Wake Forest Law Review

By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

By Taylor Ey

On August 6, 2015, the Fourth Circuit issued its unanimous, published opinion in the civil case of Cahaly v. LaRosa.  This case involves Mr. Robert Cahaly’s (“Plaintiff”) constitutional challenge of South Carolina’s anti-robocall statute (S.C. Code Ann. § 16-17-446(A)), asserting that the statute violates the First Amendment.  After applying the Supreme Court’s 2015 test in Reed v. Town of Gilbert, the Fourth Circuit decided that South Carolina’s statute did not survive strict scrutiny.  However, it also decided that Cahaly lacked standing to bring his other constitutional challenges.  Cahaly also sought damages from law enforcement officials, Paul C. LaRosa, III, and Reginald I. Lloyd (“Defendants”), who arrested him.  The Court affirmed the district court’s grant of summary judgment in favor of defendants.

Applying Reed to Determine Content Neutrality

The Fourth Circuit applied the test in Reed to determine whether the statute’s restriction was content-neutral based restrictions on speech.  The statute prohibits robocalls that are “for the purpose of making an unsolicited consumer telephone call” or are “of a political nature including, but not limited to, calls relating to political campaigns.”

Under Reed, as a threshold inquiry, courts assess whether the law is content neutral on its face.  Next, if facially neutral, courts ask whether the law cannot be justified without reference to the content of the regulated speech or adopted by the government because of a disagreement with the message the speech conveys.

Applying Reed, the Fourth Circuit found that the statute is content based on its face.  The statute forbids calls with a consumer or political message and does not apply to calls made for any other purpose.

Because the Regulation Is Content Based, the Court Applied a Strict Scrutiny Analysis  

To survive strict scrutiny, the government must prove that the restriction furthers a compelling government interest and is narrowly tailored to further that interest.  In this case, South Carolina asserted its interest was to “protect residential privacy and tranquility from unwanted and intrusive robocalls.”  The Fourth Circuit assumed that it was a compelling interest.  However, it held that the statute was not the only way to serve this interest, and thus the statute was unconstitutional.  The Court further stated that the statute was underinclusive.

Plaintiff Lacked Standing to Assert Compelled-Speech Challenge

Additionally, Cahaly raised a compelled speech challenge, which the Defendants appealed.  Defendants argued that Calahy did not suffer an “injury in fact,” and therefore did not have standing to challenge the exceptions to the statute.  The Fourth Circuit agreed because Cahaly was not charged with a violation of the statute.  Because the district court ruled for Cahaly, stating that the exceptions were unconstitutional, the Fourth Circuit vacated the district court’s judgment on this issue.

The Fourth Circuit Affirmed the District Court’s Grant of Summary Judgment

The arresting officer had probable cause to arrest Cahaly for violating the anti-robocall statute.  Officer LaRosa had six witnesses who described the robocalls, a recording of a phone call, and an investigation that connected the phone number to Cahaly.  This evidence was sufficient to give probable cause, and therefore the Court affirmed.

POLICE 10

By Sarah Saint

On June 15, 2015, the Fourth Circuit issued a published opinion in the civil case of Hunter v. Town of Mocksville, North Carolina. Plaintiffs Keith L. Hunter (“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin (“Medlin”)—officers of the Mocksville Police Department (“MPD”) in Mocksville, North Carolina—were concerned about corruption in the MPD and reached out to the North Carolina Governor’s Office as public citizens. Public employees still have First Amendment rights when they speak as “citizen[s] on a matter of public concern.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (quotation marks and citation omitted). Accordingly, Plaintiffs enjoy First Amendment protection in their outreach. The Fourth Circuit affirmed the district court’s denial of summary judgment to Defendants Robert W. Cook (“Cook”), Administrative Chief of Police of the MPD, and Christine W. Bralley (“Bralley”), Town Manager of the Town of Mocksville.

Misconduct in the MPD

Plaintiffs Hunter, Donathan, and Medlin became concerned with Defendant Cook’s behavior and leadership as police chief. Plaintiffs saw him excessively drink alcohol in public and in uniform, which they felt reflected poorly on the police department. They also believed Cook drove a police car with blue lights flashing and behaving as a law enforcement officer when he had never been certified, in violation of the law. Further, Plaintiffs suspected Cook misused public funds for personal gain, racially discriminated, and “fixed” tickets for his friends.

Plaintiffs reported their concerns to Defendant Bralley but saw no improvement and worried about retaliation. Deputy police chief Daniel Matthews (“Matthews”) criticized Donathan regarding his concerns he raised with Bralley, and Cook demoted Medlin.

In November 2011, Cook reorganized the department, giving Matthews a promotion to second-in-command and demoting Hunter, one of only two African-Americans in the MPD. Hunter subsequently filed a grievance but his concerns were dismissed. Donathan was promoted and instructed to “adhere to the ‘politics’ of the MPD.” The next month, the three Plaintiffs and two other officers met privately to discuss their concerns and decided to seek outside investigation as private citizens.

Plaintiffs met with the National Association for the Advancement of Colored People (“NAACP)”, which advised them to contact a state agency. Hunter purchased a disposable phone so they could report their citizen complaints separately from their affiliation with the MPD. They then contacted the North Carolina Attorney General with the disposable phone. The Attorney General referred them to local individuals closely aligned with Cook, and the Plaintiffs felt they could not contact them. Plaintiffs called the North Carolina Governor’s Office with the disposable phone and expressed their concerns with no identifying details. Donathan later identified the MPD to the Governor’s Office, and the Governor’s Office offered to report their concerns to the State Bureau of Investigation (“SBI”).

The next week Medlin saw a local SBI agent at the MPD and noted the SBI agent had a close relationship with Cook and Mathews. The agent called the disposable phone, but the Plaintiffs did not return the call and disposed of the disposable phone because they felt they could not trust the agent. The phone was found, and the agent contacted the Davie County Sheriff’s Office to see if the phone belonged to anyone at the Sheriff’s Office. The Sheriff’s Office contacted the MPD and asked to run the number through MPD records. Bralley set up an online Sprint account and saw that both Donathan and Medlin had called and received calls from the disposable phone using their MPD-issued mobile phones.

MPD Fired Plaintiffs in Retaliation

Cook fired all three Plaintiffs for “conduct unbecoming a Officer” at the end of December 2011, the first time he had fired anyone at MPD, even though officers had used illegal drugs and engaged in criminal activity during his tenure. Later, in a memo to the town attorney, Cook mentioned Plaintiff’s call to the Governor and SBI and claimed the Plaintiffs conspired to discredit Cook, Bralley and others.

District Court Denied Summary Judgment to Defendants

In April 2012, Plaintiffs brought suit against Cook, Bralley, and the Town of Mocksville alleging their First Amendment rights were violated because they were fired for speaking out about corruption at the MPD. After filing an answer and engaging in discovery, Defendants moved for summary judgment. In October 2013, the district court granted summary judgment to all Defendants on the Section 1983 claims but denied summary judgment on the state law wrongful discharge and constitutional claims. The district court granted a motion for reconsideration and reversed course as to Cook and Bralley, holding that they were not entitled to qualified immunity.

District Court Rightfully Rejected Defendants’ Motion for Summary Judgment on Qualified Immunity Grounds

Qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

The Fourth Circuit rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity—arguing that no constitutional violation occurred because Plaintiffs spoke as public employees and not citizens, so the First Amendment does not protect Plaintiffs from retaliation. Courts must balance the interests of the public employee as a citizen with the right to speak out with the state’s interest in controlling the operation of the agencies. This balancing test has two steps. The first step asks whether the public employee spoke as a citizen on a matter of public concern. If the answer is no, the employee does not have First Amendment protections. If the answer is yes, the next step asks whether the public employee’s interest in speaking out about the matter of public concern outweighs the government’s interest. The first step is the primary concern of this appeal. To determine whether the public employee spoke as a citizen, the court must consider the employee’s daily professional activities.

The Defendants contend that reporting crimes is the daily professional activities of police officers like the Plaintiffs. However, the Court found calling the Governor’s Office and reporting concerns about the MPD are not part of officers’ daily professional activities. Accordingly, the Fourth Circuit found that the Plaintiffs were acting as private citizens, not public employees, speaking out on matters of public concern. Defendants asserted no countervailing state interest.

The Fourth Circuit also rejected the Defendants’ argument that Cook and Bralley are entitled to qualified immunity because the rights were not clearly established at the time. The dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful. Here, it was clearly established in the Fourth Circuit that an employee’s speech about serious government misconduct is protected under the First Amendment. Therefore, the district court rightfully denied qualified immunity to Cook and Bralley on the bases that no violation occurred and that the law was not clearly established. Accordingly, the Fourth Circuit affirmed the judgments of the district court.

Dissent

Judge Niemeyer dissented because he would grant qualified immunity to Cook and Bralley. It was not clear to Cook and Bralley at the time the officers were fired that they had complained as citizens and not as employees. It was not clear as a matter of law that police officers complaining to the Governor’s Office about departmental corruption is speech by a citizen and not an employee. Had they complained as employees, they would not have First Amendment protections and retaliatory firing would have been lawful. Officials should not be held liable for “bad guesses in grey areas.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). To the dissent, Cook and Bralley made a bad guess in a grey area and accordingly should not be held liable.

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By Malorie Letcavage

Overview

In a published opinion of a civil case issued on April 28, 2015, the Fourth Circuit affirmed the lower court’s decision to grant summary judgment on the basis of qualified immunity in the case of Raub v. Campbell. The appellant, Brandon Raub, argued that his Fourth Amendment right to be free from unreasonable seizures, and his First Amendment right to free speech were violated by the appellee, Michael Campbell. Raub also sought injunctive relief even if his constitutional claims failed. In reviewing the district court’s grant of summary judgment, the Fourth Circuit used a de novo standard. The Fourth Circuit upheld the district court’s grant of summary judgment on the basis of qualified immunity because it found that Raub’s Fourth Amendment rights were not violated, he had not pled sufficient facts for a First Amendment claim and there was no abuse of discretion in the district court’s dismissal of his injunctive claim for relief.

Factual Background

In the summer of 2012, two Marine veterans that had served with Brandon Raub contacted the FBI about Raub’s Facebook posts. Raub posted threatening messages and employed extremist language in numerous posts. The FBI and local law enforcement visited Raub to question him about his Facebook activity. The agents reported that Raub’s behavior was unusual because during the interview he was preoccupied, could not maintain eye contact and displayed extreme mood swings.

The agents contacted Michael Campbell, a certified mental health “prescreener” affiliated with the local emergency services. Campbell recommended Raub be detained for evaluation, at which point the officers took Raub to the local jail. Campbell interviewed Raub and noted the same behavior the officers had described; Raub was distracted, and had trouble answering questions. Campbell concluded Raub might be paranoid and delusional.

Campbell petitioned and was granted a temporary detention from the magistrate because Raub was displaying signs of psychosis. Four days into the temporary detention, the court ordered that Raub be admitted to the hospital for thirty days. However, a few days later Raub was released because the court found that the petition had insufficient factual allegations. Raub then filed suit under 42 U.S.C. §1983 against Campbell. The district court granted Campbell’s motion for summary judgment due to qualified immunity and denied Raub’s request for injunctive relief.

42 U.S.C. 1983

This statute provides an avenue to pursue a civil action for a deprivation of constitutional rights. It lays out that any person acting under the color of state law (which, as in this case, can include a mental health professional associated with emergency services) who subjects anyone to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” will be liable to the party injured.

Appellant’s Fourth Amendment Rights Were Not Violated

The court explained that qualified immunity analysis has two prongs: 1. Whether the plaintiff has established the violation of a constitutional right and 2. Whether that right was clearly established at the time of the alleged violation.

The court decided to start its evaluation with the second prong and held that Campbell’s conduct was not proscribed by clearly established law. The court noted that a seizure requires probable cause but there is a lack of clarity in the law concerning seizures for psychological evaluations. The court then went on to cite the major cases in the Fourth Circuit which all held that that seizures for psychological evaluation were upheld when the person was a threat to himself or others. The court held that due to the totality of the factors, including the content of Raub’s Facebook posts, the initial observations by the officers and Campbell’s observations of Raub, Campbell did not violate Raub’s Fourth Amendment rights because his petition to detain was reasonable based on existing precedent.

Appellant Failed to Allege Sufficient Facts for a First Amendment Claim

            Though Raub contended that Campbell only recommended detention based on Raub’s “unorthodox political statements,” the court found that Campbell had numerous other reasons for recommending detention. The court cited the content of the Facebook posts, Raub’s behavior during the interview, and the increasingly threatening nature of his posts. Even if the political statements were part of the decision, the court found Campbell had plenty of other reasons for Raub to be detained. Thus the court held that Raub did not sufficiently allege facts for a First Amendment violation and Campbell was entitled to qualified immunity.

Appellant’s Claim for Injunctive Relief Was Properly Rejected 

            The court reviewed the denial of injunctive relief for abuse of discretion, and it found none. Under §1983 when a plaintiff is seeking injunctive relief, he needs to demonstrate a real or immediate threat that he will be wronged again in a similar way. However, Raub only alleged that his political beliefs would subject him to seizures and retaliation in the future. The court found that this claim was too speculative and did not reach the level needed to grant equitable relief.

Conclusion

The court did not find that Raub’s Fourth Amendment rights were violated nor did it find that he had alleged sufficient facts for a First Amendment claim. It also found no abuse of discretion in the dismissal of the claim for injunctive relief. Therefore, the court affirmed the lower court’s grant of summary judgment.

By Robert Samuel

American universities are known both for their students’ enthusiasm for alcohol and for producing popular student-run newspapers.{{1}}But is there a connection between alcohol consumption and student media?  The Virginia Beverage Control Board (“VBCB”), an agency of the Commonwealth of Virginia, said “yes.”  To counter this perceived problem, the VBCB promulgated a regulation that prohibits the “advertisements of alcoholic beverages” in “college student publications unless in reference to a dining establishment.”{{2}} The dining establishment exception is narrow, as these advertisements “shall not contain any reference to particular brands or prices.”{{3}}

VBCB’s college newspaper regulation costs the publishers of the student newspapers at Virginia Tech (The Collegiate Times) and the University of Virginia (The Cavalier Daily) a combined $60,000 a year in advertising revenue.{{4}}  Accordingly, the two newspapers filed a lawsuit in the U.S. District Court for the Eastern District of Virginia, arguing that the law unconstitutionally violated the free speech clause of the First Amendment.  In the case—Education Media Co. at Virginia Tech, Inc. v. Swecker(“Swecker”)—the district court granted summary judgment for the college newspapers, permanently enjoining enforcement of the regulation and holding that the law facially violated the First Amendment.{{5}}  The U.S. Court of Appeals for the Fourth Circuit, however, reversed and remanded, vacating the permanent injunction because it found the statute to be facially constitutional.{{6}}  The Supreme Court denied the college newspapers’ petition for writ of certiorari.{{7}}

This essay will argue the Fourth Circuit wrongly decided the case for two reasons: (1) its holding is inconsistent with Supreme Court guidance on commercial speech; and (2) it failed to determine that 5-20-40 is an unconstitutional financial regulation on a narrow sector of the media.  Regulation of vice advertisements has consistently confounded courts.{{8}}  The Fourth Circuit did little to settle the law on the subject in Swecker, and the Supreme Court should use its next opportunity to clarify the scope of the First Amendment’s protection.  If it does not, college newspapers will continually be pinched by state regulations that do little to advance their stated interests while also violating the First Amendment rights of an important segment of the press that has few resources to protect itself in courts.

