Meeting the Sin Laws

Chilling speech, Un-chilling beer

2008-08-20T12:53:00.019-04:00

Last Friday the Sixth Circuit Court of Appeals issued this decision.

It concerns an Ohio liquor regulation (Rule 52) that bans "nudity" and "sexual activity" in alcohol-licensed establishments. As drafted, Rule 52 prohibits not only nudity in performances having literary, artistic or political value, it bans even “the exposure of any device, costume, or covering which gives the appearance of or simulates” nudity. Now that's one broad rule. Or I think so. But then again, I'm no federal judge. Not even close.

Writing for the majority, Judge Siler held that Rule 52 is not overbroad:

Rule 52 has a minimal impact on the marketplace of ideas because persons desiring to perform mainstream works of art involving nudity and sexual activity may do so in an establishment that is not licensed to sell liquor. In the alternative, they may perform their works in an establishment licensed to sell liquor if they wear clothing or pasties and a G-string and avoid sexual conduct or sexual contact....
By its own terms, Rule 52 does not apply to contact done in furtherance of legitimate works of art for the purpose of conveying artistic meaning, such as the touching of an actor’s thigh in a play. Thus, mainstream works of art that merely suggest sexual activity will not be burdened....
While there may be legitimate artistic works that involve actors appearing in a state of nudity, '[b]eing in a state of nudity is not an inherently expressive condition' that is protected by the First Amendment. Moreover, the First Amendment does not provide a right to engage in sexual activity in public. The effect of Rule 52 on legitimate artistic works is incidental and does not call for the 'strong medicine' of overbreadth doctrine.

Judge Cole dissented:

With respect to ordinary theater and ballet performances, concerts, and other artistic forms of entertainment, however, the Commission provides no evidence, no judicial opinion, and not even any argument to suggest that these mainstream entertainments, to which it has conceded the restrictions apply, produce the kind of adverse secondary effects that the state seeks to prevent. Because Rule 52’s 'plainly legitimate sweep' is extraordinarily narrow compared to the breadth of the rule, it criminalizes substantially more speech than constitutionally permissible....

So for whatever reason the county in Odle enacted the ordinance—whether it be on moral grounds or to reduce prostitution—we can assume that the county had a legitimate justification. That, of course, is irrelevant to the question of whether the ordinance sweeps within its reach a broad swath of expressive conduct not associated with the county’s identified undesirable secondary effects....

The Commission reminds us time and time again that the state has a strong interest in regulating the negative secondary effects associated with nudity and sexual activity in nude-dancing establishments. I don’t have any problem with that. But the state’s interest in regulating those effects does not explain its interest in stopping a playhouse with an alcohol permit from presenting a ballet with a brief scene simulating nudity. Maybe there is some negative effect that I am unaware of, or
maybe the Commission has some special insight in this area. Whatever the reason, no one—not the district court, not the majority, and certainly not the Commission—has brought such an interest to our attention.

(citations omitted).

Judge Cole's closing remarks:

When the government restricts constitutionally protected speech for some legitimate purpose unrelated to the content of the speech in question, we pause for concern. When the government restricts constitutionally protected speech for some legitimate purpose relating to the content of the speech, we give it our full attention. But when the government restricts constitutionally protected speech without any justification whatsoever, loud alarm bells should sound off in our heads. Because I see Rule 52 as a regulation that fits squarely into this last category, I respectfully dissent.

(citations omitted).

I think the dissent is right on this one. Maybe there was a hanging chad, and the Clerk of Court simply miscounted the judges' votes?

Maybe.

Express [read "pierce"] yourself

2008-08-16T11:30:00.016-04:00

Your bling is not you.

The Eleventh Circuit Court of Appeals issued an unpublished decision yesterday concerning a Brevard County "School Board written policy that prohibits the wearing of non-otic pierced jewelry by students in the Brevard County public school system." What's that, you ask? It is the county's school dress code which says:

Pierced jewelry shall be limited to the ear. Dog collars, tongue rings, wallet chains, large hair picks, chains that connect one part of the body to another, or other jewelry/accessories that pose a safety concern for the student or others shall be prohibited.

The student, who was a 16-year old 10th grade student at Viera High School when the case began, "has piercings located on her tongue, nasal septum, lip, navel and chest." She sued the school board alleging that her First Amendment right to free speech was violated by "prohibiting her from wearing jewelry in her non-otic body piercings at school." Specifically, she asserted that her piercings "were an expression of her individuality, a way of expressing her non-conformity and wild side, an expression of her openness to new ideas and her readiness to take on challenges in life." But, as the court noted, she "stated expressly that her non-compliant piercings were intended to make no religious or political statement."

That observation decided the appeal. From there the Eleventh Circuit applied Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969) to what it deemed a "content-neutral regulation of conduct that expresses no political message." Other Circuit Courts have held (here & here) that similar conduct was entitled to First Amendment protection. Here, though, when the court went ahead and assumed the conduct was protected, the dress code regulation survived the challenge (under intermediate scrutiny).

