OrCon Law

Food Not Bombs

was the losing plaintiff in today's Ninth Circuit decision upholding the public events permitting scheme in place in "the vibrant beach community" of Santa Monica.  The court rejected, with one exception, a barrage of First Amendment challenges to the ordinances governing permits for public gatherings, street banners, and distribution of food products -- some on the merits, and some on justiciability grounds.  Santa Monica Food Not Bombs v. City of Santa Monica.  Judge Kleinfeld dissented in part.

No First Amendment Right to Jury Pool Records

Reversing the decision of the Court of Appeals, the Supreme Court held today in Jury Service Resource Center v. De Muniz that members of the public do not have a First Amendment right to obtain "the data compiled and used by various public entitities in the process of selecting trial juries" aka jury pool records.  The court reasoned that the Court of Appeals "mistook access to a public trial for access to government information."

Ninth Circuit holds that First Amendment likely does not protect public high school student's right to wear t-shirt with anti-gay message

According to the Ninth Circuit (Reinhardt, J.) in Harper v. Poway Unified Sch. Dist., the First Amendment likely does not protect the right of a public high school student to wear a shirt to school that says "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL" on the back.  Judge Kozinski filed a separate dissent.

Ninth Circuit holds Alaska Campaign Finance Law Does Not Violate the First Amendment

In Alaska Right to Life Committee v. Miles, the Ninth Circuit held that various provisions of Alaska's campaign finance law do not violate the First Amendment.  Rejecting multiple vagueness and overbreadth challenges to the law, the court upheld the law's provisions requiring that the plaintiff, a "non-group entity" desiring to engage in "electioneering communications," comply with specified notification, registration, reporting, and disclosure-of-identity requirements.

Supreme Court unanimously upholds Solomon Amendment

Writing for the Court in Rumsfeld v. FAIR, Chief Justice Roberts concluded that the Solomon Amendment, which requires institutions of higher education to provide military recruiters with the same access provided to other types of recruiters or to lose certain federal funds, does not violate the First Amendment.  The Court concluded that the Solomon Amendment primarily regulates conduct, not speech, and only has an incidental effect on expression.

Free Speech in the Park - Gathright v. City of Portland

A unanimous Ninth Circuit Panel (Fisher, Gould, Bea) has affirmed an injunction issued by District Judge Ancer Haggerty, barring the City of Portland from enforcing an ordinance that permits ejection of disagreeable hecklers from events held in public areas under City-issued permits in public places.

The plaintiff, Edward Gathright, attended events in Pioneer Courthouse Square and Tom McCall Waterfront Park that were sponsored by abortion rights and gay rights advocacy groups.  The groups had obtained permits from the City to stage the events.   A Portland city ordinance (City Code 20.08.060) makes it "unlawful for any person unreasonably to interfere with a permittee's use of a Park," and Gathright was ejected from the permittees' events for disrupting them by variously calling abortion rights supporters "whores," "sluts," and "prostitutes," or wearing a t-shirt at a gay rights rally reading, "Got AIDS Yet?"

Gathright challenged his evictions on First Amendment grounds. The City defended its ordinance as a legitimate "time, place, or manner" regulation of protected speech.  The Ninth Circuit's opinion Here rejects the City's argument and invalidates the ordinance on its face, distinguishing the Supreme Court's seminal case for such regulation in city parks (Ward v. Rock Against Racism, 491 US 781) and the Supreme Court case most closely on point (Hurley v. Irish-American GLB Group of Boston, 515 US 557), and then concluding without much more discussion that the City's ordinance is not "narrowly tailored" enough to protect the permittees' interest in exercising their right to gather peaceably in city parks.

COMMENT:  It seems the Ninth Circuit panel could have given a more thorough analysis of the time, place, or manner regulation of the protected speech in this case.  The Supreme Court has held that time, place, or manner regulation is not a prior restraint (Frisby v. Schultz, 487 US 474, 481), meaning that the First Amendment is simply not implicated where the standard is met.  A more detailed inquiry into the City's reasons for enactment of its ordinance (did violent confrontations, intimidation of peaceful citizens, or damage to City property, prompt action by the City Council?) would have lent more weight to the Ninth Circuit's result.  Or it might have led to a different result.

The chance for greater publicity in a federal forum may explain Mr. Gathright's resort to the First Amendment, but one wonders why he didn't challenge the ordinance under the more speech-friendly Oregon Constitution, Article I section 8.  It's apparent from the recent City of Nyssa v. Dufloth, 339 Or 330, 338-339 that "time, place, or manner" regulation of speech is as unconstitutional in Oregon as naked (sorry) prohibition of the speech itself.

If the City of Portland decides to take this case up on certiorari, it should be interesting to watch the Supreme Court's response.  Would anyone like to handicap the chances of a grant of cert?  Of still another reversal of a "liberal" Ninth Circuit decision?

The Teaching of "Intelligent Design" violates the Establishment Clause

according to the ruling of the United States District Court for the Middle District of Pennsylvania in Kitzmiller v. Dover Area School Dist.  You can view the court's opinion here:  Download kitzmiller_342.pdf

Fourth Circuit upholds Virginia law providing for daily recitation of the Pledge of Allegiance

In Myers v. Loudoun County Public Schools, the Fourth Circuit held that a Virginia statute calling for the voluntary, daily recitation of the Pledge of Allegiance in the Virginia public schools does not violate the Establishment Clause.  The court concluded that the Pledge is "not a religious exercise, and does not threaten an establishment of religion."

Restrictions on Partisan Activities and Solicitation of Campaign Contributions by Candidates for Judicial Office Violate the First Amendment

according to the en banc Eighth Circuit in Republican Party of Minnesota v. Wersal.  Interestingly, the provisions of the Minnesota Supreme Court's judicial code of conduct invalidated by the court closely resemble provisions of Judicial Rule 4 of Oregon's Code of Judicial Conduct, which governs "political activity by a judge."