A huge day for the First Amendment. I’m flying to Minnesota now and will have more later.
Imagine a system that forced you to contribute $100 to the political campaign of the winner of each election. In 2016, you’d be compelled to donate to Trump; in 2008, to Obama; in 2000, to Bush.
You’d probably be offended. You might object to the fact that the program gives money to candidates with views that you find disagreeable. Why should a law force you to give money to Democrats if you’re a Republican and vice versa? In First Amendment terms, you’d say the law improperly discriminates on the basis of viewpoint.
The Center for Competitive Politics promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government through strategic litigation, communication, activism, training, research, and education. The Center of Competitive Politics is no more; the organization is now the Institute for Free Speech.
Josephine Havlak is a St. Louis-based photographer who has taken pictures for portraits, weddings, and events since 1979. Havlak takes pictures in several places, including a public park in the Village of Twin Oaks. The 11-acre park features a waterfall and a picturesque wood bridge spanning a creek.
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.
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.