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).


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.

Continue reading “One big First Amendment case at the Court; two more on the way?”