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.
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.
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.
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.
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.
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.
Thousands of law students around the country are buying their books and heading back to school. Many of them took Constitutional Law during their first year. Only a handful learned much about the First Amendment.
In law school, a course on the First Amendment is usually offered as an upper-class elective. But that presents another problem. Even top-notch law professors have trouble cramming all there is to know about the First Amendment in one semester.