Eugene Volokh's Blog, page 156

[Eugene Volokh] More on Free Speech on Campus, Title VI, and Anti-Israel Speech

["[I]n seeking to hold Cooper Union liable for [students'] expression, [plaintiff] cannot help but say the quiet part loud: sweeping otherwise-protected political expression into the hostility analysis will create pressure on institutions 'to suppress speech to ensure compliance with Title VI,' causing 'regulated entities to adopt restrictive policies in an effort to avoid liability' for a hostile environment."]

Judge John Cronan Feb. 5 decision in Gartenberg v. Cooper Union declined to dismiss plaintiffs' claims alleging a hostile educational environment for Jewish students at Cooper Union (a college in New York), but held that those claims could not be based on certain political speech that the college had tolerated. Plaintiffs moved to reconsider, and in a new decision Tuesday, Judge Cronan stood by his earlier position; an excerpt:

[Gartenberg asks the Court to] revise its Opinion and Order to hold Cooper Union potentially liable under Title VI for "all incidents of harassment alleged in the Complaint, including those where the harassment was accomplished through political speech."

Gartenberg does not specify which additional allegations of "harassment" she believes the Court misclassified as protected speech on matters of public concern. The Court therefore assumes that her Motion seeks to have the Court recast some or all of the following incidents as actionable harassment under Title VI and the First Amendment: (1) a demonstration by pro-Palestinian students on a public sidewalk adjacent to the Foundation Building concerning the Israeli-Palestinian conflict; (2) the distribution of fliers supporting the Palestinian cause; (3) a controversial "art display" advocating violent resistance to "colonialism"; (4) a speech by Dr. Omer Bartov titled, "The Never Again Syndrome: Uses and Misuses of Holocaust Memory and the Weaponization of Language"; (5) an on-campus "vigil" organized by a pro-Palestinian student organization to "Honor Palestinian Martyrs"; (6) a flier inviting members of Cooper Union's community to "come grieve and honor all those killed by decades of Israeli occupation and imperial violence"; (7) a statement published in Cooper Union's student newspaper by the school's Muslim Student Association that characterized "the account of the Jewish students being trapped in the library as 'a false narrative'"; (8) a statement published in same issue of the school newspaper by Cooper Union's Black Student Union, which "declared solidarity with 'the Palestinian struggle against colonialism and genocide' and claimed that 'the conflation of Zionism and Judaism' is 'manipulative, exploitive and racist'"; and (9) an "alumni letter" signed by Cooper Union students, faculty members, and administrators that expressed support for the Palestinian cause and, among other things, stated that "[i]t is historical malfeasance for the administration to issue a statement of condemnation of Hamas's October 7th attacks without acknowledging the context in which these attacks took place."

The Court declines to amend its First Amendment analysis to expose Cooper Union to possible civil liability based on these incidents…. Gartenberg argues that under Healy v. James (1972), a lesser degree of First Amendment protection for political speech is warranted in the higher-education context due to the "'special characteristics' of schools."

But Healy said exactly the opposite: "[T]he precedents of [the Supreme Court] leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, '[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'"The Supreme Court in Healy, therefore, made clear that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,'" and stressed its decision was "break[ing] no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom" on college campuses.

Instead, Healy stands for the uncontroversial proposition that "First Amendment rights must always be applied in light of the special characteristics of the … environment in the particular case." And far from supporting Gartenberg's sweeping view of Congress's power to require colleges and universities to crack down on offensive political speech, the rule that the Supreme Court endorsed in Healy is narrow: a public school may prohibit a student's actions that "materially and substantially disrupt the work and discipline of the school" without offending the Constitution.

But this case is not about whether Cooper Union has the authority to discipline its students for disrupting its educational environment or for violating the civil rights of its Jewish students; it is obvious that it does. Instead, the question is whether Congress, consistent with its First Amendment obligation, may expose colleges and universities to liability for a hostile educational environment based in part on their failure to censor or punish pure speech on matters of public concern. And to that end, the Supreme Court and the Second Circuit have repeatedly and consistently admonished "that colleges play a critical role in exposing students to the 'marketplace of ideas' and, as a result, First Amendment protections must be applied with particular vigilance in that context." …

In refusing to dismiss Gartenberg's civil rights claims, the [Court's Feb. 5 decision] emphasized its "duty to avoid constitutional difficulties" under the First Amendment. The Court therefore interpreted Title VI not to "allow[ ] for liability based on speech that is reasonably designed or intended to contribute to debate on matters of public concern, and that is expressed through generally accepted methods of communication." But at the same time, the Court stressed that Congress has a "compelling government interest" in "the elimination of discriminatory harassment in … programs receiving federal funding."

The Court therefore explained that construing Title VI to avoid burdening core First Amendment rights "does not … require courts to shield all derogatory epithets of marginal value or to protect speech even about political matters, that is so persistent or patently harassing that it could not be reasonably designed to contribute to reasoned debate." The Court also made clear that applying federal antidiscrimination law consistent with the First Amendment "does not … mean that courts must fall for the glib assertion that because matters of race and gender are, at the broadest level of abstraction, clearly issues of public concern, all racist and sexist remarks automatically qualify for First Amendment protection."

Applying these standards to Gartenberg's Complaint, the Court concluded that Title VI does not reach instances of pure speech by pro-Palestinian members of Cooper Union's community that, as pleaded, were reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict. The Court, however, ultimately sustained Gartenberg's civil rights claims based on plausible allegations of severe and pervasive antisemitic harassment that, despite its political character, did not merit the same degree of First Amendment protection under the circumstances alleged in the Complaint and was therefore a proper basis for liability under Title VI. [See this earlier post for more details. -EV]

Accordingly, nothing in the Court's analysis suggested that schools may not regulate the activities of their students to avoid material disruptions to the learning environment or that Congress may not legislate to prevent discriminatory harassment on college campuses. To the contrary, the allegations in Gartenberg's Complaint of incidents of harassment that crossed that line formed the very basis for the Court's refusal to dismiss her civil rights claims at the pleading stage. See id. (relying on allegations of physically threatening or humiliating conduct and repeated acts of antisemitic vandalism to satisfy Title VI's hostility element). Gartenberg's assertion that the Court's Opinion and Order could suggest that "schools are free to ignore antisemitic harassment simply because it takes the form of speech on matters of public concern," therefore ignores what the Court's Opinion and Order actually says.

Gartenberg is also wrong to suggest that the Court misunderstood the fact that schools have tools at their disposal to comply with Title VI short of censoring political speech. The Court held only that "it will usually be difficult—if not impossible— to show that a college or university acted in a clearly unreasonable manner under Title VI where its acts of alleged deliberate indifference consist of its refusal to punish political speech directed at the college community through reasonable means." Thus, the Court upheld Gartenberg's civil rights claims based on the Complaint's plausible allegations that Cooper Union failed to respond to antisemitic harassment in ways that "did not involve Cooper Union's refusal to suppress political speech." Id. (discussing Cooper Union's alleged failure to enforce its content-neutral policies against intimidation and vandalism).

