The 9th Circuit panel writes the standard First Amendment rules on free speech and the Establishment Clause as applied to the annual Christmas display of nativity scenes in Santa Monica. The City eliminated all unattended displays in Palisades Park at Christmas. The scenes have been a part of Santa Moncia history for fifty years and a source of visitors every year. Apparently an atheist was permitted to erect a display consisting of a chain link fence and a quotation from Jefferson, and other displays were permitted unrelated to anything. . Continue reading
Only the 9th Circuit writes a decision in this case that a court would consider, and resolution could have been decided in two paragraphs. In Frudden v. Pilling the plaintiffs filed a Complaint alleging their objections to a local elementary school that had decided to require a dress code for all students. Imprinted on the shirts read the words “Tomorrow’s Leaders”, a photo of the Gophers (apparently the school motto), and an exception for students wearing the shirts who were members of the Boy Scouts or the Girl Scouts. The plaintiff’s Complaint alleges “Tomorrow’s Followers” were excluded. Viewpoint discrimination and not content neutral.
First, the 9th Circuit panel listed all the parental failures in their drive for a dress code at the elementary school as though they should have complied with federal election laws. Then the panel launched into a discussion whether the Complaint violated the First Amendment, contending the motto (“Tomorrow’s Leaders”) imprinted on the shirts was not content neutral, and the emphasis on Boy Scouts and Girl Scouts exclusion from wearing the shirts discriminatory. The panel remanded the case to the district court for the plaintiff to amend the Complaint and the district court to do something.
The distinct court read the pleadings and the record and wondered who was doing what. In the plaintiff’s oral argument they conceded the motto was acceptable and only wanted other national youth organizations exempted from wearing the shirts in addition to the Scouts. The district court wondered why this case came back from the 9th Circuit on issues not in dispute and unrelated to the appellate record. The defendants moved to clarify the record written in the 9th Circuit opinion. Motion to clarify granted. Apparently there is no dispute at all, or if there is one, the 9th Circuit panel can explain if the parties elect to appeal the district court clarifying decision. The elementary school students will understand the First Amendment strict scrutiny test applied by the 9th Circuit panel in this exciting case.
All the parties had to do was sit down and negotiate. Not one of the 9th Circuit panel suggested they do that.
Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.
President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town. As he walked through the streets accompanied by Secret Service Agents, two groups followed him. One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same. At the last minute, the President changed his plans and entered a restaurant. The Secret Service Agents re positioned the two groups in their distance from the President.
The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated “clearly established” federal law.
A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument, the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.
In the Morgan Hill case, during a Cinco de Maya observance day, several students arrived at school with American flags imprinted on their shirts. Mexican students confronted them and demanded to know why Mexican colors could not be worn, and alleged the students were racists. Apparently there was some other friction among students but no disruption or physical altercations occurred.
Informed of the disturbance, the principal called in the flag wearing students and told them to remove the shirts or turn them inside out. The students refused and were sent home. Their parents filed a lawsuit alleging civil rights claims. In an amended opinion, the 9th Circuit panel rejected the litigation on all grounds and denied a rehearing. A rehearing en banc was also denied. Only three judges dissented from an en banc hearing.
The principal was obviously concerned because the campus had been the scene of Mexican gang fights. But no Mexican student was reprimanded for threatening students and no punishment levied. The students causing the disturbance were free do so. The solution: cancel any Cinco de Maya days.
The 9th Circuit panel cited the seminal case of Tinker v. Des Moines Independent Community School District. Students were allowed the practice of shirt wearing slogans as long as no disruption occurred or was fomented. The panel cited Confederate flag cases holding the incitement was indigenous to slavery and disallowed this attire. These cases hardly compare to wearing the American flag.
The courts in other cases have used the “heckler” veto when onlookers elect to shout down the speaker. This conduct compares equally to Morgan Hill when Mexican students threatened the flag wearers who allegedly angered them. The dissenting judges cite these cases to the indifference of the panel and judges denying a rehearing.
Note: During the war in Iraq the State of California placed an American flag on a freeway overpass. Later, someone also placed a flag on the overpass complaining about U.S. intervention. State personnel removed the non American flag and, unsurprisingly, were sued by those who sought the right to fly the removed flag. As a result of a 9th Circuit decision, the State had to remove the American flag.The American flag had to be removed, said the 9th Circuit panel, unless other flags were allowed. “Viewpoint discrimination” said the panel. The AG did not seek cert.
In tracking the 9th Circuit for the last five years it is obvious that a liberal ideology permeates their opinions. Could students wear St. Patrick shirts; Christopher Columbus shirts; Jesus Christ shirts? As the dissent points out, why did the principal call in the students wearing American flags on their shirts instead of those who were threatening them or demanding Mexican flags? The hecklers won. Apparently the American flag is meaningless in the 9th Circuit.
