Lucero v. Early, et al., No. 16-1767 (4th Cir.) October 13, 2017.
A Bit of Prologue About the Big Picture: How Judicial Analysis of First Amendment Speech Restrictions Proceeds. Notwithstanding the primacy of public speech, the government may impose reasonable restrictions on the time, place and manner of exercise of those rights provided that those restrictions are content neutral. Content neutrality is the touchstone in analysis of First Amendment considerations, and the level of scrutiny to be applied in any analysis following content findings may very likely be outcome determinative. A content based law compels strict scrutiny analysis, the highest level of review, and quite difficult to survive. By comparison, where a measure is content neutral in purposes and effect, it may be that the statute will be found to be reasonable in any time, place and manner restrictions.
And Now On to the Show: What Happened When the Circus Visited Baltimore and Lucero Protested.
When the circus is in town in Baltimore, animal rights activists such as Lucero protest and leaflet. This activity was perceived to interfere with traffic, prompting promulgation of a “circus protestors” protocol defining areas of acceptable gathering.
Lucero was arrested in 2010 for refusal to obey police officers’ directions about where to leaflet.
Lucero’s previous challenge to the protest limitations resulted in a stipulation concerning the appropriate First Amendment level of scrutiny to be applied, a stipulation not present in this appeal from the district court’s dismissal of this case based on that earlier case’s stipulation.
The Fourth Circuit has observed that the district court erred in dismissing Lucero’s complaint because the trial court ough to analyze content neutrality in light of McCullen v. Coakley, 134 S. Ct. 2518 (2014) and Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).
McCullen considered the imposition of a buffer zone forbidding demonstrations within a given area surrounding reproductive health clinics. Although the law specifically targeted reproductive rights protests, the defining characteristics of the offense was presence within the buffer zone without reference to what was said. Without any requirement that police examine what protestors said, the law remained content neutral.
The Supreme Court found a town’s content based signage regulation to be fatally defective in Reed v. Town of Gilbert, supra. If a law on its face distinguishes among messages, it is content based no matter what justification the government offers for its enactment.
The Reed analysis is not superficial, however: a facially neutral statute may be constitutionally defective if it cannot be justified without reference to content or was promulgated because of the governments dislike of a message.
The Fourth Circuit now has opined that Reed established the centrality of content neutrality determinations and diminished but did not eliminate the examination of government purpose in fashioning a law restricting speech rights.
As the trial court failed to consider Lucero’s complaint in light of these decisions, the Fourth Circuit vacated dismissal and remanded to permit the district court for further consideration.