In any event, the fact that schools have ways of addressing harassment short of censoring political speech does not mean that such expression is unlawful harassment in the first place. And in seeking to hold Cooper Union liable for that expression, Gartenberg cannot help but say the quiet part loud: sweeping otherwise-protected political expression into the hostility analysis will create pressure on institutions "to suppress speech to ensure compliance with Title VI," causing "regulated entities to adopt restrictive policies in an effort to avoid liability" for a hostile environment.

That is a problem. In our constitutional system of ordered liberty, the "usual and preferred remedy under the First Amendment" to offensive—even grotesque—political expression has always been "more speech." And the First Amendment cannot be evaded through the motte-and-bailey routine of professing to concede that "Title VI does not compel a school to restrict speech" while attempting to redefine virtually all forms of contentious political expression—from a sidewalk protest and leafletting to a disagreeable speech by a college professor—as "harassment" that colleges must address on pain of civil liability. Motion at 6; compare id. at 8 (appearing to agree that "Title VI does not require schools to suppress speech"), with Compl. ¶ 16 (alleging that Cooper Union violated Title VI by allowing "anti-Israel speech, posters, and other messaging on campus"), and Motion at 2 (urging the Court to characterize "all incidents of harassment alleged in the Complaint" as actionable under Title VI). It is therefore no answer to say that the First Amendment concern in avoiding government censorship of campus speech dissipates merely by virtue of broadly characterizing offensive speech on sensitive issues as "harassment" or "discrimination." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.) ("There is no categorical 'harassment exception' to the First Amendment's free speech clause."). After all, "[t]he Constitution deals with substance," not labels.

[* * *]

The Court in no way questions the genuine pain that much of the discourse surrounding the Israeli-Palestinian conflict has inflicted, and continues to inflict, on Jewish college students across the country. As the Court's Opinion and Order explained at length, some of that speech can readily be understood by Jewish students as antisemitic. Indeed, the hurt that such expression causes is only heightened when it is expressed in close proximity to unimaginable acts of terror carried out against innocent Jews and Israelis abroad. And the Court, of course, ultimately concluded that Gartenberg's Complaint states a plausible claim for a hostile educational environment based on physically threatening or humiliating harassment and repeated acts of antisemitic vandalism and graffiti.

But the Court's Opinion and Order also meant what it said about the First Amendment. To construe Title VI's prohibition on discriminatory harassment as sweeping in instances of pure speech that are reasonably designed or intended to contribute to the ongoing public debate concerning the Israeli-Palestinian conflict would "risk[ ] the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses." Rosenberger v. Rector (1995). That is a result the Court must avoid.

The post More on Free Speech on Campus, Title VI, and Anti-Israel Speech appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: February 27, 1901

2/27/1901: Champion v. Ames argued.

The post Today in Supreme Court History: February 27, 1901 appeared first on Reason.com.

[Sasha Volokh] Cert Petition in Georgia Adult-Entertainment Tax Case: Part 2

[The rest of the cert petition in Georgia Ass'n of Club Executives v. Georgia]

Yesterday, I blogged about the cert petition that I filed a couple of weeks ago in Georgia Ass'n of Club Executives v. Georgia and Georgia Ass'n of Club Executives v. O'Connell. That post reprinted the introductory part of the cert petition; here's the main body of the brief. Again, if you want to write an amicus brief, you have until March 20 to file one—let me know by personal message if you're interested! If you want to read the whole thing in its beautiful formatted form (thanks to Counsel Press), you can click here.

As I said yesterday, this case should be of interest even if you're not interested in adult entertainment (indeed, even if you're hostile to adult entertainment). The big question here is whether a facially content-discriminatory enactment (that would otherwise be evaluated under strict scrutiny) should be considered content-neutral (and thus evaluated under intermediate scrutiny) if it has a content-neutral justification. This means this case is closely related to the abortion-clinic buffer-zone cases that rely on Hill v. Colorado—and, as you may have read on this blog (here or here), the Supreme Court has recently denied cert in a case that presented the issue of whether to overruled Hill.

*     *     *

Reasons for Granting the Petition

This Court should grant certiorari because the boundary between the Reed and City of Renton doctrines is unclear; lower courts, including the Georgia Supreme Court in this case, have been wrongly extending the City of Renton reasoning to areas where it does not apply.

Reed correctly reaffirmed the general rule that content-discriminatory governmental enactments are evaluated under strict scrutiny. But City of Renton stated that certain enactments, even if facially content discriminatory, can be evaluated under intermediate scrutiny if the government seeks to justify them by the need to combat secondary effects. Because the proper scope of the City of Renton exception has never been clarified, lower courts have disagreed on what previous case law survives Reed, and some lower courts have extended City of Renton into areas far afield from its original grounding in judicial deference to zoning and land-use regulation. This Court should resolve this important question of First Amendment law, either by overruling the City of Renton/Hill line of cases or by cabining the scope of the content-neutral justification rule, for instance by holding that this reasoning is limited to zoning and land-use regulation, or by holding that this reasoning does not apply to facially content-discriminatory taxes.

A. This Court's Recent Case Law Reaffirms the Traditional Rule on Content Discrimination and Strict Scrutiny.

1. Content-Discriminatory Government Action Is Subject to Strict Scrutiny.

Content-discriminatory (i.e., content-based) government action is subject to strict scrutiny. This principle has been established for decades. See Reed, 576 U.S. at 163; AAPC, 591 U.S. at 618 (plurality opinion); United States v. Playboy Entertainment Group, 529 U.S. 803, 813-15 (2000).

This is true whether or not "conduct" is involved: the intermediate-scrutiny test for expressive conduct associated with O'Brien applies only when state action is content neutral. See, e.g., Humanitarian Law Project, 561 U.S. at 27 ("O'Brien does not provide the applicable standard for reviewing a content-based regulation of speech . . . ."); see also Alexander Volokh, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, 2 J. Free Speech L. 627, 646 (2023). Even if the activity in this case were labeled as conduct, this Court's doctrine on content discrimination would still apply: "The law here may be described as directed at conduct, as the law in Cohen [v. California, 403 U.S. 15 (1971),] was directed at breaches of the peace, but as applied to [petitioner] the conduct triggering coverage under the statute consists of communicating a message." Humanitarian Law Project, 561 U.S. at 28.

This Court has used a simple approach to determine whether a law is content based: "a law is content-based if a regulation of speech on its face draws distinctions based on the message a speaker conveys. That description applies to a law that singles out specific subject matter for differential treatment." AAPC, 591 U.S. at 618-19 (plurality opinion) (internal quotation marks omitted). In AAPC, the law discriminated between robocalls on different topics, giving preferential treatment to robocalls made to collect government debt. "A robocall that says, 'Please pay your government debt' is legal. A robocall that says, 'Please donate to our political campaign' is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech." Id. at 619; see also id. at 649 (Gorsuch, J., concurring in the judgment in part and dissenting in part). All nine Justices agreed that the law was content based, though a minority disagreed regarding whether strict scrutiny should be required. See id. at 639 (Breyer, J., concurring in the judgment in part and dissenting in part); see also id. at 636 (Sotomayor, J., concurring in the judgment).

