Friday, June 14, 2013
In a divided opinion in Cressman v. Thompson, the Tenth Circuit has allowed a First Amendment compelled speech challenge to Oklahoma's license plate (pictured below).
For those familiar with Wooley v. Maynard (1977), the case seems as if it is a mere reprise. However, unlike Maynard's objection to the New Hampshire license plate motto "Live Free or Die," Cressman objects to the image on the license plate. For the dissenting judge, this distinction makes all the difference. In a nutshell, the brief dissent contends that Cressman can not clear the basic hurdle of "speech." As dissenting judge Kelly explains:
In 2009, Oklahoma changed its standard-issue license plate to incorporate a representation of Allan Houser’s “Sacred Rain Arrow,” on permanent display at Tulsa’s Thomas Gilcrease Institute of American History and Art. Though awarded the Automobile License Plate Collectors Association’s best plate of the year award for 2009, Mr. Cressman considers his display of the image on the license plate to be compelled speech. . . . .Mr. Cressman has connected the image on Oklahoma’s license plate to the sculpture and that sculpture to a Native American legend. He asserts that the license plate promotes “pantheism, panentheism, polytheism, and/or animism,” all of which are antithetical to his religious beliefs. However, he has not alleged facts from which we can reasonably infer that others are likely to make the same series of connections.
For the majority, it was sufficient that Cressman alleged that the image had an ideological message at the complaint stage. The court's analysis of symbolic speech and the "particularized message" cases - - - think flags and parades - - - supported this conclusion. The majority also discussed the compelled speech precedent. From this, the majority concluded the district judge should not have dismissed the complaint. The majority declined to enter a preliminary injunction, however, ruling that the State should have the opportunity to present its interests. The majority very clearly held, however, that Wooley v. Maynard remains viable precedent, despite some arguments that it has been undermined. The majority also very clearly held that Cressman had standing, except as to one individual defendant.
On remand, the district judge will be considering whether Cressman's plausible allegations can be proven as true.
Thursday, June 13, 2013
Presumably reacting to the decision of Judge Beryl Howell declaring the Supreme Court protest-ban statute, 40 USC §6135, unconstitutional which we discussed yesterday, the Court has issued a new policy, "Regulation Seven" (h/t Lyle Denniston).
This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.
No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
Approved and Effective June 13, 2013
Importantly, the regulation addresses several of the issues Judge Howell found relevant in her decision. First, it emphasizes "conduct" rather than simply wearing a t-shirt with a slogan or carrying a sign. However, the regulation does seem to include "speechmaking" in this broad category of "like forms of conduct." Second, the regulation requires this conduct as "reasonably likely to draw a crowd or onlookers." This emphasizes the effect, but also implies some sort of intent requirement in the "reasonably likely." Third, the regulation specifically excludes the "casual use by visitors or tourists." This would presumably exclude the t-shirt wearing preschoolers that Judge Howell referenced in her opinion, as well as the solitary person arrested for wearing a jacket that bore the phrase "Occupy Everything."
Nevertheless, the Supreme Court's reservation for itself of making exceptions and the remaining prohibition of expression of "views" could certainly prompt serious First Amendment challenges to the regulation.
As for the statute and its constitutionality, this narrower regulation may indicate some level of agreement with a conclusion that 40 USC §6135 is overbroad and unreasonable.
The Supreme Court ruled today in American Trucking Associations, Inc. v. City of Los Angeles that the Federal Aviation Administration Authorization Act, the FAAAA, preempted certain requirements of a concession agreement between the Port of Los Angeles and short-haul truck drayage companies that was adopted as part of the Port's Clean Truck Program. The Court held that the placard and off-street parking provisions of the agreement were preempted, but it declined to rule that the financial capacity and truck-maintenance requirements were preempted.
The ruling halts components of the Port's broader efforts to address community concerns about traffic, clean air and the environment, and safety, even as it leaves two disputed provisions in place, as the Port looks to expand. (It's already the largest port in the United States.) The ruling may thus set back negotiations between the Port and the local community and environmental groups--already tied up in lawsuits for almost 10 years--and ultimately throw a wrench into further Port development. Our argument preview is here.
The case arose when the Port required drayage truck operators to enter into a standard-form concession agreement as part of the Port's Clean Truck Program in 2007. Under the agreement, truck operators had to affix a placard on each truck with a phone number for reporting environmental or safety concerns, and submit a plan listing off-street parking locations for each truck when not in service. They also had to comply with financial capacity and truck-maintenance requirements. Under the plan, the Port would ban trucks that hadn't registered under an agreement and impose a criminal violation for trucks that entered the Port without an agreement.
Drayage truck operators sued to enjoin enforcement, arguing that the terms were preempted by the FAAAA. The FAAAA preemption clause says,
[A] State [or local government] may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.
49 U.S.C. Sec. 14501(c)(1). Operators also argued that even if the terms were valid, the Port couldn't enforce them by withdrawing a defaulting company's right to operate at the Port. This argument turned on Castle v. Hayes Freight Lines, Inc. (1954), which held that a state couldn't entirely bar a federally licensed motor carrier from its highways for prior violations of state safety regulations.
The Court, in a uninamous ruling by Justice Kagan, held that the FAAAA preemption clause expressly preempted the placard and parking requirements. In particular, it said that the concession agreement had the "force and effect of law" (in violation of the FAAAA preemption clause) because the Port required the agreement and enforced it with criminal sanctions. That is, the Port adopted the agreement pursuant to its regulatory authority of the state, and not in its position as a market participant. "So the contract here functions as part and parcel of a governmental program wielding coercive power over private parties, backed by the threat of criminal punishment. That counts as action 'having the force and effort of law' if anything does." Op. at 8.
