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Legal Update: The Flexible First Amendment


The First Amendment has a broad range of applications. And recently California Federal courts have been relying on the flexibility of the First in rulings ranging from gay rights in the military to the location of tatoo parlors. Our legal analyst Dan Eaton explains.

Maureen Cavanaugh (Host): A federal court in Riverside rules the Don't Ask Don't Tell law is unconstitutional. The judge says the policy banning openly gay men and lesbians from serving in the U.S. military violates their First Amendment rights. That's just one of the recent rulings in which federal courts in California have interpreted First Amendment rights in unorthodox ways. Joining us to talk about these different facets of the First Amendment is my guest, San Diego attorney and These Days legal analyst, Dan Eaton. Good morning, Dan.

DAN EATON (KPBS Legal Analyst): Good morning, Maureen.

CAVANAUGH: Now, as I said, this federal judge, earlier this month, ruled on a challenge that was brought to the Don’t Ask Don’t Tell policy on gays in the military by the Log Cabin Republicans, which is a gay Republican group. But first, please tell us what the Don’t Ask Don’t Tell policy actually prohibits.

EATON: What the Don’t Ask Don’t Tell policy actually prohibits is it – well, what it does is it’s a 1993 law that Congress passed and it has three components. It requires the discharge of service members if, one, the service member has engaged or solicited a homosexual act, or, two, the service member states that he or she is homosexual or bisexual. That’s the most common understanding of the policy. Or, three, if he or she has married or attempted to marry a person of the same biological sex. That is the policy. There are a couple of ways to avoid discharge under the first two of those. You can avoid – a service member may avoid discharge even if she is engaged – he or she is engaged in homosexual conduct if he or she can demonstrate that that is a departure from their normal conduct and they’re unlikely to repeat it. They can avoid discharge under the – even though they state that they are gay or bisexual by demonstrating that they do not engage and they’re not going to attempt to engage in, and they don’t intend to engage in any homosexual act. So that is what the Don’t Ask Don’t Tell law is that Congress passed in 1993.

CAVANAUGH: Now the judge’s, as I say, in Riverside – First of all, what did she say about the group’s right to bring the lawsuit in the first place?

EATON: Right, because it’s not self-evident, is it, that a group of gay Republicans could bring a lawsuit challenging a federal policy on gays in the military. And what she said was that one of its members, at least one of its members, was able to show that he was discharged pursuant to the Don’t Ask Don’t Tell policy. That coupled with the group’s, the Log Cabin Republicans’ stated mission of fighting against homosexual discrimination, those two things were enough to confer standing to challenge the Don’t Ask Don’t Tell law.

CAVANAUGH: Now we get into our theme for this…

EATON: Right.

CAVANAUGH: …talk and that is the First Amendment. The group’s argument was that Don’t Ask Don’t Tell violated free speech rights. What was that argument?

EATON: Right, that – all – That argument, Maureen, was that the Don’t Ask Don’t Tell policy placed under restrictions on the gay service members’ ability to talk about their sexuality and their social life. Of course, that kind of restriction didn’t apply to heterosexual service members. It also restricted, according to the group, to the Log Cabin’s argument anyway, that it restricted their ability to speak out in protest against anti-gay slurs or even anti-gay hazing, which is against the code of military conduct. For those two reasons, he said it restricted their First Amendment free speech rights.

CAVANAUGH: And how did they back up that argument?

EATON: They produced evidence showing, actually, from various service members that showed that their free speech rights were, in some ways, at least according to the judge, impaired. For example, one lesbian service member talked about how she couldn’t talk about her social life. She was apparently living with another woman at the time, and it made her very awkward and created a distance with her service members. They also pointed to a young service member at the time who was subjected to very serious anti-gay hazing by a superior officer and he felt he couldn’t protest that treatment, which was against the Code of Military Conduct, for fear of being found out as a homosexual himself. So, actually, the opinion runs 85 pages. Fully roughly half of the opinion is devoted to all of this evidence of these various stories of these service members. And it’s important to point out that while free speech was one of the reasons that the Don’t Ask Don’t Tell law was struck down, it wasn’t the only one. The primary basis for striking it down was due process – was a due process claim. But for our purposes we’re focusing on the free speech claim.

