July 13, 2012
Court Upholds Regs Prohibiting Signature Collection on Interior Postal Sidewalks
A three-judge panel of the D.C. Circuit ruled in Initiative and Referendum Institute v. U.S. Postal Service that postal regulations prohibiting "collecting" signatures, but not "soliciting" then, on interior postal sidewalks did not violate the First Amendment. With the ruling, the D.C. Circuit answers a question addressed but not resolved in United States v. Kokinda and joins the five other circuits that have addressed the issue in holding that interior sidewalks at post offices are not public forums. (The Fourth Circuit ruled in 1989 that interior sidewalks were public forums, but the Supreme Court reversed in Kokinda.)
The case in just the latest chapter in an ongoing back-and-forth between the appellants and the Postal Service. The reg at issue here, 39 CFR Section 232.1(h)(1), tailored by the Postal Service after the last round in the courts, prohibits "collecting signatures on petitions" on all postal property except "sidewalks along the street frontage of postal property . . . that are not physically distinguishable from adjacent municipal or other public sidewalks." (These latter sidewalks are called "Grace sidewalks," after United States v. Grace, holding that "sidewalks forming the perimeter of the Supreme Court grounds" are traditional public forums, because they are "indistinguishable from any other sidewalks in Washington, D.C." In reaction to earlier rulings, the Postal Service revised its reg to exempt speech on Grace sidewalks.)
The court, using a functional approach, ruled that interior postal sidewalks are nonpublic forums, because of their limited purpose and use--to get into the Post Office. This doesn't seem terribly surprising, but part of the court's methodology may be: It relied on a district court-ordered survey of postmasters as to how their interior sidewalks are used. ("358 postmasters said that exterior spaces have been used for expressive activities and 4,736 said they have not." Op. at 10.)
Applying the test for the nonpublic forum, the court held the prohibition was reasonable because signature collectors block the flow of traffic into the building and because the Postal Service seeks to avoid the appearance of endorsing the group collecting signatures.
Still: Why treat solicitation differently than collection? The court said that this distinction is based on its own jurisprudence, following the plurality and Justice Kennedy in Kokinda. That is,
different consequences are likely to follow from merely asking postal customers for their signatures and actually collecting them. Collecting contributions involves the type of immediate response the Kokinda plurality thought could be reasonably banned because it would cause postal customers to stop, transact the business requested, and thus disrupt the flow of traffic at the post office.
Op. at 12. Not so for mere solicitation.
July 12, 2012
Constitutional Liability for Penn State?
The doctrine of DeShaney v. Winnebago is a harsh one. As the Fifth Circuit recently noted: "The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its students. Absent a special relationship, any analysis of the defendant’s conduct as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant."
Yet today's Freeh Group Report may test the limits of DeShaney. The just released report, available on Larry Cata' Backer's Penn State Faculty Senate Blog, details the events at Penn State that eventually led to the arrest and convicton of coach Jerry Sandusky for sexual abuse of ten children. The focus would not necessarily be on the university officials "failure to report" but on the "special relationship" that university officials fostered.
[image: Penn State Nittany Lion mascot via]
July 11, 2012
Second Circuit Strikes NYC Tobacco Warning Signs
A three-judge panel of the Second Circuit ruled this week in 94th St. Grocery Corp. v. New York City Board of Health that the Federal Cigarette Labelling and Advertising Act preempted New York City's requirements that retailers who sell cigarettes post warning signs near cash registers and cigarette displays.
The ruling voids New York's requirements, but at the same time goes to lengths to remind us that other municipal efforts to regulate cigarette sales and to educate the public about the dangers of tobacco use (through public education campaigns) are unaffected by the case.
The case involved challenges to two signage requirements in the New York health code. The first one required "persons who engage in face-to-face" tobacco sales to post a "small sign" near the cash register with pictures depicting the dangers of tobaccco use. The second one required those persons to post a "large sign" near each tobacco display, also with pictures depicting the dangers of tobacco use. The provisions applied to retailers; nothing at issue in the case applied directly to cigarette manufacturers.
Retailers and tobacco manufacturers sued, arguing that the federal Act preempted the signage requirements. The preemption clause says that a state or locality may not impose any "requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of . . . cigarettes." 15 U.S.C. Sec. 1334(b). The case thus turned on the meaning of the phrase "with respect to promotion."
