More on Judge Diane Sykes: Despite Strong Pro-Free Speech Rulings, Two Cases Where She Upheld Restrictions

January 26, 2017   •  By David Keating   •    •  ,
Diane Sykes

Hon. Diane Sykes

United States Court of Appeals for the Seventh Circuit (2004-Present); Wisconsin Supreme Court (1999-2004); Milwaukee County Circuit Court (1992-1999)

This post is the last in a series exploring the free speech views of Judge Diane Sykes. (Part 1 is here, and part 2 is here.) This post explores two decisions Sykes joined in cases that ruled against significant First Amendment free speech claims while on the Seventh Circuit.[1]

As noted in the first two reports, the opinions Judge Sykes wrote were very strong and carefully applied scrutiny to First Amendment claims.

The common thread in these two opinions joined by Sykes that ruled against First Amendment free speech claims involves message delivery. Patriotic Veterans distinguished banned robocalls with permissible live operators. Norton compared direct verbal panhandling with silent sign-bearing panhandlers or oral requests to send money later.

Patriotic Veterans v. Zoeller

Judge Sykes sided with the government on this First Amendment issue. The State of Indiana onerously restricts advocacy groups wishing to engage in political speech through robocalls. Patriotic Veterans argued their calls’ political messages should be exempt from the State’s restrictions. The statute requires either that recipients had previously ‘opted in’ to hear the message or a live operator receives permission before playing it. Other exceptions include calls made by a school district, employer to employees, or if the caller had some undefined “prior business or personal relationship” with the recipient.

The Center for Competitive Politics (now the Institute for Free Speech) represented the plaintiff in this case by retaining and paying for counsel. In 2011, the district court issued an injunction against the law, finding federal law preempted it. The circuit court reversed and remanded to the district court to consider the First Amendment arguments. The district court did not find any constitutional violation.

Indiana claims its interest is preventing annoyance, but under the challenged statute, a campaign, party, or political group may call Hoosier households with political messages every 90 seconds, 24 hours a day – as long as they use a live operator.

Requiring a live operator for calls helps big budget campaigns and establishment groups that can afford them, while silencing low-budget insurgent campaigns and grassroots groups. Industry information suggests live operator calls can cost 1,500 percent more than robocalls.

Many city and county campaigns can only afford polls using auto-dialer technology. These restrictions hurt candidates challenging the status quo by protecting incumbents, who enjoy other trappings of office like the ability to send free, glossy mail to their constituents.

Since the court did not apply strict scrutiny to the law, it did not consider whether less restrictive arrangements, including a potential “Do Not Call” list, could have satisfied state interests.

The appeals court panel swatted the arguments that the statute should be subject to strict scrutiny, as required in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). As noted in the brief on behalf of Patriotic Veterans, the law “allows other species of automated calls by exempting calls from school districts, debt collectors and employers. These exemptions protect many types of commercial speech but not political speech.”

From the opinion joined by Judge Sykes:

No one can deny the legitimacy of the state’s goal: Preventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls. Every call uses some of the phone owner’s time and mental energy, both of which are precious. Most members of the public want to limit calls, especially cell-phone calls, to family and acquaintances, and to get their political information (not to mention their advertisements) in other ways….

Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Facebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent. Plaintiff can ask its donors and potential donors to agree to receive robocalls. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction.

Norton v. City of Springfield

The City of Springfield banned certain panhandler overtures in their historic area. Although composing a fraction of the city proper, it was the only place a panhandler could get a good haul.

Panhandling statutes had vexed the circuits as well as the Supreme Court in prior cases. In Norton, Judge Sykes joined a split panel that held Springfield’s ordinance survived constitutional attack because it was not content-based and allowed less intrusive solicitation.

The city’s respite was short lived. The Supreme Court quickly took a different panhandling case that defined “content-based” restrictions expansively, resulting in this opinion’s reversal.

From the opinion Judge Sykes joined:

Other courts of appeals have divided on the question whether rules similar to Springfield’s are content-based. Three circuits have answered “yes” and held them invalid. But two circuits have concluded that anti-panhandling laws are content-neutral and valid.

The Court has classified two kinds of regulations as content-based. One is regulation that restricts speech because of the ideas it conveys. The other is regulation that restricts speech because the government disapproves of its message.

It is hard to see an anti-panhandling ordinance as entailing either kind of discrimination. “Give me money right now” does not express an idea or message about politics, the arts, or any other topic on which the government may seek to throttle expression in order to protect itself or a favored set of speakers. Springfield’s ordinance does not regulate speech by the pitch used; it does not say, for example, that “give me money because I’m homeless” or “give me money because I support the governor” is permissible, while “give me money because my daughter is sick” or “give me money because the distribution of income is inequitable” is forbidden.

The ordinance is indifferent to the solicitor’s stated reason for seeking money, or whether the requester states any reason at all. And if the panhandler uses a sign, which is less threatening than oral demands (the requester need not approach the target), there is no restriction…. [W]hat activates the prohibition is where a person says something (in the “downtown historic district”) rather than what position a person takes on a political or literary question. Petitioners are free to ask for money anywhere in Springfield outside the “downtown historic district.”

The [Supreme] Court added in McCullen v. Coakley, that selective exemptions from an otherwise-neutral rule do not make that rule content-based. It follows that Springfield’s exemption for signs does not make its ordinance content-based, and plaintiffs do not argue otherwise.

Judge Manion’s dissent, with its forceful opening, would eventually prevail when the panel reheard the case. Norton v. City of Springfield, 806 F.3d 411 (2015).

From the dissent:

Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence.

[1] Internal citations to other cases have been omitted from the excerpts below.

David Keating

David Keating

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