Sunday, May 01, 2016

FESC: The Supreme Court of Sign Review: Reed and Its Aftermath

Urja Mittal      The Supreme Board of Sign Review: Reed and its Aftermath           
Discussant: Enrique Armijo
Armijo says “reaffirmed” and Mittal says “redefined” 1A doctrine.  Facial question of whether the gov’t regulation is content-based; purpose has no role in that inquiry.  Once it’s content based, strict scrutiny is applied.  Fewer laws will survive if they incidentally refer to speech.  What has changed?  How did we get here?
Central Park: Ward v. Rock Against Racism: time place and manner; content-neutral and thus ok.  Kennedy says: principal inquiry in content neutrality generally, including TPM cases, is whether gov’t adopted regulation b/c of disagreement w/the message conveyed. Purpose is controlling. This is dicta as to speech cases generally but it explodes in the lower courts.  That is no longer good law.  Purpose is only one way towards strict scrutiny; in the past, the result of a purpose inquiry could also point towards intermediate scrutiny.
Mittal argues that this sacrifices nuance for rigidity.  Panhandling case in 7th Circuit.  Robocalls w/content based exemptions = now face strict scrutiny. Traditional deference to legislature in making some reference to content is gone even when we have no reason to distrust the motive.  Courts have been trying to figure out ways to concludes the Court didn’t mean what it said.  Workarounds: secondary effects doctrine (technical data about weaponry—that regulation seems clearly content based).  Confusion about sign cases: some treated as commercial speech cases, some not.
Responses: Some of our reaction to these cases could be deemed 1A Lochnerism derangement syndrome: every 1A case is viewed as weaponized to destroy the administrative state.  Reed doesn’t necessarily trigger that argument, not as much as Mittal argues.  The Ward language was a problem; it confused content and viewpoint discrimination, which is now a much clearer distinction than it was prior to Reed.  Ward is just a TPM case, and that’s a good thing.  There is also a real, unexamined problem w/r/t focusing so much on gov’t purpose when deciding when a law is constitutional, a problem recognized in other areas of const’l law. Purpose can change or be obscured.  Runs the risk of focusing on why the law was enacted, which does nothing to bind a future enforcer from applying the law in a content discriminatory way.
Workarounds, in Mittal’s argument, are just law.  There are doctrinal interactions all the time: parties debate whether this is a commercial speech case or not.  It’s a big presumption to make to say that commercial speech doctrine will remain; that’s a fair point, but for now it’s ordinary to deal w/doctrinal interactions.
TPM showing: makes it harder for the gov’t to get to intermediate scrutiny. If that’s harder, what’s the problem with that? 1A is our best defense against stupid laws, which shouldn’t survive challenge. No law that infringes even incidentally on expression should survive challenge if it’s stupid.
Mittal: Akin to Lochnerism, but not really my concern here.  Reed is a problem even without weaponization of the 1A.  Patterns in lower court: ignoring cases on point forces courts to pigeonhole into other doctrines to avoid Reed, like secondary effects; this makes law more incoherent and less predictable, and also messes w/secondary effects doctrine moving forward.  Watering down of strict scrutiny is also problematic.  Intermediate scrutiny looks more like rational basis scrutiny, yes, but then strict scrutiny will get watered down to look more like intermediate scrutiny, and then the judiciary loses its line of defense against the really dangerous laws.  Strict scrutiny not fatal in fact—so is it just a knife and not a gun?  Loss of nuance means that nuance comes back in less predictable/coherent ways.  Voting rights, public order—if speech overrides all other interests that a legislature deems important, that seems problematic.
Even if problematic to focus on purpose, you don’t escape that w/Reed, which just makes it easier to trigger strict scrutiny; you still have to look at purpose. Compelling interest inquiry is still a purpose based inquiry, absent the ability to balance interests. [Good point.]  Does it disable the category of commercial speech?  The case law is not yet clear; contest promotions case from California; you do see other courts applying Reed to cases otherwise subject to commercial speech doctrine.
Q: Silver lining: strict scrutiny for abortion counseling statutes/compelled disclosures?  [Good luck w/that; abortion gets its own rules.]
Mittal: idea of cleaning up our doctrine: forces us to figure out where we want 1A to tailor around certain things.  Abortion related speech has to be reevaluated under the new across the board rule; as long as courts at least address Reed.  Reed forces us to think about the purpose of content based discrimination doctrine.  Equality/liberty interests: no content based exception foir labor picketing, invokes equality as well as liberty.  Maybe content discrimination doctrine is really about equality: Reed can ask us to focus on that, and when equality should lead us to care about a distinction—IP laws might justify special treat.
RT: Three things: (1) In re Tam: that is dependent on Reed and is a commercial speech case despite claims to the contrary; to see that it is, look at why the majority says it’s ok to uphold the bars against deceptive and confusing marks while striking down disparagement: b/c Central Hudson says misleading commercial speech can be banned entirely. After Alvarez, this can’t be true unless TM registration is commercial speech.
