Bacon's Rebellion

Democracy Thrives in Sunlight

One Small Victory in the Never Ending Battle to Protect Free Speech

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by

James A. Bacon
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bob_wilsonby James A. Bacon

A few days ago I bemoaned state-imposed restrictions on the right of two Oregon bakers, Aaron and Melissa Klein, to publicly explain the reasons for their religion-based opposition to serving couples in gay weddings. Could such a transgression against free speech happen in Virginia, I asked. If it did, I would vigorously oppose it.

Well, such a thing has happened in Virginia, although it has nothing to do with gay marriage. Rather, the City of Norfolk ordered a business owner to take down a sign on the side of his building protesting the seizure of his property by eminent domain. The offending words:

50 years on this street
78 years in Norfolk
100 workers threatened by eminent domain

The horror! The horror!

Bob Wilson, the owner of Central Radio, a radio repair company, resisted the condemnation of his property by Old Dominion University by erecting a 375-square-foot sign on the side of his building as seen in the photo above. A city ordinance prohibits signs larger than 60 square feet. To avoid fines of up to $1,000 per day, Wilson covered the sign… and sued. The local court sided with the city. So did the Circuit Court of Appeals. And so, in June, did the U.S. Supreme Court, which, in a unanimous decision, declared that a municipal code that treats some signs differently than others based on their subject matter is “presumptively unconstitutional.”

Bacon’s bottom line: If the Kleins had been prescient, they would have expressed their views (which, for the record, I do not agree with) in a sign on the side of their bakery. The right of Americans to express views objectionable to those in power is perhaps the most fundamental safeguard against tyranny they possess. All Virginians should rejoice in Bob Wilson’s victory — and thank the Institute for Justice for taking up his case.

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  1. Peter Galuszka Avatar
    Peter Galuszka

    I fail to see the comparison that’s struggling to be made here.

    The government is the bad guy.
    The government is wrong to tell a baker he is wrong to discriminate against people on the basis of sex.

    The flip side is: does that make the government RIGHT to tell gay people that they have no right to get married?

    Jim, you seem to getting your government bogyman mixed up here.

  2. James A. Bacon Avatar
    James A. Bacon

    Peter, can you tell the difference between two propositions:

    (1) Government has the authority to tell store owners not to discriminate against gays in the marketplace.

    (2) Government has the authority to tell store owners they cannot explain their thinking in discriminating against gays in the marketplace.

    If you find no meaningful distinction, then you are a closet totalitarian.

    1. LifeOnTheFallLine Avatar
      LifeOnTheFallLine

      If it is illegal for the business to cultivate a discriminatory environment then it’s illegal for the business to cultivate a discriminatory environment. There, I squared propositions one and two for you.

      As to your last point: that’s some strong, black and white thinking you got there. Some might even say it’s dogmatic…

    2. Richard Avatar
      Richard

      Jim. In looking at the wording of the Oregon order the problem with the baker wasn’t that he was explaining his reasons for not serving gay couples. Rather the violation was that his sign said essentially that he would not serve gay couples. This is like the old racial signs – “no coloreds served” or “no Hispanics served”. (BTW – one of the great fight scenes in movies and Rock Hudson is great in Giant – the scene ends with the diner owner pointing at one of those odious signs while Rock is sprawled out on the floor but he’s heroic and in the arms of Elizabeth Taylor.) This is the equivalent of advocating an illegal act. This is different than expressing a religious or political view. Words are important. IMO you’ve mischaracterized the state’s actions. Also I don’t see in your article where this is a victory for Mr. Wilson? He had to comply with the city ordinance right?

      1. Richard Avatar
        Richard

        Actually the misrepresentation seems to have its source in the Heritage Foundation publication.

        1. LarrytheG Avatar
          LarrytheG

          There were a LOT of options for BOTH aggrieved to exercise their free speech in powerful and more effective ways and yet both chose NOT ONLY NOT TO – but to instead choose a particular way that they knew was going to lead to a conflict.

          this is not about free speech. this is about an anti-govt agenda by folks who see themselves as pursing some noble goal … in defense of “rights”.

