July 08, 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.
July 27, 2011
On Raisins and Takings: Ninth Circuit Upholds USDA
The raisins so prominent in morning cereal and children's snacks are "heavily regulated" agricultural commodities under marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq.
In its opinion in Horne v. USDA, the Ninth Circuit upheld the imposition of civil assessments under the regulations and upheld the constitutionality of the regulatory scheme. The central requirement at issue 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 Hornes' administrative and statutory claim was that they had reorganized their raisin business and were no longer subject to the regulations because they were no longer "handlers" but only "producers."
Their major constitutional claim was that even if subject to the regulations, "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment." They also claimed that the penalities imposed for their “self-help” noncompliance (caused by their reorganization in an attempt to escape from the regulations) violated the Eighth Amendment's Excessive Fines Clause.
The Ninth Circuit panel opinion has an excellent rehearsal of regulatory takings doctrine, which clearly does not support the Hornes' claim. However, as the opinion notes,the Hornes claim that the Ransin Marketing Order is a physical taking because there is an annual “direct appropriation” of their reserve-tonnage raisins. The panel rejected this construction: "Though the simplicity of their logic has some understandable appeal—their raisins are personal property, personal property is protected by the Fifth Amendment, and each year the RAC “takes” some of their raisins, at least in the colloquial sense—their argument rests on a fundamental misunderstanding of the nature of property rights and instead clings to a phrase divorced from context."
Instead, as the panel reasoned,
the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. Simply put, it is a use restriction, not a direct appropriation. The Secretary of Agriculture did not authorize a forced seizure of forty-seven percent of the Hornes’ 2002-03 crops and thirty percent of their 2003-04 crops, but rather imposed a condition on the Hornes’ use of their crops by regulating their sale.
The panel then cited a Ninth Circuit opinion from 1938 - - - Wallace v. Hudson-Duncan & Co., 98 F.2d 985 - - - rejecting a takings challenge to a reserve requirement under the walnut marketing order. The panel therefore joined the Court of Federal Claims, which not long ago decided the same question under the Raisin Marketing Order, Evans v. United States, 74 Fed. Cl. 554 (2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007); in accord with a smiliar case rejecting a challenge to the reserve program under the almond marketing order, Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244 (1994).
On the Eighth Amendment claim, the panel applied the test from United States v. Bajakajian, 524 U.S. 321(1998), considering whether the assessment is imposed, at least in part, for punitive and not merely remedial purposes, and whether the fine is grossly disproportional to the gravity of the offense for which it is imposed. Affirming the district judge, the panel found the fine was remedial and the infractions serious. It also noted that the fines were not as "steep" as those authorized by the statute.
The panel's conclusion notes the Hornes' frustration with the raisin regulatory scheme, but observes that the judicial role "is limited to reviewing the constitutionality and not the wisdom of the current regulation." The Hornes' remedy, the opinion suggests, is with the Secretary of Agriculture.
April 12, 2011
Eleventh Circuit En Banc Upholds Orlando Ordinance Prohibition of Feeding in Public Parks
The en banc Eleventh Circuit has agreed with the panel that an Orlando, Florida ordinance prohibiting the provision of food to large groups is constitutional. The panel opinion, which we discussed here, reversed the district judge, over a vigorous dissent by Judge Rosemary Barkett.
The en banc Eleventh Circuit's relatively brief (15 page) opinion - - - joined by Judge Barkett and without dissent - - - sidestepped the issue of "expressive conduct":
The resolution of this appeal does not require us to determine whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct entitled to protection under the First Amendment. We will assume, without deciding, that this conduct is expressive and entitled to some protection under the First Amendment. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). But even when we assume that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct, we cannot conclude that the ordinance that regulates that conduct violates the Free Speech Clause of the First Amendment.
The en banc court ruled that it would "uphold the ordinance of the City of Orlando both as a
reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct." It easily concluded that the test of United States v. O’Brien, 391 U.S. 367 (1968) was satisfied:
The ordinance is a valid regulation of expressive conduct that satisfies all four requirements of O’Brien. First, Orlando Food Not Bombs does not contest that it is within the power of the City to enact ordinances that regulate park usage. Second, the City has a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area and those interests are plainly served by the ordinance. Third, the interest of the City in managing parks and spreading large group feedings to a larger number of parks is unrelated to the suppression of speech. Fourth, the incidental restriction of alleged freedoms under the First Amendment is not greater than necessary to further the interest of the City.
March 20, 2011
The Original Tea Party and Regulating Food: WV Weekend Features the Forthcoming Work of Alison Peck
The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America. One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants. Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.
In West Virginia, the efforts to mandate caloric information have been less successful. During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state. The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio. Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated. Perhaps unsurprisingly, members chose the biscuits over the bill. However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.
Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here. The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.
Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today.
Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript. It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .” Manuscript at 5.
Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7. Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.
While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50. Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id. Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.
Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54. She writes:
The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.
The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history. Peck's article will be an important contribution to our assessment of our understanding of that history.
with J. Zak Ritchie
[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]
March 20, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Due Process (Substantive), Food and Drink, Fundamental Rights, History, Scholarship, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack
August 12, 2010
Should I Tell You If I Think This Salad is Unhealthy?: Food Disparagement Laws and Chilled Speech
Another packaged salad has been recalled by Fresh Express. This may not seem as if it presents a constitutional issue, but perhaps it does.
Suppose I think three recalls in four months is pretty extreme and I start saying things like
"packaged salad is inherently unhealthy."
I am not really saying that; it is a hypothetical!
And I want to make it clear that it is a hypothetical because of the continuing existence of those notorious veggie-libel statutes. There are more than a dozen, including an Ohio statute that provides:
Any producer of perishable agricultural or aquacultural food products that suffers damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product or any association representing producers of perishable agricultural or aquacultural food products that have suffered damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product may bring an action for damages and for any other relief a court having jurisdiction considers appropriate. If the plaintiff establishes that the disseminator knew or should have known that the information was false, damages may be awarded, including compensatory and punitive damages, reasonable attorney’s fees, and costs of the action.
I might be able to argue, of course, that "packaged salad is inherently unhealthy" is only my opinion. And perhaps I might even be able to prevail on a "falsity" standard. And of course I'd raise the First Amendment.
But I'd be worried that I might not prevail, and if I don't, I would be paying punitive damages and attorneys fees, not to mention my own litigation fees.
And if I did start talking about unhealthy packaged salads - - - which I am not! - - - it might be that I'd be contacted by an attorney representing salad packagers who would advise me about the pertinent statutes. Would that really happen? While there are some documented incidents from a decade ago, the present situation is less well known. A group called "Signal Interference" is collecting "any threats of litigation using food disparagement laws as their premise," more here.
Meanwhile, I don't have a thing to say about my dinner.
August 29, 2009
Beauty and Equality: Saturday Evening Review
After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments. She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity." Id. at 1048. Additionally, another
reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.
Id. at 1052. Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression." Id. at 1058. One of her arguments refuting criticisms is that there is an
assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted. Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and the ruling is widely regarded as one of the Court’s finest moments.
Id. at 1069-1070 (citations omitted). Rhode's point is that law can affect societal change (and she provides other examples). She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes. However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.
I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow. Thanks to Ann, I've read an engaging thought-provoking piece. And it might even be the basis of a Constitutional Law hypothetical in next week's class.