I.  The First Amendment, Commercial Speech,
and Vice Regulation

The Supreme Court first explicitly recognized First Amendment protections of truthful and non-misleading commercial speech about lawful products in the 1970s.  The Court explained that the protection of commercial speech is necessary for preserving “a predominantly free enterprise economy.”{{9}}  The Supreme Court stated that it is “a matter of public interest that [private economic] decisions, in the aggregate, be intelligent and well informed.”{{10}}  The Court held that the “highly paternalistic approach” of preventing the dissemination of truthful and non-misleading speech to be inconsistent with the First Amendment.  Thus, the First Amendment even protects a communication that “does no more than propose a commercial transaction.”{{11}}

The Supreme Court created a four-part test for determining the constitutionality of commercial speech regulations in Central Hudson Gas & Electric Corporation v. Public Service Commission.{{12}}  First, the speech must concern lawful activity and not be misleading.{{13}}  Second, the government must assert a “substantial interest” in regulating the speech.{{14}}  If both the first two prongs are satisfied, the courts next “must determine whether the regulation directly advances the governmental interest asserted.”{{15}}  Fourth, courts are required to conclude whether the regulation is “not more extensive than is necessary to serve that interest.”{{16}}

In Swecker, the Court quickly and correctly determined the regulation of alcohol advertisements in college newspapers passed the first two prongs.  The Fourth Circuit, however, ran afoul of Supreme Court precedent in its analysis of the third and fourth of theCentral Hudson factors.  The Fourth Circuit found that section 5-20-40 satisfied the third prong of the Central Hudson test because the regulation advanced the substantial interest of curbing binge and underage drinking “directly and materially.”{{17}}  In making its determination, the court relied on the Supreme Court guidance that the advancement “need not be proven by empirical evidence; rather, it may be supported by ‘history, consensus, and simple common sense.’”{{18}}

Judge Shedd’s majority opinion explained that college students are particularly attracted to the college newspapers’ publications.{{19}}  This fact combined with the evidence that alcohol distributors merely desired to advertise in the college newspapers was enough for the court to find that the VBCB satisfied the link between advertisements and underage and binge drinking.  The court wrote, “It is counterintuitive for alcohol vendors to spend their money on advertisements in newspapers with relatively limited circulation, directed primarily at college students, if they believed these ads would not increase demand by college students.” {{20}}

The Fourth Circuit’s reasoning on Central Hudson’s third prong cannot be squared with Supreme Court precedent.  The Supreme Court has explicitly held that the four-part Central Hudson test comprises an intermediate level of review.{{21}}  The Court has held “this burden [on the government] is not satisfied by mere speculation or conjecture.”{{22}}  A regulation such as section 5-20-40 “may not be sustained if it provides only ineffective or remote support for the government’s purpose”{{23}} or if there is “little chance” the regulation will substantially advance the state’s goal.{{24}}  The Supreme Court has highlighted the importance of the third prong of Central Hudson, stating it “is critical; otherwise, ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden of commercial expression.’”{{25}}

No reasonable reading of the record in Swecker could lead to a view that section 5-20-40 directly and materially advances the Board’s substantial interest in preventing binge drinking by college students.  As the district court noted, no witness testified that section 5-20-40, which has been in effect for decades, has ever advanced or alleviated the problems of underage and binge drinking.{{26}}  The VBCB additionally provided no comparison to drinking behavior at universities without advertising bans.  VBCB’s expert witness, Dr. Henry Saffer, opined that bans on alcohol advertising are only effective when no substitute exists for the prohibited media.  Saffer testified that there are no media substitutes for the college newspapers because they uniquely target college students.{{27}}  The district court properly called Saffer’s statement “conjecture,” as any visit to a modern college dorm will reveal students saturated with a plethora of media platforms in the digital age.{{28}}

Thus, the evidence presented by the Board was at best “ineffective or remote” in furthering the interest of curbing underage and binge drinking.{{29}}  In effect, the Fourth Circuit failed to heed the Supreme Court’s warnings about regulations “in the service of other objectives that could not themselves justify a burden of commercial expression.”{{30}}  Because it has deemed the third-prong “critical,” the Supreme Court should have granted certiorari and reversed the Fourth Circuit.

But even if the Fourth Circuit’s analysis was correct under Central Hudson’s third prong, 5-20-40 fails the fourth prong of the Supreme Court’s test because it is “more extensive than is necessary to serve” the government’s interest of curbing underage drinking.  The Fourth Circuit, however, erroneously ruled that section 5-20-40 was sufficiently narrowly tailored to satisfy the fourth prong.  In support of its view, the court noted that the regulation is not a complete ban on alcohol advertising, as restaurants may still publicize they serve alcohol (but not brands and prices).  The Fourth Circuit also pointed out that the statute does not affect all publications available on college campuses.  The court additionally praised the Board for combining section 5-20-40 with education and enforcement programs.  The Fourth Circuit’s findings, however, are inconsistent with Supreme Court guidance on when a commercial speech law fails to adhere to the fourth prong’s requirements.

The Supreme Court has held that the fourth prong of the Central Hudson requires that the statute be “not more extensive than is necessary to serve” a state’s substantial interest.{{31}}  The regulation of speech must be a last, and “not first,” resort.  The fit between the legislature’s ends and means need not be “perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”{{32}}  Additionally, non-speech regulations “which could advance the Government’s asserted interest in a manner less intrusive to . . . First Amendment rights, indicates that [a commercial speech regulation] is more extensive than necessary.”{{33}}

The Fourth Circuit was incorrect in its decision that the regulation satisfied Central Hudson’s narrowly tailored requirement for two reasons: (1) section 5-20-40 is both under and over inclusive; and (2) the substantial interest of curbing underage and binge drinking can be addressed with regulations that do not infringe on speech.  Section 5-20-40 is over inclusive because it applies to both those under twenty-one and over twenty-one.  Both the Board and the college newspapers agreed that the majority of the readership of the college newspapers is over the age of twenty-one.{{34}}  The regulation is under inclusive because it only applies to college newspapers and not all media on campus.  Additionally, numerous non-speech regulations also could better serve the Board’s substantial interest.  Dr. Saffer, the Board’s expert witness, conceded that alcohol taxation and counter-advertising could reduce underage and bring drinking.  Dr. Saffer even stated “[i]ncreased taxation is more effective than advertising bans” in combating underage and binge drinking.{{35}}  Section 5-20-40 thus cannot survive Central Hudson’s narrowly tailored requirement.  The Supreme Court should use its next opportunity to better articulate its narrowly tailored rule to avoid future situations like the one in Swecker.

II.  The First Amendment and Regulations on a
Narrow Sector of the Media

In accessing a Pennsylvania law similar to Virginia’s section 5-20-40, then Third Circuit Judge Samuel Alito held the regulation to be an unconstitutional financial restriction on a narrow sector of the media.{{36}}  In forming his opinion, Alito looked to the holdings of three Supreme Court cases—Grosjean v. American Press Co.,{{37}} Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,{{38}} and Arkansas Writers’ Project, Inc. v. Ragland{{39}}—that found tax penalties on publications for crossing certain circulation thresholds or for publishing certain content to be unconstitutional.  Alito combined these holdings with the rule in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board—that all financial burdens, whether a tax or a regulation, on media organizations are evaluated in the same manner for the purposes of constitutional law—to find the restriction on alcohol advertising in college newspapers to be unconstitutional.{{40}}  Alito held that a content-based financial restriction in a narrow sector of the media to be presumptively unconstitutional and to be examined with strict scrutiny.{{41}}

Citing Pitt News, the college newspapers reiterated this argument, but the Fourth Circuit declined to address it.  Once again, the Fourth Circuit was in error.  One of the bedrock principles of the First Amendment is that the government cannot discriminate against different media properties based on their content alone.  As the Supreme Court has held, a law is presumptively unconstitutional if it “single[s] out the press” or “a small group of speakers.”{{42}}  The college newspapers lose approximately sixty-thousand dollars a year due to section 5-20-40.  Thus, Section 5-20-40 is unambiguously a financial content-based restriction.  Accordingly, the Fourth Circuit should have found section 5-20-40 to be facially unconstitutional because the Board did not present evidence that the regulation serves a compelling interest.

Conclusion

The Fourth Circuit ought to have found Section 5-20-40 to be facially unconstitutional because the record does not show it materially advances the Board’s  interest to curb underage and binge drinking; the statute is not narrowly tailored to serve this interest; and the statute places a financial burden on a narrow sector of the media.  The Fourth Circuit’s opinion represents a paternalistic court’s attempt to stealthy reduce the level of review of commercial regulations.  At its next opportunity, the Supreme Court should clarify that a state must show more than cursory evidence that a regulation materially and directly advances a state’s substantial interest.  Otherwise, a state can “with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden of commercial expression.”{{43}}

 


        *    Robert Samuel holds an AB from Duke University, a MSc from the London School of Economics, and a JD from Wake Forest University School of Law, where he was the Executive Forum Editor for the Wake Forest Law Review.  He would like to thank his parents, Bob and Julie Samuel, and his wife Mary Jordan Samuel for their loving support throughout law school and the writing of this piece.

[[1]]   See Princeton Review Names Best College Newspapers, College Media Matters (Aug. 3, 2010), http://collegemediamatters.com/2010/08/03/princeton-review-names-best-college-newspapers/.[[1]]

[[2]]   3 Va. Admin. Code § 5-20-40(A)(2) (2010).[[2]]

[[3]]  Educ. Media Co. at Va. Tech, Inc. v. Swecker, No. 3:06CV396, 2008 U.S. Dist. LEXIS 45590, at *3 (E.D. Va. Mar. 31, 2008) (quoting 3 Admin. Code § 5-20-40(B)(3)).[[3]]

[[4]]   See Educ. Media Co. at Va. Tech, Inc. Swecker, 602 F.3d 583, 587 (4th Cir. 2010), cert. denied, 131 S. Ct. 646 (2010).[[4]]

[[5]]   See id. at 586.[[5]]

[[6]]  Id. at 591.[[6]]

[[7]]   Educ. Media Co. at Va. Tech, Inc. v. Swecker, 131 S. Ct. 646 (2010).[[7]]

[[8]]   For example, one of the more recent Supreme Court opinions on the matter begins as follows:

Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, an opinion with respect to Parts III and V, in which Justice KENNEDY, Justice SOUTER, and Justice GINSBURG join, an opinion with respect to Part VI, in which Justice KENNEDY, Justice THOMAS, and Justice GINSBURG join, and an opinion with respect to Part IV, in which Justice KENNEDY and Justice GINSBURG join.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 488–89 (1996).[[8]]

[[9]]  Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976).[[9]]

[[10]]   Id.[[10]]

[[11]]  Id. at 776.[[11]]

[[12]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980).[[12]]

[[13]]   Id.[[13]]

[[14]]   Id.[[14]]

[[15]]   Id. [[15]]

[[16]]   Id. [[16]]

[[17]]   Educ. Media Co. at Va. Tech, Inc. Swecker, 602 F.3d 583, 589 (4th Cir. 2010), (quoting W. Va. Ass’n of Club Owners and Fraternal Serv. Inc. v. Musgrave, 553 F.3d 292, 303 (4th Cir. 2009)), cert. denied, 131 S. Ct. 646 (2010).[[17]]

[[18]]   Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (citation omitted)). [[18]]

[[19]]   Id. at 589–90 (Judge Shedd did not cite to any direct evidence for this finding). [[19]]

[[20]] Id. at 590.[[20]]

[[21]]   Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (“[W]e engage in ‘intermediate’ scrutiny of restrictions on commercial speech.”).[[21]]

[[22]]   Edenfield v. Fane, 507 U.S. 761, 770–71 (1993).[[22]]

[[23]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).[[23]]

[[24]]   Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001); see also Pitt News v. Pappert, 379 F.3d 96, 107 (3d Cir. 2004).[[24]]

[[25]]  Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995) (quoting Edenfield, 507 U.S. at 771); see also Pitt News, 379 F.3d at 107.[[25]]

[[26]]   Educ. Media Co. at Va. Tech, Inc. v. Swecker, No. 3:06CV396, 2008 U.S. Dist. LEXIS 45590, at *42 (E.D. Va. Mar. 31, 2008).[[26]]

[[27]]   Id. at *40.[[27]]

[[28]]   Id. at *46.[[28]]

[[29]]   Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980).[[29]]

[[30]]   Edenfield, 507 U.S. at 771.[[30]]

[[31]]    Cent. Hudson, 447 U.S. at 566. [[31]]

[[32]]   Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) (internal quotations omitted). [[32]]

[[33]]    Rubin v. Coors Brewing Co., 514 U.S. 476, 491 (1995); see also First Amendment—Commercial Speech—Fourth Circuit Holds That A Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional.—Educational Media Co. at Virginia Tech v. Swecker, 602 F.3d 583, 124 Harv. L. Rev. 843, 847 (2011); Michael Hoefges, Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8 Comm. L. & Pol’y 267, 308 (2003). [[33]]

[[34]]    Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 587 n.1 (4th Cir. 2010), cert. denied, 131 S. Ct. 646 (2010). [[34]]

[[35]]    Id. at 596 n.8. [[35]]

[[36]]    Pitt News v. Pappert, 379 F.3d 96, 111 (3d Cir. 2004). [[36]]

[[37]]    297 U.S. 233 (1936). [[37]]

[[38]]   460 U.S. 575 (1983). [[38]]

[[39]]    481 U.S. 221 (1987). [[39]]

[[40]]    Pitt News, 379 F.3d at 111–12. [[40]]

[[41]]   Id. at 110–11.[[41]]

[[42]]   Leathers v. Medlock, 499 U.S. 439, 447 (1991); see also Pitt News, 379 F.3d at 111.[[42]]

[[43]]   Edenfield v. Fane, 507 U.S. 761, 771 (1993).[[43]]

By Francisco M. Negrón, Jr.

Ask anyone to talk about bullying and schools and he or she will inevitably mention the Internet as a root cause.  The conversation is sure to include talk of perpetrators, victims, and what schools need to do to keep children safe.  This conversation is legitimate and understandable.  Indeed, ensuring safe environments for all students has long been a part of the public school mission.  But, the conversation frequently lacks an appreciation for the challenges associated with the competing constitutional tensions sometimes at play in cases of bullying.

It has been over four decades since the Supreme Court ruled in Tinker v. Des Moines that students do not leave their constitutional free speech rights at the school house gate simply because their views are unpopular and anti-majoritarian.{{1}}  (And, school districts may discipline students within the limitations of the First Amendment for on-campus, non-school sponsored speech if it collides with “the rights of other students to be secure and to be let alone;”{{2}} if the speech is “sexually explicit, indecent, or lewd;”{{3}} or if it “can reasonably be regarded as encouraging illegal drug use.”{{4}})  In more recent years, other jurists have weighed in even more pointedly to define exactly what we might understand to be unpopular or anti-majoritarian views.  While on the 3rd Circuit Court of Appeals, for instance, then Judge Alito wrote that even harassing speech in a school setting (or elsewhere) is not categorically denied First Amendment protection.{{5}}

The stage is thus set.  The challenge for schools is regulating speech that may contribute to a hostile environment, such as the kind of harassing speech referenced by Justice Alito, without overstepping constitutional bounds.  Public schools have long understood that students need safe environments in which to learn.  And, in recent years the federal government has attempted to mandate the elimination of hostile environments through its enforcement powers.  In October 2010, for instance, the U.S. Department of Education issued a much publicized missive to schools in which it noted that many cases of bullying may involve harassment prohibited by federal civil rights laws.  It decreed schools should eliminate harassment—and the hostile environment it creates—and to prevent it from reoccurring.{{6}}

But, one person’s harassment may be another’s sincerely held belief.  And, when a sincerely held belief is at play, the First Amendment scales tip against regulation, absent some other indicators that the speech will be disruptive or infringes on the rights of others.  Phrases on t-shirts, such as “Homosexuality is a Sin” followed by a Bible verse or “I Believe in Traditional Marriage,” may be just such expressions.  And, even if some phrases lack religious or political import on their face, courts suggest they may not be banned without more.{{7}}  School officials regulating this type of speech without any indicators of disruption or an infringement on the rights of others may subject themselves and their school districts to legal challenges.  On the other hand, if they allow the speech, particularly in a setting where, for instance, anti-gay discrimination has been an issue, federal guidance suggests the district may be allowing a hostile environment to continue.  And, because federal enforcement guidance demands schools eliminate harassment whether school officials had actual knowledge it was occurring, inadvertence is not likely to make much of a defense.

