FESC: Relax about Town of Gilbert

Enrique Armijo           Town
of Gilbert: Relax Everybody   

Presenter: Derek Bambauer

 

Argues that criticism of Reed
is overblown/misplaced; argues in favor of the outcome.  Cleaned up dicta that caused lower courts to
conflate content and viewpoint discrimination. Gilbert two step: does the challenged regulation refer to content
in its text?  If so, apply strict
scrutiny.  If not, does the regulation
regulate because of viewpoint?  If so,
apply strict scrutiny.

 

Media commentators portrayed Gilbert as part of 1A tsunami crushing regulation.  Armijo says: chill. Actual effects of Gilbert in 3 areas: sign restrictions.
Many regs that fail now would have failed under earlier regimes; will allow
regulation where related to real purposes. 
Commercial speech distinction remains alive and applies only
intermediate scrutiny.  Moreover, forcing
municipalities to remove content restrictions reduces discretion for local
officials, which is an important purpose of the 1A.

 

Panhandling: begging is speech, but courts have long permitted
bans anyway b/c they don’t like beggars. The bans now have to be more narrowly
tailored to traffic safety etc. 

 

Consumer protection: doesn’t divest gov’t of regulatory
power, but burden of proof rests w/gov’t. 
Securities laws that mandate disclosure/bar fraud are clearly essential
to a functional system.  Pressing state
to link regs to verifiable harms imposes a useful restraint on gov’t power.

 

Argues: cleanly separated content and viewpoint
discrimination is a good test.  Courts
are properly cautious about their ability to detect hidden animus.

 

Treatment of content neutral laws leads to underprotection
of speech: broad speech blocks are more likely to survive, like a ban on all
lawn signs.  Current schema blocks
skewing, but not silencing.  Content-specific
bans can’t survive even if there are abundant alternative outlets.  Argues that there should be more protection
for speech subject to content-neutral bans.

 

Comment: the shift of Gilbert
is bigger than that. Courts may in hindsight have been wrong to use the
viewpoint discrimination bad, content discrimination often ok framework, but
the SCt let them do it for a while.  Gilbert injected strict scrutiny where
intermediate scrutiny was used; likely to have a profound influence on future
regulators even if courts haven’t yet done much. Change in emphasis as well as
scrutiny; reliance on Sorrell, which
moved commercial speech towards core political speech.  Scholars previously opined that regulatory
skepticism in Sorrell  would be outlier; it would be a new norm.

 

Compelled speech is different: gov’t gets much more latitude
in compelling speech in commercial contexts than suppressing, curtailing the
parade of horribles.

 

Motive matters; looking for motive catches really clever and
really dumb regulators. Gilbert
forces stupid gov’ts to take bitter and sweet; sidelines clever gov’ts that
appear to avoid malign purposes but still discriminate.  Panhandling is a nice illustration: not clear
whether the issue is narrow tailoring, better lawyering, or both—and that’s b/c
panhandling laws aren’t really about traffic safety.

 

It’s not clear how to measure the amount of affected speech,
or balance benefits w/speech costs. 
Time, place, manner: preserves people’s sleep, but we don’t know how
many activists want a parade at midnight. Not clear whether we need more or
less searching rule. 

 

Need theories of middle range linking gov’t purpose to
distinctions.

 

Armijo: consider how you think about these following
statements: There’s a local law about how long you can have a in your yard: in
May 2017, a Trump 2016 sign should be finable. 
1A should (or should not) require town to require near miss or accident
before it can ban panhandling in the median strip. An application for state
employment that disqualifies 4 African-American applicants for every white
applicant violates the Equal Protection clause. 
That’s Washington v. Davis;
most people in academia think it’s wrong—they think you can presume
discriminatory purpose when you have discriminatory effect. In 1A, we care too
much about purpose. Reed minimizes
use of purpose in resolving 1A questions = that’s a good thing.

 

It’s a fair critique that the paper underplays the effect of
Reed. There are 100s of lower court
opinions that are wrong b/c they look at purpose & approve suppressive
effect, and those will have to go.  The
other critique: what is intermediate scrutiny? 
It’s now rational basis review, and that’s a problem; we need to do better
if it’s to mean anything.  Who’s afraid
of big bad strict scrutiny? What’s the actual effect? Requires the gov’t to
draft carefully. All these interests are compelling (ok, most of them). These
are about overinclusiveness, underinclusiveness, least restrictive alternative.
We should want the gov’t to think about that before it regulates whenever it’s
writing laws or regs to affect speech. 