This Court had already endorsed this approach in Reed, a case about a sign code treating political signs differently than other signs. "The Town's Sign Code," the Court wrote, "is content based on its face. . . . The restrictions in the Sign Code that apply to any given sign . . . depend entirely on the communicative content of the sign." Reed, 576 U.S. at 164.

And this facial approach is rooted in long-standing precedent going back several decades. See, e.g., Humanitarian Law Project, 561 U.S. at 27 ("Plaintiffs want to speak to [various organizations], and whether they may do so under [the statute] depends on what they say."); Simon & Schuster, 502 U.S. at 115-16 ("The Son of Sam law . . . singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content."); Ark. Writers' Project, 481 U.S. at 229 ("[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content."); Regan v. Time, 468 U.S. 641, 648 (1984) ("A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers."); see also Volokh, supra, at 641-43.

2. The Tax Here Is Content Discriminatory.

The tax here is content discriminatory because it taxes establishments defined by their expression.

First, an establishment can become subject to the tax by having "nude or substantially nude persons dancing." Second, an establishment can become subject to the tax by having "movements of a sexual nature"—and one cannot determine whether movements are sexual (or "simulat[e] sexual intercourse") without examining their content and inspecting their message. Third, an establishment can become subject to the tax by presenting all this as "entertainment"; the wording confirms that what is taxed is a performance before spectators. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring in the judgment) ("[S]uch performance dancing is inherently expressive . . . ."); see also Volokh, supra, at 643-46.

A revenue officer will have to inspect the "entertainment" to determine whether the subject matter is erotic. This is the very definition of "content based." (By contrast, merely appearing in public naked is "not an inherently expressive condition," see City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion), and so laws that merely depend on whether one is in public naked are content neutral and receive intermediate scrutiny. See Bushco v. Utah State Tax Comm'n, 225 P.3d 153, 160-61 (Utah 2009).)

To be sure, this Court's facial approach is not absolute; the mere fact that one must inspect content to see whether a law applies is not always enough to make that law content discriminatory. See City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022). But this Court's holding in City of Austin was narrow, and it does not affect Reed's facial approach in cases like this one.

In City of Austin, a sign code regulated off-premises advertising (i.e., advertising for things located on different premises than the sign) more heavily than on-premises advertising (i.e., advertising for things located on the same premises). This may seem content discriminatory because one can't tell whether a sign contains on-premises or off-premises advertising without reading it. But this Court nonetheless considered this sign code content neutral: "Unlike the sign code at issue in Reed," the code "[did] not single out any topic or subject matter for differential treatment." Id. at 71. The code's focus on a neutral factor like location made it different from codes turning on "[a] sign's substantive message," embodying, for instance, "content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations." Id.

Thus, even while it upheld that particular code, this Court reaffirmed in City of Austin that the facial approach still applies when a policy turns on substantive content or a specific subject matter. The Reed approach is thus unaffected in this case, where the tax depends precisely on the subject matter. See, e.g., Barnes, 501 U.S. at 570-71 (noting that nude dancing conveys an "erotic message"); City of Erie, 529 U.S. at 293, 296 (2000) (plurality opinion).

And, once one determines that the tax is content discriminatory and therefore receives strict scrutiny, it necessarily fails. Strict scrutiny requires the government to choose the least content-discriminatory means of pursuing its goal. But the government can always pursue its goal (here, raising revenue to fund programs that combat child sex trafficking) equally well by providing the same amount from general revenues.

3. Whether the Law's Justification Is Content Neutral Is Irrelevant.

But what if, despite facial discrimination based on content, the government seeks to justify the law using a content-neutral rationale? (I.e., what if the purpose of the content discrimination is to combat "secondary effects" unrelated to content?) Does that alter the result that the law is content discriminatory, lowering the level of scrutiny?

The general answer is easy: where (as here) the government has singled out particular content or subject matter, the neutrality of the justification is irrelevant. According to Reed:

On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. . . .

. . . A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. . . . [I]llicit legislative intent is not the sine qua non of a violation of the First Amendment, and a party opposing the government need adduce no evidence of an improper censorial motive. Although a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary. . . . [A]n innocuous justification cannot transform a facially content-based law into one that is content neutral.

Reed, 576 U.S. at 164-66 (internal quotation marks, citations, and alterations omitted).

There are two exceptions to this general rule: First, there is the City of Austin exception, which, as discussed above, does not apply here. Second, there is the City of Renton/Hill content-neutral justification rule, which will be discussed in Part B infra. Apart from these two exceptions, the general irrelevance of neutral justifications is not some new invention. Countless First Amendment cases have stated this principle:

In Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), a pre-City of Renton case, this Court applied strict scrutiny to strike down a prohibition on picketing near schools, with an exception for labor picketing—even though the government sought to justify its ordinance by reference to the neutral secondary effect of avoiding disruption of the school. at 98-102. In Simon & Schuster, the state was pursuing the neutral goal of ensuring that criminals didn't profit from their crimes, but this Court applied strict scrutiny to the content-discriminatory "Son of Sam" law. 502 U.S. at 118-21. (This Court noted, though, that the precise standard didn't much matter: even if the neutral goal could make the statute content neutral, the statute would still be unconstitutional because of its overinclusivity. at 122 n.*.) In Humanitarian Law Project, the government was pursuing the neutral goal of depriving terrorist organizations of resources, but this Court rejected intermediate scrutiny and applied "a more demanding standard." 561 U.S. at 28 (internal quotation marks omitted). In Arkansas Writers' Project—a case, like this one, involving a content-based tax—this Court applied strict scrutiny even though the state asserted neutral justifications like "encourag[ing] 'fledgling' publishers." 481 U.S. at 231-33. In City of Cincinnati, the government was pursuing the neutral goal of safety and aesthetics in regulating commercial newsracks, but this Court wasn't impressed by this neutral justification because the regulation was still facially discriminatory: despite the lack of "animus toward the ideas contained in those publications," "the very basis for the regulation [was] the difference in content between ordinary newspapers and commercial speech." 507 U.S. at 429. This Court didn't apply strict scrutiny in this case because of the commercial-speech context, at 416-28, but it still rejected the more lenient standard that would have applied if the regulation were truly content neutral.

See also Volokh, supra, at 651-56.

B. The Secondary Effects Doctrine Is a Limited Exception to This Rule.

But what about the "secondary effects" doctrine? In City of Renton, a zoning ordinance discriminated against adult movie theaters. This was, on its face, content discriminatory. And yet, the U.S. Supreme Court wrote, the ordinance was "aimed not at the content . . . but rather at the secondary effects of such theaters on the surrounding community," 475 U.S. at 47, and was therefore properly examined under the more lenient standard applicable to time, place, and manner regulations, i.e., intermediate scrutiny, id. at 49-50.

