006)
Gubernatorial Proclamation (N.J. Apr. 24, 2007)

New Mexico S.J. Mem’l 34,. 45th Leg., 1st Sess. 2001 (N.M. Mar. 10, 2001)
H.J. Mem’l 117, 46th Leg., 1st Sess. 2003 (N.M. Mar. 13, 2003)
Gubernatorial Proclamation (N.M. Apr. 24, 2006)

New York Assembly Res. 776 (N.Y. Apr. 4, 1986)


S. Legis. Res. 810 (N.Y. May 6, 1986)
Legis. Res. 753, S. Res. 927 (N.Y. May 5, 1987)
Legis. Res. J4589 (N.Y. Apr. 19, 2002)

Gubernatorial Proclamation (N.Y. Apr. 21, 1987)


Gubernatorial Proclamation (N.Y. Apr. 24, 1999)
Gubernatorial Proclamation (N.Y. Apr. 17, 2000)
Gubernatorial Proclamation (N.Y. Apr. 21, 2001)
Gubernatorial Proclamation (N.Y. Apr. 22, 2002)
Gubernatorial Proclamation (N.Y. Apr. 24, 2003)
Gubernatorial Proclamation (N.Y. Apr. 24, 2004)

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Gubernatorial Proclamation (N.Y. Apr. 19, 2006)


Gubernatorial Proclamation (N.Y. Apr. 24, 2009)

North Gubernatorial Proclamation (N.C. Apr. 23, 1999)


Carolina

North Dakota H.R. Con. Res. 3003, 60th Leg. Assemb., 2007 Reg. Sess. (N.D.
Apr. 5, 2007)

Oklahoma S. Con. Res. 68 (Okla. Mar. 26, 1990)

Ohio Gubernatorial Proclamation (Ohio Apr. 17, 2007)

Oregon Gubernatorial Proclamation (Or. Apr. 23, 1990)

Pennsylvania H.R. Res. 110, 181st Gen. Assemb., 1997-98 Reg. Sess. (Pa. Apr.
14, 1997)
H.R. Res. 361, 182d Gen. Assemb., 1997-98 Reg. Sess. (Pa. Mar.
16, 1998)
H.R. Res. 94, 1999 Sess. (Pa. Apr. 12, 1999)
H.R. Res. 427, 2000 Sess. (Pa. Apr. 18, 2000)
H.R. Con. Res. 112 (Pa. May 2, 2001)
H.R. Con. Res. 593, 2004 Sess. (Pa. Mar. 15, 2004)
H.R. Con. Res. 172, 2005 Sess. (Pa. Mar. 28, 2005)

Gubernatorial Proclamation (Pa. Apr. 19, 1990)

Rhode Island S. Res. (R.I. Apr. 4, 1990)


H.R. Res. 4035, 92d Gen. Assemb. (R.I. Apr. 27, 1990)
H.R. Res. 9021, 96th Gen. Assemb. (R.I. Apr. 24, 1996)
H.R. Res. 6824, 1997-98 Leg. Sess. (R.I. Apr. 24, 1997)
H.R. Res. 9016 (R.I. Apr. 23, 1998)
H.R. Res. 6428, 99th Gen. Assemb., 1999-2000 Leg. Sess. (R.I.
1999)
H.R. Res. 8161, 1999-2000 Leg. Sess. (R.I. Apr. 12, 2000)
S. Res. 2916, 1990-2000 Leg. Sess. (R.I. Apr. 13, 2000)

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H.R. Res. 6344, 2001-02 Leg. Sess. (R.I. Apr. 24, 2001)
S. Res. 917, 2001-02 Leg. Sess. (R.I. Apr. 24, 2001)
H.R. Res. 8056, 2001-02 Leg. Sess. (R.I. Apr. 24, 2002)
S. Res. 2958, 2001-02 Leg. Sess. (R.I. Apr. 24, 2002)
H.R. Res. 6336, 2003-04 Leg. Sess. (R.I. Apr. 10, 2003)
H.R. Res. 7039 (R.I. Jan. 8, 2004)
S. Res. 3016 (R.I. Apr. 22, 2004)
H.R. Res. 6320 (R.I. Apr. 11, 2005)
S. Res. 1030 (R.I. Apr. 27, 2005)
R.I. Gen. Laws § 16-22-22 (2005)
H.R. Res. 8013 (R.I. Apr. 12, 2006)
S. Res. 3011 (R.I. Apr. 12, 2006)
H.R. Res. 6307 (R.I. July 13, 2007)
S. Res. 0936 (R.I. Apr. 27, 2007)
H.R. Res. 8205 (R.I. Apr. 24, 2008)
S. Res. 2987 (R.I. Apr. 24, 2008)

Gubernatorial Proclamation (R. I. June 29, 1990)


Gubernatorial Proclamation (R.I. Apr. 24, 2005)
Gubernatorial Proclamation (R.I. Apr. 24, 2006)
Gubernatorial Proclamation (R.I. Apr. 24, 2008)

South H.R. Con. Res. 3618, Gen. Assemb., 113th Sess. (S.C. Apr. 24,
Carolina 1999)

Tennessee Gubernatorial Proclamation (Tenn. Apr. 23, 2004)

Utah Gubernatorial Proclamation (Utah Apr. 2001)

Vermont Gubernatorial Proclamation (Vt. Apr. 24, 2004)

