Opposition Brief — Don's Porta Signs, Inc. v. City of Clearwater

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

FILED

No. 87-1176 FEB 19 1988

TOSEFHE, SPANIOL, JR,

In The

Supreme Court of the United States

October Term, 1987

) —=_

DON’S PORTA SIGNS, INC., WEST COAST SIGN

CO., LTD. SIGNS BY DESIGN OF FLORIDA, INC.,

NORWOOD LEASING, INC., DON LEWIS, INC.,

d/b/a INTERNATIONAL JEWELRY IMPORTS and

R. W. WHITTLE, INC., d/b/a PIK-A-FLIK,

Petitioners,

Vs,

CITY OF CLEARWATER,

Re spond nt.

0 =

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

“y

RESPONDENT’S BRIEF IN OPPOSITION

Craries L. SreMon

(Counsel of Record)

Wroasas W. Merri. Il

Sremon, Larsex, Marriuis & Purpy

1800 Second Street, Suite 905

Sarasota, Florida 34236

-_-

(S13) 955-9050

C'ounse / for id, sponds nt

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

| il

QUESTION PRESENTED

Whether the court of appeals erred in applying the

standard of review established in Bose Corp. v. Consum-

ers Union of United States, Inc., 466 U.S. 485 (1984), when

it reversed the district court’s invalidation of a commer-

cial speech regulation prohibiting portable signs.

TABLE OF CONTENTS

Question Presented .

Table of Contents .

Table of Authorities

Statement of the Case

Reasons for Denying the Writ

Conclusion

Page

TABLE OF AUTHORITIES

Page

CAsEs

Anderson v. City of Bessemer City, 470 U.S. 564

I a 7

Bartimo ’. Horsemen’s Benevolent & Protective

Ass’n, 771 F.2d 894 (Sth Cir. 1985), cert. denied,

475 US. CE passim

Baumaartner v. United States, 322 U.S. 665 (1944) 6

Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485 (1984) , | passim

Beyer v. Le Fevre, 186 U.S. 114 (1902)... ~ 6

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980) passim

City of Renton v. Playtime Theatres, Inc..475 US.

a caectencecnoteesoerenn 11

Clarke v. Committee for Creative Non-Violence,

468 U.S. 288 (1984) ae 12

Don’s Porta Signs, Inc. v. City of Cleareveter,

829 F.2d 1051 (11th Cir. 1987) a a, 14

Dunagin v. City of Oxford, T18 F.2d 738 (oth Cir.

1983) (en bane), cert. denied, 467 U.S. 1259

aa a ceenencasernsen passim

Dunagin v. City of Oxford, 489 F.Supp. 763 (N.D.

eee = 18

Fiske v. Kansas, 274 U.S. 3880 (1927) 7

Harnish v. Manatee County, 783 F.2d 1585 (11th

Cir. 1987) 5

Lamar Outdoor Advertising, Inc. v. Mississippi

State Tax Comm'n, 589 F.Supp. 877 (S.D. Miss.

EE EE |

TABLE OF AUTHORITIES. Continned

Page

Lindsay v. City of San Antonio, 821) F.2d 1103

(Sth Cir. 1987) cert. denied, — U.S. — (Case

No, 87-799. Jan. 11, 1988) pi ciiialileneacienciaiaaan

Mandel v. Bradley, 482 U.S. 173 (1977) 15

Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984) ay 123

Metromedia, Inc. v. City of San Diego, 453 U.S.

997 (1980) a sstlalpdicieraeabadienlecaetussaealioc », 10, 12, 19

Planned Parenthood Association/Chicago Area v.

Chicago Transit Authority, 767 F.2d 1225 (7th

Cir. 1985) ...... 16,18

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 7

Rankin v. McPherson, — U.S. —, 107 S.Ct. 2891,

97 L.Ed.2d 315 (1987), reh. denied, — U.S.

(1987 ) pendence ae sla 7,11

Supersigu of Boca Raton, Ince. v. City of Fort

Lauderdale, 766 F.2d 1528 (11th Cir, 1985) 12

Tavoulareas v. Piro, 759 F.2d 90, vacated in part

by, 768 F.2d 1472 (D.C. Cir. 1985) 4,7

(' * COPE Ten 8 oer ™ > . 7

ONSTITUTIONAL PROVISIONS

First Amendment, U.S. Constitution

Fourteenth Amendment, U.S. Constitution

Ru.es

Federal Rule of Civil Procedure 52(a)

Pass! ‘i

passim

No. 87-1176

In The

Supreme Court of the United States

October Term, 1987

DON’S PORTA SIGNS, INC. WEST COAST SIGN

CO., LTD., SIGNS BY DESIGN OF FLORIDA, INC,

NORWOOD LEASING, INC., DON LEWIS, INC.,

d/b/a INTERNATIONAL JEWELERY IMPORTS and

R. W. WHITPTLE, INC., d/b/a PIK- A-FLIK,

Petitioners,

vs.

CITY OF CLEARWATER,

Respondent.

—

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

——-

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, City of Clearwater, respectfully prays

that the Court deny the petition for writ of certiorari to

review the decision of the United States Ceurt of Appeals

for the Eleventh Cireuit.