City of Renton's secondary effects doctrine is not an isolated phenomenon. This Court relied on the same content-neutral justification rule to uphold an abortion-clinic buffer zone in Hill, 530 U.S. at 719 (citing Ward, 491 U.S. at 791 (citing City of Renton, 475 U.S. at 47-48)), and in various other cases listed in Part B.1 infra. The theme running through these cases, from adult entertainment to abortion-clinic buffer zones, is that even a facially content-discriminatory enactment can be treated as if it were content neutral—and evaluated under intermediate scrutiny—if it is justified without reference to content.

The City of Renton/Hill doctrine—the content-neutral justification rule, of which the secondary effects doctrine is one example—is an exception to the general rule stated above. The domain of this doctrine is unclear; but whatever the precise boundaries of the doctrine, it has always been a limited exception.

1. The Proper Scope of City of Renton Remains Unclear.

It has long been clear that the Reed and City of Renton doctrines are inconsistent, or at least in substantial tension, with each other. Scholars have repeatedly noted this. See, e.g., Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct. Rev. 233, 293; Leslie Gielow Jacobs, Making Sense of Secondary Effects Analysis After Reed v. Gilbert, 57 Santa Clara L. Rev. 385, 388-89 (2017); Anthony Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105, 1140-41 (2016). So have lower-court judges. See Free Speech Coalition, Inc. v. Attorney General, 825 F.3d 149, 174 (3d Cir. 2016) (Rendell, J., dissenting) ("The secondary effects doctrine thus seems logically irreconcilable with Reed.").

Some courts have assumed that City of Renton is still good law after Reed. See, e.g., BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015); Maxim Cabaret, Inc. v. City of Sandy Springs, 816 S.E.2d 31, 36 n.4 (Ga. 2018); Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs, 703 F. App'x 929, 934–35 (11th Cir. 2017); Jacobs, supra, at 414-16. Other courts have decided that at least some of their prior case law—which had relied on City of Renton's content-neutral justification rule—had to be revisited in light of Reed. See, e.g., Free Speech Coalition, 825 F.3d at 161 n.9; Cahaly v. Larosa, 796 F.3d 399, 404-05 (4th Cir. 2015); Reagan Nat'l Advert. of Austin, Inc. v. City of Austin, 972 F.3d 696, 702-03 (5th Cir. 2020), rev'd on other grounds, 596 U.S. 61, 69 (2022); Int'l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 706 (6th Cir. 2020).

But even when a lower court recognizes that City of Renton has not been overruled and must therefore be applied within its proper domain, it is hard to tell when to apply Reed and when to apply City of Renton. The boundary between the Reed and City of Renton domains is unclear.

City of Renton does not apply every time a government identifies some secondary effect: that much is obvious from cases like Simon & Schuster, Humanitarian Law Project, and Arkansas Writers' Project, in all of which the government was pursuing some goal unrelated to speech. Indeed, applying it this way would substantially unravel the Reed doctrine: as Justice Brennan noted in Boos, the City of Renton analysis "creates a possible avenue for governmental censorship whenever censors can concoct 'secondary' rationalizations for regulating the content of political speech." 485 U.S. at 335 (Brennan, J., dissenting).

Nor is the domain of City of Renton coterminous with adult entertainment. First, City of Renton does not always apply when adult entertainment or pornography is at issue. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (involving virtual child pornography). And second, City of Renton has been applied even beyond the adult entertainment context:

In Boos, a plurality distinguished City of Renton (thus assuming that it would otherwise apply) in analyzing a D.C. ordinance barring some forms of protest outside embassies, 485 U.S. at 320-21 (plurality opinion). In City of Cincinnati, 507 U.S. at 430, a majority likewise distinguished City of Renton in analyzing a city's policy against newsracks for commercial handbills. This Court cited City of Renton positively in R.A.V., 505 U.S. at 389, a case involving the display of symbols that arouse anger based on factors such as race. In Ward, 491 U.S. at 791, this Court relied on City of Renton to uphold the constitutionality of sound-amplification guidelines for a concert in a park. And in Hill, 530 U.S. at 719, this Court relied on the content-neutral justification principle, citing Ward, to uphold an abortion-clinic buffer zone.

In some of these cases, the precise doctrinal statement has not made a difference (the regulation in Ward, for instance, would have been content neutral under any standard), but in other cases (such as Hill), the reliance on the content-neutral justification theory made a real difference to the bottom line. Some lower courts have mistakenly said that this Court has only ever applied City of Renton in the context of "regulations affecting physical purveyors of adult sexually explicit content," see Free Speech Coalition, 825 F.3d at 161, but this is incorrect: unfortunately, City of Renton's domain resists any easy characterization.

2. At the Very Least, City of Renton Does Not Apply to Taxation.

While this Court has never explained the precise scope of City of Renton secondary effects analysis, there are some guideposts. This Court has always applied the doctrine in a regulatory context, especially when traditional zoning or land-use considerations are at issue—when the regulation can fairly be characterized as a "time, place, or manner regulation." (Thus, City of Austin, where this Court characterized the "on-/off-premises distinction" as being "similar to ordinary time, place, or manner restrictions," 596 U.S. at 71, also arose in a land-use regulation context, i.e., sign codes.) This Court has never applied the City of Renton approach to taxes—and, in fact, Arkansas Writers' Project is a good example of the contrary, where this Court applied strict scrutiny to a content-discriminatory tax even though the government had asserted a content-neutral rationale. See Part A.3 supra.

It makes sense that the secondary effects doctrine is limited to, at most, regulation and licensing—but does not extend to taxation—for the following five reasons.

First, from its beginnings in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the secondary effects doctrine has been closely tied to zoning and land use. The plurality in that case upheld a zoning ordinance targeting adult theaters based on "the city's interest in preserving the character of its neighborhoods," id. at 71; "[i]t is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of 'offensive' speech," id. at 71 n.34. Justice Powell concurred, stating that local land-use regulation is special, because zoning is "the most essential function performed by local government": "I view [this] case as presenting an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent." Id. at 73, 80 (Powell, J., concurring in part and concurring in the judgment) (internal quotation marks omitted).

When this Court officially adopted the secondary effects doctrine in City of Renton, the context was also a zoning ordinance targeting adult theaters, and the rationale was closely tied to land use. The case, this Court wrote, was "largely dictated" by American Mini Theatres, id. at 46, and the concerns discussed were ones related to "the vital governmental interests" in "attempting to preserve the quality of urban life," id. at 50 (internal quotation marks omitted). In stating the rule of law, this Court wrote: "in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to 'content-neutral' time, place, and manner regulations." Id. at 49 (footnote omitted) (emphasis added).

Small wonder that this Court later described this line of precedent as "[o]ur zoning cases." Playboy, 529 U.S. at 815.