Dress-code/free-speech challenges are all about balancing. It's about bucking the system. Uniformity, anarchy and everything in between. As the not-late-great Andy Rooney once observed,

It's a funny thing about uniforms. Sometimes you find them in unexpected places. If the word 'uniform' means the same, then often young rebels fighting the system are so persistently unconventional and non-conformist that their uniform of rebellion is as identifiable as the hotel doorman's. That was certainly true of the hippies in the 1960s. They all dressed alike.

(Source). It's debatable whether uniforms improve grade-school behavior or academic performance. Some say yes, some say no. I'm unqualified to answer, although I did attend a private, preparatory school for a couple of years, i.e., junior high school. (Those were my unruly years!) I can't help but think that administrators and courts alike place too much faith in the "orderliness" that uniforms bring to youth. Maybe this is because, as any kid will tell you, uniforms affect adult behavior more than they do child behavior.

Another Georgia town celebrates closing of strip club

2008-08-11T12:17:00.004-04:00

This picture will save at least 1,000 words: "Byron City Councilman Michael Chidester applauds as the Cafe Erotica sign falls Friday morning in Byron." And another 1,000 words: "Jeff Laborg, pastor at Second Baptist Church in Warner Robins, gives a shout and waves a Bible in the air as the Cafe Erotica sign comes down Friday morning in Byron."

This is the second publicized celebration -- in as many weeks -- of a Georgia strip-club closing. The other event also concerned a club owned by the late Jerry Sullivan.

Here is the article's opener:

Many people had hoped Cafe Erotica would close, but for seven years one of its former dancers prayed for it.
Rachel Simms, who danced there for nearly four years in the late '90s, is today a happily married Christian and church volunteer. She was among the people who watched the 'We Bare All' sign come down in Friday's 'grand closing ceremony.'

(Source)

The article offends my sense of journalistic integrity. The writer has gathered no feedback about the club's positive impact on former employees and the community. Surely the club couldn't have been all bad. If the article were strictly a biographical piece on Ms. Simms, it might pass for journalism. But it's not. The article reports on the staged demolition of the Byron club, and it features video and pictures of pastors & politicians to boot. In other words, it's a news piece. And that requires objectivity, which requires good ol' elbow grease, in reporting.

Crisis averted for famous liquor license(s)

2008-08-08T12:48:00.007-04:00

The Bellini cocktail will remain a menu item at Cipriani, where the drink achieved signature status. (You'll still need $20.95 to buy one, though.)

The New York Times reports that the "State Liquor Authority voted 2 to 1 on Wednesday to accept the family’s $500,000 settlement offer, rather than revoke its liquor licenses for more than four dozen violations of state law at nine venues, including the Rainbow Room at Rockefeller Center, Harry Cipriani at the Sherry-Netherland Hotel and Cipriani Wall Street." The article says that Arrigo Cipriani pleaded guilty to a felony tax charge, which prompted the State Liquor Authority cite tax-evasion crimes as potential grounds for revoking the Cipriani company’s licenses and accused it of filing false information about its ownership.

Wow. And they say money can't buy you happiness.

Today's wine-shipping decision ...

2008-08-07T16:43:00.015-04:00

... arrives courtesy of the Seventh Circuit Court of Appeals.

In this case the plaintiffs, who are described as "oenophiles who want easier access to wine from small vineyards in other states," challenged two provisions of Indiana law. These provisions state that wineries inside and outside Indiana may ship to customers, if (a) there is one face-to-face meeting at which the buyer’s age and other particulars can be verified; and (b) the vintner is not allowed to sell to retailers in any state as its own wholesaler. The latter provision offends the Commerce Clause; the former doesn't.

Writing for the court, Chief Judge Easterbrook held:

Indiana thinks that in-person verification with photo ID helps to reduce cheating on legal rules, for both buying wine and voting (and perhaps other subjects). After the Supreme Court held in Crawford v. Marion County Election Board, 129 S. Ct. 1610 (2008), that a belief that in person verification with photo ID reduces vote fraud has enough support to withstand a challenge under the first amendment, it would be awfully hard to take judicial notice that in-person verification with photo ID has no effect on wine fraud and therefore flunks the interstate commerce clause.
Given the state of this record, and the state of the empirical literature, we know very little. What we can guess at implies that face-to-face verification will reduce the fraction of all wine shipments that go to minors, though the size of this effect is hard to estimate. Minors who can get beer locally may not want to pay for costly, upmarket wine plus shipping charges; if so (and we don’t know whether it is so), then Indiana may come to conclude that age verification for direct shipments is not vital. The cost of verification per winery rises with distance, if consumers sign up at only one winery per trip;but when traveling through wine country consumers may be able to sign up at many wineries at small incremental cost. So both the marginal cost and the marginal benefit of Indiana’s face-to-face system may be modest. That is not enough to declare a law unconstitutional—not when the effect on interstate commerce is negligible.

