Thursday, January 28, 2016
Judge Paul Friedman (D.D.C.) ruled today in ANSWER v. Jewell that the National Park Service regs setting aside a portion of the Presidential inauguration route for the inauguration committee and banning sign supports do not violate free speech.
The case challenged NPS regulations that set aside 18% of the sidewalk and park space along the inauguration parade route for the Presidential Inauguration Committee, a private, non-profit that represents the interests of the President-Elect, and requires other groups that wish to protest or speak to get a permit. Judge Friedman upheld the regulation against a First Amendment challenge, ruling that the PIC was government speech (under the factors in Walker v. Texas and Pleasant Grove City v. Summum), that the set-aside for PIC therefore did not constitute viewpoint-based discrimination against other groups that wished to speak against PIC's message, and that the set-aside and permit requirement were content neutral and otherwise satisfied the test for speech in a public forum.
Judge Friedman also ruled that the ban on sign-supports was content-neutral and satisfied the public forum test. (The government's interests were safety--sign-supports could be used as a weapon--and marshaling parade viewers through security checkpoints quickly and efficiently.) Judge Friedman noted that this ruling conflicted with the Ninth Circuit in Edwards v. Coeur d'Alene, however: the Ninth Circuit said in that case that a ban on sign-supports failed to leave open ample alternative channels of communication, because "there is no other effective and economical way for an individual to communicate his or her message to a broad audience during a parade or public assembly than to attach a handle to his sign to hoist it in their air."
The plaintiff in the case, the anti-war and anti-racism group ANSWER, may have inadvertently contributed to the result: Judge Friedman wrote at several points in the opinion that ANSWER had touted its previous protests, under similar restrictions, as successful--apparently demonstrating that ANSWER can get its message out effectively (that it has ample alternative channels for communication) even with the NPS regs.
Thursday, January 21, 2016
The Sixth Circuit ruled this week in Citizens in Charge v. Husted that Ohio Secretary of State Jon Husted enjoyed qualified immunity against a damages claim that arose out of his enforcement of Ohio's law that prohibits out-of-staters from circulating petitions within the state to propose new legislation and constitutional amendments.
The court granted immunity because it said that Ohio's law didn't clearly violate the Constitution. In support, it pointed to a circuit split on the question whether a state law that requires in-state residency to circulate a petition violates the First Amendment.
In so ruling, the court came close to saying that an official's enforcement of a state statute is per se reasonable, if no court has (yet) ruled the law unconstitutional--a result that puts a heavy thumb on the scale in favor of qualified immunity (and against plaintiffs who seek to recover damages for constitutional torts). The outer boundary is only when a law is "grossly and flagrantly unconstitutional." (The court gave as one example separate-but-equal racial discrimination.) The court explained:
So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. This indeed would seem to be the paradigmatic way of showing objectively reasonable conduct by a public official.
. . .
Any other approach would place risky pressures on public officials to second-guess legislative decisions. When faced with a statute of questionable validity, executive actors would find themselves forced to choose between applying the law (and subjecting themselves to monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit). When personal liability is added to the mix, one could well imagine the balance tipping toward non-enforcement in close cases, all the while sacrificing the legislature's considered judgments about a statute's unconstitutionality. That is not a recipe for good government or for encouraging public officials to act independently.
Tuesday, January 19, 2016
The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.
At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment. On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong." On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error. This was perhaps best expressed by Justice Ginsburg:
And I thought - - - and unlike Justice Scalia - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not - - - thou shalt not act on the basis of someone's expression, speech or belief.
Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment. There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.
Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?" But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:
JUSTICE KENNEDY: You want this Court to hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold.
MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.
The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee. Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation."
Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right.
The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.
Saturday, January 16, 2016
United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.
The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations.
As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision. The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution. The first provision is the one at the heart of this dispute. Placed in the state constitution's "Bill of Rights," Art. I §7 provides:
That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.
It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. To supply such funds, the state officials decided, would violate the state constitution.
Trinity Lutheran Church articulated the issue in its petition for certiorari as
Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.
It argues that the Eigth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke. But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.
Friday, January 15, 2016
New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case
In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding. Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred.
On the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit. Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable."
Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:
While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."
Thus the court rejected the free exercise claims. Similarly, the court rejected the free speech claims of compelled speech and free association. On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive:
Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.
The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.
In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop. The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend. Nevertheless, the issue is far from settled and more decisions likely.
UPDATE: The owners of Liberty Ridge will reportedly not appeal.
January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
In its opinion in United States v. Swisher authored by Judge Sandra Ikuta, the en banc Ninth Circuit found that the provision in 18 USC §704(a) that criminalized the unauthorized wearing of any military medal violates the First Amendment. Swisher was photographed wearing "the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze “V,” and UMC Expeditionary Medal," none of which he ever received.
