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

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

March 30, 2015, New Haven. The topic: “Is the First Amendment Being Misused as a Deregulatory Tool?” That was the subject to be discussed in the latest First Amendment Salon (the fifth one), which was held at the Floyd Abrams Institute For Freedom of Expression at Yale Law School. Mr. Abrams moderated the discussion between Yale Law Professor Jack Balkin and Northwestern University Law Professor Martin Redish. The discussion was videocast live to designated venues in Washington, D.C. and New York City.

Some of those in the audience at the various venues included: Joan Bertin, Robert Corn-Revere, Heather Dietrick, Justin Dillon, George Freeman, Laura Handman, Adam Liptak, Margaret McPherson, Tamara Piety, Dean Ringel, David Savage, Ilya Shapiro, Paul Smith, and Katie Townsend.

Cass Sunstein & the “corporate movement to transform the First Amendment into an all-purpose shield against even modest regulation”

Professor Cass Sunstein

Professor Cass Sunstein

Echoing a liberal theme heard more and more lately, Harvard Law Professor Cass Sunstein has just published a blog post entitled “Free Speech, Inc.” — yet another attack on First Amendment protection for corporate free speech rights. Professor Sunstein begins his Bloomberg post with this observation:

“The most illuminating free-speech case of 2015 has nothing to do with political speech, or civil-rights protests, or hate speech, or any other issues we used to associate with the First Amendment. It has to do with an obscure provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act that directs the Securities and Exchange Commission to require companies to inform the public if their products use conflict minerals.”

“The case, brought by the National Association of Manufacturers, is the culmination of a stunningly successful corporate movement to transform the First Amendment into an all-purpose shield against even modest regulation. Let’s give the movement a name: Free Speech Inc.”

He then adds: “The conflict minerals controversy came to a head in 2012, when the SEC issued a regulation requiring companies to conduct a “reasonable country of origin inquiry” to see if their products use minerals that are sold to finance war and humanitarian catastrophe in covered nations — principally Congo. If they do, then companies must report those products, publicly, on an SEC website.”

“In 2014, the court of appeals ruled that this requirement was reasonable and consistent with Dodd-Frank. The only problem involved the First Amendment. The court noted that the government is usually free to require companies to disclose ‘purely factual and uncontroversial information,’ but insisted that this principle is limited to government efforts to protect consumers from deception.”

He concludes his post with these observations:

[R]ecent decades have seen a genuine revolution in free speech law. Far from being used to ensure the preconditions for self-government, the First Amendment is being regularly invoked as a barrier to fairly modest regulatory requirements. Ironically, those requirements are usually designed to ensure that consumers are informed.

Birthed by a consumers’ rights decision in 1976, Free Speech Inc. has already been an astonishing success story. The conflict minerals controversy will provide crucial evidence about its future.

See also:

12 First Amendment Scholars File Brief in Jesse Ventura Defamation Case

The case is Ventura v. Kyle, which is now before the Court of Appeals for the Eight Circuit. Jesse Ventura, the former governor of Minnesota, has lashed out against the 2012 bestselling American Sniper by Navy SEAL Chris Kyle. The Oscar-nominated film is based on the book. According to Mr. Ventura: “The book is not a true story,” it “had fabrication and fiction written into it.” Last year Ventura won a defamation lawsuit against Kyle, this prior to Kyle’s death in 2013.

First Amendment advocates and major media companies are urging a federal appeals court to throw out a defamation judgment against “American Sniper” author Chris Kyle that entitled former Minnesota Gov. Jesse Ventura to more than $1 million of the royalties from the book. The case is an appeal by Mr. Kyle’s widow of last year’s jury verdict in favor of Mr. Ventura . . . . . On top of a $500,000 damages award, the Minnesota jury awarded the former wrestler another $1.35 million for unjust enrichment, draining some of the profits generated by Mr. Kyle’s best-seller, which was turned into a blockbuster film. Mr. Kyle was killed on a Texas shooting range in early 2013 by a fellow Iraq war veteran. — Jacob Gershman, “‘American Sniper’ Case Triggers First Amendment Concerns,” Wall Street Journal, March 19, 2015

Professor Len Niehoff

Professor Len Niehoff

The amicus brief in support of the Defedant-Appellant was prepared by Professor Len Niehoff. In it, he argues that:

  • The Sullivan Actual Malice Standard Provides Expansive and Critical Protection to Freedom of Expression but Poses Challenges in Jury Trials
  • The Court Below Erred in its Instructions to the Jury Regarding Reckless Disregard, and
  • The Court Below Erred in its Instructions Regarding the Burden of Proof as to Falsity

Those who signed the brief are:

  1. Vincent  Blasi
  2. Clay Calvert
  3. Erwin Chemerinsky
  4. Lucy Dalglish
  5. Don Herzog
  6. M.A. Kautsch
  7. Jane Kirtley
  8. Len Niehoff
  9. Amy Kristin Sanders
  10. James Spaniolo
  11. Nadine Strossen
  12. Kyu Ho Youm

See also amicus brief filed on behalf of 33 media companies and organizations in support of Defendant-Appellant (Floyd Abrams, Susan Buckley & Merriam Mikhail, attorneys for amici)

Harsh Speech is not Stalking Says Georgia High Court

The caseChan v. Ellis (Ga. S. Ct, March 27, 2015) (per Justice Keith Blackwell)

The CounselDarren Summerville and Eugene Volokh (and others)

See Volokh’s comments here

Union alleges CTA Violates Free-Speech Rights

According to an Associated Press report: “A Chicago Transit Authority union has filed a federal lawsuit saying the agency is violating free-speech rights by barring workers from distributing leaflets in break rooms opposing Mayor Rahm Emanuel in an April 7 runoff election.”

“The Amalgamated Transit Union filed the nine-page suit Tuesday in Chicago federal court. It asks for a prompt court order allowing the leaflets in break rooms. . . .”

Noted 1-A Scholar & Litigator to be Dean of University of Delaware Law School

Professor Rodney Smolla

Professor Rodney Smolla

Over the years he has crafted quite a reputation for himself as a free-speech scholar. His name is Rodney Smolla. According to a news report in the Philadelphia Business Journal, Professor Smolla will soon become Dean Smolla Rod Smolla at Widener University Delaware Law School, located in Wilmington. Smolla is currently a visiting professor of law at the University of Georgia School of Law.

Previously, Professor Smolla served as the president of Furman University from 2010 to 2013 and before that as dean and Steinheimer Professor at Washington and Lee School of Law. Prior to that, he was dean and Allen Professor at the University of Richmond School of Law, and also served as the director of the Institute of Bill of Rights Law at the College of William & Mary.

He represented the Respondents in the Supreme Court case of Virginia v. Black (2003) in the Supreme Court. Some of his more notable writings on free speech include the following:

Proposed Kansas Law Would Limit Public Professors’ School-Affliation Rights

Writing in the Chronicle of Higher Education, Andy Thomason reports: “A bill making its way through the Kansas Legislature would prohibit professors at public institutions from being idem tified by their titles in newspaper opinion articles about an elected official, a candidate, or an issue being dealt with by a state public body.”

Jonathan Shorman, writing in the Topeka Capital-Journal, also reports: “House Bill 2234 would require the governing boards of community colleges and state universities to implement policies prohibiting employees from providing titles when authoring or contributing to newspaper opinion columns, which includes letters, op-eds and editorials.” An excerpt of the proposed law is set out below:

The state board of regents, the board of trustees of any community college, the board of regents of any municipal university and the governing body of any technical college shall adopt and implement, or require to be implemented, a policy and plan which prohibits an employee from providing or using such employee’s official title when authoring or contributing to a newspaper opinion column. Such policy and plan shall prohibit employees from providing or using such employee’s official title in a newspaper opinion column only when the opinion of the employee concerns a person who currently holds any elected public office in this state, a person who is a candidate for any elected public office in this state or any matter pending before any legislative or public body in this state.

The full  text of the proposed law can be found here:

ht: Joan Bertin 

Va. Book Festival Panel Discussion on Money and Politics

Professor Jamin Raskin

Professor Jamin Raskin

On March 21, 2015 the Thomas Jefferson Center for the Protection of Free Expression hosted a panel discussion on “Money and Politics” at the 21st annual Virginia Festival of the Book. The panelists were Professors Jamin Raskin and Ron Collins with the Center’s Josh Wheeler moderating the discussion.

C-SPAN’s Book TV covered the event, the video of which can be found here.

The discussion covered a variety of topics ranging from the history campaign finance laws to current campaign expenditures by corporations along with a discussion of the Roberts Court’s First Amendment rulings in this area.

Coming this Fall: Book on Schools & Censorship

This coming October Harvard University Press will publish Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights (330 pp.) by George Washington University Law Professor Catherine J. Ross. Here is an advance description of the book:

Professor Catherine Ross

Professor Catherine Ross

“American public schools often censor controversial student speech that the Constitution protects. Lessons in Censorship brings clarity to a bewildering array of court rulings that define the speech rights of young citizens in the school setting. Catherine J. Ross examines disputes that have erupted in our schools and courts over the civil rights movement, war and peace, rights for LGBTs, abortion, immigration, evangelical proselytizing, and the Confederate flag. She argues that the failure of schools to respect civil liberties betrays their educational mission and threatens democracy.”

