Saturday, September 5, 2015

Scrutinize This!

Sarah Says:
Hello!  Welcome to Intermediate Scrutiny, a blog by three law students (so if we write something incorrect, remember--students--and please, real attorneys, feel free to correct us in the comments or in an e-mail to interested in constitutional law! The following is a post we drafted back in July, and then got stuck somewhere in the revision stage and did not post.  So as to not let perfect get in the way of good (or at least, extant), we are publishing this six-week-old post today. Our follow-up, with more detailed facts, more legal analysis, and the some commentary on media coverage, will appear shortly--I promise, within less than six weeks.  Please feel free to comment (but please, do so civilly) on this post or, if you're shy, write to us!  Finally, if you know where we can find the documents I mention later in this post, such as the Defendant's Answer, the Superior Court opinion, or any briefs filed in the case, please let us know.

Without further ado, here's what we worked on between July 11th and 16th!

Bunny Says:
Greetings! I want to [finally] break the hermetic seal of this blog! We had the best intentions to do so on the 4th of July, but got too caught up in figuring out what would be the ideal case to be the first to analyze on such a special day.

Also, Sarah was busy making the most incredible rainbow flag fruit topped cake (from scratch) to commemorate all of our brothers and sisters being recognized by our nation to enter into matrimonial union with whomever they please! Here is Sarah and her beautiful cake on the 4th:

Sarah Kelsey, July 4th, 2015 © Bunny Sandefur
So, this morning I attended the oral arguments for an interesting case before the Georgia Court of Appeals where a certain KKK group was rejected from the Adopt-A-Highway program. The State's central argument is that the program and its signage are a feature of the State's own speech. Initially, the KKK won the dispute in the Superior Court (the lower trial court) on the grounds that their group was being discriminated against by the Department of Transportation. The State appealed the decision, bringing us to where we are now.

I'm not going to say much more about the case for two reasons:
1. I am currently employed [temporarily] by the Georgia Court of Appeals.
2. I most certainly don't have anything brilliant to say at this moment, and in general I do not anticipate that I will contribute a great deal of wisdom. Sarcastic commentary, definitely, but far from illuminating gems. I am, however, extremely interested in First Amendment issues, and in the future I will probably contribute a bit more to these sorts of conversations when I do not have a conflict of interest in doing so.

With that, I'd like to hand this off to Sarah or Rebecca, if they have any comments....

Sarah says:

I had a great, lengthy, silly thing drafted on Thursday night, which mysteriously did not get saved.  (In case it was one of my co-authors who read it, horrified, don't worry, I planned to edit it!)  Perhaps that is for the best, as it involved a colorful description of motorists rioting on the 285 upon seeing the KKK's Adopt-A-Highway sign, stopping in the middle of the freeway to get out of their cars while others careened off the road, some smashing into each other, all motorists yelling at once variations of, "I AM SOCIALLY NOT AT REST RIGHT NOW!"

As you can see, I had a lot of intelligent thoughts on the subject.  For one thing, according to this Huffington Post article from 2014, the highway in question is not the 285 or any interstate whatsoever, but Highway 515 in the Appalachian Mountains.  Incidentally, there is a Highway 515 that traverses part of the Appalachian Mountains where I grew up, in rural New Jersey. 

This failure to comment intelligently on the case is also because my First Amendment background is pretty patchy, and my knowledge of the Georgia State Constitution is even worse.  You see, mistakenly believing my dreams of a career in constitutional law were pie-in-the-sky, practically hopeless, unless I wanted to move to DC or California or something, I dropped the fall semester First Amendment class.  I dropped it to take Real Estate Finance.  I'm not saying that was a mistake (property law is my other love), but as I come across cases such as this, I really wish I had taken that First Amendment class.

[Brief Bunny Interjection: Oh good! I didn't take it last year, either. We can take it together! First Amendment Party!]

My knowledge of First Amendment is a jumble of phrases, like, "Content-neutral!" "NOT Content-neutral!"  "Time Manner Place" (easy to remember because I took German in high school and that is a rule of German grammar!) "STRICT SCRUTINY!" "Limited Public Forum!" "Compelled speech!"  I Googled the story, hoping to find some opinionated legal blog posts about it, to help me cheat inform me more about the subject, and was surprised to find limited national news coverage and mostly local news coverage, which from a cursory reading of their Google summaries, seemed to be the same exact story.