The Court's opinion occurs in the shadow of the United States Supreme Court's 2012 decision in United States v. Alvarez which held that 18 USC §704(b) - - - prohibiting false statements about military medals - - - violated the First Amendment. A panel of the Ninth Circuit had previously held in United States v. Perelman that Alvarez was not dispositive regarding §704(a) because wearing the medal was conduct rather than speech, akin to "impersonation" rather than expression. The en banc opinion in Swisher explicitly overruled Perelman "to the extent inconsistent with this opinion."
The en banc opinion in Swisher held that while wearing the medal may have been expressive conduct, the government's purpose in regulating that conduct was aimed at regulating the message conveyed by the expressive conduct rather than the conduct itself. Judge Ikuta's opinion interestingly relied upon the Court's decision last Term in Reed v. Town of Gilbert as "authoritative direction for differentiating between content-neutral and content-based enactments."
Thus, Judge Ikuta's opinion determined that the lenient standard of United States v. O'Brien for expressive conduct was not the correct analysis and instead the standard as articulated in Alvarez should apply. But what is the Alvarez standard, given that Justice Kennedy's opinion for a plurality applied an exacting scrutiny standard and Justice Breyer's concurring opinion applied more of an intermediate scrutiny test? The en banc Ninth Circuit adroitly circumvented the need to decide the United States Supreme Court's holding by beginning with Justice Breyer's "less demanding standard": consideration of the seriousness of the speech related harm the provision will likely cause; evaluating the nature and importance of the provision's countervailing objectives; and the extent to which the provision will tend to achieve those objectives and whether there are other, less restrictive means, of doing so." The en banc Ninth Circuit found that the criminalizing of inappropriately wearing military medals failed the intermediate Breyer standard and thus would obviously fail the stricter more exacting scrutiny standard of the plurality.
Not surprisingly Judge Bybee, who wrote a vigorous dissent in 2010 when a panel of the Ninth Circuit held the provision in Alvarez unconstitutional, dissented in Swisher, joined by Judges N.R. Smith and Watford.
The practical consequences of the Ninth Circuit's en banc opinion are marginal: the statute has already been amended and Swisher was also convicted on other provisions including fraud. However, the doctrinal consequences of the opinion include an important demonstration of an application of Alvarez and the even more important holding clarifying that "wearing" is not always mere conduct evaluated at the lowest levels of First Amendment scrutiny.
Wednesday, January 13, 2016
Check out this new Brennan Center report on the recent spate of sharply divided Supreme Court rulings that opened the spigot on money in politics.
In Five to Four, Brennan Center attorneys Lawrence Norden, Brent Ferguson, and Douglas Keith show how "six closely divided Supreme Court decisions in the last decade contributed to some of the most disturbing trends in American elections"--things like super PACs, dark money, unlimited corporate and union spending, and radically increased total contributions to candidates and parties. (Each of these gets its own chapter.)
Four of the nine justices strongly disagreed with these decisions, and if one more justice had joined them, our ability to regulate big money in politics, and to give ordinary Americans more of a voice in the political process, would be very different today.
In other words, the last few years of campaign financing are not "normal," or "inevitable," or "just the way things are." To the contrary, in the modern era, they are the aberrant result of a single swing vote on the Supreme Court, which upended decades of carefully crafted campaign finance laws, and they can be reversed.
Tuesday, January 12, 2016
The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Ass'n, the case testing whether a state's public-sector union fair-share requirement violates the First Amendment.
Answer: Almost certainly yes.
Few cases are predictable as this one, given the Court's lead-ups in Harris and Knox (both sharply criticizing Abood, the 40-year-old case upholding fair-share requirements against a First Amendment challenge). And few oral arguments foretell the Court's and the dissent's analyses and split so clearly as yesterday's argument.
The conservative justices, including Kennedy, have made up their minds against fair share (and in favor of overruling Abood). The progressives have made up their minds in favor of fair share (and keeping Abood on the books). Both sides rehearsed the arguments that we'll see when the opinion comes out later this year.
All this made the oral arguments seem unnecessary. And maybe they were. After all, those opposing fair-share didn't seem at all troubled by the absence of a factual record in this case--even though some amici briefed significant practical labor-relations problems that arose without fair share. Instead, those opposing fair share seemed perfectly willing to rely on their own intuition about how public-sector labor relations work.
The facts don't really matter, so why should the legal arguments, when everybody's minds are made up, anyway?
