Supreme Court In Review: Recent Notable Decisions

Kaytie Hobbs, Blog Chair, University of Cincinnati Law Review

The Supreme Court is spending these hot June days handing down decision from its 2018 term. This blog post surveys a few of the more interesting holdings so far: 

Gamble v. United States[1]

Held: Dual-sovereignty doctrine is upheld, allowing states and the federal government to prosecute people for the same conduct separately under their own laws. 

The Fifth Amendment of the U.S. Constitution provides that it is unconstitutional for any person to be “twice put in jeopardy” “for the same offence.”[2]Terance Gamble relied on this clause when he argued that his prosecution in state and federal court for the same conduct violated the Constitution.[3]Gamble, a felon, was convicted by Alabama for unlawfully possessing a firearm before the U.S. instituted a separate proceeding against him for the same conduct.[4]

However, the Court has held repeatedly that a crime under one sovereign is not the same offenceas a crime under another sovereign within the meaning of the Amendment.[5]What followed was the dual-sovereignty doctrine: a state and the federal government may prosecute an individual for the same conduct that is brought separately under state law and federal law.[6]

Writing for the majority, Justice Alito explained that “at its core,” this provision prohibited second prosecutions against people who are acquitted or convicted of offenses.[7]The next question, then, is what can be considered an “offence” within the meaning of the Amendment. 

Looking at the text of the Fifth Amendment, the Court concluded that the dual-sovereignty rule flows from the language of the Amendment itself.[8]Because those in 1791 would understand an “offence” to be a violation of a law, and because those laws would be written by one sovereign, the Court found that two sovereigns would create two laws, and therefore two “offences.” [9]

The Court also looked to precedent to strengthen its conclusion. The cited cases noted that one act might constitute two offences,[10]and that extraneous concerns like public safety could dictate separate prosecutions by states and federal governments.[11]

A practical issue concerning foreign courts was raised as well. Illustrating the problem, the majority crafted an example of a murder of a U.S. citizen in another country.[12]Without the dual-sovereignty rule, American courts would be unable to prosecute offenses that a foreign court has tried – in this example, the offense being the fictitious murder.[13]The U.S. has a valid interest in prosecuting that crime for several reasons, ranging from national-security concerns to doubting the foreign country’s judicial system.[14]

For all of those reasons, the Court upheld the dual-sovereignty rule; practically speaking, this means that prosecutors on state and federal levels will continue to prosecute people under both legal systems without fear that convictions would be later overturned. 

Mission Product Holdings, Inc. v. Tempnology, LLC[15]

Held: A debtor’s rejection of a contract constitutes a breach and therefore does not take away the other party’s rights under that contract. 

Debtors filing for bankruptcy have the option to reject executory contracts—contracts that have not been fully performed—under Section 365 of the Bankruptcy Code.[16]The Code further states that a debtor’s rejection of such a contract constitutes a breach.[17]In this case, the Court considered whether a debtor who rejected such a contract would rescind the licensee’s rights under that contract.[18]

Writing for the majority, Justice Kagan answered in the negative, holding that a rejection of the contract does not rescindit, but instead is considered a breach.[19]Because “breach” is not a specialized bankruptcy term, the Court looked to contract law, which provides certain avenues to the injured party of a contractual breach. 

To explain the concept under ordinary contract law, the Court provided an imaginary example of an executory contract outside of the bankruptcy world: a photocopier being leased to a law firm by a dealer.[20]The dealer breaks the agreement by no longer servicing the photocopier, leaving the law firm with two choices: (1) sue for damages and continue to use the photocopier, or (2) return the machine and stop payments.[21]Delving back into the bankruptcy realm, the Court concluded that in bankruptcy, the same rule applies.[22]

From a practical standpoint, this decision could be monumental. As the majority pointed out, this section applies to any executory contracts – which applies to many types of licensing agreements, ranging from trademarks (at issue in this case) to other types of property.[23]

Manhattan Community Access Corp. v. Halleck[24]

Held: Operating a public access channel on a cable system is not a traditionally and exclusive public function, and private entities are not transformed into state actors subject to the First Amendment through that operation alone.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[25]Because the First Amendment applies to governmentactors, the Court has crafted a test to evaluate situations where private entities become state actors.[26]

There are three avenues available to prove a private actor has transformed into a state actor: (1) when it performs a “traditional public function”; (2) the government compels the private entity to act a certain way; or (3) the government and the private entity work together.[27]

Here, the private entity was MNN, a private nonprofit corporation that operated public access channels.[28]MNN declined to air a film made by respondents, who then sued, arguing violation of their First Amendment rights based on content discrimination. 