The challenge to the face-to-face provision came down to this:

But if what the Guild says is true, then the statute—although bad economically for Indiana’s wineries—must be sustained against a challenge under the commerce clause. Favoritism for large wineries over small wineries does not pose a constitutional problem, and the fact that all Indiana wineries are small does more to show that this law’s disparate impact cuts against in-state product than to show that Indiana has fenced out wine from other jurisdictions.

But is there a crack in the dam for wholesalers?

Pike asks whether the putative local benefits could possibly justify the burden on interstate commerce. All the wholesalers can muster in support of the statute is that the three tier system may help a state collect taxes and monitor the distribution of alcoholic beverages, because there are fewer wholesalers than there are retailers, so state enforcement efforts can focus on the middle layer. That may be so, see Granholm, 544 U.S. at 489 (stating in dictum that the three-tier system is compatible with the dormant commerce clause), but once a state allows any direct shipment it has agreed that the wholesaler may be bypassed. It is no harder to collect Indiana’s taxes from a California winery that sells to California retailers than from one that does not. The wholesale clause protects Indiana’s wholesalers at the expense of Indiana’s consumers and out-of-state wineries.

Don't hand your local wholesaler a life jacket just yet. I've seen wholesalers up close, and they'll be captaining the ferries for a while.

My question for now: What's an oenophile?

Reverse Flow

2008-08-07T09:06:00.005-04:00

"City owes $85,000 for pulling strip club's licence," reports TheSpec.com. According to the article, "[t]he city's licensing committee pulled the defunct strip club's licence in July 2006 because of inactivity. The decision, which was upheld by council, quashed plans to reopen the strip joint. At the time, the move was celebrated by councillors as a 'breakthrough' because it dropped the number of adult entertainment licences to two, down from eight a decade ago."

To the (Canadian) City's credit, it has recognized the constitutional violation and accepted responsibility:

"We didn't give her due process," said Tim McCabe, general manager of planning
and economic development. "You've got to be fair."
He said the employees who made the mistake no longer work for the city, as they were let go in the overhaul of the beleaguered licensing department. The city has new protocols to ensure the same mistake doesn't happen again, he added.
Councillor Sam Merulla, who chaired the licensing committee when the licence was revoked, said the only good news in the court decision is that the old staff are gone. The bad news is city taxpayers are still paying for their mistakes.
The court awarded Owen $85,000 in damages.

In the U.S., a city would spend another $85K appealing the decision sideways.

Another town buys an adult business

2008-08-01T09:44:00.005-04:00

They're all the rage these days.

"A small town in northeast Georgia has bought a strip club, but it's not planning to get into the adult entertainment business," reports MSNBC.com here.

The town of Lavonia is not alone; other cities have taken the plunge.

The Sound of Silence

2008-07-20T10:03:00.007-04:00

Your application to plop an adult bookstore in our town's commercial shopping center is hereby ...

Dennis Loring filed a "site plan application seeking to locate an adult, sexually oriented book and video store in a shopping plaza in North Haven." The commission said no. The trial court said yes. And now the Connecticut Supreme Court says ... Yes (majority) with a no (dissent).

The issue: whether Mr. Loring's proposed accessory use of 15 "video preview booths" is "customarily incidental" to his proposed primary use of an adult book and video store, "and hence a valid accessory use." The supreme court said it was an accessory use, and for this reason, the application should have been granted.

One highlight from the opinion. At the hearing before the commission, the attorney for the proposed store, Dan Silver, detailed why "preview booths" were an accessory use to adult video stores. Mr. Silver based his statements on, among other sources, his 35 years of representing adult businesses. He offered to testify under oath if the commission deemed it necessary. But the commission was silent, with 2 members more or less agreeing that Mr. Silver's statements about accessory use were accurate. The commission still denied the application. [Full disclosure: I know Dan Silver and consider him a friend.]

On appeal, the trial court accepted Mr. Silver's representations and proffer as fact because the town did not object to, much less contradict, his statements. As any attorney who's read his or her words in a court transcript can attest, you -- the attorney -- can be hanged on your words. Yes indeed. The court will rule against your adult entertainment client while quoting your words as the "fact" supporting its decision. It's not often, though, that you see the court go the other way: using the government's lack of words (or evidence) to overturn an administrative decision. It seems like the right result here:

[I]f the commission members intended to disregard Silver’s expert testimony because of some special knowledge they had regarding what is customary for adult book and video stores, they should have stated the basis of their opinion on the record to allow the plaintiff an opportunity to rebut that evidence. Because it was undisputed that there were no other adult book and video stores then or previously operating in town and there is no evidence in the record to suggest that commission members had any personal knowledge of such businesses outside of the town, we reasonably cannot conclude that the commission members based their conclusions on personal knowledge. (internal citation omitted).

It's an interesting opinion because it applies settled law to undisputed facts -- and still generates a dissent.

Now that's [adult] entertainment!

Have you left your bag of firearms unattended?

2008-07-04T11:22:00.018-04:00

Happy July 4th!!