Some of the early discussion focused on the extent of fair-share opponents' First Amendment claim: does it apply only to public-sector unions, or also to private-sector unions? Michael Carvin, attorney for the fair-share opponents, was clear: it only applies to public-sector unions. That's because collective bargaining for public-sector unions inevitably involves public issues--so a fair-share requirement compels non-union-members to pay for public advocacy (with which they disagree). (Private-sector collective bargaining, in contrast, involves only private employment issues.) Moreover, Carvin said that it's not always so easy to sort out what union speech goes to collective bargaining issues, and what goes to other public advocacy--a problem administering Abood that goes to its stare decisis staying power (see below).
And that leads to Carvin's next point, a clever twist on the concern about free-riders: fair-share requirements don't serve the interest of avoiding free-riders (as conventional wisdom and Abood would have it); instead, fair-share requirements let the union free ride on non-members' fair-share contributions. Carvin turned the traditional free-rider concern on its head.
And the conservatives, including Justice Kennedy, accepted all this. (Chief Justice Roberts even added at one point that if unions are so popular, the traditional concern about free riders is "insignificant.") Indeed, Justice Kennedy stated the opponents' case as clearly (and certainly as concisely) as anyone yesterday:
But it's almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are -- strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?
And you -- the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.
Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it -- correct me if I'm wrong -- agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
The progressives pushed back with stare decisis: shouldn't the Court give some weight to Abood? Carvin said that overruling Abood would actually better square the jurisprudence. But that didn't sit well with Justice Kagan:
So really what your argument comes down to is two very recent cases, which is Harris and Knox. And there you might say that Harris and Knox gave indications that the Court was not friendly to Abood. But those were two extremely recent cases, and they were both cases that actually were decided within the Abood framework. . . .
So taking two extremely recent cases, which admittedly expressed some frustration with Abood, but also specifically decided not to overrule Abood, I mean, just seems like it's nothing of the kind that we usually say when we usually say that a precedent has to be overturned because it's come into conflict with an entire body of case law.
Some on the left also wondered whether striking Abood also mean striking mandatory bar fees and mandatory student fees (previously upheld by the Court), and whether it would disrupt reliance interests (in the form of the thousands of public-sector union contracts that rely on it).
Look for all these points in the opinion, when it comes down. And look for the conventional 5-4, conservative-progressive split. If the result in this case wasn't clear going into arguments yesterday (though it was), then arguments yesterday certainly clarified it.
(The second question in the case--whether non-chargeable expenses need to follow an opt-in rule, instead of an opt-out rule, got very little attention. This issue, too, is all but decided, by the same split: the Court will almost certainly require opt-in.)
Wednesday, January 6, 2016
The California Supreme Court ruled earlier this week that the California legislature had authority to put on the general election ballot the nonbinding, advisory question whether Congress should propose, and the legislature ratify, a federal constitutional amendment overturning Citizens United.
The court said that the measure fell within the state legislative authority:
We conclude: (1) as a matter of state law, the Legislature has authority to conduct investigations by reasonable means to inform the exercise of its other powers; (2) among those other powers are the power to petition for national constitutional conventions, ratify federal constitutional amendments, and call on Congress and other states to exercise their own federal article V powers; (3) although neither constitutional text nor judicial precedent provide definitive answers to the question, long-standing historical practice among the states demonstrates a common understanding that legislatures may formally consult with and seek nonbinding input from their constituents on matters relevant to the federal constitutional amendment process; (4) nothing in the state Constitution prohibits the use of advisory questions to inform the Legislature's exercise of its article V-related powers; and (5) applying deferential review, Proposition 49 is reasonably related to the exercise of those powers and thus constitutional.
Still, there are no actual plans to put the measure on the 2016 ballot--at least not yet. The legislature previously directed that the measure go on the 2014 ballot; that decision was before the court. Now that 2014 is over, you might think the case was moot. But if so, you'd be wrong: the court said it should address the question, notwithstanding the lack of plans to put the measure on the ballot, because the legislature might direct that the measure go on a future ballot (apparently in the spirit of capable-of-repetition-but-evading-review).
Campaign finance transfers that Justice Alito called a "wild hypothetical" at oral arguments in McCutcheon v. FEC are the reality in today's presidential race, writes Paul Blumenthal at HuffPo. That means that a candidate's joint fundraising committee (which raises money for candidates and state and national parties) can bring in over a million dollars per donor in the 2016 election cycle. This is the maximum amount a donor can contribute to the candidate and the parties within base contribution limits. State parties can redistribute their take to benefit the candidate, circumventing the base limits.
Justice Alito called this a "wild hypothetical" at oral arguments in McCutcheon, at least as regards congressional elections. But Blumenthal says it's reality, and cites the Clinton campaign as an example. He describes it this way:
Donors are limited by how much they can give to campaign committees, national party committees and state party committees. A single donor can give $5,400 to a candidate's campaign to cover both a primary and general election, $33,400 annually to a national party committee's general fund and $10,000 annually to each state party. These limits are known as "base" contribution limits. (Additionally, donors can give $100,200 annually to each of the national party committee's convention, building and legal funds . . . .)
