Saturday, April 30, 2016

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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