Yesterday, the Ninth Circuit handed down Jacobson v. U.S. Dep't of Homeland Security; my students Alexandra Gianelli, Emily Michael, and Tracy Yao and I filed an amicus brief in the case on behalf of the Cato Institute, and I'm pleased to say that the Ninth Circuit's decision was largely consistent with what we asked for. First, the facts:

Leesa Jacobson and Peter Ragan—as part of a group called People Helping People—want to protest near a near-border immigration checkpoint, and to monitor what happens at the checkpoint (including by videorecording it). But the Border Patrol has set up an enforcement zone around the checkpoint—including some neighboring sidewalks—that would require them to move 150 feet or more away. Jacobson and Ragan sued, claiming that the enforcement zone improperly intruded into a traditional public forum, and was enforced in a viewpoint-based way: Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine "who can enter into the perimeter" and "where [Appellants] can and can't be." On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident's wife also arrived and parked inside the barrier. The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted "Well, we had our fun today" to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, "It's a free country." When the agent in charge learned of this incident from Appellants' counsel on April 16, 2014, he directed watch commanders to discuss the incident with checkpoint agents and make clear that what had been done was unacceptable. Subsequently, a surveyor hired by Appellants was allowed inside the enforcement zone. The agents on duty explained to the surveyor that "the barriers were in place only to exclude people who might interfere with Border Patrol activities, such as protestors." One agent invited the surveyor to share a meal with the agents on duty. On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone….

The District Court concluded that DHS should win as a matter of law, but the Ninth Circuit remanded for further discovery: