Tag Archives: Speech

Rats! New Jersey Supreme Court rules that inflatable rodent is First Amendment Speech

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the <a href=

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the AP.

According to these news reports, yesterday the New Jersey Supreme Court ruled that a New Jersey city could not fine a local labor union or its use of a large, inflatable rat to protest non-union work pursuant to city ordinance banning inflatable displays except for store grand openings. As reported by the AP:

The super-sized rat, sitting on its hind legs and bearing fangs, is a national symbol used by organized labor to signal a labor dispute. It had been blown up and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

A labor official was fined $100 plus $33 court costs.

The event was staged by the union to protest low wages being paid to electricians by an out-of-area contractor.

An appeals court panel ruled in 2007 that the town could ban the big black rat and affirmed the labor official’s fines. The panel found the ordinance was content-neutral and was aimed at enhancing aesthetics and protecting public health and safety.

The union appealed. Its lawyers argued the law violates their right to free expression and suppresses protest.

The township claimed the union’s use of the rat was a form of commercial speech, less deserving of First Amendment protections.

The state Supreme Court found that the law wasn’t neutral, and therefore was unconstitutional. It said an ordinance “that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based.”

Township attorney John Dember said, “(The court) did find that we need to do some tweaking because of the freedom of expression limitation, which we’ll undertake immediately to correct.”

The Court, in its opinion, found that the ordinance to be a content-based restriction (because the balloons permitted by the ordinance were for store openings vs. ballons for other purposes).  The rule didn’t meet strict scrutiny, and so the fines were reversed, and the city has to “tweak” the ordinance.

It appears from the opinion that the inflatable rat fails not only because it’s inflatable (a specific prohibition in the ordinance) but also because it is a “sign” for which the union did not get a permit and that was not “excepted” from permit requirements because it wasn’t a yard sign, grand opening sign, political sign, window sign, etc. But because Gold’s gym (the venue that was being protested for using non-union work) could have put up a “grand opening balloon” at the same site and not be subject to fine or licensing, it does seem to be a content-based restriction that probably shouldn’t survive strict scrutiny.

I’m curious, though–if the ordinance was focused solely on the inflatable nature of the display, is there really a constitutional right to inflatable ballons? Is that a medium that is somehow different from, say, a 10-foot sign, or a statue made out of crepe paper?  I suppose balloons are preferrable because they’re light, easy to set up, temporary, and easier to move than any of the aforementioned options. But if the union could put up a sign or statue instead of a balloon (under the idea that balloons may be more dangerous to motor vehicles, or just plain uglier on their streets perhaps), would the result be the same? Even if Gold’s Gym was permitted to put up the balloon for a grand opening for less than a month? Would the result have been different if the petitioners weren’t a union, and/or the case was not in New Jersey?

This case was probably rightly decided, but it will be interesting to see how the city will “tweak” the ordinance to avoid content-based restrictions.  If it simply bans all balloons (or requires unreasonable permits for them), then it may run afoul of the overbreadth concerns the Court had.   One to gnaw on.

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A (second) tale of CITIS

As if the uproar over Citigroup’s lawsuit against All Citi Pawn (blogged here) weren’t enough today, this article from Slate describes Citi’s decision to go forward with a $400 million naming rights plan of the New York Mets new baseball stadium.  The author of the article summarizes the benefits of the plan, despite Citi’s current lack of capital, this way:

In order for Citi to weather the storm, recover, and pay back taxpayers (and insulate them from further losses), the company must invest for both the short- and long-term. For companies in highly competitive consumer markets, marketing and advertising are essential, entirely justifiable expenses. Companies—even companies getting bailed out by the feds—need to attract customers and to build their brand image. It’s difficult to measure the value of any specific campaign or ad. But there’s reason to think that for this company, at this stadium, in this location, a naming-rights deal might not be such a bad long-term move.

[…]

Of course, people who read about games at Citi Field on ESPN.com won’t be learning much about Citi’s mortgage rates. But naming rights, especially if they endure, can perform another vital function for brands. It can help make them part of the vernacular. The greatest desire of any marketer is for her product’s name to work its way into conversations. When I was growing up, it was common to say, “I want a Coke” when you were referring to any kind of soda. People ask for a Kleenex when they mean a tissue, say they’re going to Xerox a document even if they’re using a Ricoh copier, and speak of Googling when they refer to an Internet search. Stadium naming rights can help products and brands gain that sort of status. Since 1926, baseball fans on the north side of Chicago have spoken about going to games at Wrigley Field. Does that make fans more likely to buy Wrigley’s gum products? It can’t hurt. “Meet me at Citi,” doesn’t quite have the same ring as “Meet me at Shea.” But after 20 or 30 years, it might.