 

Q (not mine): premise that Reed doesn’t change much of anything—there’s a line of cases that
resulted in Reed; it wasn’t alone in
treatment of content neutrality. But there already seems to be a change in the
law from Reed, and that’s TM
registration.  Norfolk sign case: one
restriction there was on gov’t flags. 
Lanham Act has a flag ban on registration.  We tried to make an argument to register DC
flag, but couldn’t make a 1A argument that registration was allowed.  Reed
overturned that.  DC & Houston
couldn’t register before; they could now, right?

 

Armijo: Stupid laws. 
The voting selfie case: another example of a stupid law. Not moved by
the supposed unfairness of forcing gov’t to show compelling interest.

 

RT: [I don’t think that’s a stupid law. It has an obvious
point in preventing people from implementing a vote-coercing/vote-buying scheme
by preventing them from getting photographic proof; the ban makes the scheme
less likely to work and thus less worth engaging in. I also don’t think the
flag registration ban is stupid. I don’t know why someone who admits he knows
nothing about TM can judge whether the flag ban is stupid; these are complex
regulatory schemes.  Why are judges good
evaluators of the evidence here?  I don’t
think that © and TM will be struck down, even though their details could not possibly
survive strict scrutiny even if the overall idea of the scheme could
(compulsory cable licensing, anyone?). But what I do think is that this very fact—©
and TM are safe—is evidence of ugly things that go on in exempting certain
rules from strict scrutiny/defining strict scrutiny down, just as Vince Blasi
warned about many moons ago.  Stuff that
the Court likes will survive strict scrutiny, just as Alito listed a bunch of
obviously content-based rules as examples of totally fine sign regulations in
his concurrence.]

 

Q: puts starch in standards. It’s just good First Amendment
hygiene.  No parade of horribles will
occur, but the problem is the euphoria of 1A folks who thought they could get
rid of commercial speech, zoning. It’s important to make people show that there
aren’t less restrictive means.  Courts
may resist finding a violation b/c the consequences are so serious—the same
thing goes on in the 1A context—the specter of strict scrutiny leads to courts
evading it. Doesn’t have to invalidate © and TM—just give me a reason [that
doesn’t sound like strict scrutiny]; did you consider alternatives that were
less impactful on speech?  [P.S.: the answer
with © and TM is: no.]

 

Armijo: Turner
getting intermediate scrutiny was ridiculous.

 

Q: effect or purpose as the crucial question.  Heffernan SCt case from last week: Someone
who wasn’t intending to speak—he was demoted as a detective for picking up a
yard sign for his mom; but they intended to demote him for exercising his right
to speak. That’s the right decision.

 

Q: if Reed doesn’t
strike down commercial speech regulation, why can’t courts just decide that Reed doesn’t apply to their situations
too? Your argument is basically that courts will do that regularly, which also
takes the wind out of the sails of your argument that gov’t will be held to its
proof.

 

A: one of the main arguments is that the commercial speech
doctrine is the last line of defense against a full-on Reed that applies to every conceivable reference.  If you look at what courts are doing, they
are actually distinguishing Reed from
commercial speech regulation, which seems right.

 

Q: But why don’t you think Reed should do away with the commercial speech doctrine. If strict
scrutiny is so good, why shouldn’t we have it for everything, including
commercial speech regulation?

 

A: there are good reasons to treat commercial speech
differently.  Those reasons will continue
to be sufficient.  [This raises the
classic question of retail v. wholesale justifications for treatment.  Commercial speech gets shunted off from
strict scrutiny at the wholesale level. 
Likewise © does, and apparently the non-disparagement/scandalousness
bars of TM too and probably things like TM priority and ITU.]

 

Q: so why not other things too, like the Chaplinsky categories?