CAVANAUGH: And since Don’t Ask Don’t Tell is a federal policy, the federal government is supposed to defend it when it gets challenged by a lawsuit so how did the government put on a defense in this lawsuit?

EATON: No evidence at all. What the government said was that, look, they are challenging this law on its face, meaning in all applications the Log Cabin Republicans were saying that it is unconstitutional, therefore the federal government argued that none of the evidence that the plaintiff was submitting was at all relevant and it all should be excluded. And the government itself produced – submitted no evidence. The only evidence it submitted was the law itself and the legislative history behind the law and said that was the only thing properly before the judge. She rejected that, overruled the objections, and let all of this evidence in.

CAVANAUGH: Now, as you say, free speech, the First Amendment wasn’t the only thing that the judge…

EATON: Umm-hmm.

CAVANAUGH: …relied on when she made her ruling. But what aspects of the First Amendment did she say this Don’t Ask Don’t Tell policy violates?

EATON: What she said, Maureen, is that – Judge Phillips ruled that even with the deference that courts traditionally give to military – to restrictions on military speech, the policy actually went far beyond the – what was necessary to maintain the government interest in military readiness and unit cohesion. In fact, what Judge Phillips said was she credited testimony that said the policy actually undermined the government’s stated interest in the policy by forcing the discharge of service members who were highly valued in their units according to various testimony that was submitted on behalf of some of the service members whose testimony was received into evidence. It also said – she also said that some of the service members who were discharged under this policy had highly valued skills, particularly in foreign language and other special skills that are particularly needed in this time of war.

CAVANAUGH: So what is next in this case?

EATON: Well, there’s the possibility of an appeal, of course. The Department of Justice, President Obama, has to decide – President Obama’s Department of Justice, Eric Holder being the Attorney General, has to decide whether to appeal this ruling. It’s interesting. Judge Phillips, in her ruling, cited statements that President Obama had made as the Commander in Chief, saying that the Don’t Ask Don’t Tell policy was actually contrary to the government’s interest. That was one of the reasons she said that the law violated due process. For example it was an admission, she said, by the government that it did not advance the stated government interest. President Obama is being pressured by gay rights advocates and certain others not to appeal this but that said, Maureen, it’s not clear that a lone California federal judge has it within her power to block the enforcement nationwide of a federal policy. Clearly, President Obama has expressed a preference to have Congress itself repeal this law. Of course an action that recently was blocked in the United States Senate.

CAVANAUGH: Let’s move on to something just a little bit closer to home. It’s the ruling by a San Diego federal judge addressing the $1,000 limit on political party contributions to candidates that the San Diego City Council enacted in April of this year. That was in response to the court’s February ruling that an outright ban on political party contributions in city races violated the First Amendment. So what did the city council’s new ordinance say?

EATON: What the city council’s new ordinance said, Maureen, was it imposed a $1,000 limit per election on political party contributions to city candidates in city races. That meant that you could give one – the political parties could give $1,000 in the primary and $1,000 in the general for their preferred candidates for a total of $2,000 per election cycle. And so they challenged that – the political party challenged that saying that limit is too low to be able – meaning fully to participate in city races and, therefore, infringe the political party’s right of free speech.

CAVANAUGH: Now just to make it absolutely clear, we’re talking about the political party’s contributions to these candidates, not individual contributions.

EATON: No, in fact, individuals have a lower limit. The individual limit is actually $500 but this is a limit that the city council imposed in response to the judge’s order. She suspended her order striking down the limit on the prohibit – the outright prohibition on political party contributions to give the city time to impose a different limit, and the city council responded by saying $1,000 seems about right to us, and the judge then ruled on that.

CAVANAUGH: So what interest did the city council say it was trying to advance in imposing what was first a ban and now is a limit of contributions given by political parties in local city races?