The Court was tasked with determining whether MNN was a private or state actor. The filmmakers argued that operating the public access channels was a government function, but the Court disagreed and found that historically, it was not exclusively a government action. The Court noted that operation was performed by private cable operators, private nonprofits, cities, and other community organizations.[29]

They also argued that MNN transformed itself into a state actor due to operating a public place for speech; again, the Court disagreed. Justice Kavanaugh stated that private entities frequently opened itself to speech, likening this situation to a comedy club open mic night or a grocery store’s community bulletin.[30]

By holding that MNN was not a state actor solely by virtue of operating public access channels allows it to retain editorial discretion, and sets favorable precedent for other private entities operating similar channels. 


[1]Gamble v. United States, Slip Op. No. 17-646 (U.S. Jun. 17, 2019).

[2]U.S. Const. amend. V. 

[3]Gamble, Slip. Op. No. 17-646.

[4]Id.

[5]See Fox v. Ohio, 46 U.S. 410 (1847); United States v. Marigold, 50 U.S. 560 (1850).

[6]United States v. Lanza, 260 U.S. 377, 382 (1922) (holding that conduct constituting crimes by both federal and state sovereignties are offenses against both, and therefore “may be punished by each.”) 

[7]Gamble, Slip. Op. No. 17-646.

[8]Id.

[9]Id.

[10]50 U.S. 560.

[11]Fox v. Ohio, 46 U.S. 410 (1847).

[12]Gamble, Slip. Op. No. 17-646 at *5.

[13]Id.  

[14]Id.

[15]Mission Prod. Holdings, Inc. v. Tempnology, LLC, No. 17-1657 (U.S. May. 20, 2019)

[16]11 U.S.C.§ 365(a). 

[17]11 U.S.C. § 365(g).

[18]Mission, No. 17-1657.

[19]Id

[20]Id. at *6. 

[21]Id. 

[22]Id. 

[23]Id. See also The Fashion Law,The Supreme Court’s Decision in Mission Product Holdings is Significant for the Bankruptcy-Prone Fashion Industry, May 20, 2019, http://www.thefashionlaw.com/home/the-supreme-courts-decision-in-mission-product-holdings-is-significant-for-fashion. This article recognizes that the retail industry is no stranger to bankruptcy proceedings – and that it can affect brands who file for bankruptcy and attempt to end licensing agreements to use their brands. 

[24]Manhattan Community Access Corp. v. Halleck, No. 17-1702 (U.S. Jun. 17, 2019).

[25]U.S. Const. amend. I.

[26]See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

[27]Halleck, No. 17-1702at *5. 

[28]Id. at *2. 

[29]Id. at 6.

[30]Id. 

Ballot Access: Constitutionality of Residency Requirements for Ballot Initiative-Petition Circulators

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

The Sixth Circuit recently reviewed a case regarding an Ohio statute that required initiative-petition circulators to reside in the state of Ohio.[1] The district court declared the law unconstitutional, and the issue of a residency requirement for circulators was not challenged on appeal.[2] Although not challenged by Ohio’s Secretary of State in Citizens in Charge, Inc. v. Husted, the court does analyze the issue of residency requirements and acknowledges that a circuit split still exists regarding whether they are constitutional.[3] Currently, the Second, Eighth, and Tenth Circuits all have different standards to adjudicate the constitutionality of these residency requirements.[4] The inconsistent adjudications over residency requirements for initiative-petition circulators should be cured by a clear and uniform judicial standard to resolve this open constitutional question. The Tenth Circuit’s determination that residency requirements were unconstitutional should be adopted, as it does not infringe upon an individual’s right to political association.[5] Continue reading “Ballot Access: Constitutionality of Residency Requirements for Ballot Initiative-Petition Circulators”

The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.

Conclusion

The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at http://www.scotusblog.com/case-files/cases/heffernan-v-paterson/.

