Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Freedom of Speech

Indiana’s Personalized License Plates: Government Speech or Individual Expression?

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Today, specialty license plates are commonly seen on cars and trucks across the country. Some display amusing or entertaining messages, while others are simply used as a unique way to identify a driver’s vehicle. Earlier this month, the Supreme Court of Indiana considered a case dealing with the intersection of state-issued specialty license plates and the freedom of speech. In his opinion, Justice Dickson held that Indiana’s personalized license plates are government speech and therefore immune from First Amendment attacks.

In Indiana, owners of registered vehicles can apply to the Bureau of Motor Vehicles (BMV) for personalized license plates (“PLPs”). Ind. Code § 9-18-15-1. PLPs display a combination of letters and/or numbers which identifies the vehicle and is “requested by the owner or lessee of the vehicle and approved by the bureau.”

Over the years, PLPs in Indiana have become quite popular. For example, between January 1, 2011 and July 19, 2013, the BMV received 71,452 applications for personalized plates.

After receiving an application for a PLP, the BMV has the authority to reject a PLP that: (1) contains a connotation offensive to good taste and decency; (2) would be misleading; or (3) is otherwise determined by the bureau to be improper for issuance. Ind. Code § 9-18-15-4(b). Similarly, the BMV can revoke a previously issued PLP if it receives a substantial number of complaints about the PLP’s message, or if the PLP contains references or expression that Indiana law prohibits. 140 IAC 2-5-4(a).

A class of Indiana citizens, all of whom had their applications reject or PLPs revoked, challenged the constitutionality of the PLP program, claiming that the BMV’s decision-making process violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. The BMV argued that its PLP decision-making process was constitutional because personalized license plates are a form of government speech.

Initially, the lawsuit arose two years ago when the BMV refused to renew a license plate that said “0INK.” The American Civil Liberties Union (ACLU) of Indiana sued the BMV on behalf of Rodney Vawter, who claimed the message was an innocent attempt to make light of his work as a police officer.

In its opinion, the Indiana Supreme Court relies on several factors from Walker v. Tex. Div., Sons of Confederate Veterans, Inc. to determine if PLPs are a form of government speech. In Walker, the Supreme Court considered whether Texas’s specialty license plates were government speech. First, the Court considered whether the government has historically used the medium to speak to the public. In its analysis, the Court reasoned that license plates have long been used for government purposes, such as providing identifiers for the public and law enforcement. The Court further reasoned that license plates have historically been used as a way to communicate between states. For example, all fifty states have unique graphics and slogans on their plates which put drivers and law enforcement on notice as to where the driver is from and where the vehicle is registered.

Next, the Court looked at whether, in the public’s mind, the message is closely identified and associated with the state. Here, the Court reasoned that the PLPs technically belong to the BMV and display “Indiana” at the top of every plate, indicating that the state of Indiana owns and issues them. Therefore, the public reasonably associates PLPs with the government.

Finally, the Court examined the degree of control that the state maintains over the messages conveyed. Analyzing these factors together, the Court held that PLPs are a form of government speech. Accordingly, it found that the BMV did not violate the First Amendment right to free speech or the Due Process Clause of the Fourteenth Amendment.

Under Walker’s reasoning, personalized license plates can be seen as a form of government speech because the state is issuing them. And the state certainly has a legitimate interest in rejecting or revoking inappropriate PLPs. But how can a personalized license plate really be government speech when the individual, rather than the state, is using it as a form of self-expression? If only there was some sort of happy medium between government speech and individual expression.

Indiana’s “Selfie” Voting Law Scrutinized By Federal Judge

Indiana ballot selfie law

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Thinking about snapping a picture at the polls this year? Think again.

As of July 1, 2015, under Indiana law, it is a felony for voters to take a photograph of their ballots while at a polling place and/or distribute or share such photos on social media. Ind. Code § 3-11-8-17.5. This law has commonly been referred to as Indiana’s “ballot selfie law,” referencing the modern trend in self-photographs taken by smartphone users.

On August 27, 2015, the ACLU of Indiana filed suit against the Indiana Secretary of State, the Indiana Election Division, and the Superintendent of Indiana State Police, claiming that the law is unconstitutional because it violates the First Amendment. Shortly thereafter, the ACLU of Indiana also sought a preliminary injunction enjoining the state from enforcing the ban at election polls this year.

Still thinking about snapping a selfie while at the voting polls in November? You may be in luck after all.

A federal judge in the U.S. District Court for the Southern District of Indiana recently struck down the law banning ballot “selfies.” Judge Sarah Evans Barker ruled that the law is a content-based restriction on speech because it requires the government to examine the content of images and photos in order to determine whether a voter has violated the statute. She also stated that content-based regulations of speech require a strict scrutiny analysis, where a law will only be upheld if the government can prove it serves a compelling government interest and is narrowly tailored to achieve that interest.

