FAN 92 (First Amendment News) Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition

For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually “asserting as true” the message. — Justice William Rehnquist, dissenting Wooley v. Maynard (1977)

In the bizarre words of the Tenth Circuit, Mr. Cressman “cannot demonstrate that the Native American image is, in fact, speech to which he objects.” — Ilya Shapiro, Cato Institute amicus brief (2015)

ah-ok-plate2The case is Cressman v. Thompson. The issue raised in the Petitioner’s cert. petition to the Supreme Court is presented this way: “Oklahoma compels Keith Cressman [a United Methodist pastor] to display an image of the ‘Sacred Rain Arrow’ sculpture from his vehicle – via his standard license plate – although he objects to displaying that image. . . . The question presented is whether [consistent with Wooley v. Maynard] the State can compel citizens to display images that are objectionable to them?”

Nathan Kellum is the counsel of record for the Petitioner.

Judge Jerome Holmes

Judge Jerome Holmes

The Tenth Circuit answered the question posed above in the affirmative. Here is how Judge Jerome A. Holmes put it:”In this case, we must decide whether Oklahoma’s depiction of a Native American shooting an arrow towards the sky on its standard vehicle license plates compels Appellant Keith Cressman to speak in violation of his First Amendment rights. . . . Having determined that the Native American image is sufficiently expressive to qualify as symbolic speech, we now turn to determining whether, in relation to this speech, Mr. Cressman has established that the State has compelled him to adhere to a “view he finds unacceptable.” Wooly. Throughout this litigation, the only reason Mr. Cressman has offered for objecting to the Native American image is what he views as its links to pantheistic Native American folklore. However, a reasonable person would not derive this meaning from the image. Instead, in light of the relevant facts and history of the license plate redesign process, those viewing the image would likely connect the image to Oklahoma’s Native American history and culture. Yet, Mr. Cressman has repeatedly stated, both before this court and the district court, that he does not object to this message. His lack of objection to the only message that a reasonable observer would discern from the image is fatal to his compelled-speech claim; he has not been compelled to express a view he otherwise would not. Because Mr. Cressman must identify some message that he finds objectionable, and because he in fact does not object to the only message reasonably conveyed by the Native American image, we hold that he has not been compelled to speak in violation of his First Amendment rights.” (footnote omitted).

Judge Carolyn McHugh

Judge Carolyn McHugh

Judge Carolyn B. McHugh wrote a separate concurring opinion: “[B]ecause I do not agree the resolution of this case turns on whether the license plate at issue constitutes pure or symbolic speech, I write separately. . . . In my opinion, the analytical framework adopted by the majority and in our prior decision in this matter, Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013) (Cressman I), has been supplanted by the United States Supreme Court’s decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  . . . As I read Walker, there is no longer any question that Oklahoma was engaged in overnment speech when it selected the slogan and graphic depicted on its standard license plate. And because the license plate, as a whole, is government speech designed to deliver a message from the State of Oklahoma, I see no reason to begin our analysis by assessing whether the graphic alone constitutes speech, or whether that speech is symbolic or pure. Everyone, even Mr. Cressman, agrees Oklahoma selected a standard plate design that was intended to convey a message promoting the state. Thus, it is speech. . . Accordingly, I would hold that the Oklahoma license plate is speech, albeit government speech. . . . Having determined the license plate is speech, I would conclude that this case turns not on whether Mr. Cressman objects to the image, as opposed to the words, depicted on the license plate, but rather on the application of traditional First Amendment principles governing compelled speech.”

Petitioner’s Arguments: In his cert. petition to the Court, Mr. Vellum made the following main arguments:

  1. “The Tenth Circuit’s Decision Disregards Supreme Court Precedent and Creates a Circuit Conflict in Holding Widely-Produced Images are Not Pure Speech.”
  2. “The Tenth Circuit’s Decision Breaks with Supreme Court Precedent and Adds More Divergence to an Existing Circuit Split in Holding Symbolic Speech is Protected to the Extent it Presents an Identifiable Message to the Reasonable Observer.”
  3. “The Tenth Circuit’s Decision Flouts Supreme Court Rulings in Holding State Can Compel Citizens to Convey Symbolic Speech Unless the Basis for Objection Matches the Inference Drawn by the Reasonable Observer.”

The Cato Institute filed an amicus brief submitted by Ilya Shapiro (joined by Jayme Weber). In that brief, Mr. Shapiro made the following points:

1.  “The Court Should Grant Certiorari to Clarify the Meaning of ‘Symbolic Speech'”

         A. “The Court Has Never Applied the Term ‘Symbolic Speech’ to Anything Other than Expressive Conduct

        B. “Visual Art Is Pure Speech, Not Expressive Conduct”

        C. “Circuit Courts Are Split on Whether “Pure Speech” Is Reserved for Words”

2. “The Court Should Grant Certiorari to Establish that a Person’s Reasons for Objecting to Compelled Speech  are Immaterial to the Question Whether He is Being Compelled to Speak”