Are you flying over the holiday? If you're passing through Atlanta's Hartsfield-Jackson Int'l Airport, you'll need to leave your "arms" at home. For now at least. Sound ridiculous? To GeorgiaCarry.Org, Inc. and Georgia Representative Timothy Bearden (R - Villa Rica) it does. So the organization and Mr. Bearden have sued the airport, the City of Atlanta, the mayor, and the city's general aviation manager (Benjamin DeCosta). The allegations? According to the complaint:

Until July 1, 2008, O .C .G.A. § 16-12-122 through § 16-12-127 generally prohibited carrying a firearm in the Airport, with a penalty of up to 20 years in prison and a $15,000 fine .

Beginning July 1, 2008, the law in Georgia was changed by House Bill 89, an act of the General Assembly signed by the Governor, permitting people to whom a Georgia firearms license ("GFL") has been issued to carry a firearm in"public transportation," notwithstanding the provisions of O .C .G .A. § 16-12-122 through § 16-12-127.

From the complaint we learn that Mr. Bearden is the author of HB 89, and, apparently, he has exchanged words with Mr. DeCosta via the Atlanta Journal Constitution. I'm not sure whether carrying a gun in the airport is vital to Mr. Bearden's way of life. Maybe it doesn't matter, legally speaking. In the complaint he alleges:

Plaintiff Bearden is a visitor and user of the Airport facilities . He would like to exercise his right to carry a firearm while in the nonsterile areas of the Airport, but he is in fear of detention, search, arrest, and prosecution for doing so.

Plaintiff Bearden intended to visit the Airport on July 1, 2008 while legally armed, but he was deterred from doing so by Defendant DeCosta's specifically targeting Plaintiff Bearden for arrest.

True, everyone who goes to the airport is not a passenger. I've done business meetings at skymile clubs, picked up (and dropped off) hundreds of guests, friends and family, and I've even gone to the airport just to watch the airplanes. Nerd alert. Still, this is a pretty volatile location to launch a Second Amendment challenge. The guts of the complaint:

O.C.G.A. § 16-11-173 expressly prohibits Defendants from regulating the carrying of firearms "in any manner."

The Second Amendment to the Constitution of the United States guarantees an individual right to keep and bear arms.

The Militia Clause of the Constitution of the United States provides that Congress shall have the power to "provide for organizing, arming, and disciplining the Militia...."

The "Militia" as used in the Militia Clause means all able bodied men.
The individual right to bear arms existed at common law prior to the passage of the Second Amendment.

It's a Militia Clause and a Second Amendment "right to bear arms" case. With a smattering of state-law preemption. For all things "DC v. Heller," check out SCOTUSblog's Wiki on the case. There you can read GeorgiaCarry.Org, Inc.'s amicus brief, authored by the same attorney who filed this test case.

What else has Mr. Bearden sponsored? HB 21 (attempting to make "English" the official language of Georgia), HB 126 (attempting to tweak criminal procedure to provide that a verdict in a felony case, other than a case involving the death penalty, shall be agreed to by at least 11 of the 12 jurors), HB 640 (attempting to protect state flags and other "commemorative symbols"), and HB 1204 (attempting to create crime of feticide by drug ingestion). None passed.

A couple of Mr. Bearden's Resolutions that did pass: House Resolutions 1117 and 1291. Both relate to cheerleading, the latter: ("NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body commend the University of West Georgia All-Girl Cheerleading Team on their dominating win of the Division II All-Girl Cheerleading Competition and invite them to appear before this body on a date and at a time designated by the Speaker of the House for the purposes of being recognized by the House and receiving an appropriate copy of this resolution.")

I wonder if these cheerleaders traveled to the State Capitol via MARTA (Atlanta's public transportation system). The Georgia Secretary of State's Web site encourages teachers to use MARTA for student field-trips to the State Capitol. I know that Georgia's schools are weapons-free zones, but, thanks to Mr. Bearden's leadership, MARTA is not.

*Afterthought: As I've said before, I know little about the empirical studies analyzing the relationship between gun violence and gun control. I'm more than unqualified to take a reasoned stance on the issue. I also believe -- again, I don't know -- that most persons who apply for (and obtain) a permit to own a firearm have nothing but protectionism in mind when they do so. They're good people! But a gun is still dynamite. And, in certain settings, sparks abound.

Are obscenity prosecutions on the rise?

2008-06-23T22:36:00.013-04:00

Maybe. Or maybe not.