As Judge Barker explained, the ballot “selfie” law does not survive strict scrutiny because it neither serves compelling state interests nor is narrowly tailored to achieve those interests. She reasoned that the state does not have a compelling interest because it has failed to demonstrate any current, ongoing, or actual problem related to the use of smartphones or digital photography during elections. She also reasoned that even if the state did have a compelling interest, the law is not narrowly tailored because it is covers far more speech than necessary to accomplish its goals.

Effective immediately, the ruling enjoins the State from enforcing the ban. This means that voters are free to post pictures of their ballots at the polls this year.

On one hand, the statute is reasonable in the sense that it aims to protect voter privacy and secrecy. On the other hand, it lacks enforceability and burdens political speech. What if absentee voters posted a picture of their ballot before sending it in the mail? How is taking a picture of your ballot at the polls different from wearing a political button or putting a political bumper sticker on your car?

Chicago’s Rising Weed Problem – Literally

View of the Discount Inn property, from Judge Posner’s opinion.

View of the Discount Inn property, from Judge Posner’s opinion.

By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

No, not that kind of weed. In a recent opinion written by Judge Richard Posner, the Seventh Circuit Court of Appeals upheld Chicago’s weed ordinance yet again.

Chicago’s weed ordinance provides that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200.” It also states that “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.” Municipal Code of Chicago § 7-28-120(a).

Plaintiff Discount Inn, Inc., claims to have been fined over twenty times for violating this ordinance. It sued the city of Chicago claiming that the ordinance imposing fines on landowners who allow tall, overgrown weeds to take over their property is unconstitutional. Specifically, it claimed that the ordinance violates the Eighth Amendment’s prohibition of “excessive fines” and the First Amendment’s right to free speech and expression.

In the opinion, Posner first points out that the Eighth Amendment does not apply to state and local governments because it has not been incorporated through the Due Process Clause. Even if it did apply to the city, he says, the fines are not unconstitutionally excessive.

Posner also rejects the plaintiff’s First Amendment claim and even goes as far as implying that it was frivolous. “It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows,” Posner writes. “Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

He reasons that if the court allowed the plaintiff to make this argument, it would lead to a slippery slope in which Chicago residents were free to throw garbage on their front lawn, graze sheep there, and play loud music 24 hours a day – all in the name of the First Amendment.

Posner also takes the opportunity to advise attorneys representing future litigants to provide background information about their clients. He states that nowhere in the briefs or the record was there any information about Discount Inn except that it is incorporated in Illinois and its address is in the town of Skokie, Illinois.

Posner attempted to learn more about the property owner, but his search was unsuccessful. Although it did not prevent the court from rendering its opinion, practically all the court knew about the plaintiff was that it owned real estate in Chicago. The court did not even have any specific information about the plaintiff’s violation of the ordinance.

Thus, Posner articulated the importance of providing judges with enough background information on your client. The moral of the story is if you want to win a case, give the court enough information to rule in favor of your client.

In this case, the plaintiff’s First Amendment claim was unwarranted. But how would the city deal with residents who refuse to cut overgrown weeds as a form of protest against the ordinance? Would this be considered a valid First Amendment argument? Under Posner’s reasoning, this could create even more “snakes in the grass” for the City of Chicago as well as the court system.

First Amendment Rights of Civil Detainees


By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

On September 14, 2015, the Seventh Circuit Court of Appeals ruled that the state of Illinois can ban sex offenders from having video game consoles, even when they are in civil detention rather than prison. Judge Rovner wrote the opinion for the three-judge panel.

The First Amendment provides, in part, that “Congress shall make no law… abridging the freedom of speech.” However, like many other fundamental rights found in the Bill of Rights, the right to free speech is not absolute.

According to Illinois law, a “sexually violent person” is someone who has been convicted of a sexually violent offense and “suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f). Under Illinois’s Sexually Violent Persons Commitment Act, someone who is found to be a sexually violent person in a civil proceeding is authorized to be committed to the custody of the Illinois Department of Human Services for control, care, and treatment until he or she is no longer considered a sexually violent person.

Eugene Brown was convicted of five counts of aggravated sexual assault for raping women and also diagnosed with a paraphilia: the sexual attraction to non-consenting women. In May 2003, Brown was approaching the end of his prison sentence in the Illinois Department of Corrections when the State filed a petition to involuntarily commit Brown for treatment under the Act, alleging that his mental disorders created a substantial probability that he would engage in acts of sexual violence. Eugene Brown is now civilly committed to the Rushville Treatment and Detention Center in Illinois.