      A. “Visual Art Is Inherently Open to Interpretation; No Single Interpretation Is Authoritative”

     B. “Cressman’s Reasons for Objecting to the Image Are Irrelevant.”

     C. “As in Religious-Freedom Claims, Courts Should Not Evaluate the Reasons Behind an Objection to a  Speech Compulsion”

 See also: Ilya Shapiro & Jayme Weber, “Free Speech Doesn’t Depend on the Eye of the Beholder,” Cato at Liberty, Dec. 30, 2015

Idaho A.G. to Appeal “Ag-Gag” Ruling

imagesThey’re called “ag-gag” laws (Mark Bittman writing in the NYT coined the term in 2011.)  Under such laws, it is a crime to secretly videotape industrial feedlots and slaughterhouses. Likewise, it is a crime to do so for the purpose of exposing pollution and animal mistreatment and abuse in large-scale farming operations. “Ag-gag” laws have been proposed in some 20 states. While such measures have failed in states such as Arkansas, California, Indiana, and Tennessee (among other states), they remain pending in yet many other states. Eight states — such as Idaho, North Carolina,Utah and Wyoming — have enacted such laws.

The Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, and the Center for Food Safety challenged Idaho’s Ag-Gag law (Section 18-7042, Idaho Code) in the District Court for the District of Idaho. The court in Animal Legal Defense Fund v. Otter (Aug. 3, 2015) struck the law down on First Amendment grounds. Last August, Chief Judge B. Lynn Winm found the law to be impermissibly content-based and was drafted in ways designed to “suppress speech critical of the agricultural industry” rather than to “protect private property as the State claims.”

The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace. I am confident that this law will be struck down under Ninth Circuit and Supreme Court precedents. — Erwin Chemerinsky, March 17, 2014

The Reporters Committee, joined by 15 other news organizations, filed an amicus brief (authored by Charles A. Brown & Bruce D.Brown) in which it argued that the Idaho statute weakens food safety guarantees at the same time it stifles free speech. Professor Chemerinsky also filed an amicus brief in the case.

 Idaho’s Attorney General is appealing the case to the Ninth Circuit.

See Eugene Volokh, “Thoughts on the court decision striking down Idaho’s ‘ag-gag’ law,” The Volokh Conspiracy, Aug. 6, 2015

See Alan K. Chen & Justin Marceau, “High Value Lies, Ugly Truths, and the First Amendment,” Vanderbilt Law Review (2015) (discussing video-recording & ag-gag laws, among other things)

11th Circuit Strikes Down City Tattooing Law

& the words were made in flesh

& the words were made in flesh

Here is how Judge Jill Pryor’s opinion in Buehrle v. City of Key West (11th Cir., Dec. 29, 2015) begins: “The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.”

Later in her opinion, Judge Pryor added: “We have never addressed whether tattooing is a protected form of artistic expression. The Ninth Circuit encountered this issue in Anderson v. City of Hermosa Beach (2010), where it held that tattooing was protected speech and that Hermosa Beach constitutionally could not ban tattoo establishments from operating in the city. We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, ‘[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.'”

. . . .

Judge Jill Pryor

Judge Jill Pryor

“The First Amendment,” she added, “requires more. We are not at liberty simply to ‘presume the evidence’ needed to sustain the ordinance. Peek-A-Boo Lounge, 337 F.3d at 1267. ‘[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds.’ Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir. 2001). The City failed to satisfy this burden. On the record before us, the City has presented insufficient evidence that it had a reasonable basis for believing that its ordinance would actually serve the significant governmental interests it propounds. Perhaps, if the district court chooses to permit the introduction of new evidence on remand, the City can produce the kind of evidence that would satisfy its burden, but so far it has not done so.”

Judges Stanley Marcus and William Pryor joined the opinion.

Counsel for Plaintiff-Appellee: Wayne Larue Smith & Brett Tyler Smith

See also Damon Root, “Federal Court Rules Tattooing a Constitutional Right Under the First Amendment,” Reason.com, Jan. 15, 2016

Campus Free-Speech Watch

 “Virginia Professors Adopt Statement Championing Academic Freedom, Free Speech,” The College Fix, Jan. 5, 2015

“The university is the one institution where such open, diverse, free and lively discussion may occur,” states the resolution. “Academic freedom should be promoted, protected, advanced and cherished by all levels of the university and college community.”

The resolution, approved unanimously in November, was penned by political science Professor Garrett Ward Sheldon, who told The College Fix in an email this week that “restricting, censoring and punishing speech is clearly an attempt to control people’s thinking and actions.”

“The most important part of this resolution … is that the proper response to bad ideas is not to forbid or suppress them (which is impossible anyway) but to REFUTE them with good, reasonable ideas,” Sheldon said. “That’s what the academy is all about: teaching people to think, question, engage, debate, discuss, and resolve differences intellectually.”

“The argument that some words are so bad or hurtful that they should be forbidden, prohibited, and punished or sanctioned, is used by all political, social and religious extremists,” he added. “They often will say ‘Well, we respect freedom of speech, except in this clearly bad area’ (racism, sexism, insults, etc.) The danger with that, as the Supreme Court has stated, such restrictions create a ‘chilling effect’ or ‘self-censorship’ on all speech and harm free discourse, learning and progress.” . . . . 