For public schools the quandary is a big one: Regulate potentially harassing messages expressing sincerely held religious or political beliefs and risk a private suit and its attendant cost and attorneys’ fees for violating a student’s constitutional rights, or risk federal enforcement action that threatens their federal funding for contributing to a hostile environment?

The matter is further complicated by the ubiquitous electronic forum to which students have broad access.  Bullying and harassment at times takes place over the Internet or through other electronic communication and occurs entirely off-campus.{{8}}  Disciplining students for speech is even more difficult when the speech occurs off-campus.  Significantly, none of the Supreme Court cases discussing disciplining students for speech contemplate whether school districts can discipline students for off-campus speech.  And, in the brave new world of social networking, linking speech that occurs in cyber space to disruption in school poses factual problems not contemplated by the Tinker court of yesteryear.  Unfortunately, to date the federal courts have provided little consistent guidance that helps schools determine the line dividing harassing speech and student free speech, particularly in cyberspace.  Only one federal circuit to date has definitely ruled whether and when a school district may discipline students for off-campus, Internet speech.{{9}}  And, the High Court’s recent denial of certiorari in some student cyber-speech cases suggests the Supreme Court is not yet ready to resolve existing circuit conflicts.{{10}}  Until then, schools will have little choice but to navigate carefully the dangerous waters between Scylla and Charybdis.


*  General Counsel, National School Boards Association.  Portions of this Essay have been adapted from a position statement for the U.S. Commission on Civil Rights Briefing on Inter-Student Violence, available athttp://www.eusccr.com/24.%20Francisco%20Negron,%20National%20School%20Boards%20Association.pdf. *[[1]]   393 U.S. 503, 514 (1969).[[1]]

[[2]]   Id. at 508.[[2]]

[[3]]   Bethel Sch. Dist. No. 403 v. Fraser478 U.S. 675, 684 (1986).[[3]]

[[4]]   Morse v. Frederick, 551 U.S. 393, 397 (2007).[[4]]

[[5]]   Saxe v. State College Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001) (holding that a school district’s anti-harassment policy was unconstitutionally overbroad).[[5]]

[[6]]   “A school’s responsibility is to eliminate the hostile environment created by the harassment, address its effects, and take steps to ensure that harassment does not recur.”  Letter from Russlynn Ali, U.S. Dep’t. of Educ. Assistant Secretary for Civil Rights, to Colleagues: Harassment and Bullying, at 3–4 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr
/letters/colleague-201010.pdf.  “If an investigation reveals that discriminatory harassment has occurred, a school must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.”  Id. at 2–3.[[6]]

[[7]]   See Saxesupra note 5; see also Zamecnik v. Indian Prairie Sch. Dist. #204, 636 F.3d 874, 878–79 (7th Cir. 2011) (reaffirming a panel decision granting summary judgment for a permanent injunction prohibiting school district from banning students from wearing “Be Happy, Not Gay” t-shirt).[[7]]

[[8]]   Research by Amanda Lenhart at the Pew Research Center’s Internet & American Life Project indicates that most teens think bullying and harassment happens more offline than online.  See Amanda Lenhart, Cyberbullying 2010: What the Research Tells Us, Pew Internet (May 6, 2010), http://www.pewinternet.org/Presentations/2010/May/Cyberbullying-2010.aspx (select slide 14/29).[[8]]

[[9]]   See Wisniewski v. Bd. of Ed. of the Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007) (applying Tinker’s substantial disruption test to off-campus speech that was “reasonably foreseeable” to come on-campus).  See also Kowalski v. Berkeley County Sch., 652 F.3d 565, 573 (4th Cir. 2011) (relying on the “nexus” of the student’s speech to the school), cert. denied, 132 S.Ct. 1095 (Jan. 17, 2012); J.S. ex rel Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 931 (3d Cir. 2011) (applying Tinker to find that the school district failed to demonstrate reasonable forecast of substantial disruption), cert. denied, 132 S.Ct. 1097 (Jan. 17, 2012); Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 214–215 (3d Cir. 2011) (finding that school had not shown sufficient nexus between online speech and the school), cert. denied, 132 S.Ct. 1097 (Jan. 17, 2012).[[9]]

[[10]]   See cases cited supra note 9.[[10]]

By: David Crump*

A prankster sets up a projector and shines images of swastikas onto the side of a synagogue as worshippers enter.  A vandal extinguishes the eternal flame that marks the grave of President John F. Kennedy.  A computer hacker attacks an online memorial dedicated by a grieving family to its recently deceased teenage son by superimposing pornography all over the website.  Each of these situations is similar to an event that actually has occurred or has been hypothesized by a Supreme Court Justice.[1]

And then there are behaviors that seem similar to the above events, but raise other issues.  A group of people who hate the military carries signs displaying homophobic slurs near the funeral of a soldier killed in combat.  A rogue publisher prints a cartoon that depicts a clergyman having an affair with his mother in an outhouse, and the publisher later testifies that he intended to hurt the clergyman through his tasteless publication.  These, too, are situations that have actually occurred and the Supreme Court has written about.[2]

These are examples of behaviors that I call desecration.  Desecration includes utterances that most people would find of little value, although this characteristic alone does not keep them from qualifying as protected speech.[3]  But the above situations involve more than mere tastelessness or offensiveness.  The behaviors in the given examples cause actual harm.[4]  Furthermore, that harm sometimes includes suppression of speech initiated by others.  The problem remains, however, that in some cases the speech or behavior involves a glimmer of expression on a subject of public interest; a weak association with protected speech accompanies the harm.[5]  The courts have experienced considerable difficulty in separating protected speech from unprotected desecration.[6]

Unfortunately, none of the Supreme Court’s opinions provide clear direction for resolving this problem.  Snyder v. Phelps,[7] the case involving a homophobic demonstration near a soldier’s funeral, is the Court’s most recent pronouncement relevant to this issue.  But in Snyder, the Court declined to address whether there is a type of speech that is unprotected as desecration, saying only that “there [was] ‘no suggestion that the speech at issue fell within one of the categorical exclusions from First Amendment protection.’”[8]  Additionally, because the Court treated the particular demonstration at issue as protected, the Snyder opinion naturally occupies itself with extending the freedom of expression, rather than with defining the types of speech that are not protected by the First Amendment.  Thus, although the Supreme Court’s decisions, including Snyder, certainly provide clues about the inquiry pursued in this Article, the Court’s decisions just as certainly leave the question unanswered.

One way to approach this lingering problem is through the formula that the Supreme Court generated in Chaplinsky v. New Hampshire.[9]  In Chaplinsky, the Court recognized that there are unprotected categories of utterances, or what might be called “speech that is not speech,” and the Court used this concept to allow the prohibition of “fighting words.”[10]  The two defining characteristics of unprotected utterances, said the Court, are first, that they “are [not an] essential part of the exposition of ideas,” and second, that they “are of such slight social value as a step to truth” that any positive aspect the utterances might have is “clearly outweighed by the social interest in order and morality.”[11]  The Chaplinsky test offers the prospect of minimizing severely harmful utterances while maintaining the protection of speech.  Since Chaplinsky, the Court has used this general approach to define other categories of unprotected utterances, from child pornography to defamation.[12]

This Article begins by describing the Chaplinsky formula.  It then considers an important proposition that is implicit in Chaplinsky: the notion that there are hierarchies of speech, with some types of expression accorded a higher status  than others.  The Article then proceeds to its real work: the adaptation of the Chaplinsky formula to utterances that desecrate the symbolic expression of others.  There is a special impediment to this adaptation, since some valuable utterances include ridicule, sarcasm, and devaluation of the speech of others.  Here, the Article introduces the concept that the unifying factor in the upper hierarchies of speech is its quality of discourse about public issues, or the degree to which the speech seeks to conduct dialogue on matters of public concern.  A type of utterance that does not have this characteristic, and which seeks only to destroy the expression of others as a matter of personal, invidious pique, is of low speech value, and, if it causes serious harm to others’ freedom of expression, my thesis is that it can be subjected to a test that may treat it as unprotected desecration.

The Article then seeks to apply this concept to various expressive acts that seem to have speech value and to compare these to messages that might better be treated as unprotected desecration.  A final Part sets out my conclusion: that the Chaplinsky formula may serve to identify a category of desecration that can be treated as unprotected.

I.  The Chaplinsky Formula

A.            Balancing to Create Categories, but Not in Individual Cases

In Chaplinsky, the defendant addressed a city official as a “racketeer” and a “damned Fascist.”[13]  He was convicted under a city ordinance that made it a crime to direct any “offensive, derisive, or annoying word” to another person in a public place.[14]  The lower court had interpreted the ordinance narrowly, so that it applied only when the words had “a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”[15]  The Supreme Court began by observing that there are “certain well-defined and narrowly limited classes of speech” that are unprotected.[16]  The Court went on to provide examples: obscenity, libel, and “insulting or ‘fighting’ words.”[17]  It was in this context that the Court set out the Chaplinsky formula for recognizing unprotected utterances: “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[18]

Several characteristics of this reasoning deserve emphasis.  First, this approach does not depend on the value of any particular expression.  It instead depends upon whether the expression falls into a category of unprotected utterances.  The Court quoted the lower court with approval: the categorization of the speech is “not to be defined in terms of what a particular addressee thinks. . . . [t]he test is what [people] of common intelligence would understand” the words to mean.[19]  Second, the categories are “narrowly limited.”[20]  These two features of the Chaplinsky approach prevent the denial of speech protection from censoring unpopular expression.

Third, the unprotected categories must be “well-defined.”[21]  This aspect of Chaplinsky means that the denial of protection must be readily recognizable, so that speakers will not fear transgressing an amorphous boundary and, perhaps more importantly, so that public authorities will not retain discretion to silence unpopular speech.  Fourth, there is a balancing approach behind the definition of unprotected categories,[22] but it is unevenly weighted.  Under this approach, protection is denied only when the speech value is “clearly outweighed” by the harm the utterance causes.[23]

Since deciding Chaplinsky, the Supreme Court has defined other types of unprotected utterances.[24]  The Court has expressed its reasons in differing language and has not relied uniformly upon Chaplinsky, but its analysis has usually depended upon unevenly weighted balancing similar to that in Chaplinsky.  For example, in upholding a prohibition on the promotion of sexual performances by children, the Court characterized the value of the expression as “exceedingly modest, if not de minimis,” and recognized that the interest of the state in preventing harm to children “clearly” outweighed this minimal value.[25]  Likewise, in upholding a prohibition on dangerous crowds immediately near embassies, the Court observed that the “congregation clause” did not “reach a substantial amount of constitutionally protected conduct” and emphasized the special national interest in protecting diplomats.[26]  Even when they have protected the expression at issue, the Justices have often used the Chaplinsky test as a means of distinguishing the expression from unprotected utterances.[27]

Is it possible that the Chaplinsky approach can distinguish offensive expression that has a measure of speech value from a defined category of unprotected desecration?  The test would need to be well defined and narrowly limited, as was the Court’s approach in Chaplinsky.  In addition, it would have to provide an unevenly weighted balancing scale and depend upon a categorical definition unrelated to any particular utterance.

B.            The Hierarchy of Speech Values

It is impossible to reconcile the Supreme Court’s decisions without recognizing a hierarchy of speech values.  Indeed, perhaps it is impossible to devise a workable system at all without providing different levels of speech protection.  Political speech, or speech upon issues of public interest, is at the top of the hierarchy.  For example, the protection of government employees when they engage in expression is defined partly by the degree to which their utterances cover “matters of public concern.”[28]  More recently, the Court borrowed this “matters of public concern” standard to use in Snyder, as part of its evaluation of the tort claims against the homophobic picketers—what I would call desecration claims.[29]  There is good reason to value political speech highly, because the definition and protection of all rights, including speech itself, depend upon an electoral system that functions through political expression.

Close behind political speech in the hierarchy are various types of expression that inform the individual’s exercise of the highest speech functions.  One cannot understand the Federal Reserve System without knowing something of economics, for example; and at a more general level, one cannot understand society without having experienced some works of literature.  The Supreme Court’s holdings include protection of informative speech, although sometimes in more limited ways than political speech.[30]

The Court has been explicit in affording lesser protection to some other speech categories.  Commercial speech, for example, can be circumscribed in ways that never would be tolerated with political speech.[31]  The same is true of indecent speech.[32]  Probably the lowest level of speech is that which is engaged in solely for the enjoyment or self-indulgence of the speaker or listener.[33]  Thus, the expression at issue in Chaplinsky, like the expression in the child-sexual-performance case, received only the lowest level of protection.[34]  Still, there is protection of expression even for some kinds of self-indulgent activities.  The courts have protected violent video games, for example, even though the video games do not serve to advance any debate (except, perhaps, debate about whether their distribution should be limited).[35]

If some types of desecration are to be unprotected, then, they must be confined to expression that contains only “exceedingly modest” contributions to information or debate on public issues.[36]  Speech is discourse; this is the key to the Supreme Court’s hierarchy of speech values.[37]  If an identifiable category of utterance forms “no essential part of any exposition of ideas, and [is] of . . . slight social value as a step to truth,”[38] it may fall outside the spectrum of protectable discourse.  If, like “[r]esort to epithets or personal abuse,”[39] the utterance does not “in any proper sense [communicate] information or opinion,”[40] the Chaplinsky formula suggests that the expression can be examined to determine whether its value is “clearly outweighed”[41] by the harm it causes.  Some forms of desecration, arguably, are crude attempts at discourse and must be protected, even if they are also offensive.

On the other hand, perhaps there are types of desecration that fit a narrowly defined category of unprotected utterances.  In fact, the Supreme Court stated in Snyder v. Phelps that “not all speech is of equal First Amendment importance.”[42]  The Court suggested that utterances of a private character, not touching upon “matter[s] of public interest,” could properly be subjected to suits for liability and damages.[43]  The Court added, however, that there was “no suggestion that the speech at issue [in Snyder] falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’”[44]  This reservation of the issue is why the question raised by this Article remains unresolved.

C.            The Contrary Position of the Absolutists

The argument that there must be levels of speech value is opposed by the claim that speech protection should be absolute.  The most prominent exponent of the absolutist position is probably Justice Hugo Black.  In his opinion in Brandenburg v. Ohio,[45] for example, he rejects the balancing approach contained in the clear and present danger test.  Justice Black consistently refused to assess the value of any particular utterance.[46]  Instead, he compared speech, which he saw as absolutely protected, with conduct, which he believed was not.[47]

But Justice Black was not really an absolutist.  He balanced, even though he did it in an indirect way, by characterizing as “conduct” the utterances he considered unprotected.  In Cohen v. California, for example, he joined an opinion that would have treated an offensive expression as unprotected because it “was mainly conduct and little speech.”[48]  This kind of balancing is dubious because it compares speech with something that has little to do with its potential for discourse or with its resulting harm.

In any event, some kind of balancing is necessary.  Otherwise, the First Amendment would license solicitations of murder, bomb threats, and fraudulent advertising.  Thus, there may be a category of desecration that has negligible speech value.

