Category: General Law


FAN 54 (First Amendment News) Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case

Robert S. Reynolds (credit: Richmond Times-Dispatch)

Robert Reynolds (credit: Richmond Times-Dispatch)

Somehow this one slipped by me. Thanks to Joseph P. Rapisarda, Jr. (the county attorney in the case), however, I now know of it and of Chief Judge William Traxler’s opinion in Reynolds v. Middleton (4th Cir., Feb. 24, 2015).

The case involves a homeless man (Robert S. Reynolds) who begged for money in Henrico County, Virginia. (A panhandling First Amendment case is currently pending before the Supreme Court: Thayer v. City of WorcesterThe petition was distributed for Conference of January 9, 2015.)

In a world where commercial speech is the coin of the realm, Mr. Reynolds looked to the First Amendment to aid the cause of his life-sustaining speech. To that end, he challenged a newly enacted local ordinance, which provides:

Sec. 22-195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.

(a) It shall be unlawful for any person while in the highway to:

(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.

(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.

(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.

(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.

Brian Burgess

Brian Burgess

At first he was unsuccessful; his case was dismissed by a federal judge. Thanks to the appellate work of Brian Timothy Burgess (a former Sotomayor law clerk) and the ACLU, Reynolds did rather well in the Fourth Circuit (see CBS video clip). Here are a few excerpts from Chief Judge Traxler’s opinion:

  1. There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013). There is likewise no question that public streets and medians qualify as “traditional public forum[s].” Id. at 555; see Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).
  2. The government’s power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny — that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert. denied, 135 S. Ct. 183 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
  3. In our view . . . the Supreme Court’s recent decision in McCullen v. Coakley clarifies what is necessary to carry the government’s burden of proof under intermediate scrutiny. McCullen involved a First Amendment challenge to a Massachusetts buffer-zone statute that prohibited standing on a “public way or sidewalk within 35 feet of an entrance or driveway” of an abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench trial on stipulated facts, the district court upheld the statute, and the First Circuit affirmed. The Supreme Court applied intermediate scrutiny — the same standard we apply in this case — and reversed.
  4. We draw several lessons from the Court’s decision in McCullen. First, the Court’s discussion of whether the statute furthered an important governmental interest confirms that the existence of a governmental interest may be established by reference to case law. Second, the Court’s flat declaration that “[t]he buffer zones clearly serve these interests” indicates that objective evidence is not always required to show that a speech restriction furthers the government’s interests. Finally, the Court’s rejection of the Commonwealth’s narrow-tailoring arguments makes it clear that intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.

The Chief Judge concluded his opinion as follows:

Although we have concluded that the County’s evidence failed to establish that the Amended Ordinance was narrowly tailored, we believe the proper course is to vacate and remand. Our analysis in this case was driven by the Supreme Court’s decision in McCullen, which was issued after the district court’s ruling in this case. As we have explained, McCullen clarified the law governing the evidentiary showing required of a governmental entity seeking to uphold a speech restriction under intermediate scrutiny. Because the parties did not have McCullen’s guidance at the time they prepared their cross — motions for summary judgment, we believe the County should have an opportunity to gather and present evidence sufficient to satisfy McCullen’s standard. Accordingly, we hereby vacate the district court’s order granting summary judgment to the County and remand for further factual development and additional proceedings as may be required (footnote omitted).

Note: Since “the Henrico ordinance has not been invalidated,” said Burgess, “panhandlers still could be criminally charged.”

See A. Barton Hinkle, “There’s No Begging Exception to the First Amendment,”, March 4, 2015

 See Arizona Senate Debates Panhandling Bill,” NAZToday, March 25, 2015 (YouTube video)

See also Sara Rankin, “A Homeless Bill of Rights,” Seton Hall Law Review (forthcoming, 2015).  

Balkin & Redish Discuss Commercial Speech at First Amendment Salon Read More


John Bingham on “the People”

101px-John_Bingham_-_Brady-HandyI’ve posted previously about cases holding that illegal aliens are not included in the Second Amendment, in part because “the people” mentioned in that provision should be read as a term of art that means “people who are lawfully in the United States.”  It turns out that John Bingham was a forceful proponent of the idea that “the people” was not just the plural of “person” for constitutional purposes.

In arguing against the admission of the Oregon Territory as a state, Bingham stated that the Oregon Constitution was invalid because it allowed some legal aliens to vote.  He said that this was inconsistent with Article I’s use of the term “the people of the several states.”  In his view, “the people” meant only citizens.  While some states at the time did let aliens vote, he maintained that this was unconstitutional (and represented the only constitutional limit on state authority over who was eligible to vote).  He then went on to say that when a right was fundamental the Constitution used the term “person” or something else (not “the people”) to make that point.