Brown and 17 others sued the facility, alleging that certain policies restricting their access to movies, video games, and video game consoles violate the First Amendment. Rushville maintained that these policies were necessary because of their rehabilitation and security interests.

While Brown argued that strict scrutiny should be used to determine the constitutionality of the bans, the Seventh Circuit Court of Appeals disagreed. The Court relied on Turner v. Safley to support its claim that a reasonable-relationship standard governs the First Amendment rights of civil detainees. In Turner, the Supreme Court held that prison regulations infringing on the constitutional rights of inmates are valid if they are reasonably related to legitimate penological interests. In determining the reasonableness of such regulations, the Court explained there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. However, the Court also noted that the reasonable-relationship standard should be modified as necessary because there are key differences between prisoners and civil detainees, including the purposes of their confinement.

In applying the rational-relationship standard, the Court found that summary judgment on the video game consoles was proper for two reasons. First, the game consoles are capable of accessing the internet which would allow detainees to contact victims of their crimes and therefore the ban furthers the state’s interest in protecting the public. Second, civil detainees could possibly use the consoles to download, share, and store illegal pornography, such as child pornography. Therefore, the ban on video game consoles promotes the state’s interest in preventing crime. On the other hand, the Court found that the detention center’s evidence relating to the move and video game ban was insufficient to justify summary judgment on a First Amendment claim.

Because Illinois’s Sexually Violent Persons Commitment Act is a civil law rather than a criminal law, the state’s interests must be balanced against First Amendment protections. It is important to remember that although civil commitment statutes do not apply the same strict standards of the criminal justice system, First Amendment rights are afforded the most protection. Perhaps the Rushville facility’s ban on movie and video games should be determined on a case-by-case basis in order to safeguard both the state’s interests and the interests of civil detainees.

Conflict Over Contraceptive Mandate Drags On


By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

On Sept. 4, 2015, the Seventh Circuit decided, yet again, on the issue of whether the contraceptive mandate violates the sincere beliefs of nonprofit religious groups.  Nonprofit religious groups continue to challenge the mandate while seeking for an “exemption” instead of an “accommodation.”  The plaintiffs in Grace Schools et al. v. Burwell argued the Patient Protection and Affordable Care Act  of 2010 (ACA) places undue burdens on the free exercise of their First Amendment right and that it violates the Religious Freedom and Restoration Act of 1993 (“RFRA”).  Plaintiffs insist the mandate infringes on their sincere religious exercise against facilitating a wrongful act of others (i.e., the use of birth control by employees through health plans funded by religious employer).

After the district court granted plaintiff’s preliminary relief against the mandated coverage on Dec. 3, 2014, the government appealed to the Seventh Circuit.  The parties’ dispute centered on the “substantial burden” of the law.  When a law burdens a person’s exercise of religion, the government must proceed in the “least restrictive means” in order to further a “compelling interest.”  The plaintiffs objected to the mandate’s complicit orders because they believe their connection to destroying an embryo is an immoral act that imposes a substantial burden which violates the RFRA.  The Seventh Circuit denied this argument and stood firm with prior decisions.

The Seventh Circuit denied arguments of the University of Notre Dame and Wheaton College, decided May and July, 2015, respectively, where both schools sought preliminary injunctions on grounds that the ACA violated their religious beliefs and the First Amendment in providing birth controls of any kind to its employees and students.  In both cases, the court employed the substantial burden analysis and determined the contraceptive mandate did not infringe on their religious exercise.  A particular kind of religious belief – facilitating another person’s wrongful act – has no protection under the RFRA, declared the court.  But does the government have any business in discriminating against a certain belief and not others?  Should the court shift its focus to whether the government has pressured the religious group to give up a certain belief?

The government contends the contraceptive mandate imposes no substantial burden because it allows plaintiffs to opt for an “accommodation.”  To avoid fines, nonprofits who opposes the mandate must contact the Department of Health and Human Services and voice their objection or submit a EBSA Form 700.  After a nonprofit protest, the contracted insurers or third-party administrators are obliged to provide contraceptive coverage for the employees without co-pay.  However, the nonprofits are at odds with the accommodation because their health plans are used to fund contraceptive services to which they object.

In a forceful dissent, Judge Manion said the religious groups has no relief under the contraceptive provisions because the coverage is connected to the health plans that depended on their actions.  Judge Manion proclaimed, “the government’s stated interest is overbroad, underinclusive, and marginal at best.”  As the conflict over contraceptive mandate drags on, are decisions handed down by the court of appeals an unequal treatment of religious exercises?

Panhandling: The Seventh Circuit on the Power to Regulate It


By: Aaron Medley
J.D. Candidate, 2015
Valparaiso University Law School

A person’s exercise of his or her freedom of speech may have a meaningful impact on the lives of others. On one hand, most of the speech we encounter in public spaces is merely inconvenient, rather than coercive; on the other, public expression can be disruptive of the normal patterns of life. Regardless the of the impact the government is permitted to place reasonable time, place and matter restrictions on expression, but it may not regulate to suppress its content absent extraordinary circumstances.