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I

Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

Tattoos often portray significant moments in a person’s life, mark rites of passage, show religious devotion, or express feelings towards others. Getting a tattoo allows someone to make “permanent that which is fleeting.”[1] Tattoos, which at one point were seen as a seedy tradition of bikers and rebels, have now firmly become a part of mainstream, modern society.[2] But despite the widespread popularity and acceptance of tattoos in modern society many courts reject the artistic merits of the art of tattooing and deny it protection under the First Amendment.[3] While the Supreme Court interprets the language of the First Amendment to protect artistic expression, lower courts do not include tattooing as a form of artistic expression.[4] Modern day tattoo artists “emphasize creativity and expression” in their work, and as a result, tattooing is now a leading art form.[5] In consideration of this modern understanding of tattooing, some courts have determined that the act of tattooing is protected under the First Amendment.[6] This is a much-needed change in First Amendment jurisprudence; tattooing should be considered artistic expression and protected under the First Amendment.

Zoning to Prohibit Tattoo Parlors

The case of Euclid v. Ambler Realty Co. is the foremost case surrounding zoning in the United States.[7] In Euclid, the United States Supreme Court found that there was a substantial governmental interest in regulating land uses; however, a municipality must show that there is a rational basis behind its zoning laws—i.e., the zoning ordinance must be related to either public health, safety, morals, or general welfare.[8]

In regard to tattoo parlors, courts have traditionally upheld zoning laws either banning or severely restricting tattoo parlors, stating that it is within the government’s purview to protect the “health, safety and general welfare” of its citizens.[9] These courts found that municipalities can regulate tattooing because it involves “puncturing the skin with a needle creating openings in the human skin through which diseases can pass.”[10] Therefore, any regulation around tattooing directly deals with the health and welfare of municipalities’ citizens and meets the Euclid test for reasonable zoning ordinances.[11]

The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.

Tattooing as Artistic Expression

In contrast to the majority, the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held 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.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.

In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]

Moreover, tattooing is now a leading art form in the United States; indeed, many tattoo artists are graduates of college art programs who are known for their custom designs.[21] Some tattoo artists even seek copyrights on their finished pieces.[22] Although tattoos may fall outside the traditional understanding of art due to their unique medium, to hold that the First Amendment protections do not apply to tattoo artists diminishes the value of their artwork and severely obstructs their ability to use artistic expression as a form of speech. While these protections should have always been in effect, courts cannot ignore the art form’s recent growth in acceptance.

Conclusion

Tattooing is now considered an art form (with the tattoo a product of this art form). As such, tattooing is a form of artistic expression that deserves protections under the First Amendment. Therefore, zoning ordinances that prohibit tattoo parlors are unconstitutional and should not be upheld.

[1] Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-American, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000).

[2] See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times (Sept. 15, 1995), http://www.nytimes.com/1995/09/15/arts/art-review-tattoo-moves-from-fringes-to-fashion-but-is-it-art.html?pagewanted=all.

[3] See generally Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).; see generally State v. White, 348 S.C. 532 (S.C. 2002).; see generally Kennedy v. Hughes, 596 F. Supp. 1487 (D. Del. 1984).

[4] Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011).

[5] Id at 1090-91.

[6] Supra note 7.

[7] See generally Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[8] Id at 20.

[9] People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).; see generally Hold Fast Tattoo, 580 F. Supp. 2d 656.; see generally Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388 (Va. Cir. Ct. 2007).

[10] Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175, 179 (2011).

[11] See State ex rel. Crabtree v. Franklin Cnty. Bd. Of Health, 673 N.E.2d 1281 (Ohio 1997) (holding that by prohibiting legal tattooing in a community, it encourages black market or underground tattoo parlors, which pose larger risks than allowing lawfully regulated tattoo parlor).

[12] Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).

[13] Id at 1254.

[14] Hold Fast Tattoo, 580 F. Supp. 2d at 660.

[15] Supra note 5.

[16] Anderson, 621 F.3d 1051, 1055 (9th Cir. 2010).

[17] Buehrle, 2015 U.S. App. LEXIS 22782 at *4 (11th Cir. 2015).

[18] Supra note 17 at 1062.

[19] 502 U.S. 105, 116-118 (1991).

[20] Supra note 15 at 1061.

[21] Supra note 9 at 187.

[22] Id.