Professor Rebecca Tushnet notes the serious problem with the final paragraph, which essentially encourages “genericism” of trademarks (the development of language such that a term that once was a trademark suddenly becomes a synonym for the good or services that the mark once described).  Her post is titled “This is why I don’t believe in most forms of genericism,” and she writes:

These days, consumer understanding of branding allows Google, Kleenex and Xerox to preserve their marks while also being conversational terms for their categories. [The quote] is crazy talk from black-letter trademark law’s perspective, but that’s because the black-letter law doesn’t reflect current reality.

I certainly agree with the theoretical underpinnings of Professor Tushnet’s statement–that consumers can understand the difference between GOOGLE for “searching the internet via a computer interface” and engaging in Googling to find information, between asking someone for a kleenex to wipe a runny nose and getting KLEENEX brand tissues at a store; between purchasing a XEROX brand business machine and xeroxing a copy of something.

The KAISER Vertical People Fun Moving Machine? (Image from <a href=But the principle of genericism of trademark has to remain valid, at some level.  There comes a time where the public recognizes the trademark only as the thing, not as a particular manufacturer of the thing.  And it becomes unfair to prohibit the competitor making the thing from referring to the thing just like the rest of consumers.  If I wanted to start a business today, shouldn’t I be able to call my product KAISER escalators? Not KAISER brand people moving electric stairs that move people up a floor or more?  At one time, ESCALATOR was a brand name for moving stairs, but eventually consumers came to understand all brands of moving stairs to be escalators. While claims of trademark genericism are probably overasserted, it’s not a concept that should be abandoned. (To be honest, I’m surprised that Coca-Cola has survived a genericism claim, at least in the South. My idea for Pepsi’s new marketing campaign in the South? “Wanna coke? Wanna Pepsi!”  In sum, the issue shouldn’t be whether “rogue” consumers have begun to use your trademark as a noun, or worse, as a verb, but whether the use has become so pervasive as a synonym for the goods and services that it would be unfair to prevent competitors from using the same term to describe their goods and services.

If anyone else has comments, I’d be happy to consider them.

(Image from Yewenyi, via Flickr, used pursuant to the Creative Commons limited rights license)

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Rove lecturing about the First Amendment (?)

Karl Rove, speaking in California

According to this article, former George W. Bush adviser Karl Rove spoke to a crowd at Loyola Marymount University in California last night.  The topic of his speech:  The First Amendment.

The article reports the controversies, both in Rove’s speech and in reaction from the crowd.  What did the report include about the supposed topic of the night?

Among Rove’s more sympathetic questioners, the overriding concern was over liberal bias in the media.

“This election was unbelievably tilted to Obama, and that’s not healthy for the system,” Rove concurred. “That coverage is putting a finger on the scale.”

Rove argued that most members of the national media live in Washington and New York and went to eastern schools, and absorb the liberal views of their surroundings.

Now, it may be unfair “liberal” bias, such that the reporter neglected to discuss any of Rove’s additional comments about the First Amendment, but I would not be surprised if there were little, if any.  As the mastermind of misinformation, secrecy, and privilege, and whose party’s candidate for vice-president during this election cycle refused to talk to reporters except in the most controlled of situations, I can’t imagine that Mr. Rove has a lot of sympathy for an expansive version of the First Amendment.  His solution:  Blame the “liberal” media for negative coverage of his guy, even though the “liberal” media was extremely gracious (and trusting) for at least 6 years of the Bush 43 presidency.  Regardless of your view of the Bush 43 policies or Mr. Rove’s political tactics, I think you’d agree–he’s not the best guy in the world to lecture about the First Amendment.

EDIT: Apparently, Mr. Rove did speak about the First Amendment.  Although according to this (very) opposing viewpoint, that didn’t go over very well, either.

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“Dear Justice Scalia, please let us ban lap dances…”

Because local officials in Idaho know more about the First Amendment than the Supreme Court:

Officials in this small eastern Idaho town have written to the U.S. Supreme Court, asking justices to reconsider rulings town leaders say harm the nation’s moral health.

In particular, the letter sent Thursday by officials in the town of 1,500 cites a 1981 case in which justices ruled the First Amendment prevents towns from banning adult-oriented entertainment businesses.

“We disagree,” city leaders wrote. “One study of the First Amendment and of the ideology that created it convinces us that the Framers merely intended to protect political and religious speech.”