In order to comment intelligently, I would first like to read the lower court's opinion, which I hope to find on LexisNexis on my lunch break.  I would also like to read the complaint and any briefs filed (hopefully also on LexisNexis for Law Students).  I would like to read similar cases, especially a recent Supreme Court opinion (which I believe Rebecca will write more about.)

Updated: Unfortunately, I am not able to find the lower court's opinion anywhere on the Internet.  If you know where readers and I can find it, please email us!  In the meantime, here is a link to the ACLU of Georgia's website about the case, and here is a link to the Complaint (PDF).  This post may go live before I have finished reading these, in which case I'll post a follow-up so as not to delay content on this blog any further.

To acknowledge the bias in my heart, which I feel is important to presenting you with information that I will endeavor NOT to cloak in bias, I am a big fan of free speech, even speech I don't like, because I think it's important to know what people are thinking.  It's important to know who is hateful, so I have notice of what their actions might be.  But a little voice in my heart says, "I would not be very sad if the KKK did not get their sign."  However, after reviewing the legal documents and improving my First Amendment knowledge, I am very likely to both make up my mind, and change the mind of that little voice in my heart.

[Another Brief Bunny Interjection: Yes! Exactly! I, too, want people to be upfront about their bigotry so I can chose to avoid them! And I might be sad if they don't get their sign, because it would be a great photo opportunity! I don't want to live in a pristine, white-washed world. I want some outrageous things to occur so I may avoid boredom.]

I pass this on to you, Rebecca, who actually took First Amendment and wrote her Comment about First Amendment issues and knows stuff.  I might write a follow-up after I do some research.  NOW TO YOU REBECCA:

Rebecca Says:

Sarah, you’ve set the bar too high, but I will do what I can. From the little I know about First Amendment law, and what I have gleaned of the facts of this case, I think the government has the better of this argument. I’ll go ahead and note that I’m operating under the assumption that the Georgia Constitution free speech analysis is the same as federal free speech analysis. Though technically state courts can construe their state constitutions as granting broader free speech protection than the federal Constitution, the sources that I’ve run across indicate that Georgia courts have declined to do so with the Georgia Constitution.
So now to the analysis: if “normal” First Amendment law applied, the normal rules could present a problem for the government’s regulation. As I will explain in a minute, however, special rules apply when government speech is involved or when the government is providing a platform for speech.  
I’ll start with a brief primer on First Amendment law so that I can better explain the special rules around government speech and how they apply to this case. The general rule when it comes to free speech is that any restriction on speech must pass strict scrutiny – meaning that the restriction must be narrowly tailored to further a compelling government interest. There are, however, a number of historical categories that are exceptions to this general rule. United States v. Alvarez, 132 S. Ct. 2537 (2012) is the most recent Supreme Court precedent articulating these exception categories.  The Alvarez plurality states “[c]ontent-based restrictions on speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called ‘fighting words,’ child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent.” If the speech in question falls meets the specific requirements of one or more of these categories, then the government can regulate it without having to pass strict scrutiny. If the speech does not fall into any of these categories, then generally strict scrutiny applies.
Another important aspect of free speech doctrine is the distinction between content-based discrimination and viewpoint discrimination. Content-based discrimination is when the government restricts speech on an entire subject. Viewpoint discrimination is a subcategory of content-based discrimination where the government restricts speech on only one side of an issue, thus either explicitly or implicitly supporting one side of a debate. An example of content-based discrimination would be a regulation that suppressed all speech on US military involvement in the Middle East, regardless of the position the speaker took. An example of viewpoint discrimination would be a regulation that allowed speech supporting US military intervention in the Middle East while suppressing speech opposing it.  While both content and viewpoint discrimination will trigger judicial red flags, viewpoint discrimination is usually considered to be particularly invidious.  In fact, in the 1992 SCOTUS opinion of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) the Court held that the government could not ordinarily engage in viewpoint discrimination even in unprotected categories of speech (though it should be noted that this opinion has been criticized by many commentators).
The exception to this prohibition against viewpoint discrimination is when the government itself is the speaker, which brings us back to the case at hand. The government in this case is in fact arguing that the speech at issue is government speech and therefore exempted from the normal rules about viewpoint discrimination. The other option, and what I’m assuming the KKK is arguing, is that the government is not itself speaking but providing a forum for the public to speak.  

To Be Continued in Part II!