To be sure, this doctrine has been applied beyond zoning in the narrowest sense: in Ward, it was used to uphold municipal sound amplification guidelines. But this is still a closely related land-use regulation context. And even the abortion-clinic buffer zones at issue in Hill were regulatory.

Thus, the secondary effects doctrine was developed in a context of deference to local governments' traditional land-use authority, where the secondary effects were ones stemming from physical proximity. This is consistent with this Court's deferential attitude toward zoning, see, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

Second, zoning and other land-use regulations at least fit within the overarching rubric of "time, place, or manner regulations" (even if there may still be controversy over whether they are nonetheless unconstitutionally content discriminatory). In the context of the regulation of adult entertainment, City of Renton-type cases generally come down to the following: "Don't have nude dancing at these hours—have them at these other hours instead" (time); "Don't have nude dancing in this part of town—have it in this other part of town instead" (place); "Don't have entirely nude dancing—wear G-strings instead" (manner). By contrast, a tax cannot easily be described as a time, place, or manner regulation, because it does not prescribe when, where, or how to conduct any activities; it merely attaches a price to such activities. Taxation does not fit well with the theory of City of Renton.

Third, this Court has always taken a negative, bright-line attitude toward discriminatory taxation. As far back as McCulloch v. Maryland, the Court has not drawn lines between moderate and excessive taxation; it has reasoned instead that a tax, once allowed, can be increased without limit. See 17 U.S. (4 Wheat.) 316, 430-31 (1819). The same idea has been applied in First Amendment cases. For religious speech, a license tax is unconstitutional because it could become too "costly." Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943). For the press, even a small content-discriminatory tax is unconstitutional because of "the possibility of subsequent differentially more burdensome treatment." Minneapolis Star & Tribune Co. v. Minn. Comm'r of Rev., 460 U.S. 575, 588 (1983); cf. also Leathers v. Medlock, 499 U.S. 439, 447 (1991). Petitioner does not concede that this tax is small, but even if it were, that would be irrelevant. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) ("There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.").

Why can't one draw a constitutional line between moderate and excessive taxes? Perhaps because "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation." Minneapolis Star, 460 U.S. at 589. Or perhaps because the very idea of a discriminatory tax offends First Amendment values: "A tax based on the content of speech does not become more constitutional because it is a small tax." Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 136 (1992); see also Ark. Writers' Project, 481 U.S. at 229 (content-based taxes are "particularly repugnant to First Amendment principles"). Regardless, this treatment of taxation stands in sharp contrast to the "time, place, or manner" inquiry under which we ask whether regulations "do not unreasonably limit alternative avenues of communication," City of Renton, 475 U.S. at 47 (emphasis added). The bright-line treatment of taxation would be out of place in City of Renton's flexible balancing inquiry.

Fourth, a relatively permissive intermediate-scrutiny approach to content-based taxes would be in tension with this Court's case law on permitting fees. In Cox v. New Hampshire, 312 U.S. 569 (1941), this Court upheld a system of license fees for parades and processions. The state court had interpreted the fee to be "not a revenue tax, but one to meet the expense incident to the administration of [a statutory scheme] and to the maintenance of public order in the matter licensed." Id. at 577 (internal quotation marks omitted). This Court stated that "[t]here is nothing contrary to the Constitution in the charge of a fee limited" to such a purpose. Id. Shortly afterward, in Murdock, this Court struck down a fee on "canvassing" and "soliciting" because "the fee [was] not a nominal one"; it was not merely "imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." 319 U.S. at 116. More recently, in Forsyth County, this Court struck down a content-discriminatory permitting fee; the government's justification for the fee—"raising revenue for police services"—was "an important government responsibility" but did not "justify a content-based permit fee." 505 U.S. at 135.

These cases have become the basis for lower-court case law that prevents governments from using permitting fees on speech to fund programs that go beyond the expenses of administering the permitting system itself. See, e.g., Sullivan v. City of Augusta, 511 F.3d 16, 38 (1st Cir. 2007) ("Only fees that cover the administrative expenses of the permit or license are permissible."); E. Conn. Citizens Action Gp. v. Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) ("Licensing fees used to defray administrative expenses are permissible, but only to the extent necessary for that purpose."); Int'l Women's Day March Planning Cmte. v. City of San Antonio, 619 F.3d 346, 371 (5th Cir. 2010) (fees "clearly linked to the expense of '[c]leaning up the procession route' and the cost of any 'personnel' and 'devices' needed for traffic control"). Allowing the State here to use the fees collected to fund services distant from the administration of the tax program itself would weaken this Court's more stringent regulation of permitting fees.

Fifth, if one engaged in intermediate scrutiny under City of Renton, one would have to determine whether the tax is "narrowly tailored to serve a significant governmental interest." See, e.g., Clark, 468 U.S. at 293-94. Unlike strict scrutiny, intermediate scrutiny's narrow tailoring does not require that the government select the least restrictive alternative. See id. at 299. But the regulation must still "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Ward, 491 U.S. at 799 (internal quotation marks omitted). Even under this lower standard, a targeted tax likely fails: if the government (as here) is merely asserting a revenue goal, it could achieve that goal equally well by simply applying a more broad-based tax—here, by using general revenues. City of Renton intermediate scrutiny thus tends to be a poor fit for taxation.

Justice Kennedy was right to observe in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), that government "may not . . . impose a content-based fee or tax . . . even if [it] purports to justify the fee by reference to secondary effects." Id. at 445 (Kennedy, J., concurring in the judgment). Justice Kennedy was merely restating sound and well-established doctrine. The City of Renton secondary effects doctrine does not apply, and has never applied, to taxes. Recent case law merely clarifies the background rule, which is that content discrimination singling out particular subject matter is determined on the face of the statute—and that content-based enactments are analyzed under strict scrutiny. See Volokh, supra, at 657-64.

C. Lower Courts Have Wrongly Been Expanding the Content-Neutral Justification Rule.

The lack of clarity in the respective domains of Reed and the content-neutral justification rule has had predictable effects.

First, as documented in Part B.1 supra, lower courts have disagreed on whether City of Renton is still good law after Reed, and how much of their prior case law needs to be revisited in light of Reed.

Second, despite the strong connection between the City of Renton rationale and zoning and land-use regulation, some courts—not only the Georgia Supreme Court in this case, but also the Texas Supreme Court—have departed from the regulatory context and applied City of Renton to uphold taxes, even ones that are facially content discriminatory. See Combs, 347 S.W.3d at 286. On the other hand, a federal district court—analyzing a challenge to the same Texas tax that had been upheld in Combs—ruled, at the preliminary injunction stage, that the challenger could show a likelihood of success on the merits on its First Amendment claim. 9000 Airport LLC v. Hegar, No. 4:23-CV-03131, 2023 WL 7414581, at *4-*7 (S.D. Tex. Nov. 9, 2023). The court rejected the applicability of City of Renton: "The First Amendment permits restrictions only on the time, place, or manner of protected expression in a secondary effects case," and a tax is not a time, place, or manner restriction. Id. at *4.