          National groups with agenda’s have picked them up pro bono because they fit into their plans to attack govt on precise but very narrow issues.

          the net result of the lawsuit won’t be to overturn the right of govt to regulate the size of signs.. it’s more likely will be that no artwork, no religious emblems or other group emblems will be allowed – either.

          what’s the point?

          worse in my view – what’s the point of misrepresenting the issue to start with?

  3. LarrytheG Avatar
    LarrytheG

    THis is disingenuous and more and more the technique of misrepresenting the issue.

    Jurisdictions regulate signs REGARDLESS OF THE CONTENT.

    this is NOT restricting free speech..

    the aforementioned folks are FREE to post signs of permitted size as well as write letters to editors .. comment on blogs and websites.. etc.

    this has gotten to be ..I’ sorry – ignorant.. and pathological… and really just plain wrong…

    1. TooManyTaxes Avatar
      TooManyTaxes

      I agree with this point. A content neutral regulation of time, manner and place can be upheld. The big question, which cuts both ways, is: Whether the regulation is truly content neutral?

      If the First Amendment is really working, we all ought to be repulsed periodically at what is being said, written or displayed. I always think of the court that ordered the City of Skokie, IL to grant a parade permit to a neo-Nazi group. That’s about as repulsive as it comes. But it proves what the First Amendment means.

      1. LarrytheG Avatar
        LarrytheG

        Good point TMT. Note also – Charleston is giving a permit to the KKK to rally on the ground of the Capitol.

        http://www.usatoday.com/story/news/nation-now/2015/06/30/kkk-rally-south-carolina-statehouse-confederate-flag/29510543/

        all the more examples – to question why any individual or any organization like the Institute for Justice would purposely seek out the narrow legal niches they are.

        AND further – that media and websites and blogs – even like this one – would further promote a distorted view of the actual issue.

        1. TooManyTaxes Avatar
          TooManyTaxes

          The American Civil Liberties Union used to (and sometimes still does) take up free speech rights for many unpopular speakers and causes simply because it believes in the First Amendment. What’s wrong with another group doing this? There are many other advocacy groups that also litigate in very narrow niches. For example, the Southern Poverty Law Center on the left and the National Right to Work Center on the right. A number of states have groups of lawyers who examine criminal convictions and challenge those they think are incorrect. Likewise, a number of states have victim rights groups that push prosecutors to pursue criminal cases or allow victims’ relatives and friends to testify in the sentencing phase of a trial.

          Many organizations attack the government for its policies in many areas. So long as they are not promoting armed insurrections, isn’t that what this country is about? Since SCOTUS found a right to gay marriage in civil law, I’ve been advocating for the same right for those who seek plural marriages, even though I don’t believe in them or want them for myself.

          1. LarrytheG Avatar
            LarrytheG

            I have no problem with ANY organization taking up the free speech argument as long as it really what it is about.. and it’s not just another proxy for the culture war.

  4. Peter Galuszka Avatar
    Peter Galuszka

    Well SHEEET! Bacon. We go from SCOTUS upholding gay marriage to Oregon legislating against anti-gay bias to a narrow requirement( allegedly) from a minor state official saying the defendants can’t discuss the case publicly. Obviously wrong. And so was adjudicated.

    The point that LarrtytheG makes and with which I concur is that you and your merry little band of right wingers find some little tiny infraction in the midst of a HUGE victory for individual rights you supposedly espouse, you listen to your little Koch/ALEC network and come out as if what some bozo state official in Oregon (which has a huge influence on the rest of us) is the real story.

    You want limiting free speech? Look at any homeowners association. You ought to love that. It’s privatized government.