As to the financial capacity and truck-maintenance requirements, the Court held that in the pre-enforcement posture of the case, it was impossible to tell whether the Port would enforce those provisions in violation of Castle or not. Those two provisions thus stay in place, at least for now.
Justice Thomas concurred in full, but wrote separately to express his doubt that Congress had authority under the Commerce Clause to regulate the placards and parking arrangements of drayage trucks in the first place.
Wednesday, June 12, 2013
In her opinion in Hodge v. Talkin, United States District Judge for the District of Columbia Beryl Howell held unconstitutional the federal statute prohibiting assemblies and displays at the Supreme Court building or grounds. The statute at issue, 40 USC §6135 provides:
we have previously discussed, the Supreme Court building has been afforded special First Amendment status and even a non-protesting person with "Occupy Everything" on his jacket has been subject to arrest.
It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.
Hodge, a college student, was initially arrested under §6135 for wearing a 3 x 2 foot sign that read "The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People." After an agreement was reached in the criminal case, Hodge filed a complaint challenging the constitutionality of the statute. The judge held that Hodge had standing, despite some suggestions at oral argument to the contrary.
Judge Howell's extensive opinion recites the history of the statute, including the fact that the nearly identical precursor statute (40 USC §13k) was upheld by the United States Supreme Court in United States v. Grace (1983), over the partial concurrence and dissent of Justice Thurgood Marshall, which she calls "prescient" in the latter part of her opinion. However, Judge Howell distinguishes Grace by stating that the decision "focused only on the constitutionality of the Display Clause" "as applied to the sidewalks surrounding the Supreme Court’s grounds, but left unresolved the facial constitutionality of the Display Clause and Assemblages Clause." Judge Howell then discusses the cases of the DC Court of Appeals that have "for decades affirmed convictions" but without "delving deeper into the constitutional analysis" than its initial cases.
After describing the Supreme Court plaza, the judge assumed without deciding that the Government's argument that the plaza was a "nonpublic forum" was correct. Nevertheless, the judge held that the statute was not a reasonable limitation on speech. Judge Howell rejected both of the Government's proffered interests: “permitting the unimpeded ingress and egress of visitors to the Court” and “preserving the appearance of the Court as a body not swayed by external influence.” In discussing the unreasonableness of the "influence" interest, Judge Howell opined:
It is hard to imagine how tourists assembling on the plaza wearing t-shirts bearing their school’s seal, for example, could possibly create the appearance of a judicial system vulnerable to outside pressure.
She concluded that while "there may be a legitimate interest in protecting the decorum of the judiciary, the challenged statute is not a reasonable way to further that interest." This also led to her finding that the statute was overbroad. She considered the assemblage clause and the display clause of the statute separately, but again, her examples - - - preschool children, Court employees, and tourists in t-shirts - - - were key to the analysis.
Finally, Judge Howell rejected imposing a judicial construction, such as an intent requirement, to save the constitutionality of the statute.
Sure to be appealed, Judge Howell's careful and tightly reasoned 68 page opinion could prove to be an important step in fully applying the First Amendment to the place where the First Amendment is so often adjudicated.
Monday, June 10, 2013
The Ninth Circuit today dismissed a case first challenging the Bush Administration's warrantless wiretap program (the Terrorist Surveillance Program, or TSP) and later requesting destruction of records retained from that program. The case, In re National Security Agency Telecommunications Records Litigation, was brought by the Center for Constitutional Rights. CCR's information page, including links to earlier filings and rulings, is here.
The Ninth Circuit dismissed the case in a very brief, unpublished decision that relied on the Supreme Court's ruling in Clapper v. Amnesty International. Recall that the Court in that case dismissed a challenge to the government's surveillance program under the FISA Amendments Act of 2008. The Court ruled that the plaintiffs lacked standing, because they could not demonstrate that they were injured by the Act.
So too, here, the Ninth Circuit said. The court ruled that CCR had the same "highly attenuated chain" of alleged injury with one difference: the Amnesty International plaintiffs challenged a program with judicial oversight (by way of the FISC), whereas the CCR case challenged a program with no judicial oversight. Still, the Ninth Circuit said that "CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP."
The ruling puts an end to CCR's efforts to destroy any records that the government retained under the TSP. Indeed, it puts an end to efforts to determine whether the government even retained any such records at all.
In a relatively brief opinion in Horne v. Department of Agriculture by Justice Thomas writing for a unanimous Court, the Court reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking.
Recall that the Hornes are involved in the raisin business and the Ninth Circuit had upheld a regulatory scheme that mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
The precise nature of the Hornes' involvement in the raisin business - - - whether they are handlers or producers - - - is important to the controversy. But, the Supreme Court held, not as important as the Ninth Circuit ruled. Instead, the Court held that
The Ninth Circuit confused petitioners’ statutory argument (i.e., “we are producers, not handlers”) with their constitutional argument (i.e., “assuming we are handlers, fining us for refusing to turn over reserve-tonnage raisins violates the Fifth Amendment”).
Thus, the Ninth Circuit should have reached the merits of the Takings Clause claim.
Moreover, the argument that the Hornes' claim was not ripe was also incorrect. They were subject to enforcement proceedings and they are free to raise their Takings Clause defense before the USDA and the courts.
Although a somewhat technical decision sounding in "jurisdiction," the Court has opened the way for a regulatory Takings Clause claim against an agricultural scheme seeking to control prices and supply.
[image of raisin via]