D. The Conflict Between These Doctrines Should Be Resolved.

"The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law." Lakier, supra, at 233. It is therefore imperative that the conflict between these two doctrines be resolved.

That conflict could be resolved in at least the following three ways.

First, this Court could overrule the City of Renton/Hill content-neutral justification rule as being inconsistent with the Reed rule of strict scrutiny.

That is certainly a plausible approach. After all, this Court has already stated that Hill is a "distort[ion]" of "First Amendment doctrines," Dobbs, 597 U.S. at 287 & n.65, and the Hill problem extends to City of Renton and other cases as well. As some of this Court's Justices have noted, this Court's intervening decisions have "all but interred" Hill, rendering it "an aberration in [the Court's] case law." City of Austin, 596 U.S. at 91-92, 103-04 (Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting); Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) (noting that the Court's use of intermediate scrutiny in Hill "is incompatible with current First Amendment doctrine" (quoting Price, 915 F.3d at 1117)).

Moreover, Hill has been criticized ever since it was decided, even by commentators who support abortion rights. See, e.g., Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. Cal. L. Rev. 49, 59 (2000); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001). Much of the critique of the Hill reasoning is a critique of the entire content-neutral justification rule; this case would thus allow this Court to clarify that strict scrutiny is the rule in all these diverse areas.

Second, this Court could clarify that the City of Renton reasoning is strictly limited to the zoning and land-use context in which it arose. The City of Renton reasoning would thus no longer be available to support regulations that have nothing to do with land use (such as abortion-clinic buffer zones), and certainly would not be available to support non-regulatory enactments, such as the tax at issue in this case.

Third, this Court could clarify that, however far the City of Renton reasoning extends, it certainly does not apply to taxation. This option would not invalidate very much—see Volokh, supra, at 634-40, for a discussion of the handful of adult-entertainment taxes that would or would not be affected. This option would also retain the City of Renton reasoning for regulatory cases of various kinds (perhaps including buffer zones), but would prevent the expansion of the secondary effects doctrine to taxation—an expansion that would be inconsistent with cases like Arkansas Writers' Project and that could substantially undo the Reed rule of strict scrutiny.

Either way, this Court has been right to stress the general rule that content discrimination is highly suspect and that strict scrutiny is the norm in such cases, even when the government asserts content-neutral justifications. "The vice of content-based legislation—what renders it deserving of the high standard of strict scrutiny—is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes." Madsen, 512 U.S. at 794 (Scalia, J., concurring in the judgment in part and dissenting in part). The City of Renton exception should not be expanded to erode or swallow up that rule.

Conclusion

For these reasons, petitioner requests that this Court grant its petition for a writ of certiorari.

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[Josh Blackman] If The Courts Want Their Orders To Be Followed, The Courts Must Issue Orders That Can Be Followed

[Federal judges are walking on thin ice by issuing unappealable TROs and failing to stay their rulings.]

Last weekend, I spoke on a panel about executive power. The other panelists ranged in positions from "We are in a constitutional crisis" to "We are almost in a constitutional crisis." My position, perhaps unsurprisingly, was that everyone needed to take a deep breath. I've seen no evidence, at all, that the executive branch is attempting to flagrantly violate any federal court order. To the contrary, the Trump Administration has taken every possible step to appeal adverse rulings, and avoid violating orders.

But the government can only do so much when judges go too far. Case in point is the litigation over USAID funding. On Tuesday, a district court judge ordered the Trump Administration to pay nearly $2 billion by 11:59 p.m. on Wednesday evening. The government insisted that it would be impossible to pay all of those amounts. It was not as simple as turning as light switch on. Yet, the District Court refused to stay its TRO.

The government sought an emergency stay from the D.C. Circuit by 1:00 p.m. on Wednesday. But the D.C. Circuit did not rule on the motion by that time. So the Solicitor General filed an emergency application for an administrative stay with Circuit Justice Roberts. Roberts granted that motion on his own before the midnight deadline. At least for the near future, the government will not be obligated to disburse the full amount.

After the SG filed the application, the D.C. Circuit denied the request for an administrative stay. (I am not certain what time the order was issued.) The court stated, yet again, that it will not entertain jurisdiction of an appeal from a TRO. Obviously, the Chief Justice disagreed.

Also on Wednesday, confirmation hearings were held for several nominees to the Trump Administration, including Solicitor General Nominee John Sauer. They were asked whether they would always follow a court order. I tell my students to never answer an "always" question. It is impossible to predict all of the circumstances that may arise. What if a federal judge ordered the President to immediately reinstate the chairman of the Joint Chief of Staffs, and refused to stay the ruling? Would that order have to be immediately complied with? It is better to hedge. And I think the nominees at the hearing hedged appropriately.

In the unlikely event that I were ever to appear before the Senate, I would answer the question a bit more directly: if the Courts want their orders to be followed, the Courts must issue orders that can be followed. District Court judges cannot issue global, unappealable administrative stays and TROs against the executive branch, forcing it to spend money on foreign policy, and then refuse to stay the ruling to permit a timely appeal.

Every action has an equal and opposite reaction. Thankfully, Chief Justice Roberts stepped in with the solo administrative stay. But in some other case, perhaps coming from the First, Second, or Ninth Circuits, the Circuit Justices may not be as expeditious.

Federal judges are walking on thin ice by issuing unappealable TROs and failing to stay their rulings.

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[Stephen Halbrook] Second Amendment Roundup: Supreme Court Should Hold its Decision in VanDerStok

[The new Administration should notify the Court of its change in position on ATF regulations.]

As of now, of the nine cases argued in the Supreme Court's October calendar, five have been decided.  Still pending is Garland v. VanDerStok, which was argued on October 8.  Before rendering a decision, the Court should give the Trump Administration an opportunity to express its views of the case with the Court.  It's a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) redefining and expanding the definitions of "firearm" and "firearm frame or receiver" that criminalizes conduct not made unlawful by Congress, with Second Amendment implications.

The new Administration is sure to hold views adverse to those presented by the Biden Administration. Indeed, the Plaintiffs' arguments in the case are similar to those made by DOJ in defense of the previous, longstanding regulatory definition of "firearm" before the Biden Administration upended that definition in the Rule.

On February 7, the President issued the Executive Order Protecting Second Amendment Rights directing the Attorney General to examine all regulations and other actions of executive departments to assess any ongoing infringements on Second Amendment rights and to propose a plan of action to the President to protect those rights.  That includes rules promulgated by ATF and the positions taken by the United States in ongoing litigation that could affect the ability of Americans to exercise their Second Amendment rights.

Prompted by the Executive Order, Senator John Cornyn (R-Texas) and 29 other U.S. Senators wrote to ATF Deputy Director Marvin Richardson requesting that ATF immediately rescind several regulations promulgated by the Biden Administration, including the "so-called 'ghost gun' rule, which cracks down on law-abiding hobbyists who are exercising their Second Amendment rights to privately build firearms—a longstanding tradition that traces back to the Colonial Era."  That's the rule at issue here.