"What’s Obscene? Google Could Have an Answer" appears in tomorrow's edition of The New York Times. The question is whether Internet data --- specifically, Google search results --- may be used at trial to gauge "community standards," whatever that means. The article quotes two talented attorneys (disclaimer: I consider them friends), Larry Walters and Jeffrey Douglas. A glimpse:

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

Another capable and talented attorney, Marc Randazza, has suggested this as well. So what's all the fuss over the Internet? Better yet, what is the Internet? According to HowStuffWorks.com, it's "a gigantic collection of millions of computers, all linked together on a computer network." In that network "a home computer may be linked to the Internet using a phone-line modem, DSL or cable modem that talks to an Internet service provider (ISP)." These "ISPs then connect to larger ISPs, and the largest ISPs maintain fiber-optic 'backbones' for an entire nation or region. Backbones around the world are connected through fiber-optic lines, undersea cables or satellite links (see An Atlas of Cyberspaces for some interesting backbone maps). The end result: "every computer on the Internet is connected to every other computer on the Internet." [Source]

It seems to me that, if the government takes a 21st-century view that a web of fiber-optic backbones, with their hallways of bouncing light pulses (when descrambled and assimilated by an end-user), can throw someone in jail depending on what story emerges on transmission to a consenting adult, then maybe that someone ought not lose the right to show that others, too, see the light. The World might not think it a prurient thing. Whatever that means.

(HT: HowStuffWorks.com)

Georgia's wine sales to go online

2008-06-09T13:55:00.006-04:00

Georgia winemakers want your home address and (unexpired) MasterCard number.

The Atlanta Journal Constitution reports here that, "[s]tarting July 1, Georgia residents can have any winery ship to them up to 12 cases a year as long as someone 21 or older signs for the shipment." Awesome! Because shipments to the front door were previously off-limits, leaving hard-to-find bottles and wines not represented by local distributors out of reach, this measure is sure to help Georgia's upstart wineries. Yes, that's right -- Georgia has wineries. Here are the ones mentioned in the article:

Says the co-owner of Persimmon Creek Vineyards, Mary Ann Hardman, "I think Thomas Jefferson would be quite thrilled with the passage of this law, as he had wines from Chateau Rausan-Segla and Chateau d'Yquem shipped directly to him as president and then in his retirement at Monticello. He even had a muscadine from North Carolina shipped directly to his Palladian-framed doorstep." I'm not sure how TJ would have felt about online wine shipping, but I know that the Christian Coalition is not opposing this bill, as it did the proposed Sunday Sales legislation. That's according to this article from BeverageWorld.

I've written about Georgia's regulation of online wine sales for The Hudspeth Report.

Borderless Bookstore

2008-06-08T19:01:00.009-04:00

I like happily-ever-afters.

In West Chester, Pennsylvania, the "St. Agnes Church has dropped its challenge to a zoning hearing board decision involving Feminique Boutique, a sex novelty shop near the church," reports the DailyLocal.com here. Why? Well, we can only guess, but there is no definition for what the store is (i.e., an adult novelty store) in the borough's code; so there was no restriction on the store's locating where it did. The store sells "lingerie and body oils as well as racier items in a back room."

According to the article, the store's owner, Jill McDevitt, "has a bachelor’s degree in sexuality, marriage and family," and "originally wanted to be a high school English teacher" before founding her boutique. (While pursuing a psychology degree at East Stroudsburg University, she wrote a sex column in the student paper. It sounds like she's an educator, a savvy marketer, and, unlike the church -- at least initially -- a reader of the law.) Anyway, when the uproar began, hundreds signed a petition at the boutique supporting the store's plight.

It worked. Then again, Ms. McDevitt's store is no BadaBing.

Slots & Sovereignty

2008-06-04T11:51:00.007-04:00

It's a video poker case.

Over at SCOTUSblog, they're betting that that it is taken up by the Supreme Court. I won't (meaning, I can't) handicap the odds. The case concerns Jimmy Martin and his company, Lucky Strike, which have sought to enjoin enforcement of two South Carolina statutes criminalizing certain "device[s] pertaining to games of chance." The district court declined to hear the case, dismissing the federal constitutional challenges to the two South Carolina statutes regulating video poker, on the ground that Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), mandated abstention. The Fourth Circuit Court of Appeals reversed. "Because resolution of these challenges neither requires a court to adjudicate difficult questions of state law, nor disrupts state efforts to establish through a complex regulatory process a coherent policy on a matter of substantial public concern," the court of appeals held, "this case falls well outside the narrow category of cases to which Burford abstention may apply." But that's only 2/3 of the story.

Judge Wilkinson dissented. He wrote:

My friends in the majority ... refuse to allow the state courts to undertake the delicate task of distinguishing between lawful and unlawful games. Because South Carolina's gaming statutes justifiably call for a machine-by-machine determination of legality, the majority's notion that it somehow can interpret "games of chance" in bulk, without disrupting South Carolina's enforcement scheme, rides roughshod over the scheme itself and the principles of federalism it purports to observe.

This clash over what federalism requires, or what it does not allow, reminds me of a case I blogged on earlier. Both cases concern preliminary, federal court decisions on state regulatory matters. Both are also superb pieces of writing, IMveryHO.

It's been said that a good lawyer knows the law, while a great lawyer knows what the law will be (i.e., meaning, sometimes, that the lawyer knows the judge). Great, good or just plain average, I bet that this case doesn't get snatched.