    1. James A. Bacon Avatar
      James A. Bacon

      Seen in isolation, one or two people being told to “shut up” by the government is not the end of the world. But without a lot of ferocious pushback, one or two turns into a dozen, and the “tiny infractions” become big ones. Next thing you know, you’ve got an IRS-auditing-conservative-nonprofits kind of a scandal on your hands.

      1. Lionel Hutz Avatar
        Lionel Hutz

        So one or two is the harbinger of the totalitarian tyranny to come, because the plural of anecdote is apparently “data”; yet you can’t be bothered to do any research at all into the economic discrimination faced by the LGBT community before dismissing their complaints as lacking any “massive” or significant impact?

  5. LarrytheG Avatar
    LarrytheG

    you know – when you put in the search keywords for the Sweet Cakes case – you are inundated with right-wing sites many saying the same exact phrases!

    trying to find a single , fairly objective report of the issue is a real chore because there are so many whacko sites to wade through.

    it’s nutty… there is an echo chamber…

    these sites latch on to some phrase coined by one of them – and then blather broadcast it from here to creation and back.

    a guy puts up an illegal sign – and it becomes denial of his free speech..

    good lord.

  6. Acbar Avatar
    Acbar

    You know, despite the David vs. Goliath flavor of this story, I don’t see what’s wrong with an ordinance reasonably restricting the size of ALL signs, regardless of what they say, if it is in fact applied and enforced uniformly. So why was free speech impaired here? Couldn’t this man say all he wanted to say about this use or abuse of eminent domain on a smaller sign? 64 sq. ft would allow a sign more than 10′ wide by 6′ high — what does it take to get your point across?

    1. LarrytheG Avatar
      LarrytheG

      here’s what this is about.

      The guy was having his property condemned for a college. He was not happy so he put up a BIG sign expressing his displeasure.

      Someone at the college – complained and the city cited the sign for size.

      then that’s when the

      The city of Norfolk, however, quickly ordered Central Radio to remove the protest banner because it violated the city’s sign code. Yet a banner of the same size, in the same location, would have been perfectly permissible under the code if, rather than protesting city policy, it depicted the city flag or crest—or, for that matter, a religious emblem or a work of art.
 
Central Radio filed a free speech lawsuit challenging the city’s sign code in 2012. Even though the sign code discriminated against certain types of signs based on their content, the U.S. District Court for the Eastern District of Virginia upheld the code.

      that’s when the Institute for Justice got involved…

      if you never heard of them – “The Institute for Justice (IJ) is a non-profit libertarian public interest law firm in the United States. It has litigated five cases considered by the United States Supreme Court, on topics including eminent domain, interstate commerce, public financing for elections, school vouchers, and tax credits for private school tuition. The organization was founded in 1991. As of 2012 it employed a staff of 65 (including 33 attorneys) in Arlington, Virginia and five regional offices across the United States. Its 2014 budget was $12.8 million.

      William H. “Chip” Mellor and Clint Bolick co-founded the organization in 1991 with seed money from libertarian philanthropist Charles Koch.

      Their cases are pro-bono –

      they typically oppose licensing, eminent domain, civil forfeiture , etc..

      so you get the drift – they have an agenda…it’s one in which they basically oppose government.

      here’s their statement:

      http://www.ij.org/norfolk-virginia-free-speech-release-6-29-2015

      1. TooManyTaxes Avatar
        TooManyTaxes

        What’s wrong with opposing government actions? I have a friend who works for a labor union who is always trying to get more government actions and spending. Don’t they stand on equal footing?

        1. LarrytheG Avatar
          LarrytheG

          what’s wrong with opposing govt actions?

          1. – have these groups done it before for similar issues?

          2. – is the purpose of the opposition – based on the merit of an issue or is it just another excuse for so-called libertarian types to essentially oppose any/all govt – that in the bigger picture – most Americans would not support?