Since the Hillary Victory Fund links the Clinton campaign, the DNC and 33 state parties, the total amount a donor could give is $669,400 per year. Technically, a maximum contribution to the fund would include $330,000 to be split amount the 33 state parties. Since party committees are allowed to make unlimited transfers between each other, that money can easily be sent to the state parties most advantageous to the candidate's raising the money--in a swing state, for example. Or, as is happening with the Hillary Victory Fund, that money can be sent to the DNC, which redistributes it as they see fit.
Why does this matter? Well, the Court in McCutcheon said that aggregate contribution limits (designed to complement base limits and avoid corruption by effectively restricting the amount of money candidates could transfer between each other) violated the First Amendment. The Court said this in part because the FEC's rules on earmarking contributions and limits on transfers between candidates effectively prevented these kinds of shenanigans. In other words, the Court said that aggregate limits weren't necessary to avoid corruption, because other features of the regulatory scheme prevented donors from circumventing base limits and corrupting politicians.
But those features don't limit state political party transfers. So a joint fundraising committee can send donations to state parties, which can then strategically funnel those donations to other state parties or to the national party, directly benefiting the candidate. That's exactly what SG Verrilli raised--and what Justice Alito dismissed as a "wild hypothetical" in the context of congressional elections--at oral argument in McCutcheon. It's also what seems to be happening in the 2016 presidential election.
Tuesday, December 22, 2015
In its more than 100 page opinion today in In Re Simon Shiao Tam, the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment.
The central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band" (pictured below).
The United States Court of Appeals for the Federal Circuit, established in 1982 by a the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims, was reviewing the denial of the trademark by the Patent and Trademark Office (PTO). A panel of the Federal Circuit rejected Tam's First Amendment arguments, finding that it was bound by circuit precedent from 1981 that held that the First Amendment was not implicated by the denial of trademark registration.
The Circuit sua sponte ordered rehearing en banc. The majority opinion, authored by Judge Kimberly Moore (who was formerly a law prof at George Mason School of Law), was joined by 8 other judges, including Chief Judge Sharon Prost, reasoned that much had changed since the 1981 circuit precedent - - - including the jurisprudence offering protections for commercial speech under the First Amendment - - - and that the First Amendment should apply.
Not only should the First Amendment apply, it is violated in the most egregious manner: viewpoint discrimination. Moore's opinion for the majority stresses that the "disparagement" provision "discriminates against speech because it disapproves of the message conveyed by the speech" and is therefore subject to strict scrutiny. That the government might itself not disapprove but "claims that some part of the populace will disapprove of the message" is irrelevant. When the PTO refuses to register a trademark under this provision,"it does so because it believes the mark conveys an expressive message—a message that is disparaging to certain groups." Mr. Tam was undoubtedly engaging in expressive speech:
Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent. His band name pushes people. It offends. Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech.
The court rejected the government's three arguments, including its argument that the First Amendment did not apply since no speech was prohibited. The government's second argument - - - that trademark registration is government speech - - - was likewise rejected. Here, the court distinguished last Term's decision in Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not). As for public perception, the court used a copyright analogy: just as the public does not associate copyrighted works such as Fifty Shades of Grey with the government, "neither does the public associate individual trademarks such as THE SLANTS with the government."
The court likewise rejected the government argument that § 2(a) merely withholds a government subsidy for Mr. Tam’s speech and is valid as a permissible definition of a government subsidy program: "Trademark registration does not implicate Congress’s power to spend or to control use of government property." Further, the "benefits of trademark registration, while valuable, are not monetary, and are "unlike a subsidy consisting of, for example, HIV/AIDS funding," as in the Court's 2013 decision in USAID v. Alliance for an Open Society.
The majority's opinion clearly rests on its conclusion that the disparagement provision of § 2(a) is viewpoint discrimination that cannot survive strict scrutiny. But it also provides the fall-back rationale of commercial speech.
Even if we were to treat § 2(a) as a regulation of commercial speech, it would fail to survive. In Central Hudson, the Supreme Court laid out the intermediate- scrutiny framework for determining the constitutionality of restrictions on commercial speech. First, commercial speech “must concern lawful activity and not be misleading.” If this is the case, we ask whether “the asserted governmental interest is substantial,” id., and whether the regulation “directly and materially advanc[es]” the government’s asserted interest and is narrowly tailored to achieve that objective.
[citations omitted]. But the court's rationale circles back. The court finds that 2(a) fails at the second step: the government interest cannot be substantial because it is based on viewpoint discrimination. This is certainly predictable in light of IMS v. Sorrell (2011). The court finds that the government's asserted interest in "fostering racial tolerance" cannot support a speech regulation. "The case law does not recognize a substantial interest in discriminatorily regulating private speech to try to reduce racial intolerance." The cases relied upon are outside the commercial speech realm.
