My speech to the Federalist Society at the University of Michigan Law School

Last Thursday, I spoke to the Federalist Society at the University of Michigan Law School about Minnesota Voters Alliance v. Mansky. In that case, we asked the Supreme Court to review a ban on political apparel (including shirts featuring the logo of the tea party, the Chamber of Commerce, and the AFL-CIO) at polling places across Minnesota. This morning, the Court relisted our petition.

Here is a transcript of my speech:

We’re lucky to be here in Ann Arbor. Across the country, thousands and thousands of Michigan fans are eager to watch the game this Saturday night between the Michigan Wolverines and the Michigan State Spartans.

Put yourself in their shoes for a second. Imagine you’re in a place far away from here. Far away from Michigan Stadium. Maybe you’re at a bar in Chicago. Maybe you’re at home in New York. This Saturday night, you gaze intently at the television as the game is ready to start.

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Speech this Thursday on Minnesota’s ban on political apparel

This Thursday, I’ll be speaking to the Federalist Society at the University of Michigan Law School on Minnesota Voters Alliance v. Mansky. The case, which the justices will consider at its conference on October 6, features a broad ban on political apparel at the polling place. PLF represents Minnesota voters in arguing that the ban, which extends to shirts by the Chamber of Commerce and the AFL-CIO, violates the overbreadth doctrine of the First Amendment. Professor Sam Bagenstos will provide commentary on my speech.

Ninth Circuit’s soda decision (mostly) a win for free speech

The Ninth Circuit issued a favorable decision last week in American Beverage Association v. City and County of San Francisco. The case involves a San Francisco ordinance that requires soda advertisers to devote 20% of each advertisement for the City’s message: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”

I filed a friend-of-the-court brief in this case, arguing that the ordinance compels speech, and thus violates the First Amendment. The Ninth Circuit agreed, and prevented the ordinance from going into effect until the case can be resolved on the merits.

The Ninth Circuit’s decision was mostly good. The court observed, for example, that compelled speech can distort the speaker’s intended message: “As the sample advertisements show, the black box warning overwhelms other visual elements in the advertisement.” Just look at the picture above. One may associate happiness with many things, but few would associate it with “obesity, diabetes, and tooth decay.” The Ninth Circuit’s decision hits the mark when it notes that San Francisco’s compelled-speech ordinance distorts the speaker’s intended message.

The Ninth Circuit’s decision could have been even better. Many courts, like the district court in this case, use the Zauderer standard to afford minimal scrutiny to laws that compel speech. The Ninth Circuit joined sister courts in applying the Zauderer framework beyond the context of preventing deception. That’s a dangerous holding. The Zauderer standard is much less protective of First Amendment rights than traditional First Amendment standards like strict scrutiny or even intermediate scrutiny. If Zauderer becomes the rule, not the exception, in First Amendment cases, then governments, prevented by the First Amendment from restricting speech, will seek to achieve pretty much the same result by compelling speech instead. That should not be the law. The Ninth Circuit’s decision was pretty good for the First Amendment. We should wish it were a little better.

Op-ed on political apparel ban

American Thinker has published my op-ed on PLF’s cert petition in Minnesota Voters Alliance v. Mansky. I begin the piece by explaining the importance of expression at the polling place:

The American polling place. It’s one of the iconic symbols of American freedom.  Whether it be the local high school gymnasium, a meeting room at the public library, or a neighbor’s garage, the polling place is a hallowed space where citizens of all backgrounds and beliefs come together to discharge the defining privilege of a democracy — the exercise of the franchise.

Read the rest.


One big First Amendment case at the Court; two more on the way?

The Supreme Court will be back in session in just under two weeks. The Court already has one big First Amendment case on its docket, and might be adding a few more in the next few weeks.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will decide whether Colorado’s anti-discrimination law, which requires a cake artist to design custom cakes for same-sex weddings, violates the compelled speech doctrine of the First Amendment. The Cato Institute recently filed a brief in support of the bakery, arguing that “although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected.” Cato’s brief is one of nearly 50 briefs (by my quick count) in support of the bakery. These 50 briefs include one from the United States, which argues that the Colorado Law violates the First Amendment because the law “compels someone to create expression for a particular person or entity and to participate . . . in a ceremony or other expressive event.” Colorado is scheduled to file its brief next month, and we’ll see how many friend-of-the court briefs it gets in its favor. Given the magnitude of this case, I’m guessing there will be many.

There are a few other cases that the Court might take in the next month or so. One of them is my case, and it deals with whether bans on political apparel in polling places violate the First Amendment. In that case, Minnesota interprets “political” to mean shirts with the logo of the Chamber of Commerce, the AFL-CIO, and perhaps even red and blue shirts. You can read more about that in an earlier blog post here.

There’s another noteworthy First Amendment petition scheduled for the long conference on September 25. In Lozman v. City of Riviera Beach, a Florida resident (and Supreme Court winner in a case with the same name) asks the Court to decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim. Under the doctrine of First Amendment retaliation, government agents aren’t supposed to punish you merely for exercising your First Amendment rights. If your state’s financial regulators read about your unfavorable views of the President in a local newspaper, for example, they’re not supposed to retaliate by ordering your employer to scrutinize your financial practices much more carefully. At least that’s how the doctrine’s supposed to work.

In Lozman, the petitioner was arrested after he spoke at a city council meeting. The court of appeals held that even though the arrest might have stemmed from the city council’s desire to retaliate against him for exercising his First Amendment rights, petitioner had to lose because there was probable cause to arrest him for “disturbing a lawful assembly.” But since when does probable cause categorically defeat a First Amendment retaliation claim? As Lozman’s lawyers point out, a protester arrested for jaywalking should still be able to challenge his arrest if he were targeted as a Republican (or a Democrat).

We’ll see what the Court does with both these petitions in the next few weeks.

Jabez and the First Amendment

Jabez Oates is a four-year-old boy who was excited to start his first day of Pre-K. His mother Jessica was shocked to learn that the Barbers Hill Independent School District would not let him attend school, because he is a boy with long hair. (You can read more about Jabez’s story in Newsweek, Huffington Post, and several other outlets).

Last week, my colleague Joshua Thompson and I informed the school district of the legal problems of its ban on boys with long hair. For example, the ban violates the Free Speech Clause of the First Amendment. As we told the school district in a letter:

[T]he school district’s actions violate the Free Speech Clause of the First Amendment. The First Amendment protects not just words, but also conduct that’s sufficiently communicative. In one case, a Houston-based federal court held that a school district’s policy that required a Native American child to cover his braids violated the Free Speech Clause. The court found that the policy was unconstitutional because it burdened more speech than necessary to promote the school’s stated interests of promoting order, discipline, and hygiene. The same can be said of [the school district’s] policy here.

You can read the rest of the letter here and another blog post about this issue here. Let’s hope the school district decides to do the right thing, and allows Jabez the opportunity to go to Pre-K and meet his new friends.

Nutrition, labeling laws, and the changed circumstances doctrine

This November, health expert Aaron Carroll will release his latest book: The Bad Food Bible: How and Why to Eat Sinfully. The book debunks common myths about nutrition.

For example, many people once viewed salt as a hypertension-causing monster. Yet, after examining the scientific evidence, Carroll concludes that people with normal blood pressure should be more worried about getting too little sodium than getting too much.

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