Bingham’s comments on this point can be found at Cong. Globe. 35th Cong, 2d Sess., 982-84 (1858).  Or you can find them in my book.  Of course, Bingham did not discuss a distinction between legal and illegal aliens, as there were virtually no illegal aliens then, but one could say that the current interpretation of “the people” is at least trying to be faithful to the original view.


JFK on the Bill of Rights

John_F._Kennedy,_White_House_photo_portrait,_looking_upI’ve come across something that I thought I’d share.  In November 1963, President Kennedy filmed a short message that was to be aired in movie theaters on Bill of Rights Day.  Sadly, he was killed before that, and the film was never shown.  Here is a transcript of what he said:

I am grateful to the Motion Picture industry for this opportunity to remind you of a most important day in our lives:  December 15th is Bill of Rights Day.

The Bill of Rights are the first ten amendments to the American Constitution.  After the Constitution was written, it was felt that the while this was an extraordinary document, it did not provide the kind of guarantees for our individual liberties that a free country required.  And therefore under the leadership of James Madison, the first ten amendments were adopted to the Constitution.  We call them the Bill of Rights.

Because of the first ten amendments to the Constitution, because of the Bill of Rights, we are guaranteed freedom of speech, freedom of religion, freedom of the press, the right of assembly and petition, the right of trial by jury, the right to be secure in one’s home, the protection of due process of law and private property and public trials, and many other things that perhaps we take for granted which are guarantied in the United States Constitution.

So December 15th is an important day.  The Bill of Rights is vital in our lives.  Even though the parchment of the Constitution of the United States and the Bill of Rights is old and fading in the Archives Building here in Washington, nevertheless this document, the Bill of Rights, has meaning in all of our lives everyday.  We owe a good deal to it.  I think it is appropriate that we be reminded of our blessings and those who made them possible.  Remind our children of what a great country we have, how much it has been through, what it means to them; remind our servicemen, one million of them who serve overseas, that they do not defend merely a piece of geography but also a way of life expressed in the American Constitution, expressed in the Bill of Rights, expressed in the freedoms that we all enjoy.


FAN 53.2 (First Amendment News) Court Denies Cert. in Two Free Speech Cases

The Court released its orders list today and denied cert. in two free speech cases:

  • Dariano v. Morgan Hill Unified School District (Issue: Whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro- America message)
  • The Bronx Household of Faith v. Board of Education of the City of New York (Issues: (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause)

  Tomorrow at 10 a.m. ET the Court may issue one or more opinions in argued cases. After tomorrow, the Supreme Court calendar indicates that the Justices will take a two-week break from announcing opinions. 


[updated: 3-30-15]

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. on 8 v. Bowen
  6. Kagan v. City of New Orleans
  7. Clayton v. Niska
  8. Pregnancy Care Center of New York v. City of New York 
  9. City of Indianapolis, Indiana v. Annex Books, Inc.
  10. Ashley Furniture Industries, Inc. v. United States 
  11. Mehanna v. United States
  12. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  13. Vermont Right to Life Committee, et al v. Sorrell
Books 03

Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

Brandeis Right to Privacy 02

Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

Read More


Pregnancy as Disability

When I teach family law, I briefly discuss the Pregnancy Discrimination Act. The basic hypothetical that I use is: Ace Employer makes no accommodations for any disabilities (other than what is required under the Americans with Disabilities Act). Betty Employee, a truck driver who has to lift heavy packages, becomes pregnant and requests an accommodation. Must Ace make an exception to its “no accommodation” policy? In Young v. UPS, the Supreme Court responded to a variation of that basic hypothetical. What happens to Betty (AKA Peggy Young) when Ace Employer (AKA UPS) accommodates some, but not all, “disabilities”? Read more from June Carbone and me here.


Justice Jackson’s Error

97px-RoberthjacksonA subject that came up in my Bill of Rights seminar this semester is the fallacy that the rights included in the First Amendment were the most important ones because    . . . well, they came first.  Of course, this is wrong.  The First Amendment proposed by Congress to the states concerned the structure of the House of Representatives.  Our First Amendment was third in that list.

I think that the “First Amendment was first” error was first made by Justice Robert Jackson, who was a brilliant writer but not the most careful one.  Dissenting in Everson v. Board of Education, Justice Jackson said that religious “freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.”  I’m looking for other examples though.



