Free Speech and City Ordinances

There is no subject in the law that confounds local government more than the issue of free speech. Naturally local government officials respond to citizen complaints like why aggressive panhandlers can seemingly threaten citizens with aggressive  solicitation tactics (particular tourists). They also demand solutions to   why citizens have to run a gauntlet of opposition in order to access an abortion clinic so they can exercise their constitutional right to an abortion. Drafting laws that survive a free speech challenge is a legal nightmare for even the most skilled municipal attorney and things are not getting any better.

Recently, the Federal Child Protection and Obscenity Enforcement Act of 1988 (think child pornography) was found to be unconstitutional because it violated the right of free speech based upon the application of a 2015 United States Supreme Court decision in Reed v. Town of Gilbert(Gilbert). In addition, an ordinance regulating aggressive solicitation practices and removal of citizen comments on a Police Department Facebook page were found to be a violation of the citizens right of free speech based upon the free speech analysis established by the Supreme Court in Gilbert.

bill of rights

Bill of Rights

What is going on?  By  now it is pretty clear that the 2015 decision by the United States Supreme Court in Gilbert upended pre-2015 thinking about free speech as related to city sign ordinances, aggressive panhandling, child pornography and a host of other laws. A New York Times article in August 2015, called Reed v. Town of Gilbert, the sleeper case of the 2014–2015 Supreme Court term. The Dean of Yale Law School is quoted in the Times article that the:

“…decision was so bold and so sweeping that the  Supreme Court  could not have thought through its consequences.” “The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice.”

“Effectively,” he said, “this would roll consumer protection back to the 19th century.”

Town of Gilbert

The ordinance in Gilbert treated temporary directional signs differently from political signs or ideological signs. In order to  apply the sign  ordinance it was necessary to look at the message on the sign to determine whether or not the sign was a Temporary Directional Sign, a Political Sign, or an Ideological Sign. The Supreme Court explained: “… speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.” Clearly it was necessary to look at the message on the sign to determine how it was regulated, making it content based. To add insult to injury,  Justice Kagan, commented that the ordinance in Gilbert did not even pass the “laugh test.” Ouch! This is very hard to explain to your  City Council.

If restrictions on speech are content based they can only survive if they pass strict scrutiny, which requires a compelling interest to justify the law and that it be narrowly tailored to achieve that interest. Very few laws can survive “strict scrutiny” and are almost always found to be unconstitutional. The corollary is that if speech is not regulated based upon its content, it just has to pass the “intermediate scrutiny” test, which requires only a rational basis for the law. Speech subject to intermediate scrutiny is almost always found to be constitutional. Obviously the focus of any free speech inquiry is whether or not the ordinance is content based because once that is determined everything else falls into place.[1]

FN 1 This point is succinctly made in footnote number 12 in a Note in 129 Harvard Law Review 1981, May 10, 2016. The recent Harvard Law Review Note contains an excellent discussion of how to legally analyze free speech cases after Reed v. Town of Gilbert.

This deluge of recent opinions highlight the need to conduct an inventory of city ordinances to determine if they violate the free speech clause of the First Amendment. It is better to do this now rather than waiting until you are sued based upon a clear violation of free speech under the new standards established by the United States Supreme Court in Gilbert.   A  similar warning was  discussed in my review of the Gilbert case in the Missouri Municipal Attorneys Newsletter in June of 2015.    As predicted the Gilbert case has ramifications well beyond sign ordinances making it necessary to rethink how to draft all  sorts of ordinances,  which  impact speech.

Howard Wright ©2016

The following  related posts  may be of interest:

Cannot ban distribution of bibles at Twin Cities Pride Festival

Thirty-five Foot Buffer Zone For Abortion Clinics Unconstitutional.

Right of Judges to personally solicit campaign contributions.