Panhandling on public streets has been an especially vexing instance of this. Are laws that prohibit or regulate the manner or places where begging for money may occur directed at the message inherent in begging—that the individual is poor and the government unwilling or unable to help—or simple regulations of dangerous conduct—like standing in the middle traffic to beg—or a blend of both? The answer to these questions impact the standard of review to be applied to the panhandling law in question, and the choice of the standard practically determines the outcome of the challenge to it on first amendment grounds.

In recent years, there have been different anti-panhandling cases to go before the federal circuit courts. The Ninth, Fourth, and Sixth Circuit Court of Appeals concluded that ordinances before them that prohibited this speech were content-based, and the government did not meet strict scrutiny standard of review. Meanwhile, the D.C. and First Circuit Court of Appeals ruled that anti-panhandling laws were content-neutral and valid. This clear split amongst the circuits has left more questions than answers. Even more troubling is that the U.S. Supreme Court has dealt with three such laws or regulations and upheld the laws on grounds that the government had a clear proprietary interest in the forums. Thus these types of laws are still left open to be attacked as content-based restrictions on a person’s freedom of speech, which would invoke a higher standard of review for the government to meet.

Recently the Seventh Circuit faced the question whether an ordinance is a content-based or content-neutral in Norton v. City of Springfield. Judge Easterbrook, writing the decision, relied upon the First Circuit case of Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) and Justice Kennedy’s concurrence in International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), to find that an anti-panhandling ordinance was reasonable and constitutional. The ordinance in question belongs to the City of Springfield, Illinois. It prohibits panhandling in its downtown historic district, containing most of the city’s shopping, entertainment, and governmental buildings. The ordinance defines panhandling as “an oral request for an immediate donation of money,” but permits the use of signs requesting money or oral pleas to send money in the future. Springfield justifies the ordinance by distinguishing signs and future requests for money – more intrusive than immediate oral requests.

Plaintiffs challenged the ordinance on grounds that it improperly distinguished between oral requests for immediate receipt of money and the use of signs to request the money or oral requests for future donations. This, they argued, showed that the ordinance was directed at content, not regulatable conduct. Their arguments goes to the core of the First Amendment jurisprudence and which limitations on speech are to be deemed appropriate and under what circumstances limitations will be constitutional. However if the court accepted the plaintiff argument, not restriction would be upheld. It would leave precedence that whether legislatures narrowly tailor an ordinance to more specifically meet allegedly legitimate governmental regulatory interests, or legislatures give general restrictions which are not narrow to meet government needs, both would be held unconstitutional.

Judge Easterbrook observed,

The rule that regulation of speech must be narrowly tailored, becomes an engine of destruction, because every effort to narrow a rule will distinguish some speech from other speech and so in plaintiff’s view, doom it.

Continuing into its analysis the Seventh Circuit observed that in each Supreme Court case involving the anti-panhandling laws, the Supreme Court required that the regulations must be reasonable. Judge Easterbrook focused on Justice Kennedy’s concurrence in Lee, where Kennedy found that an anti-panhandling regulation was an appropriate time, place, and manner limitation, independent of the venue analysis that the majority relied upon. Further highlighting that Justice Kennedy found that the ordinance was permissible because “it was narrowly tailored,” and because it dealt only with potentially threatening confrontations. Thus, Kennedy saved the regulation in Lee because the ordinance’s limitation on solicitation for immediate receipt made it narrowly tailored, which is the part of the Springfield ordinance that plaintiffs argue that makes it unconstitutional.

Judge Easterbrook adopted Justice Kennedy’s concurrence as the appropriate analysis as to whether Springfield’s ordinance would be upheld as a constitutional under the standard for time, place, manner restrictions. He found support from the First Circuit case of Thayer, where that court also accepted Justice Kennedy’s view would carry the day. Where Easterbrook’s opinion turns interesting, is where he expressed doubts as to the conclusion that the ordinance was content-neutral. Leaving to the Supreme Court to settle the question as to what is required to determine whether an ordinance is content-based or content-neutral.

The anti-panhandling cases among the federal circuits display a split not only in outcome, but as to what the proper analysis for content-based or content-neutral restrictions should be. Speech is an incredibly powerful right that each of us possess as Americans. What we say each day can have impact on our society, or just be inconvenient to others. These cases and the issues presented point to the complexity of the laws and how courts will treat the restrictions on asking for money on a street corner. This analysis must be taken up for the Supreme Court, to determine the appropriate analysis will be between content-based and content-neutral laws.

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