September 23, 2017

Weekly litigation report — September 23, 2017

By James S. Burling Vice President for Litigation

Ninth Circuit sides with PLF in compelled speech case

On Tuesday, the Ninth Circuit issued a favorable opinion in American Beverage Association v. City and County of San Francisco, an important compelled speech case. As we explain on our blog, the case involves a San Francisco ordinance that forces advertisers of sugar-sweetened beverages to devote 20% of each advertisement for the government’s message that the beverages uniquely contribute to a variety of health problems. A group of producers and advertisers filed a constitutional challenge, arguing that the ordinance compels speech and thus violates the First Amendment. The district court, applying minimal First Amendment scrutiny, sided with San Francisco.

PLF urged the Ninth Circuit to side with the First Amendment instead, and the court did just that on Tuesday. The court’s decision, which prevents San Francisco from enforcing its unconstitutional ordinance, tracks many of the arguments that PLF made in its friend-of-the-court brief.

PLF asks Supreme Court to secure property owners’ path to takings claim

This week, PLF filed this amicus brief in Beach Group Investments, Inc. v. Florida Department of Environmental Protection.  This case raises yet another example of how the lower courts are struggling to interpret the Supreme Court’s “final decision ripeness” rule in takings claims.  Because of the confusion, state and local governments often have been able to take the use of private property without ever paying the owner for it.  This violates the protections of the Fifth Amendment.  Hopefully the Supreme Court will clarify and fix the doctrine in the near future, so that when government unconstitutionally takes the use of property away without paying for it, property owners can vindicate their rights in court.

Two cases to conference at the Supreme Court next week

On Monday the Supreme Court is set to hear our petitions asking the Court to take up two of our cases, Nies v. Town of Emerald Isle and 616 Croft v. City of West HollywoodNies is the case where the Town of Emerald Isle decided to take the Nies family’s beachfront property to use it as a public beach road — without paying a cent in compensation. And in 616 Croft, City is demanding that it be paid over $500,000 in “low-income housing” fees before the owners can build 11 units of new housing. We should know in a few weeks whether the Court will hear these cases.

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