10 months ago

Weekly litigation report — December 17, 2016

By James S. Burling Vice President for Litigation
  • PLF opposes slanted view of the First Amendment
  • PLF opposes First Amendment retaliation
  • EPA licensing scheme gone wrong
  • Beach case review dismissed
  • WOTUS update

PLF opposes slanted view of the First Amendment

Image result for the slants
The band with a disparaging name

PLF filed this amicus brief with the Supreme Court in The Slants case, aka Lee v. Tam. By appropriating a demeaning epithet for the dance-rock band’s name, these American musicians of Asian descent are exercising their quintessential First Amendment rights. The name makes some people uncomfortable, which is the point. But to the United States Patent and Trademark Office, that discomfort led to a denial of trademark protection for the band’s name. That action, however, is a violation both of the office’s statutory authority and the First Amendment. Our brief focuses on the notion that speech in the commercial context is supposedly entitled to less protection than other speech. For more, read our blog here.

PLF opposes First Amendment retaliation

We filed this reply to the Nebraska’s opposition to our petition for writ of certiorari in Bennie v. Munn, the case where an avid Tea Party supporter was subjected to extra-special regulatory harassment because of his outspoken and very public opposition to the President. After the lower courts failed to reasonably consider his claims of harassment, we asked the Supreme Court to take up his case. For more background, see our blog here and here and our website page on the case here.

EPA licensing scheme gone wrong

We had a negative trial court decision this week in Marquette County Road Commission v. EPA. In this case, the EPA has vetoed a road project that will reduce pollution and congestion because it touches some wetlands — even though the project would more than fully mitigate for the wetlands. But the central issue here, as in our Hawkes victory at the Supreme Court, is whether the county has the right to challenge the EPA veto in court. Our next stop on this question will be the Sixth Circuit Court of Appeals. For more, see our blog post.

Beach case review dismissed

Previously we reported that the North Carolina Supreme Court had agreed to hear argument in Nies v. Town of Emerald Islea case where a town has essentially opened up the Nies private beachfront property to itself and to the public for driving. The problem is that the town won’t pay for the easement. The court gave no explanation for the dismissal of the appeal. We’re now anticipating that we will ask the Supreme Court of the United States to hear the case. You can read more in our press release here.

WOTUS update

For an update on the status of the pending challenges to the Waters of the United States (WOTUS) rule, see our blog post here.

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