When Government Goes Looking for Speech to Regulate

We expect state and local governments to keep the streets safe and clean, and the water running. But every so often, city and state officials survey the condition of the streets and, finding everything satisfactory, go looking for someone’s speech to regulate.

Consider three recent examples.

Joshua and Stephanie McDonald are going to federal court to challenge a South Carolina law that prohibits tattoos above the collarbone. The McDonalds’ lawsuit asserts that tattoos, tattoo artists, and their customers all engage in expression protected by the First Amendment – above and below the collar.

To be sure, we would get down on our knees and beg our adult children not to get a teardrop, or three-dots signifying mi vida loca, or any other tattoo on their faces. Facial and neck tattoos can be professionally limiting, socially off-putting, and the subject of unwelcome conversations at Thanksgiving dinner.

But adults own their heads, faces, and necks – as well as their natural right, protected by the First Amendment, to turn themselves into human billboards. A city can enforce reasonable health and sanitation standards for tattoo parlors. It cannot simply decide that the human head is a speech-free zone.

Then there is Richard Hershey, who stood on a public sidewalk outside the Brookshire Grocery Arena in Bossier City, Louisiana, distributing pamphlets on behalf of the Christian Vegetarian Association before a Christian rock concert.

With memories of Easter brunches featuring glistening hams, we are surprised to learn that Christian vegetarianism is a thing. But it is. And Hershey was peacefully promoting it in one of the places where First Amendment protection is strongest: a public sidewalk.

Police and arena security officers reportedly threatened Hershey with arrest and forced him to leave while allowing a representative of a commercial radio station nearby to remain. Hershey sued, but the Fifth Circuit granted the officers qualified immunity because he could not identify a prior case with nearly identical facts.

Cato and the Law Enforcement Action Partnership are now asking the U.S. Supreme Court to hear the case. Their brief argues that officials should not escape accountability for an obvious constitutional violation merely because no earlier court has ruled on the precise combination of Christian rock, vegetarian pamphlets, and a Louisiana sidewalk. If constitutional accountability requires a precedent matching every fact, qualified immunity becomes absolute immunity for government officials.

Finally, Jacksonville, Arkansas, has an ordinance allowing political yard signs only during the 60 days before an election and requiring their removal within 10 days afterward. Real-estate and yard-sale signs, however, can remain up year-round.

The city attorney has now concluded that this content-based distinction is unconstitutional under the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.

Which raises an intriguing question: What would have happened under the ban if a Jacksonville resident had posted a political sign protesting the political-sign ban outside the permitted period? Would the city have removed it, thereby proving its point? Perhaps the sign could have read: “This Message Will Be Constitutional Again 60 Days Before Election Day.”
​
Tattoos, pamphlets, and yard signs may seem like small matters. But the First Amendment is often tested in small places by officials wielding modest powers. The answer in each case is the same: The government does not get to decide that some surfaces, sidewalks, or seasons are off-limits to speech.

DONATE & HELP US DEFEND YOUR FIRST AMENDMENT RIGHTS