First Amendment Battles

Why accept victory when you can keep on fighting and lose? I don’t have an answer to this question. If you do, let me know. For a stunning example of this sort of battle, check out Seventh Circuit ruling from last week called Simic v. Chicago, in which a woman challenged a city ordinance against texting while driving.

She didn’t have to.

After refusing to pay a ticket for texting and getting hit with an extra $440 penalty for not paying the $100 fine, she made enough of a fuss that the city gave up and said she didn’t have to pay.

Some of us might have walked away happy at that point. Tamara Simic filed a class action claiming the ordinance was unconstitutional because it violated the Due Process Clause and the Excessive Fines Clause.

Don’t expect an explanation from me. The Seventh Circuit seemed befuddled too.

I bring this up not only because it’s entertaining but also because there was a missed opportunity here.

Why didn’t she challenge the law on First Amendment grounds?

That would have given those judges some pause. After all, texting is a form of speech. It may also be a form of press.

(Interesting side issue: Does freedom of the press apply to radio, TV and fake news? There are no presses involved.)

Can the government ban a form of speech simply because a person is driving?

What if, say, the president of the United States were at the wheel of his armored car and decided he needs to tweet a message to the country? Doesn’t he have a constitutional right to do so?

I know there are safety issues involved. Texting can be distracting.

But when the First Amendment is involved, laws must be narrowly tailored to achieve their purpose without infringing on our rights. A blanket ban is clearly overbroad.

I’d ban anything involving emojis or weird initials. You need too much attention to figure them out.

Someone please file a class action.

If you need inspiration, take a look at another fascinating First Amendment dispute described in a ruling from the 11th Circuit, also released last week, called Ocheesee Creamery v. Putnam.

The issue: Can Florida prohibit a dairy from calling skim milk “skim milk”?

The state and the dairy have been fighting over this for four and a half years.

Florida insisted that the skim milk in question – created by skimming cream off the top of milk – be labeled a “milk product,” and not “skim milk.”

Skim milk, at least in Florida, has to have Vitamin A added to it — which you’d think would make it a “milk product,” rather than natural skim milk, but the state said the opposite was true. Don’t look for logic here. The state was also fine with labeling real milk as “imitation milk.”

Favorite line from a footnote in the ruling: “When questioned at oral argument whether an imitation milk permit is even issuable for a milk product such as skim milk, the state conceded it was something of ‘a square peg in a round hole.’”

I might have sued on the basis of silliness, but the dairy took the constitutional route – its First Amendment right to say “skim milk” was being infringed.

Now we have a 22-page ruling upholding the right to say “skim milk” (though not necessarily in a crowded theater).

We also have a First Amendment ruling last week from a federal judge in California that says it’s OK for a public university to stop funding a “satirical student newspaper” because the school stopped funding all student print publications.

You can stop the presses as long there’s equal protection (actually, equal non-protection).

Fair enough. Schools shouldn’t have to fund newspapers if they don’t want to. This case, however – Koala v. Khosla –is one for our collection of seriously impractical battles.

Before it was cutoff, the newspaper – the Koala –got $453 for winter quarter last year.

I’m guessing federal litigation has cost a little more.

Maybe the lawsuit was meant to be satirical.

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