(2) That line about the 1A being our “best defense against stupid laws” is why Armijo’s position gets called Lochnerism, and I’m going to quote it in the future.  [Rebuttal: in many cases the ballot box is our best defense against stupid laws; this is serious Carolene Products footnote 4 territory though.]
(3) Playing w/this idea, not sure about it yet: 1A special pleading?  Armijo says purpose is recognized as problematic in other areas of the law, but is that actually true, or is it just what academics wish were true w/r/t 14th Amendment race cases?  Since Washington v. Davis came out the way it did, isn’t it more true to say that Reed represents an exception to the general rule that disparate impact on some right or class we care about isn’t of constitutional significance?  1A special pleading may well be ok—there’s a lot of theories about why that might be so—but I want to put that on the table.
Floyd Abrams: Just cited Reed in a brief for the cranberry industry: commercial compelled speech case, so he thinks it extends that far.  Seems to him that as a textual matter, the strongest argument that it applies to commercial speech at all is its reliance on Sorrell and its rejection of Breyer’s anguished concurring opinion about the very fact that it’s relying on Sorrell.  Reed reads as if it were meant to be a big deal.  Robert Post’s reaction: are you telling me that every grade I give is subject to strict scrutiny if I work for a public institution?  [Post doesn’t work for a public institution, but that’s a decent question for those who do and it’s a comparison I make in my paper on TM.]
James Weinstein: Lochner had a certain appeal, but he doesn’t think that’s the 1A’s job.  Mittal’s argument seems in part that Reed pushes 1A doctrine further into incoherence.  “All-inclusive” approach: anything that is speech in ordinary language sense is w/in coverage; there are no limits to coverage except “conduct” in some natural sense of the word.  But what should strict scrutiny be reserved for, otherwise?  Cranberry disclosures and antiwar protests should perhaps not be treated similarly, but where is the line?  Watered down strict scrutiny seems to be the only result.
A: Thinks that the line is political speech; balancing should be different in commercial arenas. Cleaning up laws v. over-rigidity and lack of nuance. Courts will try to retain narrow tailoring; not clear how Reed will be hemmed in—it’s different if it’s the lower courts v. the SCt takes it up again.
Armijo: Is it possible to be suspicious of high-value low-value speech distinctions and not be a 1A Lochnerist?  If so, how?
Weinstein: what leads to Lochnerism is the notion that everything is covered and subject to strict scrutiny.
Q: If you don’t think coverage will reach everywhere (public school grades), you don’t worry as much about Lochnerism.  On its face, Reed could and maybe should reach ©, public school grades, commercial speech, etc.  Who should be making that decision?  Is that right?
Abrams: It’s a good idea to wipe out stupid laws that impinge on free speech, not just all stupid laws.
Armijo: the voting booth selfie laws were passed in response to a problem from a long time ago.  If that kind of lawmaking implicates speech, which it does, we should be more suspicious/put the gov’t to its proof. That’s exactly what the dct judge did.  There’s nothing in the record that shows that it’s necessary.  It’s not a stupid law, but is there any actual harm in the record that supports it?  [How old does that harm have to be?  Do we have to wait until someone testifies now that their employer didn’t just tell them how to vote, but demanded proof?]
Mittal: the problem is that Reed strikes down both the ballot selfie law and §2(a) of the Lanham Act.  Argument was that anti-disparagement is inconsistent w/the commercial focus of the Lanham Act, and that’s a place to start, but equality is also a value. Tiers of scrutiny are ok.  Under TPM analysis, ballot selfie case might still have fallen—available alternatives to preventing employer coercion/corruption in the voting booth.
Abrams: why is it wrong when you deprive people of a benefit based on a gov’t determination of offensiveness to strike it down?
RT: [then a lot of discussion about TM discussing the difference b/t morality and anti-discrimination; it is an evidence-based standard based on social meaning, not on gov’t approval.  And the difference b/t TM and ©--© does support a number of content-based distinctions,  like compulsory cable licenses.  If the Washington team were denied any TM at all while it used the name, Abrams would be right.  But it can use the name and other marks it uses will be protected, including the logo and colors.  And we discussed the difference between registering a TM and a public teacher giving a bad grade, especially if the grade is based on the student’s use of a slur.]
Abrams: we’ll work that out.  Children are different; education is different; teachers are different—historically.
RT: [If history is your guide, public policy-based limits on TM including morality have a long history, even before registration. More generally, if there is a reason to take an extensive gov’t program involving millions of individualized determinations out of the Reed category, then TM registration is a decent candidate alongside public education.]

Mittal: demonstrates how much Reed leaves undone/to be worked around.

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