The court ruled that both City signage requirements were "with respect to promotion." The court said that the second one--the one requiring a sign by a cigarette display--directly affected promotion, because "a display is a form of publicity that can further the sale of merchandise," and the graphic sign "treads on" it. The court said that the first one--the one requiring a sign by the cash register--was a closer call, but still indirectly affected promotion. The court said that most New York retailers kept cigarettes behind the cash register counter (pursuant to New York law), and the cash register sign therefore had the same effect that the display sign had--a treading-on of the sales display.
The case comes closely on the heels of a Sixth Circuit ruling this spring rejecting a facial free speech challenge to the new federal warning requirements for cigarette packaging in the federal Family Smoking Prevention and Tobacco Control Act. That case, in turn, came on the heels of an earlier ruling from the D.C. District that FDA's labels, promulgated under the Family Smoking Prevention and Tobacco Control Act, did violate free speech.
Stolen Valor Redux: Congress to Attempt Again
With the Supreme Court's declaration in United States v. Alvarez last month that the Stolen Valor Act is an unconstitutional infringement on the First Amendment, Congress is set to revise the law - - - or, more precisely, to re-consider its revised bill, the Stolen Valor Act of 2011, that had been proposed even before the oral arguments in Alvarez.
The proposed Stolen Valor Act of 2011, by Joe Heck of Nevada, added an important qualifier to the false statement: "with intent to obtain anything of value." According to news reports, various other members of Congress are weighing additional revisions.
These might include extending the prohibited subjects from military honors to combat service or perhaps any military service.
The Pentagon is also reportedly considering implementing a database of military honors, one of the less restrictive means that could also achieve the legislation's goals.
July 8, 2012
Eleventh Circuit Upholds Nude Dancing Ordinance - and Summary Judgment Order by Judge Jack Camp
In its opinion in Curves LLC v. Spalding County, Georgia, the Eleventh Circuit upheld the county's ordinance prohibiting nude dancing in places where alcohol is sold.
The precise questions before the court were a bit muddled, since there were two original ordinances - - - the Adult Ordinance and the Alcohol Ordinance - - - and two amended ordinances - - - the Amended Adult Ordinance and the Amended Alcohol Ordinance. Essentially, the court focused on the Amended Alcohol Ordinance, finding a resolution to that challenge would resolve all constitutional claims.
The panel rejected the First Amendment challenge, stating that the Amended Alcohol Ordinance "targets the undesirable secondary effects of nude dancing and alcohol sales" and thus is content-neutral and subject to the O'Brien test. The per curiam opinion found the ordinance easily passed O'Brien and also that the ordinance was not overbroad.
One problematic aspect was the Ordinance's so-called “mainstream exception” that exempts
the premises of any mainstream theater, which means a theater, concert hall, museum, educational institution or similar establishment which regularly features live performances which are not distinguished or characterized by an emphasis on the depiction, display, or description or the featuring of ‘specified anatomical areas’ or ‘specified sexual activities’ in that the depiction, display, description or featuring is incidental to the primary purpose of any performance.”
The opinion concluded that the exemption did not introduce overbreadth into the ordinance, but declined to consider whether it rendered the ordinance vague, concluding that issue was not squarely before it.
Another problematic aspect of the appeal was the request that Federal District Judge Jack Kemp's Camp's judgment be vacated and he be retroactively recused as judge. As the per curiam opinion explains:
After Judge Camp’s rulings in this case, federal law officers arrested Judge Camp and charged him with crimes. That Judge Camp -- around the time he was deciding this case -- frequented Atlanta-area, nude-dancing clubs has become known. Judge Camp’s conduct was, in fact, unrelated to this case. No one contends that Judge Camp had visited the Curves club. Judge Camp ultimately pleaded guilty to criminal charges and resigned his office.
Judicial bias can be difficult to sustain, as we discussed in conjunction with the Proposition 8 litigation. However, in Judge Camp's situation, Curves is not the only litigant seeking review of the judge's actions; in addition to his drug and prostitution offenses, he claimed to have bipolar disorder and there were also claims of racial bias derived from statements to his paramour.