Dem is fight'n words

2008-05-14T12:29:00.002-04:00

This free-speech lawsuit requires us to determine the present scope of the “fighting words”doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive.

begins this opinion from the Seventh Circuit Court of Appeals. In the end, the court holds that the display was, in fact, protected by the First Amendment. But that finding (or holding or dicta) was academic, as the police officer had every right to act on the ruckus which ensued. It's a good read.

Alcohol & Big Business

2008-05-11T21:48:00.004-04:00

"Michael Cortez never dreamed he'd be heading to the highest court in the state over a six-pack of beer. But the vice president and general counsel for Sheetz Inc. will do just that Wednesday when his central Pennsylvania convenience-store chain appears before the Supreme Court to resolve a dispute over where beer can be sold in the state." The Philadelphia Inquirer reports here (thanks How Appealing).

If you adopt silly laws that hurt someone's business, you encourage silly behavior to save someone's business. It's that simple. Of course, it depends on your vantage point. Silly laws are sometimes adopted to help someone's business.

The only thing we have to fear, is beer itself ...

2008-04-14T15:59:00.004-04:00

... and not one State's attempt to jack-up the tax on it -- or says Orin Kerr of The Volokh Conspiracy here. A California assemblyman, Jim Beall, has "proposed raising the beer tax by $1.80 per six-pack, or 30 cents per can or bottle. The current tax is 2 cents per can. That's an increase of about 1,500 percent," according to MercuryNews.com here.

But is this proposed tax constitutional? I say, obviously not. The tax would be blatantly unconstitutional under the Due Process clause, the 21st Amendment, the 8th Amendment, the Privileges & Immunities clause, and the Dormant Commerce Clause. Recall that the time of the Framing of the Constitution, Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is
proof that God loves us and wants us to be happy." And was not Samuel Adams both a brewer and a patriot, I ask you?

I've visited Sam Adams grave in Boston. I'm not sure why. I think it's on the Freedom Trail or something. The grave is pretty nondescript, really. But I think you'd hear some rumbling were you to read aloud this legislation while standing atop it.

Milwaukee's Best Light -- $3.79 for a 16 oz. six-pack!

2008-04-02T21:12:00.007-04:00

"A federal judge has overturned Virginia's decades-old ban on alcohol-related advertising in college newspapers, saying that the law violates the student publications' constitutional right to free speech," reports AP in the Washington Post here. Most alcohol-advertising bans are sitting ducks for constitutional challenge if they're (threatned to be) enforced because there's typically little (if any) evidence supporting the speech ban. Thing is, many revenue agents and others tasked with enforcing alcoholic beverage laws know this and, wisely, choose to let these advertising restrictions collect dust. Most of time, at least.

Just my $.02.

Bang

2008-03-29T08:14:00.007-04:00

"Guns, Fear, the Constitution, and the Public's Health," written by Garen J. Wintemute, M.D., M.P.H., will appear in the April 3 edition of the New England Journal of Medicine. (HT to You Don't Say.)

Dr. Wintemute notes that "the $2 billion annual costs of medical care for the victims of gun violence are dwarfed by an estimated overall economic burden, including both material and intangible costs, of $100 billion." (footnote omitted). So "[i]t's unlikely that health care professionals will soon prevent a greater proportion of shooting victims from dying; rather, we as a society must prevent shootings from occurring in the first place." Ain't that the truth.

Because I don't know anything about gun violence statistics or prevention, I'm eminently qualified to comment. So here goes: There's big money in guns. Period. End of story. Finito. Before there were guns, people did not kill people with guns. Before guns no one feared death by gun. That was then, of course. Today people own (hand)guns, in large part, because they fear death (by handgun). But,

Gun violence is often an unintended consequence of gun ownership. Americans have purchased millions of guns, predominantly handguns, believing that having a gun at home makes them safer. In fact, handgun purchasers substantially increase their risk of a violent death. This increase begins the moment the gun is acquired — suicide is the leading cause of death among handgun owners in the first year after purchase — and lasts for years.

Dr. Wintemute takes issue with state legislatures deregulating gun use. He says that relaxed regulations are founded on myths:

One is that increasing gun ownership decreases crime rates — a position that has been discredited. Gun ownership and gun violence rise and fall together. Another myth is that defensive gun use is very common. The most widely quoted estimate, 2.5 million occurrences a year, is too high by a factor of 10.

Policies limiting gun ownership and use have positive effects, whether those limits affect high-risk guns such as assault weapons or Saturday night specials, high-risk persons such as those who have been convicted of violent misdemeanors, or high-risk venues such as gun shows. New York and Chicago, which have long restricted handgun ownership and use, had fewer homicides in 2007 than at any other time since the early 1960s. Conversely, policies that encourage the use of guns have been ineffective in deterring violence. Permissive policies regarding carrying guns have not reduced crime rates, and permissive states generally have higher rates of gun-related deaths than others do.

I'm all for approaching a long-running debate from a new angle. It can break the stalemate. Entrenched special interest groups are superb at framing the issue in a way that places their agenda in the best light. But what about the rest of us? Maybe the combination of medicine & money -- commodities that we all fear losing -- will shift this debate.

