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Posts Tagged ‘content-neutral’

The Supreme Court’s grant of certiorari today in McCullen v. Coakley is important for First Amendment law, although likely to be overlooked in most of the reporting on today’s other important grants and opinions. One of the main items of interest from early reporting is what this grant might mean for the future of Hill v. Colorado, a terrible First Amendment decision issued by the Court in 2000. As much as I would like to see the Court overrule Hill, it does not need to do so in order for the petitioners in McCullen to prevail on their First Amendment challenge. And while I believe both that the McCullen petitioners should win and also that the Court should overrule Hill, I think it much more likely that the petitioners will win without the Court overruling Hill.

There are important differences between the Colorado law upheld in Hill and the Massachusetts law challenged in McCullen. These statutory differences could have significance for both the content neutrality and tailoring determinations, as laid out in the petitionHill addressed the constitutionality of a floating buffer zone that prohibited close physical approaches without consent in an area surrounding health care facilities. McCullen involves the constitutionality of fixed exclusion zones at freestanding abortion clinics. The law challenged in McCullen expressly exempts agents and employees of the abortion clinics from its reach, and operates to prohibit stationary handbilling and stationary speech from a conversational distance within the exclusion zone. Another state law already prohibits obstruction to clinic entrances, but that law preserves speakers’ “rights to engage in peaceful picketing which does not obstruct entry or departure.”

As explained in an  amicus brief in support of certiorari that I co-authored and  filed on behalf of Professors Richard Garnett, Michael Stokes Paulsen, and Eugene Volokh in this round of McCullen (as well as an amicus brief in support of certiorari on behalf of a slightly larger group of law professors in an earlier round of McCullen), the Massachusetts law fails narrow tailoring even if it is held to be content neutral. I think it unlikely that a majority of the Court would wish to further ensconce the dubious content-neutrality reasoning of Hill, but there may nonetheless be a majority of the Court in favor of leaving it undisturbed for the time being. Both goals can be accomplished by assuming without deciding that the challenged Massachusetts law is content neutral. While that would not be the optimal First Amendment outcome, it would also be an improvement over the legal status quo.

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The Fourth Circuit today affirmed the dismissal of a First Amendment challenge to Arlington, Virginia’s prohibition of a doggy daycare’s mural near the Shirlington Dog Park. Judge Diaz wrote the opinion for the Court in Wag More Dogs, LLC v. Cozart, which was joined in by Judge Duncan and Judge Keenan. The challenger was represented by the Institute for Justice, which has a case page with background and more information, together with a response to today’s decision.

My preliminary reaction is that the opinion’s First Amendment analysis is overly deferential to the government. In assessing whether the challenged sign ordinance is content-based or content-neutral, the opinion follows the regrettable path of focusing almost exclusively on whether the ordinance was enacted because of disagreement with the message conveyed. The most underdeveloped part of the opinion, however, is its application of intermediate scrutiny, particularly the narrow tailoring prong. The county asserted that its ordinance serves two interests: promoting traffic safety and enhancing the County’s aesthetics. The county’s enforcement of its ordinance with respect to the challenged mural raises serious questions about how the ordinance is “narrowly tailored” to serve these interests, questions that the opinion simply does not address. The county told Wag More Dogs that the mural would not run afoul of the ordinance if (1) it depicted anything other than pictures relating to the doggy daycare business, or (2) it included the phrase “Welcome to Shirlington Park’s Community Canine Area.” Given the conceded lawfulness of hypothetical alternative murals that comply with either (1) or (2), it is hard to see how the ordinance is tailored at all, much less narrowly tailored, to the promotion of traffic safety or the enhancement of the County’s aesthetics. Instead of examining this issue, however, the opinion conclusorily asserts that the ordinance’s sign and location restrictions do no more than eliminate the exact source of the evil it sought to remedy.

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The Richmond Times-Dispatch reports on an awkward encounter today between Richmond Mayor Dwight Jones and various occupiers at Kanawha Plaza in downtown Richmond. Earlier in the day, Jimmy Barrett of WRVA interviewed William & Mary law professor Timothy Zick about the legal rights of the city vis-a-vis the occupiers. Bottom line: The occupiers are breaking the law and Richmond has the legitimate authority to enforce the law by removing the occupiers.

The legal analysis is not particularly difficult. The city’s ban on overnight camping in public parks is a content-neutral time-place-manner restriction that leaves open ample alternative means of communication.

The protesters obviously seek to occupy the moral high ground vis-a-vis Wall Street and plutocrats and the like, but they also appear to wish to occupy the moral high ground with respect to the law governing use of the city parks. That seems like a more difficult task.

According to the Times-Dispatch story linked above, “[occupier] Kadrich said that the occupiers were ‘following all legislation that we term to be wholly just.’ He added that if given an ultimatum to leave the plaza by a certain date, many protesters may exercise ‘civil disobedience.'” Yet the protesters already are engaged in civil disobedience. Regardless of whether the city forces the issue, they are in violation of a valid law.

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