Weekly litigation report — January 5, 2019
PLF files opposition to summary judgment in suit to protect happy hour speech
Since PLF client Geoff Tracy filed his lawsuit to strike down Virginia’s ban on Happy Hour advertising, the state of Virginia has attempted every trick in the book to defend its silly ban on “Thirsty Thursdays.” Most recently, Virginia’s motion for summary judgment focused almost entirely on anecdotes and studies related to the supposed dangers of alcohol discounts themselves. But as we explained in our opposition to that motion, filed Monday, Virginia has done nothing to explain why it resorted first to banning speech rather than discounts themselves. The Supreme Court made it clear 22 years ago in a case striking down Rhode Island’s ban on alcohol advertising that a ban on speech should be a state’s last resort to fighting an alleged ill, not the first. For more on the history of this case, read lead attorney Anastasia Boden’s recent Op-Ed in the Washington Post.
PLF continues fight against Michigan’s theft of equity
This week PLF filed an amicus brief supporting a property rights claim in the Sixth Circuit in Freed v. Thomas. The case arose after Gratiot County Michigan took Donald Freed’s $97,000 home to pay an overdue tax debt of $1,100. Gratiot County sold the property at auction for $42,000 and kept all of the proceeds from the sale, as required by Michigan’s General Property Tax Act. Knowing that Michigan state courts have (so far) rejected similar claims, Mr. Freed filed a constitutional lawsuit in federal court seeking a refund of the profits from the sale his home. But the federal trial court dismissed his case, holding that it lacked jurisdiction under the Sixth Circuit’s decision in a 2017 case called Wayside Church v. Van Buren County. PLF’s amicus brief explained why Wayside Church no longer prevents federal courts from hearing cases like Mr. Freed’s, since Wayside Church was based on an assumption that state courts already provide a remedy. Our brief also explains why it is unconstitutional for counties to take and keep more than they are owed in taxes, penalties, interest and fees. Our blog post is here.
End discrimination against corporate speech
Some laws restrict speech solely on the basis of the speaker’s identity, granting some favored speakers power and privileges not shared by all. A new cert petition before the Supreme Court, 1A Auto, Inc. v. Sullivan, challenges Massachusetts’ ban on corporate contributions which prohibits business corporations and other profit-making entities from making contributions to support state or local candidates. Lower courts upheld the ban because of a 2003 Supreme Court case, Beaumont v. FEC, that upheld a similar federal ban. That case, however, is on shaky ground after more recent speech-protective First Amendment decisions. PLF filed an amicus brief supporting the cert petition, urging the Court to take the case to overrule Beaumont and reject the amorphous “appearance of corruption” justification for contribution restrictions.
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Chef Geoff’s v. The Virginia Alcoholic Beverage Control Authority
Award-winning restaurateur Chef Geoff Tracy owns three restaurants in Washington, D.C., Maryland, and Virginia. Only Virginia, however, restricts the way Chef Geoff advertises happy hour specials. While state law allows businesses to offer happy hour, it bans advertising happy hour prices, as well as the use of any terms other than “happy hour” or “drink specials.” Also, while restaurants may offer half-priced drinks, it’s illegal to call these specials “two-for-one.” In a lawsuit filed on behalf of Chef Geoff, PLF argues that Virginia’s happy hour advertising restrictions prevent restaurants from speaking freely and truthfully about their business—a clear violation of the First Amendment.Read more
What to read next
Originally published by The Hill, January 8, 2019. If you want to understand the importance of grassroots volunteers in a democracy, spend some time working political campaigns and party activities … ›