EATON: What the city council said, Maureen, it was trying to advance in imposing a $1,000 limit is its interest in preventing political parties from becoming shells or channels for large donors to influence and gain access to city candidates. That was the asserted interest. It was an anti-political corruption interest, which is the only interest, by the way, after the Citizens United vs. FEC case by the Supreme Court that said that its – that it is constitutionally valid for restrictions on free speech in the form of campaign contributions or campaign spending.

CAVANAUGH: Now this case, this challenge to the city council’s restriction or limits on contributions by political parties was brought by the San Diego Republican Party.

EATON: Umm-hmm.

CAVANAUGH: And they claim that the limit violated its right to free speech. What was that argument about?

EATON: They said it was just too low. $1,000 just wasn’t enough. And, Maureen, it’s important to put this in context. After the prohibition was lifted and there were no limits at all in place, the California – the San Diego Republican Party gave about $20,000 to a candidate in one of the districts. I think it was the 6th District council race, Donna Frye’s seat. And the Democrats gave $17,000 to their favorite candidate. And so what the Republicans are arguing is the thousand dollars is just too low. It’s not enough.

CAVANAUGH: Now, has the U.S. Supreme Court ever struck down a campaign law that limits the size of campaign contributions by political parties?

EATON: You know, it actually has, and they did it in the context of a Vermont law that restricted political parties to give anywhere from $200 to $400 to candidates in state races, which is a very, very little amount that, of course, the $200 to $400 range depended on the particular candidate for office with, of course, candidates for governor getting more. And what the U.S. Supreme Court said in that case was there is some point at which limits become ridiculously low, in fact so low that it’s not constitutionally adequate and, therefore, it struck it down. It said that what the Vermont legislature did in enacting such a tiny limit on political parties, which made their contribution limit the same as that of individuals, is to, in the words of the Supreme Court, quote, reduce the voice of political parties to a whisper.


EATON: Closed quote. And that was constitutionally unacceptable.

CAVANAUGH: But Judge Gonzalez in this case rejected the San Diego Republican Party’s challenge to the $1,000 limit. Why? What was the ruling on that?

EATON: Well, the reason she rejected it is, she said, look, well, first of all, the $1,000 contribution is twice what the individual contribution is under city law, that’s another thing. And, secondly, she compared it to various other laws and various other laws in California and elsewhere. For example, the $1,000 limit is the same that applies in Los Angeles and twice that applies in San Francisco, although as Judge Gonzalez acknowledged, those two cities’ laws have never been challenged on First Amendment grounds. But, nonetheless, the bottom line was that the $1,000 limit was indexed to inflation unlike the Vermont law, and given the fact that the city has some flexibility in deciding what its limits are even though another one might also be adequate, this one was not enough. It was not enough to be constitutionally suspect. It wasn’t enough to raise the danger flags that this was going to create a problem constitutionally. And, in fact, that’s what the judge said at this very preliminary stage, you understand, in the case. There wasn’t enough there to suggest that the $1,000 limit was constitutionally invalid.

CAVANAUGH: And just so we keep in the spirit of our First Amendment here…

EATON: Umm-hmm.

CAVANAUGH: …the idea that political contributions are free speech is one that has been asserted over and over again, and affirmed by the Supreme Court.

EATON: Right. I mean, it dates back to the Buckley versus Vallejo case, obviously, which is a leading U.S. Supreme Court case on campaign spending, although arguably now, I suppose, Citizens United is the leading case because it came out most recently. But that’s really where we get the idea of money as speech in the political context because you’re obviously speaking through the – your contribution itself sends some sort of political message as to your political view.

CAVANAUGH: So is this the end of the dispute over the $1,000 political party contribution limit here in San Diego?

EATON: Not necessarily, Maureen, and here’s why, because we’re really at a very preliminary stage in the case. We’re at the preliminary injunction stage is what it’s called, where you’re looking at a preliminary order to block this. The people who are suing to challenge this could go to trial and present evidence as the Vermont people did, by the way, before the case went up to the Supreme Court to show why the $1,000 limit is too low to present effective participation – to engage in effective political participation in city races. And they’ll probably have the record of the races leading up to November election because one thing is clear, Maureen, it’s probably going to stand for purposes of the November election coming up. There probably isn’t enough time, barring an emergency intervention by the Ninth Circuit to seek to overturn Judge Gonzalez’s order. But, therefore, the political parties will have an ability to show that this $1,000 limit isn’t working because we – they will show – they will say from September through November of this year, it wasn’t enough to enable their favorite candidates to get out their message and political parties to help them do it.

CAVANAUGH: So what you’re saying is between now and this midterm election here in the City of San Diego, the political parties are limited to $1,000 contribution to candidates.

EATON: That’s right, to their favorite candidates, that’s exactly right. And so it’ll be very interesting to watch to see what effect that actually does in the effectiveness of political parties in their ability to help their favorite candidates.

CAVANAUGH: We move from something very serious that affects elections and so forth to something, I don’t know, that’s not quite as serious but I’m sure it is to…

EATON: Well, not to people our age but I’ll tell you…


EATON: It’s kind of fun but…

CAVANAUGH: Yeah, it’s – Well, it’s important to the people involved but, wow.


CAVANAUGH: We move from political contributions in San Diego to tattoo parlors in Hermosa Beach. A tattoo artist challenged the Los Angeles County beach town’s effect – the ban on tattoo parlors. First, what form did the tattoo parlor ban take?

EATON: Maureen, the City of Hermosa Beach didn’t say tattoo parlors are illegal, didn’t say that. What it did was it had a list of zoning – of various uses that could be used for commercial zoning, and tattoo parlors was left off the list. And so that effectively had – that had the effect of banning tattoo parlors. In fact, what happened was that Johnny Anderson, the tattoo artist in question, applied to the city’s community redevelopment director for a permit to open up a tattoo parlor. And they said no. The redevelopment director said, no, that’s not going to work. That’s not sufficiently similar to those uses that are allowed to allow you to go forward and, therefore, he sued to challenge this effective ban on tattoo parlors in the City of Hermosa Beach.

CAVANAUGH: He took them to court and he says that the ban violates his free speech rights. Now how does that work?

EATON: Well, it’s interesting because he talks about the tattoo being this really deep artistic expression. I mean, some of the language in this is really quite lyrical, Maureen. He says – He said in a sworn, written statement in support of his lawsuit, quote, the tattoo designs that are applied by me are individual and unique creative works of visual art designed by me in collaboration with the person who is to receive the tattoo. The precise design to be used is decided after discussion with the client and review of a draft of the design and the choices made by both me and the recipient involve, among other things, the symbolic meaning, religious illusions and all other kinds of things that are meant to convey a message.

CAVANAUGH: That’s amazing. So why did Hermosa Beach claim the ban was constitutionally valid?

EATON: Because no one disputes, Maureen, that there are health risks if tattoos are applied in an unsanitary way, even though they are perfectly safe if they are applied in appropriate sanitary condition. The city basically argued that the act of injecting – But the constitutional challenge was met, Maureen, by saying that the city said that the act of injecting ink into the second layer of a person’s skin 50 to 3,000 times per minute with a tattoo machine, also called a gun, to create a tattoo, is primarily not speech at all but conduct and that means that the rules that apply to the government’s ability to restrict speech don’t apply at all. Instead, all the city had to do, according to the city’s argument, is show that it was reasonable what they wanted to do, and they said, look, in light of the fact that serious diseases such as syphilis and HIV can be transmitted under unsanitary conditions and in light of the fact that LA County only has one inspector for 850 tattooists in the entire county, it was reasonable for them to enact an outright ban on tattoo parlors in their city.

CAVANAUGH: Talking about that needle in the second layer of skin, it has you hurting just talking about it, I can tell.

EATON: Oh, wow, I mean, because what the court said and they said, well, the city has a right because they essentially quoted from the city but they said the effect is to leave, in effect, an open wound. And I said, wow, that’s one way of thinking about it…


EATON: …I suppose.

CAVANAUGH: Well, so how did the federal courts rule on this?

EATON: Well, the trial court rejected Mr. Anderson’s claim and he said, no, I think it’s more conduct rather than speech. The trial court ruled that the health risk alone gave the city a rational basis for banning tattoo parlors altogether. And it’s important to realize that the federal trial court’s ruling was consistent with rulings in a lot of other states including South Carolina, Indiana, New York, and even federal courts in – the federal court in Minnesota. So these other places have rejected free speech challenges to city bans on tattoo parlors even though tattoo parlors are allowed in all 50 states. Oklahoma was the last one to come aboard, and that was in 2006.

CAVANAUGH: I see, so tattoo parlors are legal in all 50 states but in many municipalities they’ve been able to ban them.

EATON: Exactly. In some cities they’ve been able to ban them, that’s exactly right, so…

CAVANAUGH: So in Hermosa Beach, Mr. Anderson was not happy with what the federal…

EATON: Not at all.

CAVANAUGH: …trial courts ruled and he appealed. How did the Ninth Circuit rule?

EATON: Look, this is how they framed the question, and it was written by a very conservative judge, Jay Bybee, actually, and he said the central question in determining whether this was protected by the First Amendment is, quote, whether tattooing is more akin to writing, closed quote, and therefore entitled to the full range of First Amendment protection or whether it’s more akin to burning a draft card, which is conduct that may express an idea but not necessarily and is subject to greater government regulation than pure expressive speech, Maureen. That was the central question. And the Ninth Circuit decided that it was more like writing, tattooing and all of the elements of tattooing, including the business of tattooing was more like writing than burning a draft card and, therefore, was protected as pure speech.

CAVANAUGH: Now what brought them to that conclusion?

EATON: Well, Maureen, in a lengthy and at times poetic discourse, the court wrote, and I really need to read this because this is really fascinating, quote, tattoos are generally composed of words, realistic or abstract images, symbol and the like. We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Durer but we can take judicial notice of the skill, artistry and care that modern tattooists have demonstrated. The court added the principle difference between a tattoo and, for example, a pen and ink drawing is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo. A form of speech does not lose First Amendment protection based on the kind of surface it is applied to, closed quote.

CAVANAUGH: That’s remarkable.

EATON: Isn’t it remarkable? Wow, I read that and I said, wow, that judge really had some strong feelings about this. So…

CAVANAUGH: So it’s written – so it’s protected as written speech.

EATON: It is protected as written speech. He – what – The judge went on to say, look, it doesn’t matter even that the client has some – the customer has some role in figuring out what the design is going to be. If collaboration between the customer, the person who wants the tattoo or the piece of art and the person who is doing it, could be the basis for restricting free speech then the judge really continued with his fervor in this. He said, then I guess then Michelangelo’s Sistine Chapel would not be protected because it was commissioned. It was a commissioned work of art. So you could see all of these analogies that were brought in in rejecting the city’s basis for defending its ban on tattoo parlors.

CAVANAUGH: One last point you want to make is that one of the three judges on the panel, Judge John Noonan, he wrote a robust defense of First Amendment values but he also added a caveat. What was that?

EATON: He did. He said, well, wait a minute, it’s not always protected. If a tattoo is affixed for punitive reason, that’s not protected context at all. And he also said let’s not get carried away here. He said, the court was required to protect the First Amendment values at stake in the case, yes, but was, quote, not bound to recognize any special esthetic, literary, or political value in the tattooist’s toil and trade, closed quote. And, Maureen, one of the things that fascinated me was how widespread this practice is. I mean, 36% of people 18 to 25, 40% of people from 26 to 40, according to the court in a 2006 survey said that they have or have had at least one tattoo. Only 10% of people our age, 41 to 65 but, still, I was astonished in reading this how widespread tattooing really is. And, obviously, the court said, their First Amendment value’s at stake and you can’t ban them. No city can actually outright ban tattoo parlors. Regulate them, yes, because of the health concerns, but you can regulate them in ways that don’t involve outright prohibition of them.

CAVANAUGH: And now you can get one in Hermosa Beach.

EATON: Absolutely.

CAVANAUGH: Dan, thank you so much.

EATON: Sure. Thank you, Maureen.

CAVANAUGH: San Diego attorney and These Days legal analyst, Dan Eaton. If you’d like to comment, please go online, Stay with us for hour two of These Days coming up in just a few minutes here on KPBS.

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