Page 34 - AVN September 2015

LEGALESE By Clyde DeWitt
Two Big so far is that this
”The consensus
Last month’s column talked about the
Supreme Court’s license plate decision. But
there’s way more. A couple of this term’s
other opinions are of great interest to this
case abolishes
industry, the first of very intense interest.
The important one involved, of all
the distinction
things, a hotel in Los Angeles and the
city’s requirement that the hotel keep its
Wins Commercial speech could now enjoy full protection
case popularly known as “Central Hudson.” Central Hudson Gas & Electric Corp. v.
Public Service Commission, 447 U.S. 557 (1980). There, the court set forth the anal-
ysis for whether commercial speech (speech proposing a commercial transaction,
although not a bright-line concept) is protected by the First Amendment.
The 1980 Central Hudson case articulated the test for determining whether a
regulation of commercial speech was valid, a test akin to the one applied to time,
place and manner restrictions on non-commercial speech, like zoning, hours of
operation and so on. The landscape changed in further favor of protection in 1996
between the First
Amendment’s
application to
commercial
speech and
other speech.
If that be the
case, commercial
advertising
is on an equal
footing with
political speech.
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
guest-registration records available to the
city. What can that have a thing to do with
the adult video industry? A bunch!
This column of late reviewed the result
that lawyer Michael Murray achieved in his
challenge to the labeling and record-keep-
ing law, 18 U.S.C. §2257 and its regula-
tions. In short, the United States Court of
Appeals for the Third Circuit held that the
inspection provisions of 2257 violated the
Fourth Amendment’s prohibition against
unreasonable searches and seizures. The
court held that the administrative-search
exception to the warrant requirement could
not be applied to adult video production
because it was not involved in an industry
traditionally considered heavily regulated.
Free Speech Coalition, Inc. v. Attorney General
of the United States, 677 F.3d 519 (3rd Cir.
2015).
Los Angeles, like a whole bunch of cities,
requires that hotels and motels keep a
guest register so that the police can find
out who was staying there. Under the ordi-
nance, the police have the right to inspect
the guest register, a regulation mostly
designed to allow the cops to keep tabs on
possible prostitution and other deviations
from the law.
A motel in L.A. challenged that law. It
went all the way to the Supreme Court—
and the motel won. The High Court
dumped on L.A., holding that hotels and
motels are not traditionally heavily regulat-
ed industries, like firearms, liquor and junk
yards. City of Los Angeles, Calif. v. Patel, ___S.
Ct. ___, 2015 WL 2473445 (March 3, 2015).
You see the connection? Like adult video
production, hotels and motels have not
been considered traditional heavily regu-
lated industries. Accordingly, the 2257 case
now appears bullet-proof.
The other Supreme Court case worthy
of mention involves signs. Courts always
had assumed that advertising—commercial
speech—was not protected by the First
Amendment. Then, in the ’70s, the Su-
preme Court afforded commercial speech
limited protection. The test for evaluating
commercial speech was articulated in a
when the Supreme Court, in a much-splintered opinion, held that the state’s right
to regulate alcohol under the Twenty-First Amendment did not impact the First
Amendment’s free-speech protection. 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484 (1996). As divergent as were the opinions in that case, it was clear that the
court was headed in the direction of additional protection of commercial speech.
This year’s case involved signs. Here’s what happened: Gilbert, Arizona, like
most places, included in its municipal code some sign regulations. The aspect of
Gilbert’s regulatory regime important to this case was that size and other limita-
tions imposed were dependent upon the kind of a sign. For example, directional
signs were subject to different rules than signs promoting political candidates.
Clyde Reed was the pastor of the apparently fledgling Good News Community
Church. Having no building of its own, the church would meet in different loca-
tions that Pastor Reed managed to secure, such as elementary school auditoriums.
Every Saturday the pastor and some of his parishioners would scatter some 15 or
20 little signs about town, announcing the location for the next day’s service.
The problem was that the signs, designated “temporary directional signs” by the
Municipal Code, often were in place longer than the Code’s 12-hour limitation. So,
the pastor and the church challenged the constitutionality of the ordinance in fed-
eral court—a good move, because defending citations in municipal court can have
criminal-conviction consequences with no opportunity to recover attorney’s fees.
The lower courts saw no problem with this, agreeing with the town’s position
that the regulations were content neutral because they said nothing about the
messages in the signs. The Supreme Court reversed.
Three of the justices found that the Ninth Circuit should be reversed because
the ordinance does not “pass strict scrutiny, or intermediate scrutiny, or even the
laugh test.” The prevailing six justices agreed that the ordinance was invalid, but
how they arrived at that conclusion represents a sea change in the application of
the First Amendment to commercial speech.
The six-justice majority held that strict scrutiny should apply to this type of
sign ordinance. Strict scrutiny means a speech regulation is invalid unless the (1)
government can prove (2) that it is narrowly tailored (3) to further a compelling
governmental interest. That, friends, is a tall order! And the court has never ap-
plied that to ordinances regulating signs, most of which are commercial speech.
That is a marked departure from application of intermediate scrutiny, where
the government is required only to establish that the regulation is supported by a
valid and substantial governmental interest, rather than a compelling one; that the
regulation is unrelated to suppression of free expression; and that reasonable or
ample alternative avenues of communication are available. Big differences!
The consensus so far is that this case abolishes the distinction between the First
Amendment’s application to commercial speech and other speech. If that be the
case, commercial advertising is on an equal footing with political speech. That
makes sense, given that the town’s distinction between signs applied with equal
force to commercial and political ones. The Court jettisoned the ordinance because
it distinguished among those various types of signs.
Historically, commercial speech has enjoyed less protection than non-commer-
cial speech. In recent years, many attorneys have believed that approach to be
wrong-headed and that the Supreme Court would abolish the distinction. That
prediction seems to have materialized. In four decades, commercial speech has
gone from unprotected to fully protected.
Wow!
34 | AVN.com | 9.15