Michigan panhandler law struck down

The Associated Press has reported that U.S. District Judge Robert Jonker has ruled a state law banning panhandling in public places violates First Amendment protections for free speech and the 14th Amendment’s equal protection clause.

The opinion concerns James Speet and Ernest Sims, two Grand Rapids men arrested in 2011 for begging. They were represented by the American Civil Liberties Union.

Speet, who is homeless, was arrested for holding up signs seeking “work or help.” Sims pleaded guilty to panhandling after asking for spare change. Both men receive food stamps, and Sims also receives $260 per month in state disability insurance.

Grand Rapids enforced the panhandling ban 399 times between Jan. 1, 2008, and May 24, 2011, the ACLU said.

“Pending future developments in this case, Grand Rapids police will not be enforcing this state law,” said Catherine Mish, Grand Rapids’ city attorney, adding that it’s too early to tell whether an appeal will be filed.

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COA to hear John Doe appeal in Cooley Law School suit

The Michigan Court of Appeals agreed to hear an appeal from John Doe 1, also known as Rockstar05, who is being sued by The Thomas M. Cooley Law School.

Doe is fighting to keep his identity a secret after he posted under his Rockstar pen name a blog post that was highly critical of Cooley’s business practices. He wrote the post early in 2011 after Cooley devised and published a national ranking system of all the law schools in the country, and ranked itself second behind only Harvard Law School.

Doe called the school a “diploma mill,” and an expensive one at that. Cooley sued.

But Doe said that he has the right to protect his free and anonymous speech. The law school knows who Doe is, and has known since August 2011. But if the courts agree that he can remain anonymous, Cooley can’t name him in the lawsuit.

Doe’s attorney, Berkley-based attorney John Hermann, said he feels encouraged that the Court of Appeals has granted leave. The case is important, Hermann said, because it “represents some free speech issues that we deal with in this electronic communication era.”

The Court granted media companies Gannett Co. Inc., Scripps Media Inc., The Detroit News, The Macomb Daily and The Rail — and the Michigan Press Association to file amicus briefs.

Aside from the First Amendment implications, there’s a great wonky angle to this case. Late in 2011, Cooley General Counsel James Thelen told Michigan Lawyers Weekly that if the Court allows Doe to remain anonymous, it would be sliding down a slippery slope of rewriting Michigan Court Rules and pleading standards by forcing a defamed plaintiff to prove its case before being entitled to seek discovery, as provided in Michigan law. (Subscribers can read the story here.) It would also need to look up in the dictionary the definition of “anonymous,” since Thelen, the law school and outside counsel at Miller Canfield already know who Doe is (he’s a former student, and Doe’s blog’s web host inadvertently gave Miller Canfield his identifying information).

Doe is asking the Court to apply the Dendrite standard, from Dendrite International v. Does, which requires a plaintiff to give notice to the potential defendant and give an opportunity for Doe to defend his anonymity; specify the statements that allegedly violate the plaintiff’s rights; plead a claim that could survive a motion to dismiss; and produce evidence supporting each element of the claim.

No harm, no foul in Joe the Plumber’s First Amendment case

Samuel Joseph Wurzelbacher

Samuel Joseph "Joe the Plumber" Wurzelbacher

What’s Samuel Joseph Wurzelbacher — you know him better as “Joe the Plumber” — been up to lately?

In the 2008 presidential campaign, John McCain, Sarah Palin and the media made Wurzelbacher the icon for Republican opposition to then-Senator and candidate Barack Obama’s economic policies.

Obama was campaigning in Wurzelbacher’s neighborhood. Wurzelbacher asked Obama about the potential tax consequences of opening a plumbing business. Obama’s reply included a statement that he wanted to “spread the wealth.”

The exchange was caught on video and soon after, McCain, during a presidential debate, dubbed Wurzelbacher as “Joe the Plumber.”

Wurzelbacher became a media darling, dispensing criticism of Democratic policies in general and Obama’s in particular.

He’s capitalized on that by running for Congress in Ohio’s 9th District. Earlier this month, he won the Republican primary and will face incumbent Democrat Rep. Marcy Kaptur in the November general election.

He’s also been watching a federal First Amendment and privacy rights lawsuit that he filed swirl right down the drain.

Wurzelbacher’s exchange with Obama drew more than just media attention.

According Wurzelbacher’s suit, several days after his Oct. 12, 2008, encounter with Obama, three high-ranking officials in the Ohio Department of Job and Family Services, all Obama supporters, huddled together. They decided to authorize searches related to Wurzelbacher on child-support enforcement, welfare and unemployment databases, which were at their disposal.

Did they uncover any dirt? We’ll never know because the search results were never made public. But what became known, after the Office of the Ohio Inspector General made inquiries, was that the searches took place.