D.                        “Anti-Speech”: Utterances That Not Only Are Not Speech, but That Actually Impair the Freedom of Expression

The thesis of this Article, then, is that a narrow category of utterances that includes desecration is unprotected by the First Amendment, partly because the category is, in a way of speaking, “anti-speech.”  The issue was not analyzed in Snyder v. Phelps, apparently because the Court credited the lower court’s finding that there was “no suggestion that the speech . . . falls within one of the categorical exclusions from First Amendment protection.”[49]  The category would not have applied in Snyder anyway, because the Court pronounced the speech there protected by the First Amendment.[50]

But, some types of desecration consist not only of matters that implicate little in the way of First Amendment values, but also, those that do the opposite.  They actually impair First Amendment values.  The phenomenon of utterances that impair the freedom of speech is not unfamiliar, but it is also not much noticed.  If an airwaves pirate broadcasts a blank signal over a licensed radio frequency, for example, the resulting interference not only does not advance discourse, it, in fact, cancels it.  Pranksters who shout down a speaker likewise do not advance discourse very much, but they may succeed in preventing people who wish to receive information from getting it.  In these situations, the utterances in question not only are not speech, but they cause actual harm.  This harm is not just to people’s sensibilities, but to the freedom of speech itself.  Sometimes there is a message lurking behind the interference with speech, in the form of an implied statement that “I disagree with the speaker,” but other times there is no such message.

Real-world situations show that desecration sometimes impairs freedom of speech.  Recall the example of pornographic desecration of online memorials, which is said to be a “growing” problem.[51]  A bereaved survivor might think that the most effective way to communicate with a large group of friends or relatives would be through a website dedicated to her lost loved one, but, apparently, the survivor runs the risk that a cybertroll will desecrate her site.[52]  The result is an impairment of her freedom of expression.  Her memorial may even implicate matters of public concern if, for example, the decedent fought a terminal disease, contributed to society in a notable way, died in combat, or lived a life that would inform public debate in any of countless ways.  Pornography pasted over the site disrupts all of these messages, and potential readers are unable to receive her message, because, even if the words and images of the original post are visible, readers are overwhelmed by the pasted images, and it becomes difficult for any viewer to absorb the original message of the site.

In conclusion, the concern for freedom of speech is wasted, and indeed it is backward, if it allows this kind of desecration to censor discourse.  The same conclusion follows, with greater or lesser completeness, in the cases of the prankster who puts out the eternal flame and the bigot who projects anti-Semitic messages on a temple.  The tricky aspect of this proposition, however, is that harm to sensibilities, even if obvious and serious, does not overcome the freedom of speech of those who send out unpleasant messages that actually are a part of discourse.  And the Supreme Court’s decisions protect even those messages that are clumsily or offensively delivered.

II.  Adapting the Chaplinsky Formula to Analyze Desecration

A.            The Simplistic Application

A simplistic approach would characterize acts of desecration as generally unprotected.  That is, if the utterance is highly offensive and causes significant harm in the form of pain inflicted on another person as a response to that person’s speech, the unsophisticated approach would allow the harmful speech to be prohibited.  This approach would inadequately protect the freedom of expression.  As the Supreme Court has put it, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”[53]

Some courts have followed the simplistic approach.  Hustler Magazine, Inc. v. Falwell,[54] for example, involved a tasteless, offensive political cartoon and fictional story.  The publication fantasized that a well-known clergyman had engaged in incestuous acts in an improbable and disgusting setting.[55]  But the Supreme Court pointed out that the cartoon was parody, and it implicitly editorialized against the moral views of the clergyman.[56]  The intermediate court nevertheless had affirmed a judgment for intentional infliction of emotional distress by stressing the pain inflicted upon the clergyman and by pointing out that the harm was intentional.[57]  The Supreme Court reversed and linked the expression to political cartoons generally, which are often exaggerated.[58]  Although the Court recognized that this particular effort was inferior to most political cartoons—a “poor relation,” as the Court put it—it held that the category of utterances to which it belonged was protected.[59]

At the same time, the Court in Hustler Magazine recognized that infliction of emotional distress could properly create liability in “most if not all jurisdictions.”[60]  The Court’s approval of this kind of liability must have depended upon the relative absence of speech value in utterances triggering the liability.  This reasoning reinforces the conclusion that some kinds of desecration may be unprotected as well.

B.            Speech as Discourse: A Method for Making the Distinction

One key factor in proper application of the claim for intentional infliction of emotional distress, then, is the absence of a potential for discourse.  For example, “continuous, deliberate, degrading treatment of another” in a private setting, even if characterized as a series of “pranks,” does not invite meaningful discourse, and this is the prototype of the intentional infliction claim.[61]  Similarly, some of the examples given at the beginning of this Article are devoid of any meaningful potential for discourse: extinguishing the flame at President Kennedy’s grave, pasting pornography over a memorial, or broadcasting swastikas onto a place of worship.

On the other hand, a potential for discourse in the category of expression at issue distinguishes the utterances at the beginning of this Article that involve protected speech even if they cause pain to others.  The Supreme Court points out that a political cartoon is a part of discourse, even if it is exaggerated and fictional, and it is for this reason that even a crude effort such as that in Hustler Magazine can qualify as protected speech.[62]  Similarly, a demonstration that denounces the military invites discourse, and the Court held in Snyder v. Phelps that this category includes even crude, offensive messages.[63]

III.  Applying the Adapted Chaplinsky Formula to Acts of Desecration

With this background, one can hypothesize a test for analyzing acts of desecration to determine whether they should be protected or unprotected.  The effort begins with the Chaplinsky formula and its use in other cases that have recognized categories of unprotected utterances.  An utterance of desecration, it might be asserted, may be unprotected if it fits into a category characterized by exceedingly modest or de minimis value as speech and if it predictably causes significant harm, including interference with the protected expression of others.

But this formulation is too general.  Its application would depend too much on case-by-case evaluation of particular utterances, and, therefore, the formula would be vulnerable to misuse.  It might deny protection to unpopular expression.  Instead, a viable test would depend upon factors of more neutral application.

Again, the idea of public discourse is useful.  The test might instead be phrased as depending upon whether the utterance has an element that is a part of discourse on a matter of public concern.  The “public concern” feature is borrowed from Snyder v. Phelps[64] (which borrowed it from prior cases of different categories), and it expresses the possibility that expression centered on public issues is more likely to have real speech value, even if the utterance is crude, than private expressions of spite would have.[65]  The other ingredient is a finding that the utterance has potential for harm, including suppression of protected expression by others, that “clearly outweigh[s]” any value the utterance might have as a part of public discourse.[66]  If desecration is to include an unprotected category, it should be defined so as to require proof of impairment of the exercise of the freedom of speech by another, since this is the core harm caused by desecration.  By putting the elements together, one can hypothesize that there may be a category of unprotected expression that consists of desecration, defined as interference with the sacred or highly valued expression of another, limited so that it covers utterances with only de minimis value as a part of discourse on any matter of public concern, and also with potential for harm to others, including the freedom of speech of others, that clearly outweighs any slight value it may be asserted as having.

One potential problem with this proposal is the allegation that “the boundaries of the public concern test are not well defined.”[67]  One can find evidence to support this allegation in such cases as Rankin v. McPherson,[68] where the Court split five to four in deciding whether the utterance at issue was protected speech.  On the other hand, the public concern distinction was meaningful enough for the Court to approve it in Snyder.[69]  Moreover, it is used in other areas to distinguish protected speech, including areas that generate many court opinions, which should help to define the concept.[70]  Still, a court probably should err on the side of caution in declaring that an utterance does not implicate a matter of public concern.

Conclusion

The suggested formula would deny protection to genuinely valueless acts of desecration.  It can be applied successfully, for example, to the act of pasting pornographic images on an Internet memorial.  This conduct interferes with sacred or highly valued speech of others.  But what is perhaps more important, the conduct meets the other criteria hypothesized here.  That type of desecration communicates little that is part of discourse on a matter of public concern; in fact, it communicates nothing in and of itself.  It does not tell a viewer whether it is motivated by a dislike of online memorials, or by hatred toward the deceased individual, or by a desire to distribute pornography, or by a wish simply for amusement derived from a cruel prank.  This kind of desecration also would carry a high potential for harm—including not only serious psychological harm to those who might appreciate the memorial but also suppression of the speech in which they are engaged.

The same test would deny speech protection to desecration in the forms of extinguishment of the eternal flame and swastikas projected onto the synagogue.  And yet, the proposed test can differentiate the kinds of utterances that the Supreme Court has held are protected.  It extends the protection of the First Amendment to expressions such as the cartoon and story in Hustler Magazine and the demonstration in Snyder against the military near a soldier’s funeral.  Although these utterances are crude and unlikely to persuade others, the Supreme Court would say that they are not in a category that is unrelated to discourse on matters of public concern.

The dividing line depends on context, and it also depends upon the meaning of the words used.  It is not fail-safe.  But, then, neither are other definitions of unprotected utterances.  For example, fighting words of the kind deemed unprotected by Chaplinsky can be identified only by context and meaning.  One can easily imagine situations raising complex fact issues.  Were the parties sufficiently face-to-face and in close proximity, and were the words really directed at a particular individual?  Did the meaning of the particular expression amount, in fact, to fighting words?  The distinction suggested here between speech and unprotected desecration is no more vulnerable to misuse than the approach in Chaplinsky.  Perhaps it can provide a means of protecting speech while minimizing the harm caused by acts of desecration.

 


* A.B. Harvard College; J.D. University of Texas School of Law.  John B. Neibel Professor of Law, University of Houston Law Center.  The author gratefully acknowledges the advice of Professor Eugene Volokh about the subject of this Article, with the usual disclaimer that any deficiencies are the responsibility of the author alone.

[1]. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616 (1987) (addressing anti-Semitic phrases and symbols created with paint, hypothesized here instead as light projection to avoid confusion with vandalism; desecration claim upheld on other grounds); Texas v. Johnson, 491 U.S. 397, 439 n.* (1989) (Stevens, J., dissenting) (addressing eternal flame facts; this Justice would presumably approve a desecration claim); Peggy O’Hare, Cybertrolls’ Attacks on Web Add to Mourners’ Pain, Hous. Chron., Nov. 7, 2010, at 1A (recognizing that desecration of online memorials is a “growing . . . occurrence” that “happens on memorial pages all over the world”).

[2]. Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011) (addressing a father’s tort law claims against picketers of his son’s funeral and ultimately finding in favor of the homophobic demonstrators); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48, 56–57 (1988) (addressing the content of a cartoon and finding that clergyman may not prevail on his claim against publisher).

[3]. Snyder, 131 S. Ct. at 1220; Hustler, 485 U.S. at 56.

[4]. In Snyder, the Court described the conduct at issue as “certainly hurtful” and acknowledged that “its contribution to public discourse may be negligible.” 131 S. Ct. at 1220.

[5]. Id. (stating that the message at issue “addressed matters of public import”).

[6]. One example of courts’ difficulty is found in Hustler, 485 U.S. at 878, 883, in which the Supreme Court reversed the lower court, which had upheld the clergyman’s tort claim against the publisher.

[7]. 131 S. Ct. 1207.

[8]. Id. at 1215 n.3.

[9]. 315 U.S. 568 (1942).

[10]. Id. at 571–72.

[11]. Id. at 572.

[12]. E.g., New York v. Ferber, 458 U.S. 747, 764 (1982) (“There are . . . limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment.”); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (determining that liability for defamatory falsehood relating to official conduct requires proof of actual malice or reckless disregard of falsity).

[13]. Chaplinsky, 315 U.S. at 569.

[14]. Id.

[15]. Id. at 573.

[16]. Id. at 571–72.

[17]. Id. at 572.

[18]. Id.

[19]. Id. at 573.

[20]. Id. at 571.

[21]. Id.

[22]. See id. at 572.

[23]. Id.

[24]. See Rodney A. Smolla, Words “Which By Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 Pepp. L. Rev. 317, 319–20 (2009).

[25]. New York v. Ferber, 458 U.S. 747, 747–48 (1982).

[26]. Boos v. Barry, 485 U.S. 312, 313, 323–24 (1988).

[27]. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 399 (1992) (White, J., concurring) (citing Chaplinsky, 315 U.S. at 571–72); Cohen v. California, 403 U.S. 15, 20 (1971) (citing Chaplinsky, 315 U.S. at 573).

[28]. Rankin v. McPherson, 483 U.S. 378, 384 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

[29]. See Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011).

[30]. For example, in FCC v. Pacifica Foundation, the Court upheld the FCC’s determination that a certain comedic monologue was offensive enough to be prohibited as “indecency” under the Communications Act, even though the monologue was informative about the use of (dirty) language. 438 U.S. 726, 739 (1978).  In Cohen v. California, however, the Court treated an offensive political message as protected speech. 403 U.S. at 26.

[31]. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 597–98 (1980) (Rehnquist, J., dissenting).

[32]. R.A.V., 505 U.S. at 427.

[33]. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504 (1984) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

[34]. The speech in question was “no essential part of any exposition of ideas,” said the Court, and therefore one can infer that if it had any value, the value was confined to self-indulgent expression.  Chaplinsky, 315 U.S. at 572.

[35]. E.g., Entm’t Software Ass’n v. Swanson, 519 F.3d 768, 772 (8th Cir. 2008) (striking down prohibition of violent video games without finding in them any value on matters of public concern).

[36]. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 250–51 (2002) (quoting New York v. Ferber, 458 U.S. 747, 762 (1982) and reasoning that the Ferber Court held that child pornography was not protected under the First Amendment because of how the pornography was made, not because of the content of the speech).

[37]. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1215–16 (2011) (suggesting that higher forms of First Amendment protection are centered on “meaningful dialogue” and discourse).

[38]. Chaplinsky, 315 U.S. at 572.

[39]. Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 309–10 (1940)).

[40]. Id.

[41]. Id.

[42]. Snyder, 131 S. Ct. at 1215 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50–51 (1988)) (internal quotation marks omitted).

[43]. Id. at 1215–16.

[44]. Id. at 1215 n.3.

[45]. Brandenburg v. Ohio, 395 U.S. 444, 449–50 (1969) (Black, J., concurring).

[46]. See, e.g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 57 (1971) (Black, J., concurring) (“First Amendment protection extends to ‘all discussion and communication involving matters of public or general concern.’” (emphasis added) (citation omitted)); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 293–97 (1964) (Black, J., concurring) (explaining that “at the very least” the First Amendment means that a State cannot impose civil libel laws to punish discussion of public affairs or critiques of public officials).

[47]. See, e.g., Cox v. Louisiana, 379 U.S. 559, 577–81 (1965) (Black, J., concurring in No. 24 and dissenting in No. 49) (distinguishing speech, which is never constitutionally regulated, from marching and patrolling, which can be regulated as long as the State’s interest in suppressing the conduct outweighs the individual’s interest in engaging in the conduct); NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 76–80 (1964) (Black, J., concurring) (distinguishing permissible restriction of the “patrolling” aspect of picketing from the impermissible restriction of the “speech” involved in picketing).

[48]. Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting).

[49]. Snyder, 131 S. Ct. at 1215 n.3.

[50]. Id. at 1219–20.

[51]. O’Hare, supra note 1.

[52]. See generally id.

[53]. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).

[54]. 485 U.S. 46, 48 (1988).

[55]. Id.

[56]. Id. at 48, 54–55.

[57]. The Fourth Circuit’s opinion quoted a series of answers by Larry Flynt, a principal in Hustler Magazine, confirming his intention to hurt Reverend Falwell and, indeed, to “assassinate” his reputation.  Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986).  It also quotes the Reverend Falwell’s testimony about the “deep hurt” he understandably experienced.  Id. at 1276.

[58]. Hustler Magazine, 485 U.S. at 53.

