Supreme Court Takes Free Speech Cases on Abortion, Property Rights, Gadsden Flag, and Voter ID


ACRU Staff


November 13, 2017

This column by ACRU General Counsel Ken Klukowski was published November 13, 2017 by Breitbart.

WASHINGTON, DC—The Supreme Court added three political-speech cases on Monday to its oral argument docket this year, granting review in one involving pro-life pregnancy centers, another where a man was arrested while criticizing his local government for corruption at a public meeting, and a third where state law prohibited a man from wearing the Gadsden flag or a voter-ID button when he went to his polling place to vote.

The first case is National Institute of Family and Life Associates v. Becerra. California law requires licensed pro-life pregnancy resource centers to post ads for free or low-cost abortions. The law also requires unlicensed resource centers to post a notice that they lack a license and have no credentialed medical providers.

“NIFLA” sued, arguing that the California law violates its rights under either the Free Speech Clause or the Free Exercise Clause of the Constitution’s First Amendment. The organization is represented by the Alliance Defending Freedom and by constitutional scholar John Eastman from Chapman University, a leading member of the Federalist Society who is also a former law clerk to Justice Clarence Thomas.

Two other “cert petitions” raised similar questions. The justices did not act on those petitioners, indicating that the Court will hold those petitions until its decision on NIFLA v. Becerra, letting that decision resolve all pending challenges to the California law.

The second case is Lozman v. City of Riviera Beach. In that case, Fane Lozman was sounding off on local government corruption during the public comment period of a city meeting when the presiding councilmember tried to cut him off. Lozman refused to be silenced, at which time he was arrested and removed from the microphone. The question is whether this violated Lozman’s free speech rights under the Constitution.

Ironically, this is the second time Lozman is squaring off against his city at the Supreme Court. In 2013, the justices decided a case on whether Lozman’s houseboat is considered a water vessel subject to federal admiralty law and able to be sued in federal court. The Supreme Court sided with Lozman by a 7-2 vote, holding that his houseboat is not a “vessel” and thus, federal courts lacked jurisdiction over his home in the local marina.

The third case is Minnesota Voters Alliance v. Mansky. A Minnesota man, Andrew Cilek, entered his polling location in 2010 to vote. He was wearing a T-shirt displaying the Gadsden flag (“Don’t tread on me” with a rattlesnake—popular during the American Revolution in the 1770s). He was also wearing a button that said, “Please ID Me,” supporting voter-identification laws.

Minnesota law forbids voters wearing anything at a polling location that contains a political message. While the Supreme Court in 1992 upheld “buffer zone” laws wherein people could not actively campaign at a polling location or try to persuade voters within a certain number of feet from the ballot box, the justices have never said that these buffer zones can exclude every message that includes a political element.

All three cases will be heard early next year, with decisions handed down by the end of June 2018.

The first case, National Institute of Family and Life Associates v. Becerra, is No. 16-1140.

The second case, Lozman v. City of Riviera Beach, is No. 17-21.

The third case, Minnesota Voters Alliance v. Mansky, is No. 16-1435.



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