Shaming – A New Way To Ferret Out Liars About Military Honors

FREE SPEECH AND PROHIBITION OF DISTRIBUTION OF INFORMATION

Truthful testimony under oath about fraud is protected by free speech about

Right of free speech and association trump do not overrule “fair share” obligation to pay union dues

Update of: Right of free speech and association trump “fair share” obligation to pay union dues

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Shaming – A New Way To Ferret Out Liars About Military Honors

There are many individuals who want to bask in the sunlight of fame and glory by dishonestly claiming they earned a medal or special honor serving their country. It is hard to imagine a more despicable person than one who lies about receiving medals or special honors while serving their country in the military. These false claims are a disservice to soldiers and veterans who earned their medals the hard way by giving their life, limbs or mental stability and those who valiantly served beside them. How should frauds like this be treated?

Consider Xavier Alvarez (described in my Post in 2012) who lied about receiving the Congressional Medal of Honor. When Alvarez attended his first public meeting as a board member of the Three Valley Water District Board he introduced himself as: “I’m a retired marine of 25 years.  I retired in the year 2001.  Back in 1987, I was awarded the Congressional Medal of Honor.  I got wounded many times by the same guy.”  Lying was a habit for Alvarez as he also lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.  However, when Alvarez lied that he had been awarded the Congressional Medal of Honor, he violated a federal criminal statute, the Stolen Valor Act (Act). Alvarez was charged and convicted and thereafter appealed  to the United States Supreme Court.

Enter  now the world of free speech where the United States Supreme Court in U. S. v. Alvarez invalidated the Act  and the charges against Alvarez on  the grounds that the Act violated the Free Speech Clause of the First Amendment to the United States Constitution.

In 2013, Congress amended  the Act, to  correct the constitutional defect, by making it a crime for a person to fraudulently claim that they had received a particular military decoration and award with the intention of obtaining money, property, or other tangible benefit from convincing someone he or she rightfully received that award.  In other words, as long as you were not profiteering in some way you could make fraudulent claims.

That left a big hole in the law, by allowing individuals who did not seek to obtain money, property or other benefits to continue to falsely claim that they had received a particular military declaration or award. Enter now the world of shaming   brilliantly described in   “The Honor Guard,” an article in  the December 2016 edition of “The Atlantic” by Mockenhaupt. Yes, when there is no recourse under the law, shaming correctly puts the   public spotlight on liars who falsely claim they were awarded medals or special honors for serving their country.  This is some progress  unfortunately leaving those who have no shame to continue to make false claims.

Howard Wright © 2016

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 Stun Guns – Right To Bear Under The Second Amendment and The Use Of Excessive Force

Stun Guns Are Protected Under The Right To Bear Arms

In a short opinion, the United States Supreme Court unanimously reversed a decision by the Supreme Judicial Court of Massachusetts, which upheld a Massachusetts law prohibiting the possession of a stun gun.   The Supreme Court noted that the Massachusetts Court focused on whether or not stun guns were “dangerous per se at common law and unusual.” This statement ignored statements in Heller, an earlier U. S. Supreme Court opinion, that held that the Second Amendment extends to all arms “…that were not in existence at the time of the founding.”   

Since the Missouri Constitution protects the right to bear arms and is interpreted the same as the right to bear arms provision in the United States Constitution, stun guns are also constitutionally protected under Missouri law. Statutory provisions In Missouri do not prohibit possession of a stun gun or its use unless they are used as an offensive lethal weapon. (Mo. Rev. Stat. §§ 571.030, 556.061.)

Excessive Force

Despite the existence of laws in Missouri that protect the possession of stun guns local government needs to be concerned because there is substantial liability for the use of a stun gun when it  is  used to inflict excessive force in carrying out law enforcement activities.

A jury recently found that the City of Ferguson and one of its officers was liable for the use of excessive force in making an arrest involving the use of a Taser[1]. In the Moore case a 31-year-old man weighing approximately 135 pounds was totally naked and running down the street yelling “God is good,” “glory to God,” and “I am Jesus.” Several 911 calls were and a Ferguson Police Department officer was dispatched. When the police officer arrived at the scene he tried to get Moore away from the street; however, Moore rushed the officer with his fist-closed pinwheeling his fists. Moore ignored the officer’s commands to get down. The officer then tased Moore who collapsed to the ground. The office believed that Moore was continuing to resist so the officer tased Moore three more times. The Taser record showed that Moore had been tased four times within a span of about seven seconds. Moore apparently went into cardiac arrest sometime after the second tazing and died. The family and the estate of Moore brought a wrongful death action resulting in a 3 million Dollar verdict against the City and the officer.