This tension between commercial speech and non-commercial speech permeates some of the opinions by Judges who did not join the majority. Perhaps most persuasive is the dissenting opinion by Judge Jimmie Reyna, arguing that §2(a) survived commercial speech's intermediate scrutiny:
The marketplace of ideas differs dramatically from the marketplace of goods and services. While the marketplace of ideas may tolerate or even benefit from the volatility that accompanies disparaging and insulting speech, the marketplace of goods and services is a wholly different animal. Commerce does not benefit from political volatility, nor from insults, discrimination, or bigotry. Commerce is a communal institution regulated for the mutual economic benefit of all. Commercial speech that discredits or brings reproach upon groups of Americans, particularly based on their race, has a discriminatory impact that undermines commercial activity and the stability of the marketplace in much the same manner as discriminatory conduct.
As the court notes numerous times throughout its opinions, the disparagement provision has long been contentious, including the notorious "Dykes on Bikes" trademark dispute (which I wrote about here).
But currently - - - and looming largely - - - the ongoing litigation currently before the Fourth Circuit regarding the PTO's cancellation of the trademark of a football team with the name many believe disparages Native Americans.
Moreover, given that a circuit court has declared a portion of a federal statute unconstitutional, this issue could well be going to the United States Supreme Court.
Thursday, December 10, 2015
The Seventh Circuit this week denied a preliminary injunction to owners of a would-be nude-dancing establishment in Angola, Indiana, because the owners stipulated to the city's secondary-effects justification for its zoning ordinance that blocked development of the establishment.
The plaintiffs' surprising concession means that the plaintiffs could not show a "substantial likelihood of success" on the merits of their First Amendment claim, and that they therefore could not get an injunction ordering the city to grant a license to develop the business.
The case arose when the plaintiffs proceeded with developing a site for an adult entertainment business, the only one in Angola, Indiana. The city reacted by changing its zoning law in a way that would bar the plaintiffs from completing the project and starting the business. In particular, the city adopted a zoning rule that required sexually oriented businesses to be located at least 750 feet from every residence--a standard that the plaintiffs could not meet. The city justified the new rule based on the "secondary effects" of adult entertainment businesses, including crime, prostitution, disease, public indecency, and the like.
The city and plaintiffs filed motions for partial summary judgment, and the plaintiffs filed for a preliminary injunction. Oddly, the plaintiffs stipulated to the city's secondary-effects justification at the hearing (even as they said they'd challenge it later):
We'll stipulate that in our preliminary injunction motion we are not challenging here the factual predicate for the ordinances. We do want to challenge that. That was part of the amended complaint that was struck. We've asked for discovery on that. We haven't been able to take discovery. So we want to challenge that, at some point, but we will stipulate so that [Angola's counsel] is not concerned that we would go up to the Court of Appeals and make the argument that they . . . didn't have a requisite basis at least for this point to enact these ordinances. They're relying on that. That's fine. We're not challenging that here.
The district court denied the plaintiffs' motion, and the Seventh Circuit affirmed, because the stipulation meant that the plaintiffs couldn't show a likelihood of success on the merits. (Under Renton the city can zone adult entertainment establishments based on their secondary effects.)
Still, this ruling doesn't end the case. The district has yet to decide whether the city left open an alternative avenues for the communication. (If not, the plaintiffs could still win on the merits.) So the case will go back to the district court on this question. In the meantime, the Seventh Circuit's ruling means that there won't be adult entertainment in Angola, unless and until the plaintiffs win on the merits.
Monday, November 30, 2015
Seventh Circuit Finds Cook County Sheriff Violated First Amendment in "Backpage.com" Credit Card Case
Writing for a unanimous three judge panel, Judge Posner's opinion in Backpage.com LLC v. Dart, finds that the "campaign" by the Sheriff of Cook County, Tom Dart to "crush Backpage’s adult section— crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution" violated the First Amendment.
The centerpiece was a letter from the sheriff, beginning “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com.” The court finds it important that Dart is "sheriff first," and later observes:
Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Back- page. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff. It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.
Judge Posner's opinion takes pains to point out that the sheriff is not "on solid ground" in suggesting that "everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)" (emphasis in original). Posner cites an article from xojane.com and wikipedia for information; he does not cite his own 1994 book Sex and Reason, though he might well have.
Posner rejected the conclusion of the district judge that the credit card companies were not coerced - - - what would one expect the corporate executives to say? - - - and likewise rejected the argument that the credit card companies were acting on new information brought to their attention by the sheriff. An email exchange between two credit card employees referencing "blackmail" is mentioned. Moreover, Posner rejected the argument that the sheriff had his own First Amendment right, as a citizen and even to engage in "government speech."
