It’s now indisputable: There’s a Trump effect.
Judges Alice Batchelder, a George H.W. Bush appointee, and Joan Larsen, a Trump appointee who appeared on his Supreme Court shortlist, just ruled for anti-gay protestors and against the city of Nashville. The decision, as dissenter Judge Karen Nelson Moore, a Clinton appointee, politely points out, should have been an open-and-shut First Amendment win for Nashville based on, well, everything.
Two men and a group of followers were disrupting an LGBTQ pride event from the sidewalk directly in front of the event venue, a park, using bullhorns. They’d been warned in advance by the police department that they’d have to stay on the other side of the road, but ignored that instruction. (The majority omitted the prior communication, strangely.) When told to relocate, they objected but ultimately complied. Afterwards they sued, claiming they were discriminated against based on the content of their speech under the First Amendment, a big no-no.
There’s a well-established framework for tackling First Amendment claims like these. Here, the big issue became whether the city was acting based on the content of speech versus enforcing a content-neutral regulation. The first is almost impossible to justify; the second is ubiquitous.
The government can only pass content-based regulations if “necessary to serve a compelling state interest and … narrowly drawn to achieve that aim.” If, however, the government’s regulation is content-neutral, it need only be a “permissible time, place, and matter restriction” aimed at accomplishing a significant government interest. (In law, the difference between “compelling” and “significant” is enormous.)
The two conservative judges seized on Nashville’s not-so-great lawyer’s apparent concessions—which, by the way, judges routinely bully attorneys into—to conclude the city did discriminate based on the content and didn’t have a compelling reason to do so. Case closed!
That’s just not what happened.
There’s no way to overstate how unprincipled and overtly political this decision is. But that’s the Right’s whole game right now: politicizing the courts. The issue at hand is their grail. The Right’s working ceaselessly to turn the First Amendment, via its right to speech or religious exercise, into a vehicle to expand the rights of those who discriminate to do so freely. They’re doing so by bringing cases just like these to create opportunities to appeal and chances to reach SCOTUS.
Judge Moore’s fantastic, painstaking dissent proves just how egregiously the majority cherrypicked from the record; she catalogues the ways in which the two judges disregarded controlling precedent.
There is no evidence in the record to suggest ... that Metro required the Preachers to preach across the street because it disagreed with or wished to disfavor their message. Rather every indication suggests that Metro did so in order to protect the right of a permit-holder—any permit holder—to hold a permit-authorized event without being subject to an unreasonable amount of interference or disruption.
The regulation that required the anti-gay contingent to stay on the other street is, as Moore points out, the very definition of content-neutral.
[T]he restriction applied to these Preachers with their message, but it also would have applied to people showing up with bullhorns to protest the Iraq War, or to glorify the Iraq War, or to say anything else loud and disruptive for an ongoing period of time.
Moore makes short work of the anti-gays’ legal arguments not because she’s glossing over them, as the majority did Nashville’s, but because they’re terrible.
One of the more remarkable things Moore does is take the majority to task for its strawman-reliance on a poor performance at oral argument. One issue: The city attorney attempted to correct the poorly worded answers within the same oral argument. Another: That’s not how we decide cases. Moore cites several of Batchelder’s previous opinions against her to demonstrate why doing so was improper.
As Judge Batchelder has argued in a different case, it is questionable at best to interpret as an explicit concession the statements made when an“obviously harried attorney attempts to explain his position.”
By the way, she notes, what someone says at oral argument—given that it’s not part of the record—doesn’t usually suffice for summary judgment, which cuts off any additional legal proceedings. It’s the record and the briefs that matter. Consonant with that, most judges would admit that oral argument rarely affects the case much.
Conclusion? Conservative judges ruling on politics instead of precedent aren’t even pretending to care about the latter these days.