[1] For the purpose of my analysis the difference between a stun gun and a Taser is not legally consequential because functionally they are similar.

Howard Wright© 2016

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Monarch Fire District Trapped In Perpetuity By Evergreen Clause

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The Monarch Fire Protection District (District) is seemingly locked into a collective bargaining agreement forever with the Fire Fighters of Eastern Missouri. Being locked into an agreement forever (by a so-called Evergreen Clause) takes away management prerogatives and prevents the District from changing provisions in the agreement that are not working after a certain time. As we shall see, getting out of agreement will not be an easy task.

The agreement provided that it would continue “…in full force and effect for a period of approximately three (3) years to and including December 31, 2013.” This provision, as interpreted by the Missouri Court of Appeals, was overridden by another provision in the agreement that provided it would “…remain in effect during good faith negotiations and shall continue so long as the parties are engaged in good faith negotiations and shall continue to remain in full force and effect until such time as a new Agreement is agreed upon.” The Court of Appeals held that the agreement was not for an indefinite term because if one of the parties did not engage in good faith negotiations the agreement could be terminated. There’s the rub.

The Missouri Constitution granting public employees the right to engage in collective bargaining requires “good faith” negotiations by the parties. In essence, the opinion by the court required one of the parties to violate its constitutional duty to bargain in “good faith” subjecting itself to sanctions by a court for failing to negotiate in good faith. The District is now locked into an agreement that will seemingly continue forever unless the District is willing to engage in bad faith negotiations. Presumably one of the parties would have to complain about the lack of good faith bargaining by the other party. Why would the union complain about bad faith negotiations if it liked the current agreement? This raises a question of how to show bad faith negotiations and who can raise this issue.   The court’s interpretation is preposterous because it requires one of the parties to violate its constitutional duty to engage in good faith negotiations.

We will have to wait to see if anybody is able to resolve the issues between the union and the Monarch Fire District. This case realizes one of the worst fears of local government attorneys, which is  being bested by union negotiators who are well versed in the meaning of language in collective bargaining agreements. In the meantime, local governmental officials should always insert a clearly defined end date into the agreement and language that states that the end date as stated overrules “any other provision in the agreement to the contrary,” thereby avoiding a conflict with other provisions of the agreement.

You will find a more detailed analysis of the Monarch case in my August 2016 Missouri Municipal Attorneys Newsletter by clicking here. You may find the following Posts of interest with respect to public sector collective bargaining.

Howard Wright© 2016

Non-members-of-union-do-not-have-a-right-to-vote-on-collective-bargaining agreement 

Right-of-free-speech-and-association-trump-fair-share-obligation-to-pay-union-dues.

Trilogy-of-cases-change-missouri-public-sector-labor-law

Discussion of Ledbetter and Chesterfield and University City cases dealing with “good faith” bargaining.

Courts will not read terms into collective bargaining agreement. 

Right of public employees to bargain collectively in Missouri. 

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Post-election Review of Ballot Titles

In August 2012, my blog post  “Challenges to Initiative Petitions Limited”  noted the Missouri Supreme Court  in Brown v.  Carnahan stated that  the  courts will not intervene in the initiative process  “in order to avoid encroachment on the people’s authority” but when they do  “…they  must act with restraint,  trepidation  and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course.”

Less than three years later the Missouri Supreme Court  surprised everyone  when it  expanded   post-election election review of ballot titles in  Dotson v.  Kander, by allowing a post-election review of an  amendment to the Missouri Constitution pertaining to the right to keep and bear arms. For a discussion of Dotson v.  Kander,  you may want to look at my post Adoption of Constitutional Amendment did not Change Existing Law.

