Posts Tagged ‘intermediate scrutiny’

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 Fourth Circuit’s opinion in United States v. Staten, issued last month, contains several observations about the use of social science reports. The government relied on a number of studies to establish the rate of domestic violence, the rate of recidivism among domestic violence offenders, and the use of firearms by domestic violence offenders. The government did not, however, introduce paper copies of these reports in the district court, asserting that they were freely available over the Internet. The Fourth Circuit found this approach to be generally okay (though not the best practice), with one exception:

We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government’s representations as to their ready availability via the Internet or the accuracy of the government’s representations as to their content, we reject Staten’s argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government’s appellate brief.

The one exception was an article from the Journal of the American Medical Association, which required a paid subscription for access to the full text. Senior Judge Hamilton, writing for the Fourth Circuit panel, wrote:

The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.

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