License to Tour? Charleston Tour Guides Challenge City’s Licensing Requirement

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

It is not uncommon for laws to require an occupational license in order to work in a respective field. For example, jobs in medicine or law require passing examinations and certifications. Occupational licenses, however, become more controversial when they interfere with what may be a violation of First Amendment rights.  Litigation has arisen in a few historic American cities where the cities have promulgated a license requirement for giving tours. These ordinances generally require the tour guide to pass a series of tests, be drug free, and have no recent felonies. [1]

The most recent of these lawsuits has recently come out of Charleston, South Carolina. The Plaintiffs are citizens wishing to be tour guides, but lack a license and are therefore subject to fines and possibly jail time for giving unlicensed tours. The complaint alleges that the licensing requirements violate the First Amendment because it bars speakers from telling stories and from talking for a living.[2] There is a split among the circuit courts regarding this issue. The Fifth Circuit has ruled that these licensing requirements do not violate the First Amendment because the ordinances are “content neutral” and therefore have no effect on what tour guides say. Conversely, the Circuit Court for the District of Columbia has ruled that the ordinances are a violation of the First Amendment.  The D.C. Circuit Court gives a vastly more persuasive argument. The Fifth Circuit gives a half-hearted, incomplete, and ultimately unpersuasive opinion. As the D.C. Court explains, these ordinances cannot pass intermediate scrutiny, the District Court of South Carolina should rule in line with the D.C. Circuit Court.

The First Amendment and Intermediate Scrutiny

The First Amendment, with a few exceptions, prevents the government from restricting the freedom of speech of American citizens.[3] Laws that restrict speech but are content neutral are reviewed under intermediate scrutiny.[4] As the name implies, intermediate scrutiny is more rigorous than rational basis review, but less rigorous than strict scrutiny.

The Supreme Court applies a five-factor test when the government seeks to restrict content-neutral speech. This test inquires into whether the ordinance: (1) is within the constitutional power of the Government; (2) furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest; and (5) the regulation leaves open ample alternative channels for communication.[5] The failure for the government to satisfy any one of the five factors invalidates the regulation.[6]

Kagan v. City of New Orleans

Kagan v. City of New Orleans was a similar challenge to the New Orleans code that required a license for a person to charge for tours of “the city’s points of interest and/or historic buildings, parks, or sites, for the purpose of explaining, describing or generally relating the facts of importance thereto.”

The Fifth Circuit court found the ordinance to be content neutral because the requirements for a license “[have] no effect whatsoever on the content of what tour guides say,” thus the ordinance had no reference to content.[9] The court then applied an incomplete intermediate scrutiny test, stating that the ordinance satisfied the “requirement of narrow tailoring ‘so long as the … regulation promotes a substantial interest that would be achieved less effectively absent the regulation.’”[10] Therefore, because New Orleans, “effectively promoted the government interests, and without those protections for the city and its visitors, the government interest would be unserved.”[11]

Edwards v. District of Columbia

In Edwards v. District of Columbia, the D.C. Circuit Court of Appeals struck down a very similar statute. Under the D.C. ordinance, in order to guide or escort any person through the city for compensation, a guide must: 1) be at least eighteen years old; 2) be proficient in English; 3) not have committed certain felonies; 4) sign a sworn statement that the application is true; and 5) scored at least 70/100 on an examination. [12] The government’s asserted interest was to prevent unscrupulous business practices and “weed[] out guides too … unserious to be willing to study for a single exam.”[13]

The court stated that even if the regulations are content-neutral, they do not pass intermediate scrutiny.[14] In applying the appropriate five-prong test, the court found that prongs two and four are not satisfied.[15] In regards to the requirement that the regulation furthers an important government interest, the court explained that there must be a “direct causal link between the restriction imposed and the injury to be prevented.”[16] The government offered eleven injuries that the ordinance seeks to prevent,[17] however the court found that the government failed to demonstrate that these injuries were actually a problem for D.C.’s tourism industry.[18]

Further, in regards to prong number four, the court found that the regulation was under-inclusive and overbroad.[19] To meet the fourth prong, the regulation must be no greater than essential to further the government’s interest.[20] The court ruled that the regulation failed to meet this prong because there were already incentives in place for a tour guide to provide a quality tour.[21] Additionally, unlicensed tour guides could find ways around the regulation. For example, an unlicensed tour guide could stand in front of the White House and charge a fee for information, or could walk around with an audio recording.[22]

Charleston’s Licensing Requirements Violate the 1st Amendment

Americans sometimes need to sacrifice certain rights in order to balance legitimate government interests. This give and take approach is exemplified in the First Amendment tests by requiring the government to prove that it is protecting its legitimate interest in a narrowly tailored way. The licensing regulations are an example of government overreach. The regulations are a form of controlling who speaks in the respective city, and the government’s proposed interest does not justify the intrusion on certain citizens’ rights since they lack necessity.