The scarcity of judicial resources in federal courts, as in state courts, suggests that judges conserve time and energy for cases of significant legal importance. The 9th Circuit ignores that sage advice and in Ford the panel wrote a 2-1 opinion that defies understanding.
Police stopped Ford in his moving vehicle for violation of a city ordinance prohibiting loud noise. He immediately began to rant about a variety of topics, and the police in polite terms repeatedly told him to behave, speak in civil tones and control himself. Under Washington law the police can either ticket an offender or effect an arrest for misdemeanors. After frequent attempts to quiet down the defendant, as recorded on audio and video, police arrested Ford for violation of the ordinance.
This trivial incident resulted in a Section 1983 claim filed by Ford against the police officers which the district court judge dismissed. The 9th Circuit reversed on grounds the police had “chilled [Ford’s] speech” under the First Amendment. Constitutionalizing conduct is a favorite device in the 9th Circuit.
The majority panel cites two irrelevant cases the Supreme Court had decided prohibiting “retaliatory arrest” and “retaliatory prosecution.” The First Amendment prohibits police from penalizing a person solely on the ground of retaliation for derogatory or insulting remarks unless an arrest occurs supported by probable cause; Reichle v. Howards, 132 S.Ct. 2088 (2012) In one case a man merely shouted profanity and criticism against police; in the other case, police arrested a man for criticizing the officers in a book. Neither of these cases involved an arrest.
The Supreme Court has held that if probable causes exists for an arrest the speech component vanishes. Ford does not question the issue of probable cause, and that’s the end ot it. But according to the 9th Circuit, despite grounds for arrest, a loud mouth can have his First Amendment rights violated. Why this case was not heard en banc is a mystery. Probably too trivial.
Ford filed a 1983 claim against police allleging a First Amendment speech violation that should have been heard in small claims court-if at all. The district court found no First Amendment violation and dismissed the claim. The police also sought qualified immunity but the district court did not address this issue in resolving the absence of a First Amendment violation.
The officers filed qualified immunity but the majority panel held they should have known their conduct violated the First Amendment and denied the defense despite the Supreme Court decision to the contrary. And this case took five years to the time of appeal.
The 9th Circuit record on immigration cases is deplorable not only for its obvious solicitude for illegal aliens but its unwarranted attacks on IJ Judges. The 9th Circuit uses U.S. criminal law and Constitutional law to apply in all forms of immigration appeals, i e. 6th Amendment “ineffective assistance of counsel” when counsel is not required in immigration cases (the previous attorney general in the Bush administration no longer accepted that excuse. The current AG reversed that opinion). 9th Circuit panels ignore the IJ who concludes the applicant is not credible, and then they substitute their own judgement as often as they do in criminal cases. Here is an illustrative case.
The Arizona legislature enacted a statute to prohibit solicitation by day laborers standing on public streets. The statute attempted to eliminate traffic snarls while drivers negotiated terms of the labor. In addition, the statute expressly directed this legislation toward elimination of illegal aliens who constitute the majority of applicants.
The plaintiffs challenged the legislation on grounds it constituted “commercial speech” protected by the First Amendment. The 9th Circuit panel launched into an extensive dissertation of “commercial speech” without citing any Supreme Court cases confirming the right of day laborers to solicit labor on public streets. Eliminating traffic congestion is “commercial speed” protected by the First Amendment?
Here is the Supreme Court definition of Free Speech: “At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. The central purpose of the Speech and Press clauses was to assure a society in which uninhibited, robust, and wide-ed open public debate concerning matters of public interest would thrive, for only in such a society can a healthy democracy flourish.The First Amendment creates an open marketplace in which differing ideas about political, economic and social issues can compete freely for public acceptance without improper government interference;” Knox v. SEIU Int. Union, Local 1000, 132 S.Ct. 2277 (2012). And this Supreme Court commentary prohibits a state from controlling traffic congestion caused by day laborers?
After a thorough discussion of this irrelevant topic in the context of traffic control, the 9th Circuit panel turned its attention to the other reason for the Arizona statute-to limit the presence of illegal aliens. Somehow this legislataon is unlawful and an excuse to deport, or at least, remove their presence.
This simple and obviously realistic Arizona state legislation could have been disposed of in two paragraphs. First, controlling traffic is a legitimate objective and this statute is a reasonable attempt to do so. Second, removing illegal aliens from within a state is unrelated to immigration and enforceable by the state. End of analysis. How any court could devote endless savaging of forests to print this case as a a First Amendment issue is inconceivable.
As noted above, the 9th Circuit will seek some kind of constitutionalization of routine conduct. Preventing day laborers to stand on the street and create traffic jams is not a Constitutional question. This is not the first time the 9th Circuit has forbidden traffic control among aliens. In Comite de Journaleros v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) the city council passed a similar ordinance and the 9th Circuit struck it down also on First Amendment grounds.
An interesting sidebar. Plaintiff had standing because they had to file litigation and that task interfered with their business.