“From the 1940s through the Warren years, the Supreme Court celebrated free expression and emphasized the role of schools in cultivating liberty. But the Burger, Rehnquist, and Roberts courts retreated from that vision, curtailing certain categories of student speech in the name of order and authority. Drawing on hundreds of lower court decisions, Ross shows how some judges either misunderstand the law or decline to rein in censorship that is clearly unconstitutional, and she powerfully demonstrates the continuing vitality of the Supreme Court’s initial affirmation of students’ expressive rights. Placing these battles in their social and historical context, Ross introduces us to the young protesters, journalists, and artists at the center of these stories.”

“Lessons in Censorship highlights the troubling and growing tendency of schools to clamp down on off-campus speech such as texting and sexting and reveals how well-intentioned measures to counter verbal bullying and hate speech may impinge on free speech. Throughout, Ross proposes ways to protect free expression without disrupting education.”

More Commentary on License Plate Case

Over at BalkinizationCorey Brettschneider & Nelson Tebbe have this: “Clearing Up the Court’s Confusion About License Plates.” Here is an excerpt:

“A better approach [than Texas abandoning its specialty license plate program altogether to avoid racist messages] would be to recognize that of course Texas has a legitimate interest in excluding racialized messages on specialty plates, because of the reasonable concern that those words would be associated with the state. Moreover, Texas’s concern would have constitutional status because the Equal Protection Clause prohibits the state from endorsing such messages. So the state’s interest in denying applications for plates that harm equal citizenship for nonwhites is rooted in the Constitution. Even if flying the confederate flag is not itself unconstitutional, Texas has a unique interest in avoiding speech that it thinks implicates equal protection values. This interest is distinct from merely avoiding offense. It is about rejecting complicity in a message that triggers constitutional concerns.”

New Scholarly Articles 

Professor Sonja West

Professor Sonja West

  1. Richard Hasen, “Why Isn’t Congress More Corrupt? A Preliminary Inquiry,” Fordham Law Review (forthcoming, 2015)
  2. Sonja West, “The ‘Press,’ Then & Now,” SSRN (March 17, 2015)
  3. Mark D. Rosen, “When are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question,” William & Mary Law Review (forthcoming, 2015)
  4. Rebecca L. Brown, “The Harm Principle and Free Speech,” SSRN (March 25, 2015)
  5. Andrew David Postal,  “Where the Schoolhouse Gates End: An Analysis of State Cyberbullying Laws,” SSRN (March 30, 2015)
  6. Alan K. Chen & Justin F. Marceau, “High Value Lies, Ugly Truths, and the First Amendment,” SSRN (March 25, 2015)
  7. Aaron Tang, “Public Sector Unions & the First Amendment after Harris v. Quinn and Burwell v. Hobby Lobby,” New York University Law Review (forthcoming 2015)

New YouTube Videos

University of Maryland Law School Conference: “The Impact of the First Amendment on American Business” 

  1. Donald Tobin, “The Impact of the First Amendment on American Businesses — Opening Remarks,”
  2. Travis LeBlanc of the FCC, “Opening Keynote Speech
  3. Tamara Piety, “Closing Keynote Speech
  4. Danielle Citron, “The Impact of the First Amendment on American Businesses – Closing Remarks,”

* * * *

  1. Paul Marshall, “The Aftermath of Charlie Hebdo, Blasphemy, Free Speech, and Freedom of Religion,” King’s College
  2. Eric Damian Kelly, “Regulating Sex Businesses, Part 1: Principles and Foundations — First Amendment,” Planetizen Courses
  3. Ivo Labar, “What poses the biggest threat to First Amendment rights?,” ReelLawyers
  4. Burt Neuborne on His New Book: Madison’s Music: On Reading the First Amendment,” Uprising
  5. Freedom of the Press in the U.S.,” The Fresh Outlook

News, Op-Eds & Blog Posts

  1. Jennifer Champagne, “Student Animal Rights Activist Sues California State Polytechnic University for Free Speech Restrictions,” Paste Magazine, March 31, 2015
  2. Ken Wheaton, “P.C. Police Swarm Stewart’s ‘Daily Show’ Replacement Before Job Even Starts,” Advertising Age,” March 31, 2015
  3. Gene Policinski, “Thinking about what we mean and do, when we speak,” The Morning Sun, March 28, 2015
  4. Pamella Geller, “AFDI Wins Important Free Speech Victory, But Opponents End Run the First Amendment,” Breitbart, March 27, 2015


[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. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell

LAST SCHEDULED FAN POST, #53: Justice Sotomayor joins in discussion of Burt Neuborne’s New Book (‘Madison’s Music’)

LAST FAN POSTS, #53.2:Court Denies Cert. in Two Free Speech Cases”

FAN #53.1:U. Maryland Law to Host Conference: ‘The Impact of the First Amendment on American Business‘”

NEXT SCHEDULED FAN POST, #55, Wednesday, April 8, 2015

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