[59]. Id. at 54–57.

[60]. Id. at 53.

[61]. See Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 947 (6th Cir. 2000) (analyzing a series of actions that met this description and finding that plaintiffs could proceed to trial with their claims of intentional infliction of emotional distress).

[62]. See Hustler Magazine, 485 U.S. at 53–55.

[63]. See Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011).

[64]. Id. at 1215–16 (citing cases involving defamation and statements by public employees, and allowing particular utterances to be afforded less protection as speech if not made about “matter[s] of public concern,” but only about private matters).  Snyder, however, did not recognize the nonspeech category proposed here for desecration, and hence it supports the thesis of this Article only indirectly.

[65]. Id. at 1215.

[66]. See id. at 1223 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

[67]. Id. at 1216 (quoting City of San Diego v. Roe, 543 U.S. 77, 83 (2004)).

[68]. 483 U.S. 378, 379–80, 386–87 (1987).

[69]. Snyder, 131 S. Ct. at 1217–18.

[70]. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (using the public concern test in the area of political speech to find speech was protected).

Article in PDF Form

By: Matthew Alan Cherep*

Introduction

Nearly one in four American adults under the age of fifty has a tattoo.[1]  Modern tattoos may commemorate important events in our lives, like the birth of a child or the death of a loved one; they may signify passionately held beliefs, through a peace sign or a Gadsden Flag; they may pay tribute to one’s heritage; or they may simply be a reminder of youthful indiscretions.[2]  The culture of tattoos has shifted greatly over the last fifty years; once seen as symbols of a countercultural movement, tattoos have pushed their way into the mainstream.  At one point, tattooing was one of the fastest-growing retail businesses in the United States.[3]  Tattoo parlors, once viewed as hangouts for bikers, dropouts, and convicts, have to an extent transformed into high-end tattoo studios frequented by everyone from Hollywood’s rich and famous to middle-aged soccer moms.[4]  America’s recent embrace of tattooing has even spurred the creation of television shows, like L.A Ink, which draw millions of viewers into the world of custom tattooing.[5]  In 2009, one of the most mainstream symbols of Americana, Barbie, got into the act when Mattel introduced Totally Stylin’ Tattoos Barbie, who came complete with forty unique tattoos for both Barbie and the doll owner.[6]

With the spread of tattoos came the spread of tattoo regulation.  Government regulation of tattooing began to take root in the 1930s and 1940s.[7]  Possibly the most important precipitating event in tattoo regulation, however, was a hepatitis outbreak in New York City in the early 1960s that was attributed to an unsanitary tattoo parlor on Coney Island.[8]  The regulation of tattooing has taken many different forms, including special licensing procedures,[9] zoning restrictions that effectively create a total ban,[10] and restrictions requiring that tattooing only be administered by medical professionals.[11]

The process of tattooing, by its nature, exposes the tattoo artist and the tattoo recipient to some significant health risks.[12]  To create a tattoo, an artist uses an electric machine to rapidly move a needle that punctures the tattoo recipient’s skin.[13]  The needle deposits ink inside the second layer of skin, thus creating the design or image.[14]  The end result of the process is “essentially an open wound.”[15]  When applied in unsanitary conditions, tattooing can result in the spread of hepatitis, Human Immunodeficiency Virus (“HIV”), and other blood-borne diseases.[16]  Given the gravity of these health concerns, the government has an important interest in regulating the process of tattooing.

The question remains, however, what rights, if any, do tattoo artists have in practicing their craft?  Determining what rights tattoo artists enjoy depends largely on whether tattooing is considered a protected activity under the First Amendment.  If tattooing is shielded by the First Amendment, then government regulation of tattooing must be narrowly tailored to achieve an important government interest.[17]  Proceeding under this framework of analysis, tattoo artists will be able to ply their trade more freely.  If, however, tattooing falls outside the scope of the First Amendment, government bodies may freely regulate tattooing so long as there is a rational basis for the regulation.[18]  This Comment interprets tattooing and tattoo regulations under a First Amendment framework.

Part I of this Comment describes the current First Amendment framework.  It provides a brief background on the history of free speech protections under the First Amendment by discussing the difference between pure and symbolic speech, as well as between content-based and content-neutral government regulation of speech.  Part II traces the different paths courts have taken when balancing government regulation of tattooing against the First Amendment claims of tattoo artists.  This Part highlights the varying approaches taken in Yurkew v. Sinclair[19] and Anderson v. City of Hermosa Beach.[20]  In Part III, I contend that tattooing is protected symbolic speech under the First Amendment, and that government regulations of tattooing should be subjected to intermediate scrutiny.  The resulting recommendation leaves tattoo artists free to create their expressive body art, while still allowing the government to enact regulations that protect the public from serious health risks.

I.  Background: The First Amendment

The First Amendment of the U.S. Constitution protects citizens from efforts by the federal government to regulate expression.[21]  Through the Fourteenth Amendment, the First Amendment imposes  the same limitations on regulation by the states.[22]  Central to the First Amendment is the belief that in our free society each person has the right to decide—free from government interference—what views she will voice.[23]  “Freedom of expression would not truly exist” if it could only be exercised subject to the whim of a “benevolent government.”[24]  However, not all speech is entitled to protection.  Some speech is considered to have “such slight social value . . . that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality,” and thus some speech is left outside the protection of the First Amendment.[25]  Examples of unprotected speech include fighting words,[26] obscenity,[27] and libel.[28]

The First Amendment protects both “pure speech”[29] and “symbolic speech.”[30]  Pure speech connotes verbal communication, either oral or written, unaccompanied by other conduct.[31]  Symbolic speech is conduct that is sufficiently communicative to be treated as protected speech.[32]  The First Amendment protects symbolic speech because “[s]ymbolism is a primitive but effective way of communicating ideas.”[33]  Recognition of symbolic speech reflects the understanding that nonverbal conduct can convey a powerful message.

A.            Content Based vs. Content Neutral

All government restrictions on speech are either content based or content neutral, with content-based restrictions subject to the highest scrutiny.[34]  At the heart of the First Amendment is the belief that the government should not restrict expression merely because it finds the content objectionable.[35]  Were content-based restrictions permissible, the government could silence opposition, control discourse, and advance its own goals.  Content-based restrictions can thus hinder the advancement of self-governance by stagnating thought.  Therefore, content-based restrictions are presumptively invalid.[36]  Whether a law is content based or content neutral depends on whether the government’s purpose in enacting the restriction is to suppress the message.[37]  A government speech regulation must be both viewpoint- and subject-neutral; put differently, the government cannot regulate speech on the basis of either its topic or underlying ideology.[38]  Government regulation that is found to be content based is subject to strict scrutiny, and will only be upheld if the regulation is a narrowly tailored means of accomplishing a compelling government interest.[39]  The test for content-based restrictions is an “exacting” one.[40]  Government regulations that are subject to strict scrutiny are almost certain to be struck down.

A regulation is content neutral if it applies to speech regardless of the message.  For example, a law banning homeowners from putting up any signs on their property would be content neutral.  Content-neutral regulations are subject to intermediate scrutiny—a less stringent standard.  A content-neutral regulation is only constitutional if the restriction is narrowly tailored to accomplish an important governmental interest.[41]

B.            Symbolic Speech that Receives First Amendment Protection

The communication of ideas has never been confined to pure speech.  Sometimes nonverbal conduct, such as marches, sit-ins, or picketing, can have a greater impact on an audience than simple rhetoric.  To leave these forms of communication unprotected by the First Amendment would limit some of the most effective means of communication and could stifle societal discourse and cultural advancement.  Against this background, the United States Supreme Court has recognized the importance of protecting communicative conduct, also known as symbolic speech.  Protected communicative conduct includes displaying a “red flag,”[42] refraining from saluting the American flag,[43] or even burning the American flag.[44]  The ability to march in protest is also protected[45]—even if done in uniforms adorned with swastikas.[46]  In Tinker v. Des Moines Independent Community School District, two teenage members of the Tinker family wore black armbands to school in protest of the then-escalating war in Vietnam.[47]  The Des Moines School District suspended the Tinker children indefinitely until they came back to school without the armbands.[48]  The Court held that the actions of the school were unconstitutional and found that the wearing of armbands was “closely akin to ‘pure speech’” and entitled to First Amendment protection.[49]  While the Court had clearly expressed that communicative conduct could be protected by the First Amendment, the question of how to define which conduct the First Amendment shielded from government regulation persisted.

In Spence v. Washington, the Court crafted a test to determine when expressive conduct warrants First Amendment protection.[50]  In Spence, a college student hung an American flag affixed with a large peace symbol outside the window of his apartment.[51]  The student was convicted of violating a Washington statute forbidding the exhibition of a flag with extraneous material attached.[52]  The Court overturned the conviction, noting that the student’s use of the flag was “a form of symbolism comprising a ‘primitive but effective way of communicating ideas . . . and ‘a short cut from mind to mind.’”[53]

The Court set forth a two-part test to determine whether conduct should be analyzed as speech under the First Amendment.  First, it must be determined whether the “activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”[54]  Second, conduct deserving of First Amendment protection must not have been “an act of mindless nihilism,” but rather must have demonstrated that “[a]n intent to convey a particularized message was present, and [that] in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”[55]  In Spence, the context of the flag’s display was all-important.  The student hung the modified flag just a few days after the United States’ invasion of Cambodia and the Kent State campus shooting. [56]  The Court found that, within this context, “it would have been difficult for the great majority of citizens to miss the drift of appellant’s point at the time that he made it.”[57]  The Spence two-part test remains the standard for determining whether expressive conduct is entitled to First Amendment protection.[58]

Communicative conduct entitled to First Amendment protection can still be regulated by the government.  The test for the appropriate limits on government regulation of symbolic speech was enunciated by the United States Supreme Court in United States v. O’Brien.[59]  In O’Brien, the defendants burned their draft cards in violation of a federal law making it illegal to destroy or mutilate draft registration cards.[60]  The Court acknowledged its prior holding that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”[61]  The Court then offered a test to evaluate government regulation, holding that such regulation of symbolic speech is “sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential.”[62]  The Court then applied the test to the burning of the draft card and found that the statute was constitutional.[63]  While the application of the test to the facts of O’Brien can be questioned, the O’Brien framework remains the standard employed by courts today.[64]

II.  Tattooing Bans and the First Amendment

Despite the prevalence of tattoo studios and the often burdensome state regulations affecting these studios, few cases have challenged the constitutionality of such regulations.  Until 2010, no federal court of appeals had passed judgment on tattooing restrictions.[65]  The United States Supreme Court avoided addressing the difficult First Amendment issues raised by tattooing by denying certiorari to a challenge of South Carolina’s restriction on tattooing.[66]  As a whole, tattoo artists have found few friends in the courts.  Courts that have addressed the issue have refused to extend First Amendment protection to tattoo parlors and in so refusing have only subjected tattoo regulation to the most cursory judicial review.[67]  Without tethering tattooing to a fundamental right—such as the First Amendment right to free speech—courts only review state regulations of tattooing under a rational basis standard.[68]  Under rational basis review, a state regulation will be upheld as long as the state can provide a content-neutral rationale for the regulation.[69]  Once a court decides to apply a rational basis standard, it is highly unlikely that a tattoo artist will succeed in having the state regulation overturned.  To pass rational basis review, states cite the possible transmission of communicable diseases and other public health concerns as the rationale behind tattooing restrictions.[70]  Therefore, in order to have tattooing restrictions interpreted using intermediate or strict scrutiny, tattoo artists must show that tattooing is speech protected by the First Amendment.

A.            Early Challenges to Tattoo Restrictions Prove Unsuccessful

Tattoo artists were particularly unsuccessful in challenging tattoo restrictions in the 1960s, 1970s, and 1980s.  Early equal protection challenges of tattooing restrictions failed.[71]  Even when tattoo artists argued that highly restrictive regulations infringed on their First Amendment rights, courts gave the argument short shrift.[72]  Often, states and municipalities seeking to restrict tattooing would either impose zoning restrictions or mandate that only qualified physicians could administer tattoos.[73]

In Grossman v. Baumgartener, one of the earliest tattoo cases, a parlor owner challenged a New York health code regulation that made it unlawful “for any person to tattoo a human being, except . . . for medical purposes by [one] licensed . . . to practice medicine or osteopathy.”[74]  The New York health code regulation greatly restricted who could tattoo, and in essence effectively banned expressive tattooing in the state.[75]  But the plaintiff in Grossman did not challenge the statute on First Amendment grounds; instead, the plaintiff claimed that the New York statute was an arbitrary restriction on his right to operate a tattoo parlor.[76]  The New York Court of Appeals engaged in rational basis review and upheld the statute.[77]  The rational basis offered by the State was that tattooing presented a risk of the spread of hepatitis; even with all necessary precautions taken by the “tattooer,” the tattoo recipient was “subjected to a far greater risk of contracting hepatitis.”[78]

Twelve years after Grossman, in People v. O’Sullivan, a tattoo artist raised a First Amendment challenge to the same New York regulation.[79]  The defendant in O’Sullivan claimed that tattooing was protected speech, and therefore that the health code regulation must pass either strict or intermediate scrutiny.[80]  In its opinion, the New York court quoted the Grossman court, which had referred to tattooing as a “barbaric survival, often associated with a morbid or abnormal personality.”[81]  With little substantive analysis, the court found that tattooing was neither pure nor symbolic speech.[82]  The court may have believed tattooing was barbaric; however, it seems hard to justify a conclusion that tattooing involved no symbolic speech.  Although one could argue that tattooing may not be protected symbolic speech under the Spence Test, it seems a stretch to contend the creation of a tattoo does not evidence at least some element of symbolic speech.  Despite the O’Sullivan court’s dearth of substantive analysis, the case is frequently cited for the holding that tattooing is not speech.[83]

B.            Yurkew v. Sinclair: How To Deny First Amendment Protection to Tattooing

Yurkew v. Sinclair[84] is the most influential early judicial opinion denying First Amendment protection to tattoo artists.  David Yurkew, a commercial tattoo artist in Minnesota, sought to rent space at the Minnesota State Fair to ply his trade.[85]  Because he planned to use the space to tattoo, the State Fair denied his application.[86]  Yurkew filed suit, contending that “he [was] an artist, [that tattooing was] protected First Amendment activity, that the State Fair [was] a public forum for purposes of the First Amendment, and that the defendants’ [behavior amounted to] an unlawful and unconstitutional prior restraint.”[87]

Yurkew also claimed that tattooing was an art form entitled to First Amendment protection.[88]  In support of his position, Yurkew offered affidavits from two art professors who considered tattooing to be a form of art.[89]  The State countered these opinions with its own expert who believed tattooing was not art.[90]  However, the court stated that such a debate, though “intriguing,” was unnecessary to answer the question of whether Yurkew was entitled to First Amendment protection.[91]  The court stated that the judiciary is simply “ill equipped to determine such illusory and imponderable questions.”[92]

The court was correct.  Whether speech is classified as “art” does not end the First Amendment analysis. Such a debate would unnecessarily invite the court to make emotional evaluations based on its subjective tastes, and add nothing to the determination of whether the speech is protected.[93]  Symbolic speech need not be art to be protected[94] and labeling something as art does not render the creation sacrosanct from regulation.[95]  The example of graffiti proves such a point.  Graffiti, by definition, is the “unauthorized writing or drawing on a public surface.”[96]  There is no legitimate question that a municipality can punish those who create graffiti, even if that graffiti is considered to be a form of art.[97]  It makes no difference whether the graffiti is a masterful scale replica of Picasso’s Guernica that is intended to symbolize the horrors of war, a gang sign, or simply a red dash hastily painted on a freeway overpass.  The government can punish any of these forms of graffiti equally.