If the Supreme Court is on the verge of issuing an opinion in VanDerStok, it should delay to give Acting Solicitor General Sarah Harris an opportunity to review the matter and advise the Court of the new Administration's position.  That office must be overwhelmed by the deluge of cases in which the district courts are enjoining actions of the President, such as the DOGE efforts to weed out fraud and abuse from the executive branch and the effort to exclude birth-right citizenship to unlawful aliens and temporary visitors.

The SG's Office should act quickly to ensure that the Court is advised of the Administration's views on VanDerStock.  If it doesn't make this a top priority, it risks a decision that is uninformed by the Executive Branch's position on a constitutional right exercised by millions of Americans.

The Department of Justice has already taken steps to ask courts to put cases on hold to give counsel an opportunity to advise the courts on the government's position consistent with the Executive Order.  In Colon v. BATFE (11th Cir.), a challenge to ATF's pistol brace regulation, DOJ filed a motion to postpone the oral argument scheduled for March 5 and to hold the appeal in abeyance.  Similarly, in Kansas v. U.S. Attorney General (D. Kansas), involving ATF's "engaged in the business rule," the DOJ submitted a brief requesting that the Court stay the case, including all deadlines on pending motions, in light of the Executive Order.

In VanDerStok, the Department of Justice should promptly file a letter to notify the Court that the position of the United States has been reconsidered and that the government's previously stated views no longer represent the United States' position.  It recently filed such a letter in United States v. Skrmetti, advising the Court that the new Administration would not have intervened to challenge Tennessee's ban on gender-altering medical "experimentation" on minors.  The letter did not seek further "likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit."

Here, it is unlikely that the Court would accept any further briefing from the United States, which in any event would likely duplicate the excellent briefing from the respondents and their amici.  I commented on two of such amici briefs here and here (which I coauthored).  Whatever alternative the Acting Solicitor General chooses, she should notify the Court quickly of the government's change in position.

For a comprehensive review of the issue on the merits, see my article "The Meaning of 'Firearm' and 'Frame or Receiver' in the Federal Gun Control Act: ATF's 2022 Final Rule in Light of Text, Precedent, and History."

 

 

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[Ilya Somin] Upcoming Event on "Solving the Nation's Housing Crisis"

[Economist Bryan Caplan and I will speak at event sponsored by the Schar School of Policy and Government at George Mason University.]

(Schar School, George Mason University.)

On March 4, 12-1 PM, the Schar School of Policy and Government at George Mason University will hold an event on "Solving the Nation's Housing Shortage." The event is open to the public, and you can get details about time and location, and sign up here.

I will be speaking along with economist Bryan Caplan (George Mason University), author of Build, Baby, Build: The Science and Ethics of Housing. Bryan will discuss his book,  which addresses the causes of the housing crisis, and potential solutions. I will speak about how exclusionary zoning - the most significant cause of our housing shortage - violates the Takings Clause of the Fifth Amendment, and how judicial review can help address the problem. These issues are covered in greater detail in my recent Texas Law Review article on exclusionary zoning (coauthored with Josh Braver).

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[Eugene Volokh] Wednesday Open Thread

The post Wednesday Open Thread appeared first on Reason.com.

[Eugene Volokh] 69PWNDU License Plate PWN'd by Tennessee Supreme Court

A short excerpt from today's long decision by Justice Sarah Campbell in Gilliam v. Gerregano (note that Sarah Martin and I co-filed an amicus brief on the other side in this case, on behalf of Simon Tam of Matal v. Tam fame):

For over a decade, Leah Gilliam's vehicle displayed a personalized license plate that read "69PWNDU." The State eventually revoked the plate after deeming the message offensive. Gilliam sued state officials, alleging that Tennessee's personalized license plate program discriminates based on viewpoint in violation of the First Amendment. The State argues that the First Amendment's prohibition of viewpoint discrimination does not apply to the alphanumeric characters on Tennessee's personalized license plates because they are government speech.

In Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015), the United States Supreme Court held that Texas's specialty license plate designs were government speech. Although personalized alphanumeric combinations differ from specialty plate designs in some respects, a faithful application of Walker's reasoning compels the conclusion that they are government speech too. We reverse the Court of Appeals' contrary holding and reinstate the trial court's judgment in favor of the State….

We acknowledge that most of the courts that have considered whether personalized license plates are government speech after Walker have reached a contrary conclusion [citing cases from the Maryland Supreme Court and several federal district courts].

We disagree with those courts for two primary reasons. First, they failed to appreciate that the alphanumeric combinations on license plates are the government's way of communicating identifying information about the vehicle. Second, they departed from Walker with respect to the control factor based on immaterial distinctions.

In Mitchell, for example, Maryland's high court concluded that the State did not actively control the message on personalized plates even though it exercised final approval authority. The court distinguished Walker on the ground that "Texas … had 'sole control' over the content of a specialty plate," whereas vehicle owners create the message on personalized plates. But even in Texas's specialty plate program, private entities could submit draft designs for plates. It was Texas's "final approval authority" over the designs that persuaded the Court in Walker that Texas maintained control over the messages on specialty plates.

And in Kotler, a federal district court concluded that California lacked effective control over its personalized plates notwithstanding that California had final approval authority; it did so based largely on the sheer number of personalized plates approved in California. Walker, however, rejected the notion that the government speech analysis depends on "the precise number" of messages at issue. Texas "allow[ed] many more license plate designs than the city in Summum allowed monuments." But "Texas's desire to communicate numerous messages d[id] not mean that the messages conveyed [were] not Texas's own." Still other courts erroneously concluded that the State's control over personalized plates was more akin to the level of control exerted in Tam than in Walker. In reality, the facts in these cases were much more similar to Walker.

Other courts have concluded, after Walker, that personalized plates are government speech [citing the Indiana Supreme Court and a district court decision]. Like us, those courts found that "alphanumeric combinations provide identifiers for public, law enforcement, and administrative purposes" and therefore have historically been used to convey government speech. Also like us, those courts found that the government exerted effective control over personalized license plates because it had final approval authority and actively exercised that authority by reviewing and, at times, rejecting requested combinations. We find the reasoning of [the latter cases] persuasive and agree with those courts that the alphanumeric combinations on personalized license plates constitute government speech under Walker.

Here's a post of mine from last Fall that discusses the debate among the courts, and how it might play out with regard to much more ideologically charged plates than 69PWNDU:

[* * *]

"Illinois Revokes 'October 7' License Plates"

So reports The National News Desk:

Illinois Secretary of State Alexi Giannoulias revoked five "October 7" license plates from state drivers this week after receiving complaints about them.

One such license plate went viral on X after it was shared by Jewish advocacy organization StopAntisemitism. The image shows the plate surrounded by a "free Palestine" frame.

Here's the Tweet:

Over 1200 people brutally murdered.
Women and children raped and tortured.
200+ kidnapped, including Americans.

