President's weekly report — January 30, 2015

January 30, 2015 | By ROB RIVETT

Environment — Wetlands

The government filed this opposition to our petition seeking Supreme Court review in Kent Recycling v. United States.  That’s the case where we are arguing that a landowner should have the right to challenge a wetlands jurisdictional determination first, without having to spend potentially hundreds of thousands of dollars in permitting costs — for a permit that might not even be necessary in the first place.

Environment — Wolverines

We moved to intervene today in Center for Biological Diversity v. Jewell and Defenders of Wildlife v. Jewell, two consolidated cases where the greens are suing to provide more and unnecessary protections for the wolverine.  For those urban readers not in the know, the wolverine is a particularly ferocious badger-like predator and the listing threatens to impose even greater restrictions on the use of rural farms and ranches.

Celebrating School Choice

This week was National School Choice Week — although some of us think every day should be school choice day.  What could be more fundamental to liberty than allowing parents to decide the fate of their own children?  Why should parents — especially poor and middle-income parents — be forced to send their children to failing schools when there are better choices out there?  Why should organized labor have more say than parents in shaping the lives of our children? While it is sad to see that there is so much organized opposition to school choice, it is tragic to see the consequences on our children, especially those already facing the challenges of growing up in distressed neighborhoods.  We’re doing what we can to fight back by participating in school choice litigation across the nation.  For more on our efforts, and more on our celebration of school choice week, see our blog.

Economic Liberty – Montana Competitor’s Veto 

As part of our campaign against anti-competitive “Certificate of Public Convenience and Necessity” laws, we filed a new lawsuit yesterday, Pabst v. Fox, challenging the constitutionality of Montana’s licensing law for taxicabs, moving companies, and other businesses. That law says that if you want to run a taxi company in Big Sky Country, you have to first get permission from the state’s existing taxi companies. We think that’s not just unfair and unwise, but also unconstitutional—and the courts agree with us. You’ll recall that last year, a federal judge in Kentucky struck down that state’s Certificate requirement, calling it a “Competitor’s Veto” law. We’ve also vindicated the rights of entrepreneurs in Oregon and Missouri—those states repealed their Competitor’s Veto laws as a result of PLF lawsuits. And today, PLF attorney Anastasia Boden was in Helena, testifying to the Montana legislature regarding a bill that would change that state’s licensing law

Commercial speech I — right to put a “for sale” sign in a car window

We gave oral argument this week in McLean v. City of Alexandria in federal district court, opposing the City’s motion to dismiss the case.  At issue here is whether a city can ban commercial speech — specifically the placement of a “for sale” sign in a car legally parked on a city street.  If there were any problems with parking, old cars, or whatever, there are plenty of other ways a city can deal with those without violating the First Amendment. We sued the City and the City issued a press release saying it would not be enforcing the law, at least for now.  We don’t think that’s good enough — repeal by press release is not an acceptable way of dealing with unconstitutional laws — instead the law must be repealed or enjoined.  We’re asking the court to do the latter.

Commercial speech II– right to advertise on the web

We received this adverse decision this week in Young v. Heineman.  Leslie Young is licensed as a real estate broker in California.  But she does not show homes, negotiate sales, handle earnest money, etc.  Instead, she engages in advertising for people who want to sell their homes themselves.  Leslie plugs in information about those homes into a Multiple Listing Service based in California.  Other websites pick up the information from that MLS and republish it in the form of advertisements which Leslie cannot change.  Those advertisements say things like “Presented by Leslie Young, Advertising Broker,” and “Contact Agent.”  Based on these advertisements, the Nebraska Real Estate Commission sent her Cease and Desist Orders demanding that she cease “advertising” because she was engaged in the unlicensed practice of real estate brokerage.  We sued under Section 1983 arguing that Defendants’ actions violated the First Amendment and Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment, and that the Commission’s definition of real estate brokerage was unconstitutionally vague and overly broad.  In other words, Defendants can’t put a licensing requirement on speech.  The court disagreed, and held that the Commission was regulating conduct, not speech, and ignored the remainder of our arguments.

Free Enterprise Project — Freedom to contract

Should a dispute about the meaning of a contract be governed by the words of the contract or by vague notions of abstract justice?  Today the Texas Supreme Court decided to take up that issue in Plains v. Torch, a case where a lower court essentially rewrote the terms of a contract in order to spread some money around.  We had filed this amicus brief in support of review.  For more details, see our blog.