Wurzelbacher’s suit alleged that all three officials were suspended, and when the dust settled, two had resigned and the third was fired.

He alleged First Amendment and privacy right violations, claiming his exchange with Obama motivated the searches.

The federal district court granted defendant officials judgment on the pleadings.

In the Sixth Circuit, Judge Richard Griffin noted:

In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

Griffin, joined by Judges Julia Gibbons and Bernice Donald, agreed with the federal district court that Wurzelbacher came up short on pleading an “adverse action.”

He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any, information was discovered. Moreover, if any information was obtained, it was never publicly disclosed. …

Wurzelbacher did not suffer a threat to his economic livelihood … was not defamed … did not endure a search or seizure of property … and did not experience the public disclosure of intimate or embarrassing information … .

In addition, Wurzelbacher was not threatened with a continuing governmental investigation, and he does not allege that defendants’ actions in fact caused a “chill” of his First Amendment rights.

As to that last point, it’s tough to imagine how he could have possibly done so.

The appeals panel also ruled that informational privacy rights are violated when released information may lead to bodily harm or concerns matters of a sexual, personal or humiliating nature.

Wurzelbacher pleaded none of this.

No harm, no foul.

The case is Wurzelbacher v. Jones-Kelley, et al.

Brewery rages against state’s LCC machine

If you’re a microbrewer and have Hunter S. Thompson’s illustrator as your graphics guru, there’s the expectation of at least some people taking critical notice.

The Liquor Control Commission certainly did. It denied Frederick, Md.-based Flying Dog Brewery its request to register the Ralph Steadman-designed label for “Raging Bitch” beer in Michigan.

“It’s really incredible that, in 2011, we’re still talking about moral crusades by the liquor commission,” attorney Alan Gura told The Grand Rapids Press shortly after filing a lawsuit in U.S. District Court.

According to the Press report:

The state says the LCC can reject any beer label “that is deemed to promote violence, racism, sexism, intemperance, or intoxication or to be detrimental to the health, safety, or welfare of the general public.”

It determined that Raging Bitch is degrading to women, with illustrations on the label depicting female body parts, Assistant Attorney General Melinda Leonard said.

The standard for an injunction is high, but [U.S. District Judge Robert] Jonker told state attorneys they also face hurdles if they want to prevail in the lawsuit.

The state already has approved controversial labels.

“Do you think Doggy Style Pale Ale is better?” the judge asked the state attorney. “Or In-Heat Wheat? Do you think they’re substantially different? How about Dirty Bastard?,” the latter a reference to a Grand Rapids-based Founders dark brew.

Jonker wasn’t impressed by the brewer’s First Amendment claims, either. The state isn’t preventing free speech, but preventing the sale of beer with that particular label.

“Selling beer is not exactly the focal point of the First Amendment,” he said.

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In their opinions

“Democracies need political debate more than they do topless bars in order to function.”

– Sixth Circuit Judge Raymond Kethledge, explaining in Big Dipper Entertainment v. City of Warren, that its fairly tough to uphold content-based restrictions on speech, but zoning regulations that limit the secondary effects of adult businesses — and thus limit the speech “conveyed by a topless bar” — will usually pass muster.

In a 2-1 decision, Kethledge, joined by Judge Alan Norris, rejected a topless bar operator’s claim that he had been unconstitutionally denied a permit to open a club inside the city of Warren’s Downtown Development Authority.

Kethledge said the city carried its burden to show that the zoning ordinance was designed to limit the secondary effects of adult businesses. The city did so by referring to 49 reports and studies on the matter.

The topless bar operator said that the city’s exclusionary zoning left too few other sites available for adult entertainment. But Kethledge noted that supply far outstripped demand: there were 27 conforming sites available and only one other topless bar application filed in the last five years.

In his dissent, Judge R. Guy Cole said the ordinance, because it imposed a prior restraint on speech, is presumed to be unconstitutional. And, he said, it was in fact unconstitutional because it did not provide for prompt judicial review after a permit denial.

A lamentable state of affairs (take two)

If you want to operate a complex piece of equipment, you should at least have a passing familiarity of what’s in the instruction manual. Otherwise, you could get hurt.

Consider the Constitution as part of the operating manual for running the government. Now, check out CNN’s account of a debate at a Delaware law school between Republican Senate candidate Christine O’Donnell, who is also backed by the Tea Party, and Democrat Chris Coons.

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Thomas More Law Center fights for ‘anti-Islam’ ads

“An Ann Arbor group announced Monday it has filed a request with a federal court seeking to require a metro Detroit bus agency to run ads aimed at Muslims who want to leave Islam,” reports the Detroit Free Press.

“The Thomas More Law Center, a conservative legal group, filed a motion for a temporary restraining order on Thursday that asks a federal judge to side with a New Hampshire-based group that often criticizes Islam. “