Since the Missouri Supreme Court utilized a state statute  (seemingly applicable only to the state) as the basis for its post-election review in Dotson v. Kander,   the decision may not be applicable to local government ballot issues.   One of the difficulties with  pre-election challenges to ballot titles  is that there may be insufficient time to get a decision from  a  trial court and appeal that decision in order to get a final decision before the election, making it almost a  due process necessity that there is post- review of ballot titles.  It would seem that  suggested procedures outlined by the Missouri Supreme Court  could apply in situations where there is insufficient time to get a final decision    concerning a challenge to a ballot title prior to the election.

Howard Wright © 2016

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Right of free speech and association trump do not overrule “fair share” obligation to pay union dues

Update – 2016

The United States Supreme Court in Friedrichs v. California Teachers Association, affirmed the lower court’s decision to not overrule Abood v. Board of Education, which held that the First Amendment did not prevent “agency shop” agreements where public employees who do not join the union are required to pay their “fair share” of union dues. Since the March 2016 decision was a 4 to 4 split it had the effect of affirming the Court of Appeals opinion upholding the right to require employees to pay their “fair share” of union dues. It would appear that resolution of this issue, with some sort of finality, will depend upon an appointment of a ninth member to the Court by the next president of the United States.

See Original Post – 2014

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Determination by the Army Corps of Engineers that Property Contains Waters of the United States Is Subject to Immediate Judicial Review

A jurisdictional determination, that property contains “waters of the United States,” by the Army Corp of Engineers is final agency action, which is subject to immediate review in court. If a local governmental agency receives such a determination it should immediately consider the impact on the project and determine whether or not to seek judicial review of this decision. A first stop in understanding the issues is review of the excellent analysis provided by Lisa Soronen of the Hawks case for IMLA members set forth below.

From: Lisa Soronen
Executive Director
State & Local Legal Center
444 North Capitol Street, N.W., Suite 515
Washington, D.C. 20001

To: MML Staff

Date: May 31, 2016

“HI league staff:  This win wasn’t surprising but it is still just as good.  Long and short summaries are below.  Lisa

Supreme Court Rules Against the Corp In WOTUS Case

In United States Army Corp of Engineers v. Hawkes the Supreme Court ruled unanimously that an approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed  in court. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing in favor of this result.

Per the Clean Water Act, “waters of the United States” (WOTUS) are federally regulated. Property owners may seek an approved jurisdictional determination (JD) from the US Army Corp of Engineers definitively stating whether such waters are present or absent on a particular parcel of land.
Three companies wanted to mine peat from wetland property in Minnesota. The Corp issued an approved JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away.

Per the Administrative Procedures Act judicial review may be sought only from final agency actions. Per Bennett v. Spear (1997), agency action is final when it marks the consummation of the agency’s decision making process and when legal consequences flow from the action.

The Court, in an opinion written by Justice Chief Roberts, concluded that an approved JD is a final agency action subject to court review because it meets both conditions laid out in Bennett. The Corp didn’t argue that an approved JD is tentative; its regulations describe approved JDs as “final agency action” valid for five years. Approved JDs give rise to “direct and appreciable legal consequences,” the Court reasoned, because the Corp is bound by them for five years. And a “longstanding memorandum of agreement” between the Corp and the Environmental Protection Agency (EPA) binds the EPA. So per an approved JD the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, practically speaking, grant or deny a property owner a five-year safe harbor from such proceedings. 
 
The SLLC amicus brief pointed out states and local governments would be negatively affected as landowners and partners with the business community responsible for economic development and capital infrastructure planning if judicial review of JDs is not possible. The Court agreed that neither alternative to judicial review is adequate. Proceeding without a permit could lead to civil penalties of up to $37,500 a day; seeking a permit can be “arduous, expensive, and long.”

Interestingly in three separate concurrences (each about a page long) Justices Kennedy, Thomas, Alito, Kagan, and Ginsburg debate whether an approved JD really is binding on EPA and whether it matters. Justice Kennedy warns that if it isn’t, “the Act’s ominous reach would again be unchecked by the limited relief the Court allows today.” In light of this discussion the Corp and EPA are likely to clarify the nature of their agreement.”

Note: Short version is omitted.

 

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