Kethledge: First Amendment Hawk

Justice Kennedy was a fierce defender of the First Amendment. As he explained in one of his last opinions on the bench, the government “must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”

Not many can fill Justice Kennedy’s shoes when it comes to the First Amendment. But one who might is Justice Kennedy’s former law clerk: Judge Raymond Kethledge of the Sixth Circuit.

In one case, Judge Kethledge wrote an opinion invalidating an Ohio law that prohibited candidates for state prosecutors’ office from accepting campaign contributions from Medicaid providers. Ohio argued that a law which banned the speech of all 93,000 Medicaid providers was necessary to prevent corruption. Yet Kethledge explained that “a state must do more than merely recite a general interest in prevent corruption.” It must “demonstrate how its [law] furthers a sufficiently important interest.” Examining the evidence, Judge Kethledge noted that although only about 300 of Ohio’s Medicaid providers were implicated in Medicaid fraud, the Ohio law prevented nearly 100,000 providers from speaking. A law with such an imprecise fit between means and ends flunks the First Amendment.

In another case, the police threatened to arrest two people who were walking around a festival with a sign conveying a Christian message. The city defended its actions, pointing to a ban on the “soliciting of causes outside of booth space” during the Sweet Corn Festival. The city argued that the ban was necessary for crowd control, but it identified no crowd concerns at the festival. Judge Kethledge fully joined the opinion striking down the law. In so doing, he found the ban far too restrictive, since it prohibited all signs, leaflets, and even one-on-one discussions.

In a third case, Judge Kethledge rejected a First Amendment challenge to ordinances that regulated the licensing and location of adult businesses. There’s not much to say about the merits: the Supreme Court has held that laws which seek to limit the secondary effects of adult businesses receive less scrutiny. Lower court judges are bound by Supreme Court precedent. I mention the case because it features my favorite Kethledge one-liner of all time. The dissent in the case felt that the main issue should’ve been a different one: “the beaches of Normandy lie elsewhere.” Kethledge’s rejoinder was even better: “Where the dissent actually finds itself, however, is at Pas de Calais.”

Court watchers love comparing nominees to sitting justices. Judge Kethledge’s writing reminds me of the Chief’s. His focus on statutory text? Justice Thomas. He shares Justice Kennedy’s commitment to civil discourse. Will Judge Kethledge fortify his former boss’s legacy on the First Amendment? We may find out soon enough.


(Disclosure: Years ago, I was a student in Judge Kethledge’s Fundamentals of Appellate Advocacy Seminar).


My speech to the Sacramento Federalist Society on MVA v. Mansky

On Tuesday, I spoke to the Sacramento Lawyers Chapter of the Federalist Society about Minnesota Voters Alliance v. Mansky. In Minnesota Voters Alliance, we’re asking the Supreme Court to invalidate a ban on political apparel (including shirts featuring the logo of the Tea Party, the Chamber of Commerce, or the AFL-CIO) at polling places across Minnesota. The Court will hear argument in the case on February 28.

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Are credit card surcharge laws illegal?

Several states have laws that prohibit credit card surcharges. The Ninth Circuit recently joined two other courts in deciding that those laws implicate the First Amendment. In Italian Colors Restaurant v. Becerra, the San Francisco-based court invalidated a California law that banned credit card surcharges but allowed cash discounts. In other words, a business could charge cash-paying consumers less, but only if the businesses called its practice a “cash discount” rather than a “credit card surcharge.”

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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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How do law schools teach the First Amendment?

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.

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