A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.
Posner then expands on why the sheriff's speech was a threat, and, with a resort to a bit of "law and economics" explains why the credit card companies would 'knuckle under' with "such alacrity."
This is a major win for Backpages.com - - - and cannot be good news for the Cook County sheriff's office.
Sunday, November 29, 2015
Judge Christopher Cooper (D.D.C.) ruled last week that a constitutional challenge to the federal restrictions on soft money by state and local political party committees will be heard by a three-judge district court. The ruling puts the case on the fast-track to the Supreme Court, whose plurality ruling last year in McCutcheon puts the federal soft-money restrictions on extremely shaky ground. The net result: this case, Republican Party of Louisiana v. FEC, will likely go to the Supreme Court; the Court will almost surely strike the soft-money restrictions; and the ruling will open yet another spigot for vast amounts of money to flow in politics.
The case involves BCRA's limits on soft money by state and local political parties. "Soft money" is a contribution to a political party for state and local elections and for "issue advertising," but not for influencing federal elections. (Money for federal elections is subject to other restrictions.) The 2002 Bipartisan Campaign Reform Act flatly prohibits national political parties from raising or spending soft money. But as to state and local party committees, BCRA permits them to use soft money for state and local elections and issue ads, but not for federal election activities. As a result, state and local political party committees use (1) a federal fund, consisting of contributions at and below federal (FECA) limits, for federal elections, and (2) nonfederal funds, consisting of soft-money contributions, for state and local elections and issue ads. (There is a third category, too: Levin funds. Levin funds are a type of nonfederal fund that can be used for some federal election activity. They don't appear to be a game-changer in this case, though.)
The plaintiffs in this case, state and local committees of the Republican Party in Louisiana, challenged BCRA's limits on soft-money. In particular, they challenged (1) BCRA's prohibition on the use of soft-money for federal election activity, (2) BCRA's requirement that state and local committees pay direct costs of fundraising activity for funds used for federal election activity, and (3) BCRA's monthly reporting requirement disbursements and receipts for federal election activity. (BCRA defines "federal election activity" as voter registration, voter identification and GOTV, in addition to campaign communications that refer to a clearly identified candidate for federal office.) The plaintiffs claim these restrictions violate the First Amendment.
The plaintiffs moved to convene a three-judge court to hear their claims. BCRA authorizes such a court to hear constitutional challenges to BCRA, and allows the loser to take the case directly to the Supreme Court. (Constitutional challenges to FECA, on the other hand, go first to an en banc court of appeals. The plaintiffs wanted to by-pass this step and fast-track the case to the Supreme Court, so, learning a lesson from earlier cases, they challenged BCRA's restrictions, not FECA's limits on contributions. Still, a successful challenge would effectively erase FECA's contribution limits.) In this way, the plaintiffs will get the case to the Supreme Court, and quickly.
And that matters, because the Supreme Court has signaled that it's ready to strike at least some soft-money restrictions. In McCutcheon, a plurality defined "corruption"--the only justification for contribution limits that will withstand constitutional scrutiny--quite narrowly, as "quid pro quo corruption or its appearance," or vote-buying. By that definition, the Court is almost sure to strike soft-money restrictions for things like voter registration, GOTV, and issue ads, and maybe others. (How do these things lead directly to quid pro quo corruption?) Even as the Court said in McCutcheon that it wasn't disturbing prior cases upholding restrictions on soft money, its cramped definition of corruption almost surely rules some or all of those restrictions out.
At least the uncertainty created by the Court's definition in McCutcheon caused Judge Cooper to conclude that the plaintiffs' constitutional challenge was "substantial"--a trigger for the three-judge court.
(One potentially complicating factor: The Court is now considering when a complaint is "substantial" so that it triggers a three-judge court, in Shapiro v. McManus. Judge Cooper wrote that if the Court's ruling in Shapiro alters his analysis of "substantial," the three-judge court could dissolve itself. That wouldn't end the case (necessarily), but it would require the plaintiffs to appeal through the D.C. Circuit.)
Judge Cooper's ruling did not address the merits (except to say that the challenge was "substantial"). Still, the ruling puts the case on the fast-track to the Supreme Court (subject to any potential speedbumps from Shapiro), where some or all of the soft-money restrictions on state and local political party committees will likely meet their doom.
Wednesday, November 11, 2015
The trial judge in Massachusetts set to preside over the prosecution of four Black Lives Matter protesters has reportedly told the defendants that they cannot wear shirts with those words - - - Black Lives Matter - - - during the trial. Apparently at a pretrial hearing, the judge noticed one of the defendants wearing attire with the words and stated:
"Is that appropriate to wear in front of a jury? Why isn't that unfair to the commonwealth? You're asking me to ferret out jurors who are not fair ... I'm not going to allow clothing with that message."