The letter is signed by Mayor Glenn Dalling, City Council President Harold Harris, and Planning and Zoning Commission Chairman Brian Hawkes.

I must say, I’ve never heard of a letter writing campaign to the Supreme Court before.   Good for the public officials of Sugar City, Ohio, I guess. Something tells me, though, that more people in their down like boobie-bars than they may expect.

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A Doninger legislative fix?

This report comes from the Journal Inquirer, a Connecticut newspaper:

A legislative committee chairman who for decades was a high school teacher in East Hartford is proposing to prohibit school systems in Connecticut from punishing students for their off-campus electronic correspondence.

Sen. Gary D. LeBeau, the Democrat from East Hartford who co-chairs the General Assembly’s Commerce Committee, said today that he was spurred to introduce his bill by the nationally publicized case of Avery Doninger, a former Burlington high school student disciplined for a 2007 Internet posting she wrote from her home.

“I strongly believe in the First Amendment,” the lawmaker said. “And after what school administrators did in the Doninger case, what’s needed is a bright line of where the state — since the school was acting on behalf of the state — can impinge on the rights of individuals. I think they overstepped in this case.
“As long as a message like hers is not sent directly to a school, or if she is not using school equipment, this young person and everyone else has a right to say what they think,” he added. “Unfortunately, the way she said it was pretty offensive, but that happens — and that’s sometimes the very speech that needs to be protected.

LeBeau’s single-paragraph measure would specifically amend the law “to prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school.”

[…]

“The reasons the schools have the right to impinge on students’ free speech are because, No. 1, they’re minors, and No. 2, the idea is to not disrupt the smooth functioning of the school,” he said. “I can certainly understand that, but I don’t see how expressing an opinion in a private e-mail or something disrupts the school. It’s not being sent to the school or to a member of the teaching staff.

I’ve previously blogged about the Doninger case here.  The legislative fix mentioned by the state representative seems intriguing, and it certainly would provide the “bright line” (at least in Connecticut) that so many commentators have found to be missing. Of course, there are also serious problems with this legislation.  If the legislation is simply a prohibition “don’t punish for off campus on-line speech,” how is this “prohibition” enforced?  Can a kid sue for injunctive relief (like Ms. Doninger)? Can a creative attorney use a “private attorney general” law to sue for damages?The other thing that concerns me is that this legislator, no matter how well intentioned he is, doesn’t quite understand the nuances of the Doninger case.  And his legislation may not even cover the Doninger situation.  The legislation prohibits punishment for “correspondence.”  Certainly, an IM or an e-mail is a “private” correspondence (as he noted in his quote). But is a blog post a “correspondence”? To me, a “correspondence” requires a sender, an intended recipient, and an intended message.  The post provided by Ms. Doninger was not a “private e-mail or something,”  it was a blog post.  While I agree that it was not “directed” at the school (a verb that doesn’t really work for on-line, pull technologies of today), her comments about the cancellation of the event were meant to communicate a message about the school that may or may not have caused confusion or disruption of the school.

Update: Professor Katheen Bergin posts about the legislative fix here.

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New First Amendment movie screened at Sundance

From Cinemablend.com comes a new review of “Shouting Fire: Stories from the Edge of Free Speech” that was screened at the Sundance Film Festival this year.  A synopsis:

Filmmaker Liz Garbus speaks with her father, First Amendment attorney Martin Garbus as part of the narrative for the film. Garbus takes us through the era of McCarthyism as well as other pivotal times in our nation’s history when the First Amendment was put to the test, using his own personal experiences as well as other historical references to lay out the story. The film also cites various cases from recent years, including Ward Churchill being fired from his job as a professor at the University of Colorado after he wrote in a blog post that the people who died in the World Trade Center were, “a technocratic corps at the very heart of America’s global financial empire” and calling them “Little Eichmanns.”

A screenshot from Shouting Fire screening at Sundance.

A screenshot from "Shouting Fire" screening at Sundance.

Another case explored is Debbie Almontaser’s story. She’s a Muslim-American woman forced to resign from her job as Principal of New York City’s first dual-language Arabic/English school after things she said with regards to the word “intifada” were taken out of context by the press. And then there’s Chase Harper, the kid from San Diego who was suspended after showing up at school wearing a t-shirt  that included a bible quote and the words, “Homosexuality is Shameful.” The film also includes protesters Ruth Benn and Ed Hedemann, who were arrested along with more than a thousand other protesters assembling in New York City during the 2004 Republican National Convention.