E-wine & ID

2008-03-21T00:17:00.013-04:00

An interesting decision concerning Wine.com which you can access here (eVineyard Retail Sales-Massachusetts, Inc. vs. Alcoholic Bev. Control Comm'n, SJC-09948 March 18, 2008).

One of the vinous Internet giant's wholly owned subsidiaries, eVineyard Retails Sales-Massachusetts, Inc. (eVineyard), got snagged for delivering -- errr ... selling -- wine to an underage person. The facts are simple. For whatever reason, the Massachusetts Attorney General's Office ran a sting using an underage female (19 yrs. old) to order wine from Wine.com. To place her order, the underage woman opened an account with eVineyard, submitting her name, address, and a fictitious date of birth, which indicated that she was 22 years of age. Well, her order

was processed by eVineyard, and delivered to her by Federal Express, with whom eVineyard contracts for the delivery of all of its orders. In the contract, Federal Express agreed to deliver wine orders to customers in compliance with certain age verification requirements. eVineyard paid Federal Express an extra two dollars per delivery for its carriers to check identification and verify that each recipient is twenty-one years of age or older. eVineyard places labels on its packages informing the carrier that the packages contain alcohol and that a driver should not deliver the package to anyone under twenty-one years of age or visibly intoxicated, and that, if reasonable doubt about age exists, the driver should verify age and record the recipient's driver's license number or other identification. Federal Express also requires that certain labels be used on packages containing alcohol. Federal Express delivered the wine, in this case, to the underage CI without asking for identification or proof of age.

So, following 2 stings, eVineyard ultimately suffers a pair of modest alcohol-license suspensions, while FedEx escapes unscathed on one of those stings. Quite understandably, and in an homage to stare decisis, eVineyard appealed the ruling. It raised three arguments: mootness, statutory interpretation, and entrapment. They're all interesting defenses.

Regarding mootness, eVineyard argued that the license suspension targeted a 2004 alcohol license, and, by 2007, that train had left the station. (The state issues alcohol licenses annually, meaning that the license is good for one year only.) eVineyard applied for a "new" license in 2007, and reasoned that any adverse action against the 2004 license was disconnected to the 2007 license. I like the argument because, where I practice, the State frequently reminds its license holders that they enjoy no vested right in the renewal of those licenses. In other words, you can't claim a property right that extends beyond the year in which the license is issued. I say what's good for the goose.... If you don't get the benefit of an alcohol license in perpetuity, then you shouldn't suffer the detriment of an expired alcohol license in perpetuity: 1 year means 1 year, and, here, Massachusetts targeted 2004 -- not 2007.

Regarding the statutory argument, the Court held:

The plain language of the statute is unambiguous: it forbids both the sale and the delivery of alcohol to minors. The commission's interpretation of the statute as allowing it to proceed separately against both the licensed seller of alcohol, eVineyard, and the licensed deliverer, Federal Express, accords with the statute's language and with its legislative intent.

Regarding the entrapment argument:

eVineyard contends that the sting operation at issue resulted in its first offense, and that there was no evidence that it had a predisposition to sell to minors. It also argues that the CI wrongfully misrepresented her age on the eVineyard Web site, in violation of the commission's investigative guidelines that prohibit decoys from lying about their age. We reject these arguments.

To raise an entrapment defense properly, eVineyard must produce evidence of government inducement. Solicitation by a government agent alone is insufficient to show inducement. (cits omitted.)

Moreover, even if we were to reach the issue of predisposition, we agree with the commission that in the absence of a scienter requirement in the statutes, the "question is not whether eVineyard was predisposed to sell alcohol to persons whom it knew to be underage, but whether eVineyard's [Internet] practices evidenced a willingness to sell alcohol in a manner that could allow minors to make purchases by the simple expedience of misrepresenting their age."
Finally, the operation was conducted by the Attorney General's office in compliance with its own guidelines for sting operations concerning Internet alcohol sales to minors. These guidelines allow decoys to misrepresent their age when ordering alcohol via the Internet, but prevent them from transmitting by facsimile or otherwise providing false identification documents to an Internet retailer. The commission's on-premises guidelines are inapplicable to remote, Internet-based, sting operations, particularly when conducted by the Attorney General's office.

I'm guessing that it's first-day training for FedEx's in-house counsel to reread Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854), a relic contract case taught at most law schools. They'll be reading this case, too.

Religion & Poles

2008-03-18T22:36:00.004-04:00

(Source.) A follow-up to my post below. The picture is entitled, you guessed it, "Peep Show."

Now that just ain't right.

Politics & Poles

2008-03-18T21:12:00.005-04:00

This month Harper's Magazine is featuring Mr. Fish, 178 Cartoons from 2004 to 2008. Mr. Fish, we're told, "lives in Los Angeles, California. He never asked to be born. Occasionally, he laughs his head off. His mother has no idea what he's up to. She cries easily. For more information, date him." He sounds bipolar, but I'm not willing to date him to confirm.