While judges have a great deal of discretion in the courtroom, the courtroom is not without First Amendment protections, even when it comes to the symbolic expression of attire. However, most of the cases involving defendant attire have been about protecting the defendant's right to a fair trial rather than any right of the government's. A quintet of cases from the United States Supreme Court - - - Illinois v. Allen (1973), Estelle v. Williams (1976), Holbrook v. Flynn (1986), Deck v. Missouri (2005), and Carey v. Musladin (2006) - - - considered various aspects of "attire" during trial. In Allen, it was the possibility of the shackling and gagging the defendant, in Williams it was the defendant's "prison garb," in Holbrook v. Flynn it was uniformed guards in the courtroom, in Deck it was shackling the defendant, and in Musladin it was the defendant's objection to spectators' wearing buttons with the victim's photograph.
The rights of court spectators to First Amendment expressions is not well-established. Justice Souter concurred in Musladin mentioning the possibility of such a right, but contended that trial judges had affirmative obligations to ensure a fair trial, including regulating the attire of spectators. But what if the spectators support the defendant? Some judges have prohibited supportive attire. For example, in 2013 an Indiana judge prohibited spectators from wearing buttons supporting Bei Bei Shuai, on trial for unsuccessful suicide attempt that resulted in a miscarriage. And last year, a judge banned spectators from wearing pink hands pinned to their shirts in support of Cecily McMillan for assaulting a police officer who she said had grabbed her breast.
As to the defendants, they risk being held in contempt if they do wear the prohibited clothing. Perhaps the most famous case involved the Chicago Eight conspiracy trial.
But the First Amendment principle is preserved whether or not the defendants comply with the judge's order about their expressive attire. Prohibiting defendants from wearing non-obscene words that support their political viewpoints certainly raises a First Amendment issue of viewpoint and content discrimination.
Thursday, October 29, 2015
En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival
The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment. The en banc court also found that the government was liable and that there was no qualified immunity.
Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.
The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach." Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"), a "severed pig's head
on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment." A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers. A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.
The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker.
The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words. The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual." In the context of the facts here, these principles deserved further exploration.
After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine. Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of a"few verbal warnings and a single arrest. The court advised:
We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.
In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim." As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:
The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.
The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established. On these issues, there were vigorous dissents. And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:
In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense. . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.
Yet in the discussion of qualified immunity, the en banc court reasoned:
To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.
That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases. (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).
On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers. As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise. The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.
Monday, October 12, 2015
The NYT reported yesterday that just 158 elite families and the companies they control have provided nearly half the money in the early part of the 2016 presidential election.
The are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters. Across a sprawling country, they reside in an archipelago of wealth, exclusive neighborhoods dotting a handful of cities and towns. And in an economy that has minted billionaires in a dizzying array of industries, most made their fortunes in just two: finance and energy. . . .
Not since before Watergate have so few people and businesses provided so much money early in a campaign, most of it through channels legalized by the Supreme Court's Citizens United decision five years ago.
At the same time, Ciara Torres-Spelliscy writes at the Brennan Center that DOJ is stepping up to enforce campaign finance crimes:
The Federal Election Commission is still living up to its unfortunate nickname as the Little Agency That Wouldn't. This means that in the pricey and already in full swing 2016 presidential election, the FEC is likely to be sitting on its hands instead of enforcing the law. But would be scofflaws do have something to worry about: the Justice Department is on the beat.
Thursday, October 1, 2015
The United States Supreme Court has granted certiorari in Heffernan v. Paterson in which the Third Circuit's opinion affirmed summary judgment for the City of Paterson against a First Amendment claim for retaliatory action against police officer Jeffrey Heffernan.
At issue is whether the mistaken belief of a supervisor that an employee was engaging in political activity. The police officer was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn." Heffernan insisted that he was not involved in the campaign and actually did not support the same candidate as his mother.
The petition for certiorari argues that there is a split in the circuits on this issue.
Wednesday, September 30, 2015
California's so-called anti-paparazzi law has been upheld against a facial First Amendment challenge by a state appellate court in its opinion in Raef v. Superior Court of Los Angeles. Recall that Paul Raef was charged under California Vehicle Code, section 40008, subdivision (a) which increases the punishment for reckless driving and other traffic offenses committed with the intent to capture an image, sound recording, or other physical impression of another person for a commercial purpose for his "alleged high-speed pursuit of pop star Justin Bieber and failure to stop when police attempted to pull him over." The court concluded that the Vehicle Code provision is a law of general application that does not single out the press for special treatment, does not target speech, and is neither vague nor overbroad.