Interesting enough.  Especially since it appears that many of the sanctioned “speakers” featured in the movie made statements that would have been offensive to both liberals and conservatives alike. It will be in my Netflix queue.  But in the meantime, (shameless plug alert) if you’d like to read some great stories that form the basis for First Amendment law in the U.S., check out the books by my former First Amendment Professor Randy Bezanson, Speech Stores: How Free Can Speech Be? and How Free Can the Press Be?.

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No Doi award– no qualified immunity when principal demanded removal of “Team Avery” T-shirts

From the Student Press Law Center:

A U.S. District Court judge ruled Thursday that a student had not clearly established her First Amendment right to criticize her principal in an off-campus blog that used coarse language, denying the student a trial on her claim.
[…]
Doninger also filed a First Amendment claim against Niehoff [the principal] for making students who opposed Doninger’s removal from office take off T-shirts that said “Team Avery” while in an assembly where student candidates gave speeches. In that count, Kravitz said the Tinker standard applied, and that the administrators were not protected by qualified immunity in that instance. The administrators argued that because the speech involved T-shirts, not armbands as in Tinker, that it was not clearly a Tinker case, and therefore, qualified immunity should apply.
“None of these distinctions convinces the Court that the right of students to engage in non-offensive, non-disruptive speech on school property was not clearly established,” Kravitz’s opinion said.

No doi. This case is fairly interesting, and got a trip up to the Second Circuit Court of Appeals on the student’s preliminary in junction motion.  It also got a lot of attention in the blogosphere.

Why?  Because the kid called her superintendent [edited; the previous edition of this post incorrectly reported that the comment was targeted at a principal] a “douchebag” on a livejournal post.

From the few facts I could glean from this most recent opinion (from the Student Press Law Center in PDF form), Ms. Doninger apparently had a disagreement with the superintendent [editd from: one of the principals] from her school regarding a popular school battle of the bands called “Jamfest.”  In disgust, Doninger posted a blog entry on livejournal:

jamfest.

jamfest is cancelled due to douchebags in central office. here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. anddd..here is the letter we sent out to parents.

According to facts recited in the opinion [edit from Apparently], Jamfest was not canceled, but the administrators had decided that it would either occur in the lunchroom (acoustic only) or that it would have to be rescheduled for the auditorium.  And I guess they had a heckuva time dealing with angry students and parents once this “misinformation” was disseminated.  Thus, as a sanction to Doninger, they (a) refused to allow her to run for  reelection to class secretary [edit from run for class office], and (b) at an assembly where students went to listen to speeches for class office and/or vote, they prohibited friends of Doninger’s from wearing “Team Avery” T-shirts “in silent protest” (they did, however, allow Doninger to wear a T-shirt entitled “R.I.P. Democracy.”

Doninger sued for violations of her First Amendment rights (both for being punished by not being allowed to become a class officer and for the administration’s prohibition of the “Team Avery” T-shirts), her Fourteenth Amendment Equal Protection rights (as a “class of one”), for state law rights, and for intentional infliction of emotional distress.  The district court denied Doninger’s preliminary injunction motion, finding her not likely to succeed on the merits of her class officer claim, finding no future irreparable harm vis-a-vis the Team Avery claims, and the Second Circuit affirmed, on slightly different grounds.

The Defendants were back, this time with a summary judgment motion, both on the substance of the claims as well as on qualified immunity grounds.

In what is a very comprehensive opinion, the Court determined that even if Doninger’s punishment for her blog entries amounted to a constitutional violation, such a right was not “clearly established” at the time of the alleged violation.

The Court listed a number of contrary cases addressing appropriateness of regulating in the schoolhouse on-line student speech created off-campus.  It then cited to a number of law review articles (some of which were likely student notes, whose authors were thrilled that an Article III jurist cited their writing) recognizing the morass that this area of law is in:

If courts and legal scholars cannot discern the contours of First Amendment protections for
student internet speech, then it is certainly unreasonable to expect school administrators, such as
Defendants, to predict where the line between on- and off-campus speech will be drawn in this new
digital era. Since, as explained above, the particular right Ms. Doninger seeks to enforce was not
clearly established at the time of the events in question, Defendants are entitled to qualified
immunity on Ms. Doninger’s blog entry First Amendment claim.

However, in regards to the administrators’ confiscation and/or prohibition of the “Team Avery” shirts at the assembly, the school district was not so fortunate.