The Yurkew court focused on whether the process of tattooing was communicative conduct protected by the First Amendment.  If tattooing was not protected by the First Amendment, then the State Fair’s denial of Yurkew’s application would need only to survive rational basis review.  But the court saw the process of tattooing as “undeniably conduct”[98] and therefore applied the Spence test to determine whether tattooing was a protected First Amendment activity.[99] However, the court held that tattooing failed the Spence test because the conduct was not “sufficiently imbued with elements of communication.”[100]  The Yurkew court defined the “conduct” of tattooing as “injecting dye into a person’s skin through the use of needles.”[101]  Couched in these terms, the court opined that an observer would be unlikely to recognize the injection of dye as something necessarily communicative.[102]  It remains unclear why the court chose to define the process of tattooing so narrowly.  The court acknowledged that tattoos were communicative, but refused to grant communicative status to the process of creating the tattoo.[103]  What is clear, however, is that defining tattooing so narrowly made it easy for the court to claim that tattooing was not “sufficiently imbued with the elements of communication.”[104]  But the court’s analysis leaves unanswered the question of when, if not during the tattooing process, the communicative nature of the tattoo appears.

Under the court’s theory, any act of speech can be broken down into unintelligible components.  Few would be swayed by the argument that writing a political pamphlet is merely the transfer of ink onto paper, and thus not sufficiently communicative.  Imagine a pair of constables running to grab the pen from an author’s hand, one of them yelling, “Stop him before the ink makes something sufficiently communicative!”  Even assuming the Yurkew court’s narrow definition of tattooing, however, the analysis seems to ignore Supreme Court precedent relating to printing ink.[105]

In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, the Supreme Court reviewed Minnesota’s imposition of a special use tax on paper and ink used in the publication of newspapers.[106]  The Star Tribune challenged the tax as violating the First Amendment guarantee of freedom of the press.[107]  The Court agreed with the newspaper and struck down the tax as infringing on the First Amendment.[108]  Just as it was clear that the printing ink would be used to create First Amendment-protected newspapers, it seems that the “injection of dye” in tattooing would be used to create protected speech.  Combining the analyses in Minneapolis Star & Tribune and Yurkew, it seems that a state would be barred by the First Amendment from imposing a special tax on tattoo-only dye, but would not run afoul of the First Amendment by banning the use of that dye to create a tattoo.  Such a result is mind-boggling.  In the end, however, the Yurkew court held that “[w]herever the amorphous line of demarcation exists between protected and unprotected conduct for First Amendment purposes . . . tattooing falls on the unprotected side of the line.”[109]

Once the court determined that tattooing was not a protected First Amendment activity, the State Fair Board needed only to show that a rational basis existed for its decision to deny Yurkew a rental space.[110]  The State Fair Board contended that protecting the health, safety, and welfare of its patrons was the reason it chose to prohibit tattooing at the State Fair.[111]  The court took a very tempered approach toward the health and safety rationale, finding that even though the health and safety concerns “may not be compelling, the risk [to public health] is nevertheless a real one, and it is not irrational . . . .”[112]  Thus, the State Fair Board’s decision to deny Yurkew rental space was upheld.[113]

The effect of the Yurkew decision continued to be felt for almost thirty years.  Many courts have simply followed Yurkew.[114]  One example is State ex rel. Medical Licensing Board v. Brady, in which the Court of Appeals of Indiana rejected a tattoo artist’s First Amendment claim almost out of hand.[115]  The Brady court repeatedly cited to Yurkew, relying heavily on that court’s reasoning to find that the Indiana statute’s restrictions on tattooing were constitutional.[116]

Following O’Sullivan and Yurkew, parties challenging tattoo restrictions seemed to shy away from First Amendment infringement claims.  A 1984 federal district court case from Delaware provides an example of this.  In Kennedy v. Hughes, the plaintiff wanted to open a tattoo parlor in the seaside town of Rehoboth Beach, Delaware.[117]  Kennedy was told by the City Building and Licensing Inspector that he need only apply for a standard business license and he would then be free to open a tattoo parlor.[118]  After renting a location and purchasing equipment, Kennedy opened his parlor.[119]  A few days after the parlor’s opening, the mayor of Rehoboth Beach made an unannounced visit to the tattoo parlor to tell Kennedy that the parlor must be closed because tattoo parlors were inconsistent with the town’s image as a “nice family type town.”[120]  Less than two weeks later, local business owners lobbied the Rehoboth Board of Commissioners to close the tattoo parlor because it was “not in keeping with the quaint, unspoiled character of this lovely resort [town].”[121]  The Board of Commissioners complied, and passed an ordinance limiting the class of persons who were legally entitled to give tattoos to those with a medical license.[122]

The case was ripe for a First Amendment challenge.  Kennedy seemingly had ample evidence that the ordinance was content based, as it was created solely to prevent the “undesirable” business of tattooing.  A content-based ordinance would be subjected to strict scrutiny and would likely be struck down as unconstitutional.  Indeed, Kennedy originally pled a First Amendment claim, but then abandoned it at oral argument.[123]  Kennedy instead argued that the ordinance was arbitrary and lacked a rational basis.[124]  Kennedy, of course, was unsuccessful as the court concluded that health concerns associated with tattooing provided a rational basis for the ordinance.[125]  It is possible the Kennedy outcome was simply the result of bad lawyering; however, his abandonment of his First Amendment claim could also have been influenced by a sense that the court was unwilling to find tattooing to be a protected activity under the First Amendment.

C.            Once More Into the Breach: First Amendment Challenges Come Back in Vogue

By the late 1990s, tattoos had become less a symbol of counterculturalism and more of a mainstream phenomenon.[126]  In the early 1960s, states began repealing the most restrictive tattoo regulations; by 2002, only South Carolina and Oklahoma still maintained statewide tattooing bans.[127]  Similarly, courts’ attitudes toward tattooing and tattoo restrictions began to change.  Whereas early courts were particularly cavalier in chastising the “barbarism” of tattooing, by the end of the 1990s tattoo artists found a few advocates on the bench who were zealous in their protection of the art of the tattoo.[128]  In 1999, a Massachusetts court struck down a statute limiting tattooing to licensed physicians as unduly broad.[129]  The court reasoned that if tattoos were themselves constitutionally-protected expression, then it was logical that the maker of the tattoo would be protected as well.[130]  It analogized this to protecting the owner of a piece of art, but leaving the painter, whose brush created the work, unprotected.[131]  The court concluded that severing the conduct from the speech would “undercut the foundation of the First Amendment protections.”[132]

While it is fair to say some change had occurred, other courts continued to view tattooing as not protected by the First Amendment.[133]  The South Carolina Supreme Court in State v. White upheld South Carolina’s restrictive tattoo ban in 2002.[134]  The court took an almost-identical approach as that taken in Yurkew, and refused to find that tattooing was sufficiently communicative symbolic speech to warrant protection.[135]  Whereas affixing a peace sign to an American flag is the paradigmatic example of protected communicative speech,[136] tattooing was merely the process of injecting dye into the skin.[137]  Furthermore, the majority found that, even if tattooing was an art form, the health risks inherent in tattooing clearly necessitate greater restrictions than would be permitted on painting, writing, or sculpting.[138]  One strongly dissenting justice believed tattooing should be protected just as staunchly as other art forms.[139]  To this dissenting justice, the only difference between a tattoo created by the plaintiff and a painting was the medium on which the art was created.[140]  The medium of expression may dictate the type of acceptable regulation, but it may not dictate whether the speech is entitled to First Amendment protection.[141]  Finally, the dissent argued that cases such as Yurkew and its progeny should be disregarded as hailing from a bygone era when tattooing was seen as “an anti-social sentiment.”[142]

White is more significant for its dissent than for the majority opinion.  The majority is not groundbreaking; it simply retreads the same ground as Yurkew and adds little along the way.  The dissent, on the other hand, overtly questions the motives and precedential value of prior court decisions.[143]  Implicitly, the dissent charges earlier courts with holding a bias against tattoos and the countercultural or antisocial feelings they ostensibly represented.[144]  The implication is particularly troubling in the context of the First Amendment.[145]  Judicial protection is needed for unpopular speech, not mainstream views.  While the whims of the populace certainly dictate legislation, the courts must uphold the supermajoritarian values of the Constitution and prevent the tyranny of the majority.[146]

The dissent in White may be correct to question the bias of prior courts; however, not all prior court opinions have been colored by impermissible bias.  Bias against tattooing may have influenced the Grossman court, which saw tattooing as barbarism; however, there is no indication that bias influenced the Yurkew decision.  Though the dissent in White clearly disagrees with the concerns of the Yurkew court, it is sophism to merely proclaim bias and then move on.  The easiest way to avoid a claim of bias is to follow the lead of the Yurkew court and refuse to engage in a debate over whether tattooing is an art.  Ironically, the White dissent becomes bogged down in this very debate, offering so many platitudes about the art of tattooing that much substantive analysis is lost.[147]

Whether swayed by the dissent’s opinion in White or simply by changing attitudes toward tattoos, South Carolina repealed its harsh restrictions on tattooing in 2004.[148]  The last holdout against tattooing, Oklahoma, repealed its ban in 2006.[149]  However, the repeal of these state restrictions did not swing the doors wide open to tattoo artists, it merely shifted regulation to the local level.[150]  Tattoo artists were next met with similarly restrictive local ordinances.  For the most part, recent challenges to these ordinances on First Amendment grounds have been unsuccessful.[151]  However, a constitutional challenge to a local tattooing ban came before the Ninth Circuit in 2010.[152]  In Anderson v. City of Hermosa Beach, the Ninth Circuit struck down a city ordinance banning tattooing as a violation of the First Amendment.[153]  The Ninth Circuit’s opinion may forever change the lens through which courts view tattooing.

D.            Anderson v. City of Hermosa Beach: First Amendment Protection Achieved

Hermosa Beach, an independent beach community in Los Angeles County, is located just minutes from Los Angeles International Airport and is home to about 20,000 residents[154]—and exactly zero tattoo parlors. Although tattooing is legal in Los Angeles County as a whole, Hermosa Beach’s zoning ordinance prohibits tattoo parlors.[155]  When Johnny Anderson, a tattoo artist and tattoo parlor owner, requested a special exemption to open a parlor in Hermosa Beach, the City denied his request.[156]  Anderson, who had brought a similar suit against a neighboring city a few years earlier, was undeterred and sued the City, claiming the ban was facially unconstitutional as an infringement on his First Amendment rights.[157]  The District Court for the Central District of California disagreed, finding that tattooing was not “sufficiently imbued with the elements of communication” to warrant First Amendment protection.[158]  The court held that “the tattoo artist does not convey an idea or message discernible to an identifiable audience.”[159]

The Ninth Circuit overturned the lower court and found that tattooing was protected speech.[160]  Although the court reached an appropriate conclusion, its rationale was at times vexing and unsupported by case law.  The Ninth Circuit found, unlike any other court to consider the issue, that tattoos, the tattooing process, and even the business of tattooing were all pure speech and entitled to full First Amendment protection.[161]  The court rejected the Spence test as the appropriate framework, finding Spence only applicable if the end product of the conduct was not pure speech.[162]  According to the Anderson court, the key question was whether tattoos were more like writing, which the court viewed as purely expressive, or like burning a draft card, which is conduct used to express an idea.[163]  Because tattoos consist of words, images, and symbols, and each of these individually is entitled to full First Amendment protection, the court reasoned that tattoos must be protected as well.[164]  Further distancing itself from prior opinions on this issue, the Ninth Circuit rejected the O’Brien test as the correct framework to determine whether the government interest in regulating tattooing outweighed the First Amendment right.[165]  The court found that the O’Brien test was only applicable to judging governmental restrictions on expressive conduct.[166]  Since tattoos, tattooing, and the tattoo businesses were all pure speech rather than expressive conduct, the appropriate framework under which to evaluate regulations was the “time, place, or manner” test.[167]

1. The Anderson Court Finds Tattooing To Be Pure Speech

The Ninth Circuit declined to find protection for tattooing as symbolic speech, choosing instead a model that afforded plenary First Amendment protection.[168]  In Anderson, the court rejected the Yurkew court’s notion that the tattooing process involves merely the injection of ink, holding that tattooing is a process meant to create a tattoo.[169]  The Ninth Circuit noted that it had “never seriously questioned” the “purely expressive” purpose inherent in the process of creating other, more traditional, art forms; it had never before drawn a distinction between the process of creating the art and the art itself.[170]  No court had ever questioned whether “the process of writing words down on paper, painting a picture, and playing an instrument [were] purely expressive activities entitled to full First Amendment protection.”[171]  How could the Declaration of Independence be protected, but writing with a quill on paper not be?[172]

While its conclusion—finding First Amendment protection for tattooing—is correct, the court’s rationale is incomplete.  Even if one agrees that tattooing should be protected, it seems illogical to argue that the creation of a tattoo is not symbolic conduct.  The Ninth Circuit repeatedly used similes to mask this contradiction.  At one point the court asserts that tattooing is “more akin to traditional modes of expression (like writing) than the process involved in producing a parade.”[173]  At another, it says that tattooing cannot be separated from the tattoo just as we could not “disaggregate Picasso from his brushes and canvas” nor could we “value Beethoven without the benefit of strings and woodwinds.”[174]  The reader of the court’s opinion goes along agreeing with each simile because, after all, a tattoo is really nothing like a parade.  Or is it?  Does it even matter?  Organizing a parade is both conduct and protected speech.[175]  Disaggregating the painting process from the art itself still produces two forms of protected speech: conduct and pure speech.

The Anderson court seems to assume that attaching the label of “conduct” to tattooing would mean waving goodbye to First Amendment protection.  However, admitting that tattooing someone’s skin is conduct does not wash away all First Amendment protection, nor does it open a Pandora’s Box of government regulation.  Spence and its progeny clearly state the opposite.  Burning a flag is protected expressive conduct.[176]  Refusing to salute the flag is protected expressive conduct.[177]  Wearing a black armband to protest the Vietnam War is protected expressive conduct.[178]  In fact, if expressive conduct meets the Spence test, it is entitled to the same protections as pure speech.[179]  Putting a quill to paper is conduct, as is making strokes on a canvas, or blowing notes through a saxophone.  All of this conduct would be properly protected under the Spence test as well.

The Anderson court correctly dismissed the argument that because tattoos are purchased for money, First Amendment protection is lost.[180]  The United States Supreme Court has continuously held that compensating the speaker does not remove the speech from the ambit of First Amendment protection.[181]  However, the Anderson court seems to have gone further by claiming that the business of tattooing is pure speech.  The court held that if a tattoo was protected, and tattooing was pure expression, then the sale of the tattoo was pure expression as well.[182]  The Ninth Circuit supported the designation of the business of tattooing as independently-protected pure speech, citing to two circuit court cases related to the sale of art.[183]  However, case law on the sale of artwork does not necessarily provide as strong an analytical support as the Anderson court seemed to believe it provided.

In Bery v. City of New York, a case cited favorably by the Anderson court, artists challenged a city ordinance that made it nearly impossible to obtain a permit to sell artwork on public streets.[184]  The Second Circuit found that the sale of artwork was entitled to First Amendment protection;[185] one possible reading of Anderson, however, is that the court misinterpreted the Second Circuit’s rationale.  The Bery court found that the sale of art was protected First Amendment speech not because the art itself was protected, but rather because the very sale of the art, and the place in which the artists sold it, conveyed its own independent statement.[186]

In Bery, the artists claimed that the decision to sell their art in public, as opposed to in a gallery, presented its own discernable message.[187]  The court found that the choice to sell publicly was important because it conveyed the artists’ belief that art should be accessible and available to all.[188]  In Anderson, there was no claim that the manner chosen to sell tattoos represents independent speech, and thus one might argue that Bery is inapplicable.  Even though case law does not necessarily support independent First Amendment protection for the business of tattooing, the point is largely moot because charging for the service of tattooing does not remove the First Amendment’s protection of the process of tattooing.[189]  Thus, tattooing is still an activity entitled to First Amendment protection regardless of the fact that the tattoo is not provided gratuitously.