Assuming intermediate scrutiny applies, it is clear that a statute requiring a license to be paid for tours cannot pass constitutional muster.  The Fifth Circuit gave a one-sentence justification for why the ordinance passes intermediate scrutiny. The court only stated that the regulation is no greater than what is essential to further the government’s interest, that the regulation effectively promotes the government interest, and that without the regulation this interest would be unserved. It never addressed any counter arguments or why these arguments fail.

In contrast, the D.C. Circuit correctly argued that these governmental interests can be served without restrictive regulations. Word of mouth and business reviews can protect the government’s asserted interest without violating the First Amendment. For example, if the tour guides were drug addicts and knew nothing about the city, the business would never last because it would receive terrible reviews and go out of business. A restaurant does not need to pass a test showing they know a certain amount about food or drinks before they serve food. If the food and service is unsatisfactory, the restaurant will not last. A tour guide business can be regulated in the same way.  Alternatively, a government can always offer certifications that add legitimacy to a tour guide but do not go so far as to exclude the speech of others. Accordingly, the government does not need to be in the business of suppressing people’s speech.

Conclusion

The district court in Charleston, South Carolina should follow the D.C. Circuit court. The tour guide restrictions violate the First Amendment because they are greater than essential to promote the already questionable governmental interest. These interests can be served without government intervention. The violation is not justified by the purpose of the regulation. Thus, the district court should rule against the licensing requirement, and eventually the Supreme Court should overrule the Fifth Circuit.

[1] E.g., New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551; D.C. Code § 47-2836.

[2] Santos, Suzelle, Jacobs, Harve, “Lawsuit: Charleston Tour Guide Licenses Shouldn’t be Required” http://www.cbs46.com/story/31081039/lawsuit-charleston-tour-guide-licenses-shouldnt-be-required CHECK CITE.

[3] Examples of exceptions include defamation, obscenity, and incitement of imminent lawless action. See Miller v. California, 413 U.S. 15 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969).

[4] Ward v. Rock Against Racism, 491 U.S. 781 (1989).

[5] United States v. O’Brien, 391 U.S. 367, 377 (1968), Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984).

[6] Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).

[7] Kagan, 753 F.3d at 561.

[8] Id.

[9] Id. at 562 citing Ward, 491 U.S. at 799.

[10] Id. citing Ward, 491 U.S. at 799.

[11][11] Id.

[12] D.C. Code §47-2836

[13] Edwards, 755 F.3d at 1001-1002.

[14] Id.

[15] Id. at 1003.

[16] Id. citing Edenfield v. Fane, 507 U.S. 761, 770-771 (1993).

[17] 1) Unscrupulous businesses, (2) tourists whose welfare is jeopardized by tour guides lacking a minimal level of competence and knowledge, id.; (3) tour guides lacking “minimal knowledge about what and where they are guiding or directing people to,” (4) consumers unprotected from unknowledgeable, untrustworthy, unqualified tour guides, (5) tour guides lacking “at least a minimal grasp of the history and geography of Washington, D.C.,”; (6) visitors vulnerable to “unethical, or uninformed guides,” (7) tourists treated unfairly or unsafely, (8) tourists who are “swindled or harassed by charlatans,”; (9) degradation of the “quality of the consumer’s experience,” (10) “tour guides . . . too unserious to be willing to study for a single exam,” and (11) tour guides “abandon[ing tourists] in some far-flung spot, or charg[ing] them additional amounts to take them back.” Edwards v. District of Columbia, 943 F. Supp. 2d 109, 122 (D.D.C., 2013).

[18] Edwards, 755 F.3d at 1003.

[19] Id. at 1007-1009.

[20] See O’Brien, supra.

[21] E.g., consumer reviews on the Internet and a general business license. Edwards at 1007.

[22] Id. at 1008.

Ohio’s School Voucher Program; Are Lawmakers Establishing a Religion or Just Doing Their Jobs?