The district was up against Tinker v. Des Moines Independent Community School District, the watershed Supreme Court case that recognized that students’ use of non-disruptive armbands to silently protest the Vietnam conflict was protected expression.  The district tried to argue that even though the school had no written ban on “electioneering” materials beforehand, and even though the administrators were not looking to confiscate any “electioneering” materials beyond the T-shirts, that that the T-shirts were prohibited “electioneering” speech, a content-neutral restriction. Buzz. Denied.

Then the school district tried to argue that this case was different from Tinker because it dealt with T-shirts and not armbands.  Buzz. Denied. Then the school district tried to argue that Doninger didn’t have standing because hers was not one of the shirts that were confiscated.  Buzz. Denied. No qualified immunity, and the case goes to trial on this issue.  (Because Doninger lost on her “big” claim of not being allowed to be a class officer, I wouldn’t be surprised if the case settles, so long as the district can pay some of Doninger’s attorneys’ fees.)

School teachers and administrators have it tough.  They have to make difficult, and sometimes snap, judgments about student discipline.  They are often seen as “the enemy,” and schoolchildren are constantly trying to find ways to usurp and undermine their authority. But on the other hand, they have egos and tempers, too.  School teachers and administrators are human, but some times the have to be super-human, especially when they’re feelings are hurt.  And when a kid calls a superintendent [edit from principal] a “douchebag,” I’m sure that hurt.  And I’m sure the school officials [edit from principal] didn’t want to have that “sort of kid” in a leadership role.  And I’m sure that the school officials [edit from principal] may have been [edited from was] sick of this kid overreacting to restrictions the administrators were placing on Jamfest.  And I’m sure the school officials [edit from principal] wanted to send a message that not every kid can go on livejournal, or myspace, and berate school officials.  But how many hundreds of thousands of dollars could the district have saved if the principal simply let the “douchebag” comment roll of their backs [edited from her back]? Or, if the school district’s administrators were well educated on First Amendment law in school, so they could have avoided the potentially devastating confiscation of the “Team Avery” T-Shirts?

If she just gave Doninger a warning that, “if you run for class officer, you’re a representative of the school and your class. With that comes some responsibility, including the words you use to describe school officials.  Should you shirk that responsibility, you will not be able to continue to be a class officer, or hold any position of authority or honor in an extracurricular at this school,” would that have solved the problem?  Would this kid just have found a way to push the limits anyway, just to sue for suing’s sake?  Who knows.  In qualified immunity cases involving police action (particularly illegal search and excessive force cases) police are often given a bit of a “cushion” due to the snap judgments that must be made in the course of apprehending and restraining a suspect.  Perhaps that “cushion” should be afforded to school administrators, if they reasonably perceive a substantial risk to the safety or security of the school or its children.  Based upon the facts I discerned from the opinions, I don’t think that would have made much of a difference in this particular situation, however, it provides some additional protection when school leaders need to make snap judgments.

I think the case was rightly decided, and it will be interesting to see what happens if the case goes to trial.

Update — because of the comments below, I was alerted that I made a few errors recounting the facts of the case.  The edits are above, in bold, and I welcome further (non-biased) clarifications.

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As if one post about a strip club a day wasn’t enough…

Developments in the small town of Zumbro Falls, Minnesota, where a local couple wants to put up a strip club.  A Minnesota attorney has filed a lawsuit to enjoin enforcement of a 2006 Minnesota state law regulating placement of strip clubs.  According to the attorney, Randal Tigue, the law “effectively bans adult entertainment in almost all small towns.”

I’m not that up on my “strip club law,” but I recall from law school a few things:  The First Amendment covers dancers’ expression, even if that’s sometimes nude.  However, it does not protect “all nude dancing.” Further, while reasonable time, place, and manner restrictions may be placed upon adult-oriented businesses [pdf, from the League of Minnesota Cities no less], zoning them out altogether is the same as banning them outright.

I lived in Minnesota when this statue was enacted but, alas, I don’t remember hearing anything about it.  To the extent that Mr. Tigue’s interpretation of the statute is correct, his clients would seem to be in a good position. Something tells me he may be stretching the truth a bit.

UPDATE:

The lucky jurist who gets to hear this case
The lucky jurist who gets to hear this case

U.S. District Judge Joan Ericksen has denied the plaintiffs’ request for a temporary restraining order to prevent enforcement of the law, noting that the plaintiffs cannot prove immediate, irreparable harm. (I guess the strip club hasn’t eve been constructed yet.)  We’ll see what happens, and perhaps I can get a copy of the statute and of the lawsuit for more in-depth analysis.

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