2. The Anderson Court’s “Time, Place, or Manner” Analysis

The Anderson court held that the Hermosa Beach ordinance was unconstitutional under even the traditional (and less stringent) “time, place, or manner” test.[190]  Anderson did not argue that the city ordinance was content based—he said the regulation constituted an “unconstitutional restriction on a means of expression”—and so the court did not reach the question of whether the city ordinance could withstand strict scrutiny.[191]  Instead, the court applied the “time, place, or manner” test and found that the restriction was invalid.[192]

In determining the constitutionality of the city’s ban, the Anderson court looked to whether the ban was a proper “time, place, or manner” restriction on public speech.[193]  A content-neutral speech restriction is constitutional under the “time, place, or manner” test if the speech restriction serves an important government interest, is narrowly tailored to meet that purpose, and leaves open alternative channels for the speech.[194]

The Anderson court found that the city ordinance was an unconstitutional restriction because it was not narrowly tailored to any important state purpose and because it did not allow for alternative channels for the speech.[195]  Assuming that the government interest in this case—health—is a significant interest, the question then becomes how narrowly tailored the restriction must be.  In order to pass constitutional muster, the city’s regulation need not employ the least intrusive means available.[196]  However, a restriction on protected speech cannot be “substantially broader than necessary to achieve the government’s interest.”[197]  Here, the total ban on tattooing was seen as “substantially broader than necessary” to protect the interests of health.[198]  The court noted that tattooing can be safe if performed under appropriate conditions, and conditions can be monitored through regulation, as evidenced by regulatory schemes throughout the country.[199]

Hermosa Beach, however, claimed that anything less than a total ban on tattooing would leave the public unprotected.[200]  The City supported its argument by pointing out that Los Angeles County only employed one health inspector to monitor 300 tattoo parlors and over 850 tattoo artists spread throughout the county.[201]  The health inspector was already stretched far too thin and thus a tattoo parlor in Hermosa Beach would likely be able to operate completely outside the watchful eye of meaningful government regulation.[202]  Therefore, anything short of a total ban on tattooing would be tantamount to unregulated free rein for the parlor owner.  The court was not persuaded by this logic.[203]  Although a total ban would be the most convenient way of addressing health concerns, the City must show more: it must demonstrate that health concerns cannot be adequately addressed without a total ban.[204]  Because the City did not demonstrate that its concerns about public health justified a total ban, and could not have been met through less restrictive regulation, its argument failed.[205]

The court also found that the tattoo ban left Anderson without “ample alternative channels for communication of the information.”[206]  The court’s “alternative channels” analysis is largely irrelevant because it found that the ban was not narrowly tailored.[207]  Despite this arguable irrelevance, it is important to note possible logical flaws in the Anderson court’s application of the “alternative channels” standard.

The city contended that Anderson was afforded multiple alternative channels of communication because he was free to open a business in Hermosa Beach applying temporary tattoos of the same design, or selling t-shirts bearing his artwork.[208]  The court found such an argument unpersuasive, noting that the very nature of a tattoo creates such a distinct message that t-shirts or temporary tattoos would not be an adequate alternative.[209]  The court maintained that a tattoo, by its very nature, conveys a totally unique message.[210]  The permanence of a tattoo “suggests that the bearer . . . is highly committed to the message” that he is displaying.[211]  A tattoo may “provide information about the identity of the ‘speaker.’”[212]  For example, a tattoo can suggest the bearer’s sense of autonomy or “ownership over the flesh,” which cannot be shown through a t-shirt.[213]  Finally, the court found persuasive the argument that the pain involved in getting the tattoo may itself be highly symbolic for the bearer.[214]

The Anderson court’s rationale concerning why t-shirts or temporary tattoos are not appropriate alternative channels of communication is arguably flawed.  The court compares the distinct message of a tattoo with the message sent by a homeowner who affixes a sign to her property.[215]  In City of Ladue v. Gilleo, the United States Supreme Court struck down a city ordinance banning the display of signs on private property.[216]  The Court held for a  homeowner who wanted to place a sign on her private property, handbills, letters, bumper stickers, and speeches were not sufficient alternative channels for that speech.[217]  The Court focused on the way affixing a sign to one’s home can impact the meaning of the message, depending on the identity of the homeowner.[218]  It noted that “[a] sign advocating ‘Peace in the Gulf’ in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a ten-year-old child’s bedroom window . . . .”[219]

A tattoo may very well make a statement by the bearer about his own identity; however, the Supreme Court’s opinion in Gilleo is relevant and important for another reason.  The Court did not find the message conveyed by a lawn sign distinctive because of what it said about the speaker—rather, the Court focused on how the identity of the homeowner could change the meaning of the message itself.  In short, the ability to link the speaker so directly to the message may change the meaning of the message.[220]  Here, the identity of the speaker is equally clear—whether the message is in the form of a t-shirt, a temporary tattoo, or a permanent tattoo—because the message moves with the wearer.  The ability to equate the identity of the message-maker with the message that was so important to the Supreme Court is absent in the case of the tattoo artist.

Additionally, the Supreme Court held that the low cost of attaching a sign to one’s residence was an important factor in determining whether other channels of communication were practical alternatives.[221]  Tattoos are also distinguishable on this point, as they are a significantly more expensive alternative than a relatively cheap t-shirt or temporary tattoo.  Finally, the Court noted that signs on private residences are often aimed at reaching neighbors who could not be reached as easily through other means.[222]  Again, this reasoning does not apply to tattoos because the same audience would be reached just as easily with a t-shirt or a temporary tattoo.  The First Amendment does not guarantee an individual the most effective means of communication—only the means to communicate effectively—and the speaker could do so by exhibiting the same message on a t-shirt as they might via a tattoo.[223]  However, regardless of whether t-shirts are a practical alternative channel, Hermosa Beach’s total ban on tattooing still fails under this analysis because it was not narrowly tailored.

The Ninth Circuit’s sweeping extension of First Amendment protection of tattooing reached the proper conclusion that Hermosa Beach’s tattoo ban was unconstitutional.  However, deficiencies in the Ninth Circuit’s logic, particularly its decision to abandon the SpenceO’Brien framework, should be resolved by subsequent courts.

III. Tattoos Within the Appropriate Framework: Spence Re-Analyzed

Case law leaves future courts with two possible approaches to follow in analyzing whether tattooing is a protected First Amendment activity: the Yurkew approach and the Anderson approach.  Under either approach the court must determine (1) whether tattooing is entitled to First Amendment protection; (2) if tattooing is protected, whether the government has an important interest unrelated to suppression of the message in regulating tattooing; and (3) whether the regulation does no more than necessary to achieve the government’s purpose.[224]

Under the Yurkew approach, tattooing will be protected if a court finds tattooing is conduct that is sufficiently communicative to amount to speech.[225]  Under this interpretation, the Spence test will be employed.[226]  If tattooing passes the Spence test, the challenged government regulation will be upheld only if it passes the O’Brien test.[227]  Under the Anderson approach, it is presumed that tattooing is “pure speech” and thus that the government restriction will only be upheld if it passes muster as a “time, place, or manner” restriction on free speech.[228]  The task going forward will be for courts to determine which path to take.

Courts should apply the Yurkew framework, but employ much of the Anderson court’s logic to reach the conclusion that tattooing is a protected First Amendment activity.  The Yurkew approach is appropriate because the process of tattooing is communicative conduct, not pure speech.  First, the Ninth Circuit’s contention that tattoos themselves are pure speech is flawed.  If wearing a black armband in opposition to the Vietnam War is symbolic speech, how could displaying a tattoo of a peace sign in opposition of the genocide in Sudan be pure speech?  Second, even if one views tattoos themselves as pure speech, it does not necessarily follow that the creation of pure speech is similarly pure speech.  One might imagine the Ninth Circuit fearing that John Singer Sargent painting on a canvas or an oboe player representing the Duck in Peter and the Wolf will be viewed as engaging in communicative conduct.  But this fear is unfounded because sufficiently communicative conduct is entitled to First Amendment protection.  Thus, arguing that the process of using an electric tattoo gun to create an image on the tattoo bearer’s skin is not conduct crafts an unnecessary legal fiction.  Third, the Ninth Circuit touts the “time, place, or manner” analysis as more protective than the O’Brien test; however, the Supreme Court has held that “the O’Brien test ‘in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.’”[229]  Given these flaws in the Ninth Circuit’s analysis, courts should not follow the Anderson court down its self-imposed analytical rabbit hole.

The act of tattooing passes the Spence test.  While the Yurkew court broke tattooing down to its most simplistic components, there is no reason to view tattooing so narrowly.  Accepting a broader view of tattooing yields a different result under the Spence test.  Just as painting is more than the process of putting pigment on a surface, tattooing is more than injection of ink into the skin—it is the process of creating a tattoo.  The Anderson court was correct in viewing an artist tattooing as no different than Caravaggio painting The Calling of St. Matthew.  The process of creating a tattoo is “sufficiently imbued with the elements of communication” because it involves the creation of symbols, images, and words used to convey a message.[230]  If a painting is sufficiently imbued with elements of communication, a tattoo is as well.  Tattooing also evidences a clear intent to convey a specific message that in the surrounding circumstances is likely to be understood by those who view it.  The meaning of the tattoo created by the tattooing process need not convey a succinctly articulable message in order to pass the Spence test.[231]

Therefore, it is no answer to say that tattooing should not be protected because an observer would not interpret exactly the message that is intended to be conveyed by the tattoo.  While we may ask someone what his tattoo means, we know full well the tattoo must mean or commemorate something.  Finally, given the surrounding circumstances of the creation of a tattoo, it is almost certain an that observer would know some sort of communicative expression was being created.  Just as it is obvious to passersby that an artist with an easel in New York’s Central Park is making some sort of communicative image, it is obvious upon passing a tattoo parlor that inside the tattoo artist is plying her trade.

As the Yurkew court advised, courts should not become forums for debate about whether tattooing is an art form.  Neither the Spence test nor the designation of communication as pure speech require the subjective determination of whether something is or is not art.  Is tattooing art?  Is a video game?  Is building a custom car?  Is making a puff pastry?  These questions are best left for society to debate—not for judges to dictate.[232]  Whether one sees tattooing as art or barbarism, when properly analyzed, tattooing should be seen as sufficiently communicative to receive First Amendment protection.

Finally, under the O’Brien test, a complete ban or similarly-severe restriction on tattooing would be unconstitutional.  Assuming that the asserted government interest is guarding against the health risk inherent in tattooing, a complete ban would not be narrowly tailored to accomplish that goal.  Tattooing can be done safely; in fact, all fifty states can manage the health risks of tattooing without having to resort to a complete ban.[233]  The serious health risks of tattooing can be—and are—alleviated through significantly less restrictive regulation than through the imposition of a total ban.  A governmental body can simply hire or dedicate a currently-employed health inspector to inspect tattoo parlors.  If those parlors fail inspection, they can then be shut down.  Furthermore, a governmental body can pass the additional budget expense of inspections on to the tattoo parlor through an increased license fee.  It is clear, however, that a complete ban is “greater than is essential to the furtherance” of health and safety interests.[234]

Thus, although the Anderson court reached the correct conclusion—that tattooing should be a protected First Amendment activity—the Yurkew framework is more logically consistent with the nature of tattooing.  Applying the symbolic speech framework allows tattoo artists the proper freedom to practice their craft while allowing government regulation to protect the public from significant health risks.

 


[1]. Tattoos and Piercings Go Mainstream, But Risks Continue, Nw. U. Newscenter (June 12, 2006), http://www.northwestern.edu/newscenter/stories
/2006/06/tattoos.html.

[2]. See id. (stating that about a quarter of those with tattoos have regrets about it).

[3]. Mary Lord & Rachel Lehmann-Haupt, A Hole in the Head?, U.S. News & World Report, Nov. 3, 1997, at 67.

[4]. See, e.g., Chris Wroblewski, Tattoo: Pigments of Imagination 7 (1987); Elizabeth Hayt, Over-40 Rebels with a Cause: Tattoos, N.Y. Times, Dec. 22, 2002, at S9.

[5]. Stuart Levine, TLC Looking for More ‘Ink,’ Variety (Apr. 28, 2010, 5:33 PM), http://weblogs.variety.com/on_the_air/2010/04/tlc-looking-for-more-ink
.html?query=L.A.+Ink (noting that L.A. Ink averages 1.4 million viewers per episode).

[6]. See also Jonathan Zimmerman, Our Tattoos, Ourselves, Chi. Trib., May 17, 2009, at A28.

[7]. Anthony Jude Picchione, Note, Tat-Too Bad for Municipalities: Unconstitutional Zoning of Body-Art Establishments, 84 B.U. L. Rev. 829, 832 (2004).

[8]. See Grossman v. Baumgartner, 218 N.E.2d 259, 261 (N.Y. 1966).

[9]. See, e.g., Cal. Health & Safety Code § 119303 (Deering & Supp. 2011).

[10]. See, e.g., Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1057 (9th Cir. 2010).

[11]. See, e.g., State v. White, 560 S.E.2d 420, 421 (S.C. 2002).

[12]. Body Art, Centers for Disease Control & Prevention, http://www.cdc.gov/niosh/topics/body_art/default.html (last updated June 9, 2010).

[13]. Anderson, 621 F.3d at 1055–56.

[14]. Id. at 1056.

[15]. Id.

[16]. Body Art, supra note 12.

[17]. United States v. O’Brien, 391 U.S. 367, 376–77 (1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.  To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong.  Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”).

[18]. See id.

[19]. 495 F. Supp. 1248 (D. Minn. 1980).

[20]. 621 F.3d 1051, 1051–69 (9th Cir. 2010).

[21]. U.S. Const. amend. I.

[22]. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

[23]. See Cohen v. California, 403 U.S. 15, 24 (1971).

[24]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).

[25]. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

[26]. Id.

[27]. Roth v. United States, 354 U.S. 476, 484 (1957).

[28]. Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).

[29]. E.g., Tinker, 393 U.S. at 505–06.

[30]. E.g., Erwin Chemerinksy, Constitutional Law 1063 (3d ed. 2006).

[31]. See Black’s Law Dictionary 1529 (9th ed. 2009).

[32]. See id. at 1529–30.  See generally Erwin Chemerinsky, Constitutional Law 1026–44 (2d ed. 2002).

[33]. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).

[34]. See, e.g., Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994).

[35]. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”).

[36]. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

[37]. Turner Broad. Sys., 512 U.S. at 642–43.

[38]. See Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 143, 148 (2010).

[39]. See, e.g., Boos v. Barry, 485 U.S. 312, 321 (1988).

[40]. Turner Broad. Sys., 512 U.S. at 680 (O’Connor, J., concurring).

[41]. Id. at 662 (majority opinion).

[42]. Stromberg v. California, 283 U.S. 359, 362 (1931).

[43]. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).

[44]. Texas v. Johnson, 491 U.S. 397, 402 (1989).

[45]. Gregory v. City of Chicago, 394 U.S. 111, 112 (1969) (“[A] march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment.”).

[46]. Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977).

[47]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969) (per curiam).

[48]. Id.

[49]. Id. at 505–06.

[50]. Spence v. Washington, 418 U.S. 405, 409–10 (1974).

[51]. Id. at 405.

[52]. Id. at 405, 407.

[53]. Id. at 410 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943)).

[54]. Id. at 409.

[55]. Id. at 410–11.