 

Balkin: how much is this paper about the composition of the
federal courts?  Lower federal courts
might read Reed narrowly b/c they
have a lot of Obama appointees. Significant chance that Scalia’s replacement
will be less skeptical of the regulatory state. That would be a very good
explanation for why we should relax; paper’s analysis would be helpful but not
necessary.  If Ted Cruz stocks the Court
with constitutional conservatives, then Reed
will mean a lot more.

 

Bambauer: Armijo takes preexisting categories
seriously.  Conservatives could weaponize
Sorrell too.  Legal Realist critique is a different matter.

 

Balkin: your point is there’s not enough evidence of which
direction Reed will go.

 

Q: nonjudicial 1A roles—federal agency may be able to
enhance 1A discourse, maybe even by funding broadcasters.  Commercial-adjacent speech—not a proposal for
a transaction.  Gay conversion therapy:
is it a content based distinction?  Under
Reed, yes. But does it reach any of
the reasons we created the content-based category? Or is it just a service you
can no longer obtain?  Professional
speech isn’t a formally recognized category of the same vintage as commercial
speech.

 

Q: distinct 1A interest in that speech in Velasquez re: funding of legal services. 

 

Balkin: 1A protects professional judgment in some contexts,
but gov’t can also regulate professional fields for quality.

 

Q: but every law is dumb some of the time. Banning gay
conversion therapy outright can’t be the least restrictive means!  Making GPS provider liable if advice caused
an accident: that’s content-based.  [And
a less restrictive alternative would be counterspeech! Have the gov’t make its
own GPS system and people can choose which to use.]

 

Balkin: very common to create regulatory rule that’s
prophylactic. 

 

Armijo: but that allows the “no panhandlers in the median”
rule too; that’s prophylactic.  Why not
ban all people hanging out in the median? Current 1A law incentivizes “no one
hanging out in the median,” which harms the political protestor as well as the
panhandler.  [I’m not sure where to go
from that.]

 

Q: Does any of this track the reasons we adopted the content
based distinction?

 

Armijo: makes us more suspicious of the gov’t. 

 

Balkin: Bad motives; distorting marketplace of ideas. But
how do you know what a nondistorted market looks like?  What you’re left with is that you’re worried
about bad motives. If that’s the case, go straight to the question of the gov’t’s
motives.

 

A: it’s usually hard to tell/well masked.  [Not clear to me that’s true.] Also, you have
to worry about other justifications. 
Require neutrality = you don’t have to do that.

 

Balkin: but there are many kinds of content or speaker based
laws where one would not imagine bad motives. That would suggest that there are
some classes of content regulation where you shouldn’t trust the gov’t.  But some you should.

 

Q: facial neutrality, by the same token, is no guarantee of
anything good motive-wise.  Closure of a
designated public forum is neutral, but bad. 
Like closing the swimming pool to avoid integration.

 

Armijo: my aim is to reverse US v. O’Brien, and focus on effects and not purpose gets you there.

 

Q: but that was just the Court doing a bad job at purpose
analysis.

 

Q: but there you have a plausible neutral reason for the
regulation that the Court didn’t second-guess based on a few floor statements.

 

Bambauer: We have a bunch of special cases.  1A doesn’t apply to ©; not to cable
(Turner).  Is it preferable to have
special cases or just face it outright.

 

Q: the special cases are diminishing over time, just as
unprotected categories have been narrowing over time.  [© is a counterexample, it seems to me; that
was only invented in this century.] Incremental narrowing of gov’t latitude to
regulate commercial speech—that’s In re
Tam
and Discovery Networks – you don’t
get leeway to regulate if your purpose isn’t to deal with the commercial
transaction itself. Zauderer makes it
weird, but overall the special cases are narrowing more to a standard
interpretation.  Reed doesn’t mean there will be no more incitement, obscenity, etc.

 

Q: disclosures: cigarette companies may be required to
disclose when other producers aren’t required to disclose the same risk; it’s
not b/c cigarettes are extra regulable for the very reason commercial speech is
regulable—it’s not RAV.  Regulating particular speakers can’t be
enough to invalidate a law—you can regulate disclosure of airline prices
without regulating disclosure of all prices or all transportation. It’s just a
feature of gov’t regulation that you can’t regulate everything at once.

 

Q: recent Heffernan
case: the 1A focuses on the gov’t’s activity. 
A justification for looking at intent.

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