The Indiana Religious Freedom Restoration Act

My adopted home state is getting a lot of criticism for enacting a state version of RFRA.  I’m not sure why.

The concern is that the statute will authorize many businesses to refuse service to gays and lesbians.  As far as I know, though, no case construing the federal version of RFRA or the other state versions has held that this fact-pattern is covered.  Now is such an interpretation possible?  Yes.  Do some of the legislators who supported this statute in Indiana want that interpretation to be the law?  Probably.  My only point, though, is that there’s nothing special about Indiana’s statute as compared to the one enacted by Congress in 1993 or by many other states, and none of them (so far) authorize discrimination based on sexual orientation.



FAN 53.1 (First Amendment News) U. Maryland Law to Host Conference: “The Impact of the First Amendment on American Business”

e5eb96fc377fcf9f7e18eb56d245dca1The 2015 Symposium (March 27th), “The Impact of the First Amendment on American Businesses,” will facilitate a discussion on the effects and consequences of First Amendment jurisprudence on businesses. The symposium will specifically cover the areas of commercial speech, religious exemptions for businesses, and rights of businesses to use technology appropriately. This event will be located at University of Maryland Francis King Carey School of Law, and is open to anyone interested in attending, including students, lawyers, and scholars.

Welcome and Introductory Remarks
Dean Donald TobinUniversity of Maryland Francis King Carey School of Law

Keynote Speaker 1
Travis LeBlanc, Federal Communications Commission

Panel 1: First Amendment and Commercial Speech Relating to Health

Jane Bambauer, University of Arizona School of Law
Adam Candeub, Michigan State University College of Law
Stephanie Greene, Boston College & Greene LLP
Kathleen Hoke, University of Maryland Francis King Carey School of Law
Wendy Wagner, University of Texas at Austin School of Law

Panel 2: First Amendment and Technology

Hillary Greene,  University of Connecticut School of Law
James Grimmelmann, University of Maryland Francis King Carey School of Law
Glenn Kaleta, Microsoft Corporation
Renee Knake, Michigan State University College of Law
Neil Richards, Washington University School of Law
Felix Wu, Yeshiva University Benjamin N. Cardozo School of Law

Panel 3: Religious Exemptions for Corporations

Caroline Corbin, University of Miami School of Law
Michelle Harner, University of Maryland Francis King Carey School of Law
Louise Melling, American Civil Liberties Union
Jennifer Taub, Vermont Law School
Nelson Tebbe, Brooklyn Law School

Keynote Speaker 2

Tamara PietyUniversity of Tulsa School of Law

Closing Remarks

Danielle CitronUniversity of Maryland Francis King Carey School of Law

For additional information, please contact Joella Roland, Executive Symposium & Manuscripts Editor, via email at

ht: Neil Richards 


Griswold and the Bill of Rights

93px-WilliamodouglasThis is the 50th anniversary of Griswold v. Connecticut, and I’ve been thinking about the case as part of my research on the Bill of Rights.  As I’ve mentioned in prior posts, Griswold is the only Supreme Court opinion that reads the first set of amendments holistically (“emanations” and “penumbras”), and Justice Douglas’s opinion makes some other statements about the Bill of Rights that have proved quite influential.

Let’s start with the holistic point.  When the Court was issuing its liberty of contract cases from the 1890s until the 1930s, here’s what was not said:  “The liberty of contract can be derived from various guarantees in the Bill of Rights.  The Takings Clause protects property from expropriation without just compensation.  The Second Amendment protects our right to contract to buy guns.  The Third Amendment protects the home from a coerced rental of a room to a soldier.  The Fourth Amendment protects papers (including contracts) from unreasonable searches and seizures.  And then there is the Ninth Amendment.”

Why did the Court not approach the liberty of contract in this way?  One reason is that there was no idea then that the first set of amendments should be read together or were special.  Second, none of these rights (except for Takings) applied to the states, thus to use them to support an unwritten right that would bind the states would have been odd.  The holistic reading in Griswold, in other words, was the product of the growth in the importance of the Bill of Rights by 1965 and the related success of incorporation.

Next, Griswold settled the longstanding debate about whether the Ninth Amendment was in the Bill of Rights.  You can find several Supreme Court opinions before this that define the Bill of Rights as the first eight amendments.  But Griswold says quite clearly that the Ninth is part of the holistic reading, and since then the Court has not revived the “first eight amendments” definition.

Finally, Griswold introduced the idea that rights or structural protections that predate the Bill of Rights must be really important because they are “older than the Bill of Rights.”  This trope has appeared in many opinions since 1965, though I’m still researching that point.

More on the Bill of Rights tomorrow . . .