[56]. Id. at 408.

[57]. Id. at 410.

[58]. See Texas v. Johnson, 491 U.S. 397, 403–04 (1989); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058–59 (9th Cir. 2010); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 283 (5th Cir. 2001).

[59]. 391 U.S. 367, 376–77 (1968).

[60]. Id. at 369–70.

[61]. Id. at 376.

[62]. Id. at 377.

[63]. Id. at 382.

[64]. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000); Turner Broad. Sys. v. FCC, 520 U.S. 180, 189 (1997); R.A.V. v. City of St. Paul, 505 U.S. 377, 385–86 (1992).

[65]. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010).  However, courts of appeal have explored the issue of whether protection should be afforded to tattoos themselves.  See Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1308 (8th Cir. 1997) (holding that a student with a tattoo who was suspended from school had standing to challenge the constitutionality of a school ban on gang signs).

[66]. White v. South Carolina, 537 U.S. 825 (2002) (denying certiorari in case raising issue of statute restricting who may apply tattoos).

[67]. See, e.g., Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008) (holding that rational basis review applies because the act of tattooing implicates no fundamental right); Yurkew v. Sinclair, 495 F. Supp. 1248, 1255 (D. Minn. 1980) (same).

[68]. See, e.g., White, 560 S.E.2d. at 424.

[69]. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434, 438 (2002).

[70]. See Anderson, 621 F.3d at 1056; Hold Fast Tattoo, 580 F. Supp. 2d at 660–61; Yurkew, 495 F. Supp. at 1255.

[71]. See, e.g., Golden v. McCarthy, 337 So. 2d 388, 390–91 (Fla. 1976) (holding that a statute restricting tattooing to physicians was a reasonable exercise of the state’s police powers and that the statute did not violate “equal protection guarantees of the state or federal constitutions”).

[72]. See, e.g., People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (App. Div. 1978) (holding that tattooing is not “speech or even symbolic speech,” and that “even pure speech may be subject to reasonable regulation in the public interest”).

[73]. See Anderson, 621 F.3d at 1057; Golden, 337 So. 2d at 389; Grossman v. Baumgartner, 218 N.E.2d 259, 261 (N.Y. 1966).

[74]. Grossman, 218 N.E.2d at 261.

[75]. See id.

[76]. See id. at 261–62.

[77]. Id. at 262.

[78]. Id. at 261.

[79]. People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (App. Div. 1978).

[80]. Id.

[81]. Id. (internal citations omitted) (internal quotation marks omitted).

[82]. Id.

[83]. See Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010); Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656, 660 n.1 (N.D. Ill. 2008); Yurkew v. Sinclair, 495 F. Supp. 1248, 1253 (D. Minn. 1980).

[84]. 495 F. Supp. 1248 (D. Minn. 1980).

[85]. Id. at 1249.

[86]. Id. at 1250.

[87]. Id. at 1249.

[88]. Id. at 1252.

[89]. Id.

[90]. Id.

[91]. Id. at 1253.

[92]. Id. at 1254.

[93]. Cf. Cohen v. California, 403 U.S. 15, 25 (1971) (“[I]t is nevertheless often true that one man’s vulgarity is another’s lyric.”).

[94]. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969) (finding that “silent, passive expression of opinion,” such as wearing armbands to school to protest the war in Vietnam, was “akin to ‘pure speech’” and protected by the First Amendment).

[95]. See, e.g., Close v. Lederle, 424 F.2d 988 (1st Cir. 1970) (finding that school officials were justified in removing art they deemed to be inappropriate for exhibition in the school corridor, even though the art did not necessarily rise to the level of being obscene).

[96]. Graffiti Definition, Merriam-Webster.com, http://www.merriam
-webster.com/dictionary/graffiti (last visited Mar. 23, 2011).

[97]. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 550 (1981) (Stevens, J., dissenting).

[98]. Yurkew v. Sinclair, 495 F. Supp. 1248, 1253 (D. Minn. 1980).

[99]. Id. at 1253 (“Thus, the threshold and crucial issue in this case is whether the actual process of tattooing, as opposed to the image conveyed by the tattoo itself, is ‘sufficiently imbued with elements of communication to fall within the scope of the First . . . Amendment[] . . . .’” (quoting Spence v. Washington, 418 U.S. 405, 409–10 (1974) (per curiam))).

[100]. Id. (quoting Spence, 418 U.S. at 409).

[101]. Id. at 1254.

[102]. Id. (citing Spence, 418 U.S. at 405).

[103]. Id.

[104]. Id. at 1255 (quoting Spence, 418 U.S. at 409).  The court claims that it rejects the State’s view that, in the creation of art, no communication occurs until the final product emerges.  The court argues that the State’s approach is “somewhat simplistic and contains certain drawbacks.”  Id. at 1255 n.8.  However, reading the opinion in its entirety, the “simplistic approach” seems to be followed by the court.

[105]. E.g., Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575 (1983).

[106]. Id. at 576–79.

[107]. Id. at 579.

[108]. Id.

[109]. Yurkew, 495 F. Supp. at 1253; see, e.g., State ex rel. Med. Licensing Bd. v. Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986) (upholding an Indiana statute mandating that only physicians may tattoo, and relying almost exclusively on the rationale of Yurkew).

[110]. Yurkew, 495 F. Supp. at 1255.

[111]. Id. at 1255–56.

[112]. Id. at 1256.

[113]. Id.

[114]. See, e.g., Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656, 660 n.1 (N.D. Ill. 2008); State v. White, 560 S.E.2d 420, 422 (S.C. 2002).

[115]. State ex rel. Med. Licensing Bd. v. Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986).

[116]. Id.

[117]. Kennedy v. Hughes, 596 F. Supp. 1487, 1489–90 (D. Del. 1984).  Because this case reached the court on a motion to dismiss, the facts are either undisputed or stated in the light most favorable to the nonmoving party—here, the plaintiff.

[118]. Id. at 1490.

[119]. See id.

[120]. Id.

[121]. Id.

[122]. Id.

[123]. Id. at 1490–91.

[124]. Id. at 1491.

[125]. Id. at 1494–95.

[126]. Mattel apparently believed tattoos had reached the point of social acceptability; in 1999, Mattel introduced a Barbie with a permanent set of tattoos.  However, due to protests from parents, the Barbie was subsequently removed from shelves.  Tattooed Barbie Is Taboo with Parents, Toy Maker Finds, Miami Herald, June 14, 1999, at A1.

[127]. Bobby G. Frederick, Note, Tattoos and the First Amendment—Art Should Be Protected as Art: The South Carolina Supreme Court Upholds the State’s Ban on Tattooing, 55 S.C. L. Rev. 231, 236 (2003).

[128]. Compare Grossman v. Baumgartner, 218 N.E.2d 259, 262 (N.Y. 1966) (finding no constitutionally-protected right to administer tattoos and upholding restriction allowing tattooing only by persons with a medical license), with Commonwealth v. Meuse, No. 9877CR2644, 1999 WL 1203793, at *3 (Mass. Super. Nov. 29, 1999) (holding that “[t]he absolute prohibition of all forms of tattooing, a protected form of expression, except by licensed physicians . . . is substantial[ly] overbr[oad]” and therefore unconstitutional).

[129]. Meuse, 1999 WL 1203793, at *4.

[130]. Id. at *1.

[131]. Id.

[132]. Id. at *2 (citing Commonwealth v. Oakes, 518 N.E.2d 836, 837 (Mass. 1988)).

[133]. See, e.g., Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1307 n.4 (8th Cir. 1997); Riggs v. City of Fort Worth, 229 F. Supp. 2d 572, 580–81 (N.D. Tex. 2002).

[134]. State v. White, 560 S.E.2d 420, 423–24 (S.C. 2002); Frederick, supra note 127, at 231.

[135]. White, 560 S.E.2d at 422–23.

[136]. See Spence v. Washington, 418 U.S. 405, 410 (1974) (per curiam).

[137]. White, 560 S.E.2d at 423.

[138]. Id.

[139]. Id. at 425 (Waller, J., dissenting).

[140]. Id.

[141]. Id.

[142]. Id.

[143]. See id.

[144]. Id.

[145]. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principal underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984) (“The principal of viewpoint neutrality . . . underlies the First Amendment . . . .”).

[146]. See The Federalist No. 10 (James Madison).

[147]. White, 560 S.E.2d at 425 (Waller, J., dissenting).

[148]. Gov. Sanford Signs Bill Legalizing Tattoos, WIS News 10 (June 17, 2004, 12:48 PM), http://www.wistv.com/Global/story.asp?S=1949752.  See also S.C. Code Ann. § 44-34-20 (2004) (legalizing tattooing in South Carolina).

[149]. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1065 (9th Cir. 2010); see also Okla. Stat. tit. 21, § 842.3 (2006) (legalizing tattooing in Oklahoma).

[150]. See § 842.3; Zoning Requirements for Tattoo Facilities, S.C. Dep’t Health & Envtl. Control, http://www.scdhec.gov/health/licen/hltattoozoning
.pdf (last visited Mar. 23, 2011).

[151]. See, e.g., Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656, 659–60 (N.D. Ill. 2008) (finding that the act of tattooing failed to convey a particularized message necessary to garner First Amendment symbolic-speech protection); Blue Horseshoe Tattoo, Ltd. v. City of Norfolk, No. CL06-3214, 2007 WL 6002098, at *2 (Va. Cir. Ct. Jan. 17, 2007) (finding that neither tattoos nor tattooing are protected by the First Amendment).

[152]. Anderson, 621 F.3d at 1051, 1055.

[153]. Id. at 1068.

[154]. Demographic Information, City Hermosa Beach, http://www.hermosabch.org/about/info/demog.html (last visited Mar. 23, 2011).

[155]. Anderson, 621 F.3d at 1057.

[156]. Id.

[157]. John Guenther & Douglas Morino, Federal Court Declares Hermosa Beach Tattoo Parlor Ban Unconstitutional, Daily Breeze (L.A.), Sept. 9, 2010, at A1.

[158]. Anderson, 621 F.3d at 1058.

[159]. Id.

[160]. Id. at 1055.

[161]. Id. at 1060.

[162]. Id. at 1063.

[163]. Id. at 1059.

[164]. Id. at 1061.

[165]. Id. at 1059.

[166]. Id.

[167]. Id.  It is unclear what the Ninth Circuit considered the difference to be between a “time, place, manner” restriction and the O’Brien test for symbolic conduct.  The Supreme Court in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984) found that the O’Brien test is “little, if any, different from the standard applied to time, place, or manner restrictions.”  The “time, place, or manner” test “refers to the ability of the government to regulate speech in a public forum in a manner that minimizes disruption of a public place while still protecting freedom of speech.”  Chemerinsky, supra note 30, § 11.4, at 1131.

[168]. Anderson, 621 F.3d at 1061–62.

[169]. Id. at 1062.

[170]. Id.

[171]. Id.

[172]. Id.

[173]. Id.

[174]. Id.

[175]. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 559 (1995) (holding that the First Amendment protected St. Patrick’s Day parade organizers’ decision to refuse to let a group indentifying as gay, lesbian, and bisexual participate in the parade).

[176]. See Texas v. Johnson, 491 U.S. 397, 412 (1989) (holding that a state restriction on flag burning was content based and thus subject to strict scrutiny).

[177]. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[178]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505–06 (1969).

[179]. See id.  (“[T]he wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. . . . It [was] closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.”).

[180]. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1063 (9th Cir. 2010).

[181]. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 801 (1988) (“[A] speaker’s rights are not lost merely because compensation is received.”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952) (stating that the commercial nature of films does not preclude them from having First Amendment-protected status).

[182]. See Anderson, 621 F.3d at 1063.

[183]. Id. (citing White v. City of Sparks, 500 F.3d 953, 954 (9th Cir. 2007) and Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996)).

[184]. Bery, 97 F.3d at 691.

[185]. Id. at 695.

[186]. Id. at 696.

[187]. Id.

[188]. Id.

[189]. See, e.g., Linmark Assocs. v. Township of Willingboro, 431 U.S. 85, 98 (1977); Bates v. State Bar of Ariz., 433 U.S. 350, 363–64 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

[190]. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1064 (9th Cir. 2010).

[191]. Id. at 1063–64.

[192]. Id. at 1064.

[193]. Id. at 1063–64.

[194]. See Hill v. Colorado, 530 U.S. 703, 703, 723–26 (2000) (upholding a state law restricting speech activities within 100 feet of the entrance of any health care facility); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 361 (1997) (upholding a court order creating a fixed buffer zone around an abortion clinic); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 757 (1994) (upholding a court order restricting speech in a thirty-six-foot buffer zone around an abortion clinic); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (upholding a ban on sleeping in a park—in the face of a First Amendment challenge by protestors of the treatment of the homeless—because the ban left “open alternative channels” through which protesters might still communicate their message).  But see United States v. Grace, 461 U.S. 171, 182 (1983) (striking down a broad restriction on speech on the sidewalk outside the Supreme Court).

[195]. Anderson, 621 F.3d at 1068.

[196]. Id. at 797.

[197]. Anderson, 621 F.3d at 1065 (quoting Ward, 491 U.S. at 800).

[198]. Id.

[199]. Id.

[200]. Id.

[201]. Id. at 1056.

[202]. Id. at 1065.

[203]. Id.

[204]. See id.

[205]. Id.

[206]. Anderson, 621 F.3d at 1065 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (internal quotation marks omitted)).

[207]. Id. at 1066–67.

[208]. Id. at 1065–66.

[209]. Id. at 1066–67.

[210]. Id. at 1067.

[211]. Id.

[212]. Id. (quoting City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994)).

[213]. Id. (citing Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-America, in Written on the Body: The Tattoo in European and American History 240, 251–52 (Jane Caplan ed., 2000)).

[214]. Id.

[215]. Id. at 1066.

[216]. City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994).

[217]. Id. at 56.

[218]. Id.

[219]. Id.

[220]. Id.

[221]. Id. at 57.

[222]. Id.

[223]. See Kovacs v. Cooper, 336 U.S. 77, 89 (1949) (upholding a ban on sound trucks).

[224]. See Chemerinsky, supra note 32, at 1028.

[225]. Yurkew v. Sinclair, 495 F. Supp. 1248, 1253 (D. Minn. 1980).

[226]. Tattooing will pass the Spence test if tattooing is determined to be “sufficiently imbued with elements of communication” and the artist can demonstrate that “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”  Spence v. Washington, 418 U.S. 405, 409–11 (1974) (per curiam).

[227]. A regulation passes the O’Brien test if the regulation “furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than essential to the furtherance of that interest.”  United States v. O’Brien, 391 U.S. 367, 377 (1968).

[228]. A government regulation on free speech in a public forum is an appropriate “time, place, or manner” restriction if the restriction (1) is “justified without reference to the content of the regulated speech;” (2) is “narrowly tailored to serve a significant governmental interest;” and (3) “leave[s] open ample alternative channels for communication of the information.”  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

[229]. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) (quoting Clark, 468 U.S. at 298).

[230]. Spence, 418 U.S. at 409–10.

[231]. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 569 (1995) (“[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message’ . . . would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.”).

[232]. See generally Edward J. Eberle, Art as Speech, 11 U. Pa. J. L. & Soc. Change 1 (2007–2008) (discussing the unique role art plays in society and the reasons that art should be afforded full First Amendment protection).

[233]. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1065 (9th Cir. 2010).

[234]. United States v. O’Brien, 391 U.S. 367, 377 (1968).

* J.D. Candidate 2011, Davidson College B.A. History 2007. The Author would like to thank the Law Review Staff and Board of Editors for being patient with my weaknesses and for reinforcing my strengths; my friends and family for their support; Katie for making me smile with my heart; and my father, John, whom I cannot and do not thank enough.

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