The court reasoned that Vehicle Code section 40008 is not limited to paparazzi chasing celebrities or reporters gathering news. Instead, the statute targets “any person” who commits an enumerated traffic offense with the intent to capture the image, sound, or physical impression of “another person” for a commercial purpose. The court distinguished both Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue (1983), finding a paper and ink tax unconstitutional, and Simon & Schuster, Inc. v. Members of New York State Crime Victims Board (1991), holding NY's "Son of Sam" law unconstitutional.
In considering the expressive activity of taking photographs, the court considered ACLU v. Alvarez in which the Seventh Circuit held unconstitutional a broad anti-eavesdropping statute prohibiting video recording of police officers. But the court reasoned that even assuming "that the intent to take a photograph or make a recording of another person generally is entitled to First Amendment protection as a speech-producing activity, we are not persuaded that section 40008 punishes that intent per se or that the commercial purpose requirement imposes a content-based restriction on speech."
Instead, the court relied on Wisconsin v. Mitchell (1993) - - - even as it recognized the differences in the enhanced penalties for a bias crime - - - to conclude that it is the conduct not the intent that is being punished:
the conduct which section 40008 targets is not garden-variety tailgating, reckless driving, or interference with the driver’s control of a vehicle. It involves “relentless” pursuits of targeted individuals on public streets, as well as corralling and deliberately colliding with their vehicles. Such goal-oriented conduct hounds the targeted individuals, causing them to react defensively and escalating the danger to the violators, the targeted individuals, and the public. Because the predicate statutes do not require that the traffic offenses be committed with a specific intent and for a particular purpose, it cannot be said that the conduct they punish is indistinguishable from that subject to section 40008.
The court also rejected the argument that the statute made a content-based distinction of "commercial purpose", based in last Term's opinion in Reed v. Town of Gilbert. Relatedly, the court found that Reed's language did not support any finding that the California statute was targeted at First Amendment activity. "Since the legal sanction is triggered by the noncommunicative aspects of the violator’s conduct, any incidental effect on speech does not necessarily raise First Amendment concerns." And finally, the court found that any incidental burden on speech survives intermediate scrutiny.
As to overbreadth and vagueness, the court reiterated the standard for a facial challenge and noted that
To the extent that Raef and amici are concerned about “the possibility of overzealousness on the part of the arresting officer and not vagueness in the criminal statute,” their concerns “can be adequately dealt with in the course of prosecution of individual cases on their individual facts.” . . . . Hypothetical concerns over potential misuse of the statute to unfairly target the press do not justify invalidating it on its face.
Thus it seems Paul Raef may be raising the as-applied challenges to his prosecution under the statute.
In its opinion in Discount Inn v. City of Chicago, the Seventh Circuit has rejected constitutional challenges to the city's fence and weed ordinances, affirming the district judge's dismissal of the complaint. The plaintiff, a corporation that Judge Posner's opinion for the unanimous panel notes is inadequately identified in the record, sought "recovery of the fines that it has paid for violating" the ordinances —"it claims to have been fined more than twenty times."
Discount Inn alleged that the challenged ordinances violate the prohibition in the Eighth Amendment of “excessive fines.” Basically, Judge Posner rejects this claim with a simple statement: "A fine topped off at $600 can hardly be deemed an excessive penalty for violating the ordinance."
Discount Inn also alleged that the challenged "weed ordinance is vague and forbids expressive activity protected by the First Amendment." Posner does recognize that it is possible that plants could have an expressive dimension:
The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art.
However, he ultimately dispatches the First Amendment claim thusly:
the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or in‐ tends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.
Thus, this should be a rather routine affirmance of a dismissal.
However, Judge Posner has taken the opportunity to provide some discourse - - - and some illustrations - - - of "weeds." Posner writes:
there is an ambiguity in the concept of a “weed,” an ambiguity brought out by comparing “weed” to ”native plant.” A native plant, like a weed (or perhaps it could be thought of as an elite type of weed), is “born” and matures normally without human intervention although it may also have been deliberately planted. It need not be destructive. In contrast, an “invasive plant species” enters either naturally or by human transport into an area in which native or other valued plants are growing, and squeezes out or otherwise injures or destroys those plants. Cf. 40 C.F.R. § 166.3, defining “invasive species” for purposes of federal pesticide regulations as “any species that is not native to [a particular] eco‐system, and whose introduction does or is likely to cause economic or environmental harm or harm to human health.”
Here is one of the five photographs included in the 16 page opinion:
This image, like the other images in the opinion, and some of the discussion, is not in the record.
This opinion seems more confirmation of ConLawProf Josh Blackman's labeling of Judge Posner as the "most flagrant, and brazen offender" of the appellate rule against fact-finding.
Nevertheless, coupled with the Second Circuit's decision on "credit card surcharges," this case could be a great introduction in First Amendment: Neither prices nor weeds are speech.