June 16, 2018

Weekly litigation report — June 16, 2018

By James S. Burling Vice President for Litigation
  • Victory for the First Amendment!
  • Challenging Florida’s Tone Deaf Hearing Aid Bureaucrats
  • Supreme Court Splits on Salmon
  • Santa Barbara Association of Realtors v. City of Santa Barbara

Victory for the First Amendment!

Gadsen flag no longer banned

Political speech is the most protected type of speech in the country – including in the most restricted space in American civic life – a polling place. On Thursday, in Minnesota Voters Alliance v. Mansky, the Supreme Court struck down a Minnesota statute that prohibits the wearing of any “political badge, political button, or other political insignia” in polling places. Writing for the 7-2 majority, Chief Justice Roberts held that the broad term “political,” combined with the state’s haphazard interpretation and enforcement, was flatly unreasonable and violated the First Amendment’s Free Speech Clause. PLF represented the plaintiffs before the Supreme Court. As described more fully on the blog, the decision, while carefully crafted, can be expected to have a wide impact on free speech rights. Most immediately, statutes in other states that limit what may be worn in a polling area are subject to challenge and may not be used to prevent shirts and other items expressing common political beliefs and affiliations. But the First Amendment rights recognized in the decision go beyond polling places. The protections afforded to common political apparel in polling places should also apply to all other non-public fora: state university campuses, post offices, airports, lobbies of government office buildings, and so on. Today’s decision confirms that the government cannot ban shirts and hats with ideological and political statements in such places. The Constitution now clearly protects all American’s fundamental right to peacefully wear “political” clothing on government property without overbearing state interference.

Challenging Florida’s Tone Deaf Hearing Aid Bureaucrats

PLF filed a preliminary injunction motion this week asking a federal district court to stop the Florida Board of Hearing Aid Specialists from enforcing antiquated regulations that prevent our client Dan Taylor from selling hearing aids in that state without a license. Our motion in Taylor v. Polhill  argues that the rules are preempted by federal law that has reduced regulatory barriers to hearing aid sales in recent years, in an attempt to increase consumer access to the technology and make the devices less expensive. More information about the case and motion can be found on our blog and in a podcast by the Cato Institute this week.

Supreme Court Splits on Salmon

On Monday the Supreme Court announced that it had reached an impasse in Washington v. United States due to a late recusal of Justice Kennedy. The Court’s decision split 50/50 as to whether the right of Tribes to fish for salmon imposed a duty on the State of Washington to refrain from building or maintaining culverts that could block fish passage. This lack of decision means that the Ninth Circuit’s demand that Washington replace hundreds of road culverts will stand. For more information on this decision, see our blog post here.

Santa Barbara Association of Realtors v. City of Santa Barbara

After argument on March 19 in Santa Barbara Association of Realtors v. City of Santa Barbara,  the judge took two matters under submission: (1) the City’s demurrer (which is the name for a motion to dismiss in California), and (2) the City’s argument that the complaint was not brought solely in the public interest.  The judge took more than two months to rule for the City on the complaint, holding that we did not file the complaint within the 90 day requirement for challenging a zoning ordinance.  We strongly disagree that the statute we relied upon is a zoning ordinance, and we will make that argument if we appeal.   The judge rejected the City’s second argument, agreeing that complaint was brought in the public interest.  Because the judge gave us leave to amend the complaint, we filed an amended complaint on Wednesday of this week.   This time we focused more on the Fourth Amendment, as opposed to the unconstitutional conditions theory.

 

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Taylor v. Polhill, et al

In Florida, you need a license to sell hearing aids. Dan Taylor of Melbourne, Florida, gave up his license after 30 years, because Florida’s outdated regulations were made for older models, not the updated, technologically sophisticated models he and his customers prefer. In a federal lawsuit on behalf of Dan, PLF argues that Florida’s licensing scheme increases cost and reduces access to modern hearing aids—and they’re even preempted by federal laws aimed at reducing unnecessary regulation.

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