OrCon Law

The U.S. Supreme Court will not want to review the Gathright case.

Apparently the instances reviewed by the Ninth Circuit where Gathright allegedly interfered with the speech rights of permittees who had obtained a permit for use of park space from the City of Portland all involved events that were free and open to the public. You can easily imagine Gathright or some other provocateur walking into one of these events, as anyone is permitted to do, and walking up to a Bush supporter at a Bush rally who is wearing a Bush button and saying "You ought to talk that pimp President into going quail hunting with "gunner" Dick Cheney every weekend, and have him take his Jezebel wife along too."  You can then imagine that the Bush button wearer, an organizer of the event, orders the provocateur to leave the premises.  The provocateur stands his ground, and a police officer is found to enforce the order and when the provocateur refuses to leave he is arrested and charged with a class C misdemeanor.  Why?  Because he "unreasonably interfered with the permittee's lawful use of the park space."  Remember, he hasn't seized the microphone to give his own speech, he hasn't even made a speech without a microphone.  All that he has done is have a conversation (well, ok, a one-sided conversation) with one person at the event.  What he has said is no doubt offensive to the Bush button wearer, but it isn't obscene, it is not "fighting words" (I don't think it is really an invitation to a brawl).  Actually, it is political speech of a sort, the kind of speech that is more highly valued than, for example, "indecent" speech. 
    Portland's ordinance "[i[t is unlawful for any person unreasonably to interfere with a permittee's use of a park" (PCC 20.08.060) is plainly overbroad and not narrowly tailored to restrict only that activity that would interfere with the speech rights of the permittees who have a permit to use the park space.  Someone stepping inside the park space and saying "How about a light, Bub?" might be offensive to a permittee who would consider it an unreasonable interference with use of the park space, but it would hardly justify an arrest for a class C misdemeanor in the face of a First Amendment excercise of speech.  Overinclusive or Overbroad legislation that sweeps in protected speech along with speech that may not be protected is a very different matter than Time, Place, and Manner restrictions.  The former discriminates on the basis of content; the latter must be content neutral.  Let's imagine a third situation.
The provocateur walks into the Bush event, walks up to the Bush button wearer and says "Bush is the best.  Here is $100 for his re-election."  Is the provocateur going to be asked to leave for his unreasonable behavior at the Bush event?  Of course, not.  The ordinance is not content-neutral regulation of Time, Place, and Manner. It is overbroad and facially invalid because of its ripe capacity for content discrimination.  And, it is also overbroad and content discriminatory in its application.
    Apparently Portland has now changed its ordinance and issues permits to fenced and gated events with permittees in charge of admission.  The case has been remanded to the district court to consider the modified injunction entered by the district court judge in light of Portland's new ordinance.  That case could be a better candidate for eventual Supreme Court review if new facts develop and the expectation of privacy in a fenced and gated and permitted public space (more like a private space, or even more like a private home) and the speech rights attendant to the use of that space are matched up against Gathright's right to harrangue them from the adjacent sidewalk, outside the fence. 
    Since I have managed to cite not a single U.S. Supreme Court case in support of my position, I assume that Jim Westwood, my brother blogger, will now correct me concerning my errant hypotheticals.  There is an Oregon Supreme Court case that is somewhat similar to Gathright.  It is State v. Ausmus.

"Book Review" of Stephen Breyer's new book, "Active Liberty"

This isn't exactly a book review of Justice Breyer's new book, Active Liberty:  Interpreting Our Democratic Constitution, Knopf (2005), but it is an interpretive summary of the kind that I sometimes do for my own files of a book that I think is worth understanding.  So, if you would like a preview of the book or a sort of Cliff (Les) Notes version then click here to Download con_law_active_liberty.doc

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?

Supreme Court upholds Measure 37

Reversing the trial court's decision in all respects, the Supreme Court unanimously held that Measure 37 is constitutional in Macpherson v. Dept. of Admin. Servs.

Presidential Authority Gone Wild?

Rita Molina is having trouble posting and asked me to put up the following interesting bit from her:

Can the President make legislative history?  Now my first inclination was to say - "Of course not!  He's not a legislator."  However, apparently the executive branch (as far back as 1986) has used "presidential signing statements" to contribute to legislative history.  See the intriguing article by Jennifer Van Bergen on findlaw:  http://writ.corporate.findlaw.com/commentary/20060109_bergen.html.  According to the article, the U.S. Supreme Court has even relied on those statements when interpreting laws.  Now it seems like that would bring up a whole range of issues, but the use of signing statements appears to have largely passed under the radar.  Question to any readers - could a governor do the same?  My extensive research into Oregon governors (which consisted of asking two Smart People) revealed a use of veto statements but no signing statements.

My (Ming) own though is that the use of signing statements to interpret law raises separation of powers concerns.  The role of the executive is to execute law, and not to interpret it, which is at least part of what's going on in a signing statement.  To the extent the president is interpreting law, is he not encroaching on the province of the judiciary?

$79.5 Million Punitive Damages Award Does Not Violate Due Process

Yesterday, the Oregon Supreme Court held in Williams v. Philip Morris, Inc. that a $79 million punitive damages award against cigarette manufacturer Philip Morris does not violate due process.  Philip Morris states that it will seek U.S. Supreme Court review.

New Circuit Justice for Ninth Circuit

Justice Kennedy has taken over from Justice O'Connor Circuit Justice duties for the Ninth Circuit.  See the Court's Order of today for this and other Circuit Justice reassignments.