October 19, 2018

Weekly litigation report — October 20, 2018

By James S. Burling Vice President for Litigation

PLF to National Park Service: Keep the National Mall Open to All Kinds of Speech

The National Mall and Memorial Parks are “the premier national civic space for public gatherings including First Amendment activities, national celebrations … and national mourning.” In these venues, “the constitutional rights of speech and peaceful assembly find their fullest expression.” Yet the National Park Service, the federal agency that administers federal lands and wrote those words, has proposed rules that could unduly restrict access to these precious national treasures.

PLF submitted a public comment focused on one aspect of the NPS proposal. On the National Mall, political demonstrations have traditionally been treated more favorably than other speech activities such as historical reenactments or parades. For instance, small political demonstrations can occur without a permit, while all other speech activities require a permit. The NPS is considering downgrading its treatment of at least some demonstrations because they also contain elements such as historical reenactments or entertainment. PLF argued that the NPS should instead equalize and elevate its treatment of all speech on the National Mall. Here is the blog post which has a link to the comment letter.

Oral argument held in Eighth Circuit to defend right of vapors to sue in their home state

After PLF clients filed three simultaneous lawsuits challenging the FDA’s unconstitutional deeming rule, the government moved to transfer those cases so that they could all be heard in their own back yard of Washington, DC. The Minnesota District Court granted the government’s transfer request, but PLF appealed that decision to the Eighth Circuit. On Tuesday, PLF attorney Thomas Berry (accompanied and aided by co-counsel Damien Schiff) argued in front of the Eighth Circuit in St. Paul, Minnesota. As Mr. Berry explained, the government’s reading of the federal transfer statute would have the effect of turning that statute into “a potent weapon for the government to limit challenges to federal rules and federal statutes.” We now await a ruling from the Eighth Circuit as to whether our clients can continue their lawsuit in their home state. For more, listen to audio of the argument here or visit our case page for all three vaping lawsuits.

When free speech is a nuisance

On Monday, the Supreme Court denied certiorari in Conagra v. State of California, a California state court decision holding that that three companies that lawfully sold lead paint are liable for creating a public nuisance and must therefore pay hundreds of millions of dollars into an “abatement” fund to investigate residential lead paint in the state’s ten most populous counties, and remediate any dangerous conditions found there. The refusal of the High Court to review this decision leaves a black mark on First Amendment law as well as nuisance law. As PLF explained in our amicus brief supporting the cert petition, the state court improperly found liability not because the companies manufactured or sold a dangerous product, but because, many decades ago, they promoted the use of then-lawful lead paint. The First Amendment protects the dissemination of truthful commercial messages about lawful products and services, even when those products may later result in harm to someone.



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Vaping Litigation

Electronic nicotine delivery systems—vaping devices and e-cigarettes—first hit U.S. stores in 2007. It didn’t take long for vaping to jump from zero to a $5 billion domestic industry, as entrepreneurs quickly recognized a market hungry for an alternative to traditional cigarettes. In 2016, just as the burgeoning vaping industry was getting off the ground, the Food and Drug Administration (FDA) stepped in with a rule that deems e-cigarettes as tobacco products, and brand new, severe regulations that will only harm the industry and perhaps overall public health—contrary to the agency’s very mission. Using a unique legal theory, Pacific Legal Foundation is suing the FDA in three separate federal courtrooms—at the same time—on behalf of vape store owners and a harm reduction organization in several states who want to promote a more healthy alternative to smoking. The unconstitutional rule burdens these individuals and organizations in unique ways, but all are united in opposition to its continued enforcement. The FDA’s regulations are not only expensive and onerous, and prevent vaping entrepreneurs from fulfilling what they believe is a humanitarian mission of helping people, but the rule was illegal the second it hit the Federal Register.

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