I'm sure that, within a 1,000 or so words, someone could offer some clever comment capturing the impact of this cartoon. Not me. I'll defer to the caption (too small to read), which says "According to the most recent poll."

That's not why people go into politics, is it?

Percy L. Julian, Jr., Esq.

2008-03-02T10:48:00.003-05:00

"The legal community — particularly the First Amendment field — lost a giant recently in Wisconsin-based civil rights attorney Percy L. Julian Jr., who died Feb. 24 in Madison at age 67," laments David L. Hudson, Jr. of the First Amendment Center here. I considered Percy a friend, and the comments offered by Jeff Scott Olson and H. Louis Sirkin in the article are spot on: Percy was a talented lawyer, and an extraordinary gentlemen. In a sad coincidence, I e-mailed Percy last week, picking his brain about recovering attorney's fees under 42 U.S.C. Sec. 1988. (Percy has always taken time to educate -- and console -- me.)

Now I know why my friend did not respond.

Stuff

2008-02-23T21:58:00.004-05:00

"Breasts are not genitalia, and drivers don't gawk at the word 'love' — a First Amendment problem," is the title of an Althouse post. In case you're wondering, the buttocks is not genitalia either, although some have believed it so.

"Millions May Be at Stake in Suit Over Hit NBC Game Show" appears in a Law.com article, which begins:

Text messages, cell phones, TV game shows, Howie Mandel -- none of these could have been contemplated by Georgia's colonial lawmakers when they first passed a law allowing gamblers to recover their losses through lawsuits.

The current version of the law, found at Office of Contract and Grant Administration §13-8-3, is at the center of a case against NBC Universal and the producer of Mandel's hit show, "Deal or No Deal," to be heard Tuesday before the state Supreme Court."

Strip-club mogul remains an enigma," appears in tomorrow's edition of the Atlanta Journal Constitution. It's about Jack Galardi:

Welcome to Galardi Nation, a smoky, windowless empire that stretches like a plus-size G-string from Nevada to Florida to the Carolinas, at times numbering two dozen clubs. Five operate in metro Atlanta, including the just-opened Pink Pony South, in Forest Park, with its two-tier showroom and upstairs sushi bar.

While his dancers are on full display, the 76-year-old Galardi remains one of the most successful and controversial local moguls you've likely never heard of.

My firm has represented Mr. Galardi's interests over the years; I'm a fan. It's a nice article.

Texas sexual device ban held unconstitutional

2008-02-13T09:20:00.003-05:00

The Fifth Circuit Court of Appeals just reviewed Texas's obscenity statute, and here's how the opinion begins:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

It's recognized that, in constitutional law, the answer often depends on how the question is framed. In this case the questions were posed this way:

Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: 'the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.'

It looks like the court of appeals didn't like the State's picture, and it didn't buy the frame.

Liberty 1, Absurd Legislation 0.

Georgia law continues to honor the Sabbath

2008-02-12T12:06:00.000-05:00

"Despite public sentiment, Sundays likely to stay dry for now," is an article which appears in today's Atlanta Journal Constitution. If you haven't heard, Georgia is contemplating (again) a Sunday sales bill that would allow communities to decide whether they want to allow beer, wine and liquor retail package sales on Sundays. (Georgia is one of three states that ban Sunday sales of alcoholic beverages at stores, i.e., you can purchase a beer for consumption on the premises of a restaurant on Sunday, but you cannot purchase a six-pack from a grocery store that day.)

So what's the deal? According to the article,

Two-thirds of Georgians who answered a recent poll said they want the right to vote on allowing stores to sell beer, wine and booze on Sunday.

A free-market Republican caucus that includes several state Senate leaders calls the Sunday sales vote a "no-brainer."
...
However, religious conservatives have strongly opposed such sales, saying alcohol shouldn't be peddled on the Christian sabbath. Some liquor store owners, including those with political connections to Gov. Sonny Perdue and Cagle, have also opposed the idea. Liquor store opponents don't want the expense of being open on Sundays just so grocery and convenience stores can make more sales.

What a political laugh-off. The alliances and competing interests here remind me of the "wine shipping" cases. It's a sabbath/commerce split. On the one (invisible) hand, you've got the "free-market Republican" who wants to supply a product to serve a demand. On the other (clasped) hand, you've got the "born-again evangelical," who is often a Republican, who does not want to blemish the Sabbath.

No matter how arcaine or abstract the theory, I've been taught, "Don't check-in your common sense at the door." Opponents of the Sunday sales bill have one theory: It just doesn't feel right to offer package sales on Sundays. That's it. To support that theory requires reading scripture. Respectfully, those wishing to honor the Sabbath (by banning retail alcohol sales on Sundays) have left their common sense at the door, and they're floating various theories -- secular, mind you -- to justify the prohibition.

Am I missing something? Or do Georgia's Sunday sales opponents fund NASCAR Sundays, which are brought to you by All Things beer and Viagra?