Today the Pacific Legal Foundation, along with our friends at the Institute for Justice and the Cato Institute, filed this brief supporting the ACLU in Rosebrock v. Hoffman, a free speech case that is even more interesting for what it could say about the government’s promises to stop behaving badly.
Robert Rosebrock is a 72-year-old war veteran who for years has protested in front of the Los Angeles Veterans Administration complex because he objects to the VA leasing out land to entertainment companies and soccer clubs instead of using the land to help veterans. Whatever one thinks about that, Rosebrock certainly has the right to express his opinions, and he did so in part by hanging up an American flag on the perimeter fence surrounding the VA. The VA had no objections. But when Rosebrock decided to hang the flag upside down, VA police officers issued him six criminal citations.
Rosebrock sued, arguing that citing him for displaying the flag one way but not the other violated his First Amendment rights.
But before judges could decide his case, the VA changed its policy—or, rather, it decided that its policy had banned flags all along. A mid-level VA administrator sent VA’s police officers an inter-office email telling them to issue citations for any display of the American flag, whether right-side up or upside-down. This, the judges declared, rendered the case “moot,” meaning that the case had to be thrown out.
But this raises an important problem. A case is “moot” if the argument between the parties goes away before a decision is made. But when the government changes its behavior and promises to stop violating the law, does that mean the case goes away? This may sound familiar to readers of the Liberty Blog. Just this month, a federal court refused to throw out our lawsuit against the City of Alexandria, Virginia, challenging that city’s prohibition on “For Sale” signs in cars. The city claimed that it had suspended enforcement of the law and was considering whether to repeal it—but it had not taken any official action at all. The court found that the case was not moot, because there’s still a possibility that the government will not repeal the law and resume enforcement in the future.
The Supreme Court has said that a case is only moot if it is “absolutely clear” that an illegal act will not occur again. It’s certainly not “absolutely clear” that an inter-office email by someone not in charge of the VA would bar the VA from violating Rosebrock’s rights again. But the Ninth Circuit ruled that it wasn’t necessary for the VA to make it “absolutely clear,” because government defendants should be accorded a “presumption of good faith” in cases like this. That “presumption of good faith” would never be given to any private party. If your neighbor is doing something illegal, and you sue him, he can’t get out of the case by just saying he won’t do it again. He has to prove he won’t do it again. Why should the government be treated any differently? As we point out in the brief we filed today, government bureaucrats are often just as self-interested as private defendants are—and often don’t have the same incentives to play by the rules. It makes no sense to give the government preferential treatment when it has violated the law.
You can read our brief here