Virginia Certificate of Recognition (Va. Apr. 24, 1990)


H.R.J. Res. 298, 2000 Sess. (Va. Mar. 9, 2000)

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Gubernatorial Proclamation (Va. Apr. 24, 1990)


Gubernatorial Cert. of Recog. (Va. Apr. 24, 1996)
Gubernatorial Cert. of Recog. (Va. Apr. 24, 2002)

Washington Gubernatorial Proclamation (Wash. Apr. 20, 1990)

Wisconsin S.J. Res. 71 (Wis. Jan. 30, 1990)


Assemb. J. Res. 31, 92d Leg. Sess., 1995-96 Reg. Sess. (Wis. Apr.
3, 1995)
Assemb. Res. 42 (Wis. May 2, 2000)
S. Res. 14, 95th Leg. Sess., 2001-02 Reg. Sess. (Wis. Feb. 20,
2002)

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APPENDIX B

Foreign Recognition of the Armenian Genocide2

Foreign Official Recognition


Government or
Organization

Argentina Proyecto de Declaración [S. Decl.] 664/03 (Aug. 20, 2003)


(Arg.)

Australia N.S.W. Parl. Res. of Apr. 17, 1997 (Austl.)

Belgium S. Res. 1-736/3, 1997-1998 Sess. (Mar. 26, 1998) (Belg.)

Canada H.C. Res., Private Members’ Bus. M-380 (Apr. 21, 2004)
(Can.)

Cyprus H.R. Res. of Apr. 29, 1982 (Cyprus)

France Loi no. 2001-70 de L’Assemblée nationale et le Sénat [Nat’l


Assemb. and S.L. No. 2001-70], J.O. 1590 (Jan. 29, 2001)
(Fr.)

Greece Hellenic Parl. Res. 2397/1996 (Apr. 25, 1996) (Greece)

Lebanon Chamber of Deputies Parl. Res. of May 11, 2000 (Leb.)

Russia State Duma Res. of Apr. 14, 1995, Fed. Assemb. of Russian
Fed’n (Russ.)

Sweden Res. of Parl. Standing Comm. on Foreign Affairs of Mar. 29,


2000, reported by For. Ministry (Swed.)

Switzerland Nat’l Council Res. 02.3069 (Dec. 16, 2003) (Switz.)

Uruguay S. & H.R. Bill No. 17.752 (Mar. 26, 2004) (Uru.)

2
This list is not intended to be exhaustive. For a more complete list, please see
Armenian National Institute, International Affirmation of the Armenian Genocide,
http://www.armenian-genocide.org/affirmation.html (last visited Oct. 26, 2009).

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European Union Report of the Political Affairs Committee on a Political


Solution to the Armenian Question, Eur. Parl. Doc. A2-33/87
(Apr. 15, 1987) (“[T]he tragic events in 1915-1917 involving
the Armenians living in the territory of the Ottoman Empire
constitute genocide within the meaning of the convention on
the prevention and the punishment of the crime of genocide
adopted by the UN General Assembly on 9 December
1948.”)
Council of Eur. Parl. Assemb. Doc. 9056, Written Decl. No.
320 (Apr. 24, 2001) (“Commemorating today the anniversary
of the first genocide of the 20th century – the Armenian
genocide – and paying tribute to the memory of its victims”)
Council of Eur. Parl. Assemb. Doc. 8091, Written Decl. No.
275 (Apr. 24, 1998) (“Commemoration of the Armenian
genocide of 1915”)

United Nations U.N. ESCOR, 38th Sess., 36th mtg. at 7, U.N. Doc.
E/CN.4/Sub.2/1985/SR.36 (1985) (U.N. Sub-Commission on
Prevention of Discrimination and Protection of Minorities of
the Commission on Human Rights took note, by a 14-1 vote
(with 4 abstentions), of the historical fact of the Armenian
genocide)
Revised and Updated Report on the Question of the
Prevention and Punishment of the Crime of Genocide, U.N.
ESCOR, 38th Sess. (Prov. Agenda Item 4), at 8-9, U.N. Doc.
E/CN.4/Sub.2/1985/6 (July 2, 1985), as revised, U.N. Doc.
E/CN.4/Sub.2/1985/6/Corr.1 (Aug. 29, 1985) (similar action
by the United Nations Commission on Human Rights)

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of January, 2010, service of the

foregoing Corrected Brief of Amici Curiae Armenian Bar Association, Armenian

National Committee of America, Irish Immigration Center, Jewish Alliance for

Law and Social Action, The Genocide Education Project, and the Zoryan Institute

for Contemporary Armenian Research and Documentation, Inc. Supporting

Affirmance was made upon counsel for the parties via the automatically-generated

Notice of Docket Activity from the court’s CM/ECF filing system.

/s/ Mark C. Fleming


MARK C. FLEMING
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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the

undersigned hereby certifies that this brief complies with the type-volume

limitations of Federal Rule of Appellate Procedure 29(d) and Federal Rule of

Appellate Procedure 32(a)(7)(B).

1. Exclusive of the exempted portions of the brief, as provided in Federal

Rule of Appellate Procedure 32(a)(7)(B), the brief contains 5,296 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2003 in 14 point Times New Roman font. As permitted by

Federal Rule of Appellate Procedure 32(a)(7)(B), the undersigned has relied upon

the word count feature of this word processing system in preparing this certificate.

/s/ Mark C. Fleming


MARK C. FLEMING

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