          3. are the groups opposing cherry-picking their issues rather than arguing on the merit – across the board?

          an example: mindlessly opposing the govt on regulation… in general… by opportunistically picking something narrow… that probably has merit but
          claiming it is systematically wrong… like EPA regulation…

          which leads to seriously idiotic mindsets – like “abolish the EPA”., “abolish the IRS”, abolish the Dept of Ed”.. no Federal Highway, etc, etc…

          1. TooManyTaxes Avatar
            TooManyTaxes

            The idea that something shouldn’t be done if most people don’t like doesn’t make sense to me. It wasn’t that long ago when most people strongly opposed homosexual behavior, much less gay marriage. Indeed, one of my first clients in private practice was a gay-friendly business in California that needed something from the FCC. Not a few eyebrows were raised when I took on the client. Yet, look at the changes we’ve seen in this area. But I suppose this is different.

            I’ve had clients take on specific regulations or decisions under those regulations. Sometimes we won; sometimes we lost. Sometimes, we had strong opposition from people/groups that wanted the regulation to stay or opposed the decision. I once tried a case before a state PUC and won approval of the Telephone Company’s use of a credit screen over the rabid opposition of consumer groups. I won telephone price increases over the opposition of the state consumer advocate’s office.

            And if I can do that, why can’t somebody take on other regulations or agency policies. The EPA was just handed its A** by the Supreme Court for failing to follow the law on considering costs as well as benefits. Were the challengers wrong to argue their position? Doesn’t the fault lie with the Administrator and agency lawyers that failed to follow the law?

            I know of a lot of people, including former Secretary of HEW Joseph Califano, who believes the US Dept of Education exists as a payoff to the National Education Association. Should people be barred from wanting to see its budget shifted to school instruction?

            I’d like to see the feds largely out of transportation funding since much of the funding goes to who lobbies the hardest. I’d rather see VDOT make the decisions even as wary as I am about VDOT. Our own “The Donald” wants to go further and give most of the money to counties and cities.

            I don’t understand why you argue one must be all or nothing to be credible. Total government control or no government at all. Life”s grey.

          2. LarrytheG Avatar
            LarrytheG

            in terms of the EPA – they DID show cost-benefit.. if you read most of their proposed regs – they almost always provide a cost-benefit.

            For instance, take a look at the CPP – http://www2.epa.gov/carbon-pollution-standards/fact-sheet-clean-power-plan-benefits

            so you need to go back and read more carefully what they got handed their Azz on….

            I don’t have a problem what-so-ever for people who have been harmed at challenging the govt.. I think govt DOES need to be pushed back…

            but I differentiate that with challenges from organizations that are opposed to the concept of govt in general.

          3. TooManyTaxes Avatar
            TooManyTaxes

            Larry the EPA did not properly consider costs. Even my government-booster trade association – the American Bar Association — agrees.

            http://www.abajournal.com/news/article/supreme_court_says_epa_must_consider_cost_pf_toxic_air_pollution_regulation/

            I’m not an anarchist. Few people are. But challenging any organization to prove it has complied with its requirements is good, rather than, bad, IMO.

            The EPA was also warned it will need to explain that, if its is already meeting its statutory goal — setting the standard for particulate material at a level “requisite to protect the public health … allowing an adequate margin of safety,” how can it then claim reducing particulate matter reducing particulate matter further will thousands of lives saved adding up to billions of dollars in benefits, thousands of lives saved adding up to billions of dollars in benefits? Unless the Agency has not done its statutory duty, it cannot claim a need to go further under the statute.

            A number of years ago, I and some colleagues made the FCC dismiss an order imposing regulations on a small carrier of a type that Congress had said was exempt from the regulation being enforced. Is that anarchy? I thought it was forcing an agency to follow the law.

            In other words, the Agency is charged with limiting particulate materials to a level consistent with public health and it claims in its many order to have done so. But then, how can it argue it needs to go further to protect the public health? Didn’t it already say it was doing that? I don’t challenging that circular argument as necessarily being consistent with anarchy.

          4. LarrytheG Avatar
            LarrytheG

            TMT – my understanding is that the EPA – DID consider the costs but the argument was that they needed to do that earlier in the process.