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

In 2014, Americans rated “education” as a top area of concern and as one of the most important problems facing the country.[1] Education is a social, political, and economic issue, and quality education is viewed as critical for both individual and societal success. While the U.S. spends more per student than most countries, this spending has not translated into better results.[2], [3] These underwhelming results have led to widespread debate on how to “fix” the education system in the United States. Ohio was one of the first states to tackle the issues of high costs and poor performance. With the initial implementation of its Cleveland public schools voucher program in 1995, Ohio offered students in failing school districts the opportunity to attend any private school.[4] This program has since expanded into a number of different forms and is now available to all students in Ohio who meet the designated criteria of their respective programs. A substantial number of vouchers have been used for students to attend private, Catholic schools.[5] Since the implementation of voucher programs, the use of public dollars to fund education at religious schools has caused significant debate. This transfer of state money from public schools to religious schools via the voucher program has led to debate about whether the program is an impermissible mixing of church and state under the U.S. Constitution. This article first argues that Ohio’s voucher program is not an impermissible mixing of church and state, and, moreover, that religious schools must be included in any voucher program under the Free Exercise Clause. The article then analyzes Ohio’s own constitution and the socio-political impact of vouchers in determining whether Ohio lawmakers should actually be compelled to pass laws to provide educational opportunities for students at all schools, including private, religiously affiliated schools.

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Shirvell v. Department of Attorney General: Pickering on the Wrong Person?

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

In Abrams v. U.S.,[1] Justice Holmes crafted the concept of the United States being an arena for political thought. Since Abrams was decided in 1919, the right of individuals to express their political thoughts has expanded to include almost all forms of speech.[2] However, in Shirvell v. Department of Attorney General, the Court of Appeals of Michigan was charged with determining how far the freedom of political speech truly reaches.[3] In Shirvell, a government official tasked with protecting U.S. citizens was fired and denied unemployment benefits due to his repeated derogation of homosexuals. Ultimately, the court correctly decided that the Department did not violate his First Amendment right by terminating his employment.

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Specialty License Plates as Government Speech: How the Supreme Court Is Likely to Resolve a Five-Way Circuit Split

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Currently, all fifty states in the U.S. require vehicles to be registered and fitted with a unique license plate. Historically, these plates were generic and distinguishable only by the series of letters and numbers used to identify the owner of the vehicle. However, with time, license plates were customized by state with distinctive markers such as state seals, slogans, flags, etc.[1] Beginning around the late 1980’s, states began issuing specialty license plates, decorated with emblems and verbiage designed by non-profit organizations and political groups, as a means to generate additional revenue.[2] As these plates became more popular, litigation around the First Amendment implications of specialty plates increased.[3] But, thirty years later, debate over this issue—whether specialty plates qualify as government or private speech and to what extent states have the right to champion one viewpoint or another via this forum—is anything but settled. In fact, the Supreme Court is set to readdress the matter later this year through review of a dispute out of the Fifth Circuit. And, although license plate text may seem like a mundane legal issue, the Court’s decision here could have potentially far-reaching implications.

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Restricting Content Without Restricting Content: Is Springfield’s Anti-Panhandling Ordinance Truly “Content-Neutral?”

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Springfield, Illinois enacted an ordinance that prohibits panhandling within the city’s downtown historical district—an area that comprises “less than 2% of the City’s area but contain[s] its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings.”[1] “The ordinance defines panhandling, in pertinent part, as [a]ny solicitation made in person . . . in which a person requests an immediate donation of money or other gratuity.”[2] The ordinance does, however, permit the use of signs with written requests for donations, as well as requests for donations at a later time.[3]

Plaintiffs, the recipients of citations for violating the ordinance, sought a preliminary injunction to prevent enforcement of the ordinance.[4] When considering whether to grant or deny a preliminary injunction, a court must consider, among other factors, whether plaintiffs are “likely to succeed on the merits.”[5] Here, the question of the plaintiffs’ “likely success on the merits” hinged upon the distinction between content-neutral and content-based restrictions on free speech.

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City of Indianapolis v. Annex Books: Has Renton’s “Reasonable Belief” Standard Become Unreasonable?

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Among the petitions reviewed during the Supreme Court’s September conference was a request[1] to reverse a Seventh Circuit decision, City of Indianapolis v. Annex Books, in which the court invalidated an Indianapolis ordinance that restricted the permissible hours of operation for “adult entertainment businesses.”[2] The Supreme Court denied certiorari.[3] In that case, the Seventh Circuit held that the Indianapolis ordinance was unsupported by evidence of a justifiable government interest to restrict First Amendment rights. The Seventh Circuit’s decision employed a foundational standard of free speech jurisprudence originally set forth in Renton v. Playtime Theaters[4] and the denial of certiorari confirms the interpretation of this standard by lower courts. The Supreme Court was correct to allow the Seventh Circuit’s holding to stand. Had the Court granted certiorari and reversed the Seventh Circuit’s decision, this case would have signaled the first major shift in time, place, manner jurisprudence in almost three decades.

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