Weekly litigation report — February 9, 2019

Should you need government permission to sell harmless, FDA-approved hearing aids?
We filed this opening brief on appeal asking the U.S. Court of Appeals for the Eleventh Circuit to reinstate PLF client Dan Taylor’s constitutional challenge against Florida’s outdated hearing aid sales regulations. The law prohibits anyone from selling a hearing aid without a Hearing Aid Specialists license, and require hearing aid customers to undergo expensive and inconvenient testing and fitting procedures that are no longer needed with the latest models. As one might expect, the Hearing Aid Specialists Board that enforces the regulations is controlled by hearing aid professionals that enjoy financial benefits by limiting competition from independent and online hearing aid sellers. The case was dismissed late last year by trial court on procedural grounds without reaching the merits of our challenge. We have asked the court of appeals to allow the case to go forward.

PLF urges Supreme Court to treat political contributions as fully protected speech
This week, PLF filed an amicus brief before the Supreme Court asking the Court to grant a petition in Illinois Liberty PAC v. Madigan. The petition challenges an Illinois law that places different campaign contribution limits on different types of speakers. Unfortunately, the courts have long treated campaign contributions as a lesser form of speech undeserving of full First Amendment protection. Our brief urges the Court to offer this vital form of political expression with the full protection of the First Amendment.

Freeing Workers from the Dues Deduction Trap
This week, PLF filed a friend of the court brief in Allen v. International Association of Machinists Dist. 10 and Local Lodge 873, urging the Supreme Court to consider whether dues check-off authorizations are constitutional in light of the recent sea-change in First Amendment restrictions on how both the federal and state governments can use labor law to restrict individual speech rights.

Will Free Speech fly in Boston?
PLF filed its amicus brief before the First Circuit in Shurtleff v. City of Boston. The City of Boston allows private groups to fly flags on one of the flag poles near City Hall. It has allowed flags representing a myriad of countries as well as cultural and social groups. But the City of Boston refused to allow a group to fly the Christian Flag on the flagpole as part of an event honoring Constitution Day and the religious heritage of America. PLF argues that the City of Boston’s actions violate the First Amendment because its policy against “non-secular” flags is wholly arbitrary, discriminatory, and contrary to the spirit of the forum that the City has created.

PLF urges the Supreme Court to review Oregon’s extraterritorial fuel regulation
Oregon’s Clean Fuels Program regulates transportation fuels using a “life-cycle” analysis, meaning that it fictionally assigns a “carbon intensity score” based on estimated carbon emissions resulting throughout the entire process of creating fuel. As a result, two chemically identical units of fuel could receive significantly different scores based on estimated emissions produced during the fuel’s development. The problem is, a great deal of these emissions occur entirely outside the state of Oregon. States may not regulate conduct occurring outside their jurisdiction – to do so violates the Commerce Clause of the U.S. Constitution. But the Ninth Circuit got it wrong and upheld Oregon’s policy. That’s why PLF, along with our friends at the Cato Institute, the Competitive Enterprise Institute, and several other interested organizations, filed an amicus brief in American Fuel & Petrochemical Manufacturers v. O’Keeffe [link to brief here ask David Deerson for it] asking the Supreme Court to take the case. We are asking the Court to take a close look at this issue and to stop states from mucking around with the free flow of interstate commerce.

You Can’t Force Farmers to Stay Farmers Forever
Marin County’s Local Coastal Program (LCP) is currently the subject of ongoing litigation in the case of Benedetti v. County of Marin. Yesterday, the California Coastal Commission voted to certify amendments to Marin County’s LCP over PLF’s objections, which we made in a public comment letter and re-iterated at yesterday’s Commission meeting. The amendments preserve and exacerbate the Constitutional violations at the heart of the Benedetti lawsuit. For example, as a condition of developing farm tracts, landowners are required to remain “actively and directly engaged in agricultural use on the property”—essentially requiring them to participate in commercial agricultural markets for life. PLF will continue to fight these drastic limitations on property rights in the courts.