            ” And while the EPA refused to consider costs in the first step of that process for toxic emissions, Justice Elana Kagan noted in a dissent that the agency conducted a “formal cost-benefit study” later in the process, when it actually wrote its rule.

            http://www.wvgazette.com/article/20150629/GZ01/150629154#sthash.DF4i2sMN.dpuf

            it’s true you are not arguing anarchy – but have you done a search lately with the keywords EPA and abolish and looked at the URLs of the sites making those statements? It’s way more than the run-of-the-mill anarchists…

  7. Darrell Avatar
    Darrell

    So a bakery can’t refuse service to gay people according to The State. So does that also mean the bakery can’t refuse service to shirtless, bare foot straight folks? Or that Anyone guy we keep hearing about?

    1. LarrytheG Avatar
      LarrytheG

      yeah.. thinking of that one also Darrell.. no shoes no shirt no service!

      no diaper changing! no smoking!

      I wonder where the Institute for Justice was for that one!

      😉

      here’s another favorite:

      https://youtu.be/hdIXrF34Bz0

  8. John B Avatar
    John B

    Meanwhile the City of Norfolk has a huge electronic signboard on Nauticus which obviously violates its own ordinance. His Honor Fraim et al speak with forked tongue.
    See: https://lh4.googleusercontent.com/-Y2_c4-7sjkc/UlK8XnNwRqI/AAAAAAAAABI/WmI84Tgbxrc/w905-h602-no/campus.jpg

  9. Scout Avatar
    Scout

    I found this a very confusing post, primarily because a word was dropped )or something) in the description of what the Supreme Court did, and secondarily because it wasn’t clear if the sign was subjected to greater scrutiny by the City because of its content, or whether it simply violated a size restriction that is uniformly applied to all signage. In trying to puzzle through it, I guess the “victory” that Mr. Wilson won was that the Supreme Court, in deciding the Texas church sign case, sent this one back down for re-examination in light of that decision.

    If the city uniformly enforces the 60 square foot sign restriction, regardless of content, Mr. Wilson would, I think, lose the next round. If they impose limits on political or opinion signs that are more lax for other types of signage, then the recent Texas case may cut in his favor.

    1. LarrytheG Avatar
      LarrytheG

      the case apparently revolves around the issue that bigger signs are allowed if they are artwork or emblems/flags/badges etc… … not words…

      so we’re going to litigate that and essentially a “win” will result in the city having to not allow the bigger size stuff… which will then, no doubt, be trumpeted as another victory for “free speech”.

      In the old days, they used to call these “nuisance” suits because there really were not focused on the central claim – but rather around the edges.

      You have to ask yourself why anyone would spend hundreds of thousands of dollars to essentially make the city not allow artwork and emblems … on signs.

      Think of all the ways the guy could have got his message out, from billboards to letters to the editor to blogs and marching with a placard on the sidewalk…etc..etc.

      the same with the Sweet Cakes case on the west coast.

      Both – purposely want to do this in this way that’s certainly their right especially if 3rd parties want to fund the legal work.. but at the end of the day – it’s not really about free speech… it’s about their discontent with govt.

      We’ve got through something like this locally – where our Conservative BOS (some are tea party) have directly challenged the entire concept of the State or the locality having the authority to restrict signage of any kind.

      It initially surfaced as businesses started using electronic LED signs that flashed colors and animations, etc… and the state considered them a distraction to drivers – a sort of DUH revelation in light of the f act that they do EXACTLY what the businesses wanted!!

      Some, not all, on the BOS consider this to be – yet another example of govt overreach… messing in the lives of people and business for no real legitimate reasons.

      It’s in my view the kind of petty, mind-numbing, ignorance that is sweeping the politically disaffected these days.

      even the most hard over zealots probably would draw the line somewhere – like perhaps in someone’s front yard or a flashing liquor or tatoo shop sign next to a church… etc.

      it would be the very essence of “tolerance” , eh?

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