Sheldon said UVa-Wise’s faculty were inspired by other, similar resolutions passed in support of free speech and academic freedom, such as those at the University of Chicago and Princeton.

  1. Robby Soave, “America’s Great Free Speech Battleground,” The Daily Beast, Jan. 6, 2016
  2. Laurentian University says removing prof from course about breaking rules, not freedom of speech,” CBC News, Jan. 6, 2016
  3. Bob Kellogg, “Judge drops student’s free speech lawsuit,NE News Now, Jan. 5, 2016
  4. Catherine J. Ross, “Strangling the Free Mind,” USA Today, Jan. 4, 2016
  5. Speech, Safety and Seinfeld: College Policies on Free Speech,” UWire, Jan. 2, 2016

411Z6ULItfL._SX329_BO1,204,203,200_New & Forthcoming Books

  1. Richard Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, Jan. 2016)
  2. Wayne Batches, The Right’s First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism (Stanford University Press, March 30, 2016)
  3. Kimberly Strassel, The Intimidation Game: How the Left Is Silencing Free Speech (Twelve, April 19, 2016)
  4. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palsgrave Macmillan, April 27, 2016)

Forthcoming Scholarly Articles

  1. Jonathan Adler, “Compelled Commercial Speech and the Consumer ‘Right to Know,'” Arizona Law Review (2016)
  2. Laura M. Weinrib, “Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken,” Emory Law Journal (2016 forthcoming)
  3. John A. Humbach, “The Constitution and Revenge Porn,” Pace Law Review (2016)
  4. Daniel A. Horwitz, “A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment,” Science & Technology Law Review (2016)
  5. Dorlin A. Armijo, “Online Free Speech or Materially Supporting Terrorism?,” Science & Technology Law Review (2015)
  6. Jennifer Herbst, “Off-Label ‘Promotion’ May Not Be Merely Commercial Speech,” Temple Law Review (2016)

Notable Blog Posts 

Eugene Volokh, “The First Amendment, the right of publicity, video games and the Supreme Court,” The Volokh Conspiracy, Jan. 4, 2016

“The ‘right of publicity’ gives people considerable exclusive control over the commercial use of their name, likeness and other identity attributes. But obviously, that control can’t be complete . . . . But what are the boundaries of that right? The Court has never made that clear, and lower courts are hopelessly divided. . . .”

“This is why the Supreme Court petition in Electronic Arts v. Davis (you can read the relevant documents here) is so interesting. “Petitions for certiorari” — requests that the Court review a lower court decision — are generally longshots. But this petition, which the Court is considering Friday, is both very important and unusually likely to be heard. . . .”

“Prof. Jennifer Rothman (Loyola L.A., and author of Rothman’s Roadmap to the Right of Publicity) and I co-wrote an amicus brief on behalf of 31 law professors supporting the petition . . . .”

“If you want to see more about the five tests — the transformative use test, the transformative work test, the relatedness test, the predominant purpose test and the balancing test — see the brief, which is signed by Profs. Jack Balkin, Erwin Chemerinsky, Mark Lemley, Martin Redish, Steven Shiffrin, Geoffrey Stone, Rebecca Tushnet and many more.”

See FAN 83, “Paul Smith Files Cert. Petition in Right of Publicity Case,” Nov. 4, 2015

News, Op-eds & Blog Posts

  1. Hans von Spakovsky, “How Lawmakers Stopped Part of Obama’s Assault on First Amendment,” The Daily Signal, Jan. 5, 2016
  2. Michael Barone, “No, Economist, the First Amendment does give people ‘a free pass to go round saying hateful things,‘” Washington Examiner, Jan. 5, 2016
  3. Fighting attacks on free speech in ’16,” Daily Chronicle, Jan. 5, 2016
  4. David Moshman, “Martin Luther King on the First Amendment,” Huffington Post, Jan. 4, 2016
  5. Hady Karl Mawajdeh, “Dallas Attorney Involved In A First Amendment Case About Hip-Hop,” KUT.org, Jan. 4, 2016
  6. Kaitlyn Schallhorn, “Mizzou Administrator: First Amendment Isn’t a ‘Free Pass to Go Round Saying Hateful Things,’” The Blaze, Jan. 4, 2016
  7. Gene Policinski, “What a strange year for First Amendment freedoms,” The Spectrum, Jan. 3, 2016
  8. Maxine Bernstein, “Federal judge finds Portland mayor, city violated local activist’s First Amendment rights,” The Oregonian, Dec. 31, 2015

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al.
  2. January 19, 2016:  Heffernan v. Paterson, N.J.

Review Denied

  1. Sun-Times Media, LLC v. Dahlstrom
  2. Rubin v. Padilla
  3. Hines v. Alldredge
  4. Yamada v. Snipes
  5. Center for Competitive Politics v. Harris
  6. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Town of Mocksville v. Hunter
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. Miller v. Federal Election Commission 
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is scheduled for Friday, January 8, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Last Scheduled FAN, #91: “2015: The Year in Review, including’“the best of‘”

Next Scheduled FAN, #93:  Wednesday, January 13, 2016

You may also like...