And this driver decided to honor the day it happened on his license plate. pic.twitter.com/8m264iPFzN

— StopAntisemitism (@StopAntisemites) September 12, 2024

Is this constitutional? Well, there's a hot debate about that, though the rule adopted by most lower courts would suggest the answer is "no."

The question is whether the license plate is seen as "government speech" or as the driver's own "private speech." (The license plate frame is clearly the driver's private speech.) If it's government speech, then the government can choose which viewpoints to speak and which not to, much as the government can choose which monuments to put up in a park, or even which monuments to accept when people offer to donate them. If it's private speech, even within a government-run program—such as, for instance, trademarks within a trademark registration system—then the government must administer the program in a viewpoint-neutral way.

In Walker v. Sons of Confederate Veterans (2012), the Court held that the license plate background design is government speech, even when the government let various groups propose their own designs (which the government almost always accepted). But most, though not all, lower courts that have considered the question as to the actual license plate letter/number combination on these "vanity plates" have held that these are the driver's own speech. To quote one recent decision, Overington v. Fisher (D. Del. 2020),

[N]umerous courts since Walker have addressed the alphanumeric text of vanity plates, with varied results. Compare Carroll v. Craddock, 494 F. Supp. 3d 158, 166 (D.R.I.2020), Kotler v. Webb, No. CV 19-2682-GW-SKX, 2019 WL 4635168, at *7 (C.D. Cal. Aug. 29, 2019), Ogilvie v. Gordon, No. 20-CV-01707-JST, 2020 WL 10963944, at *2-5 (N.D. Cal. July 8, 2020), Gilliam v. Gerregano, No. M202200083COAR3CV, 2023 WL 3749982, at *10 (Tenn. Ct. App. June 1, 2023), and Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 294, 148 A.3d 319, 326-27 (2016) (finding that the alphanumeric text of vanity license plates is private speech) with Odquina v. City & Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022 WL 16715714, at *7-9 (D. Haw. Nov. 4, 2022) and Comm'r of Ind. Bureau of Motor Vehicles v. Vawter, 45 N.E.3d 1200, 1207 (Ind. 2015) (finding that the alphanumeric text of vanity license plates is government speech). The majority of these cases have concluded that personalized license plate sequences are private speech, not government speech. This Court agrees with the majority of courts on this issue. The Court finds that the alphanumeric sequences on vanity license plates in Delaware are private speech and not government speech for the following reasons.

First, the alphanumeric sequences on vanity license plates in Delaware have not long been used to convey governmental messages. Walker itself noted that "insofar as license plates have conveyed more than state names and vehicle identification numbers, they have long communicated messages from the states." By contrast, in Delaware, there is a fifty (50) year history of vanity plate sequences being selected by motorists, and no history of the government communicating messages through the alphanumeric sequences on license plates. Unlike in Walker, where state governments have historically used the design of license plates to communicate messages, Delaware has not historically used the text of vanity license plate numbers to communicate messages. "To the extent the individual registration number configurations broadcast any message at all, it is only because the state has allowed individual drivers to pick some combination of letters and numbers that carries significance to the driver." ...

Second, there is no credible evidence that reasonable viewers expect the government to be sending or endorsing messages via the alphanumeric sequences on vanity license plates. While vanity license plates do contain the word "Delaware," the record does not support, for example, the proposition that viewers of the vanity license plate "OMG GO" believe the state is telling others to drive faster. As the Supreme Court noted in holding that trademarks are not government speech, despite being registered, "[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services." …

Third, although Delaware does exercise some control over the vanity license plates it issues, that regulatory control alone is insufficient to transform private messages into government speech…. "[W]e must exercise great caution before extending our government-speech precedents," because "[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints." … Delaware's regulatory "control" of the alphanumeric sequences on vanity plates does not reflect the control that a speaker exercises over their own speech, but only the control that governments exercise or attempt to exercise in a variety of other contexts….

If the alphanumeric combination on the plate is treated as private speech, then the government might still be able to restrict it based on non-viewpoint-based content factors (e.g., perhaps excluding common vulgarities), but it can't restrict it based on viewpoint. And here the government is indeed acting based on what either it or other observers infer as the viewpoint of the "Oct 7" plates (that they endorse the Oct. 7 attacks, or for that matter that they take some other position on the attacks).

[* * *]

Joshua D. Minchin, Tennessee Office of the Solicitor General Honors Fellow, represents Tennessee.

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[Jonathan H. Adler] "Want a Hot Shower? Call Your Congressman," But Not Just to Support a CRA Resolution.

[A useful example of how meaningful regulatory reform requires legislative action--and not just the passage of Congressional Review Act resolutions.]

Steve Moore has an op-ed in the Wall Street Journal encouraging support for a Congressional Review Act resolution to repeal a Biden Administration energy efficiency regulation that will effectively ban most natural gas instantaneous water heaters currently on the market. As one might expect, producers of such water heaters oppose the rule, while some of their competitors support it.

Because the rule was adopted in late December, it is eligible for repeal under the Congressional Review Act by a simple majority vote in each chamber and presidential signature. Neither a Senate filibuster nor other procedural hurdles can be used to block the vote. Should the measure pass, the Department of Energy would be precluded from re-adopting an equivalent rule in the future.

Moore's op-ed highlights how Congress can use the CRA to roll back regulations adopted at the end of the Biden Administration. But that is almost all the CRA is good for. More meaningful regulatory reform requires more meaningful legislative action.

Take the example highlighted in the headline for Moore's piece: Showers. In addition to energy efficiency standards for home appliances, such as natural gas instantaneous water heaters, the federal government also sets water efficiency standards, which cap the amount of water appliances can use. Relevant here. there is a federal standard limiting showerhead flow to 2.5 gallons per minute -- but this is not a mere regulation. It is written into the U.S. Code.

The first Trump Administration sought to address low-flow showerheads through the regulatory process, but it was a bit of a farce. Rather than push for legislation to amend the relevant law, it issued a regulation allowing multiple showerheads on a single fixture to count separately. This approach was adopted because the executive branch has no authority to overwrite the statutory standard, but could play around with definitions to allow a bit of circumvention--in this case by allowing consumers to have two-headed showers, with each head satisfying the law. The rule allowed consumers to use more water, but did not do anything to increase water pressure (which tends to be the concern for those who do not like the existing rules), and was promptly rescinded by the Biden Administration.

The first Trump Administration's experience with federal standards for showerheads illustrates that the real reason those who care about showers should "call Congress"--and not simply to support a CRA resolution. Here, as is so often the case, the source of regulatory impositions is Congress, and the statutes it has enacted (and refused to revisit or revise).

Here's the bottom line: If you want different regulations for showerheads--either because you think market pricing of water is a better way to encourage efficiency or just like pounding water pressure in the shower--you need to get Congress to change the law.

 

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[Josh Blackman] Today in Supreme Court History: February 26, 1869

2/26/1869: The 15th Amendment is submitted to the states.

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