STATEMENT OF THE CASE

Petitioners statement of the case contains several

eritical misstatements of the record, Petitioners note that

portable signs are used for commercial and non-commer-

cial messages. But Petitioners fail to state that the City

of Clearwater’s sign regulations *‘contain exemptions for

political and other non-commercial speech.’’ (Appendix

D0-a),

The record also shows that the Eleventh Cireuit re-

versed the district court’s invalidation of the sign regula-

tions based upon an ‘tindependent examination of the

whole reeord,’’ (Appendix 56-a), not a de novo review,

as ix misrepresented by Petitioners.

Finally, Petitioners state that the Eleventh Cireuit

found that the district court had applied the proper legal

test. They fail to point out that the Eleventh Cireuit also

found that the district had predicated its findings on a

misunderstanding of the governing rules of law under

that test. (Appendix 54-a through 58-a).

— ——(----— —————

SUMMARY OF ARGUMENT

The law is clear in this case: reviewing courts, are

obligated to independently review 1) mixed findings of

law and fact, and 2) ‘‘ultimate constitutional facts’’

including ‘‘judgments lving close to opinion regarding

the whole nature of our Government’? in cases involving

First Amendment rights. Bose Corp. rv. Consumers Union

of United States, Ine., 466 U.S. at 485, 500 (1984); Bartine

v. Horsemen’s Benevolent & Protective Ass’n, 771 F.2d

894 (5th Cir. 1983), cert. denied, 475 U.S. 1119 (1986).

ra’

REASONS FOR DENYING THE WRIT

Petitioners contend that the Eleventh Circuit erred by

going beyond the **clearly erroneous’? standard of review

beeause, according to Petitioners, the Bose rule of inde-

pendent review! does not apply in an appeal from a district

court determination that a local regulation does not ‘*di-

rectly advance’? the government’s aesthetic interest and

is **more extensive than necessary’? to accomplish that

goal. This argument has been repentediy rejected by this

Court and the courts of appeals.

It is well-settled under Bose and its progeny that the

‘*findings’’ reviewed by the Eleventh Circuit involve **con-

stitutional facts,’’ ‘*special facts that have been deemed to

have constitutional significance,’’ or ** judgments lying

close to opinion regarding the whole nature of our Govern-

'The Eleventh Circuit in the decision below expressed that

it must make ‘“‘an independent examination” of the record ‘to

determine whether a commercial speech regulation [prohibit-

ing portable signs] directly advances the government's |aes-

thetic] goals or is more extensive than necessary,’ Don’s Porta

Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053-1054, n. 9

(11th Cir. 1987). Petitioners nonetheless incorrectly state and

argue that the Eleventh Circuit “applied a de novo review of

the District Court's findings,”” Pet. at 4, passim. This Court

explained in Bose that:

The independent review function is not equivalent to a

“de novo” review of the ultimate judgment itself, in which

a reviewing Court makes an original appraisal o: ail the

evidence to decide whether or not it believes that judg-

ment should be entered for Plaintiff.

ment.’’ Bose, 466 U.S. at 505. See Dunagin v. City of Ov-

ford, 718 F.2d 738, 748-749, n. 8 (Sth Cir. 1983), cert. de-

nied, 467 U.S. 1259 (1984) ; Lindsay +. City of San Antonio,

821 F.2d 1108, 1108, n. 9 (Sth Cir, 1987), cert. denied, U.S.

(Case No, 87-799. Jan. 11, 1988); Tavoulareas v. Piro, 759

F.2d 90, 108 (D.C. Cir. 1985), vacated in part by, 763 F.2d

1472 (D.C. Cir, 1985).

o- —

THE ELEVENTH CIRCUIT DID NOT ERR

IN INDEPENDENTLY REVIEWING

MIXED QUESTIONS OF LAW AND FACT

The law is clear: reviewing courts, such as the Elev-

enth Cireuit, are obligated to independently review mixed

findings of law and fact. This Court put it well in Bose:

But Rule 52(a) does not inhibit an appellate court’s

power to correct errors of law, including those that

may infect a so-called mixed finding of law and fact,

or a finding of fact that is predicated on the misunder-

standing of the governing rule of law.

Bose, 466 U.S. at 501. (eniphasis added).

In the case sub judice, the Eleventh Circuit recognized

that the district court applied the proper four-part com-

mercial speech test dictated by Central Hudson Gus &

Electric +. Public Service Comm'n, 447 U.S. 557 (1980).

But, the cireuit court found that the district court made

findings under the third and forth prongs of the Central

Hudson test predicated on a misunderstanding of the gov-

erning rules of law—-rules of law that inherently involve

mixed questions of fact and law. Don’s Porta Signs, Ine. v.

City of Clearwater, 829 F.2d 1051, 1053-54 (110i Cir.

1987). Sve Metromedia, Inc. v. City of San Diego, 453 US.

597 (1980); Members of the City Counetl v. Taxpayers of

Vincen!, 466 U.S. 789 (1984); Marnish v. Manatee County,

783 F.2d 1535 (11th Cir. 1987); Lindsay, 821 F.2d 110.5;

Supersign of Boca Raton, Inc. v. Cully of Fort Lauderdale,

766 F.2d 1528 (11th Cir. 1985). The Eleventh Cireuit did

not err in applying independent review to the mixed ques-

tions of fact and law tindings ge-nane to the third and

fourth prongs of the Central Hudson vest. in faet, the

court of appeals was obligated to make such a review.

THE ELEVENTH CIRCUIT DID NOT ERR

IN INDEPENDENTLY REVIEWING

QUESTIONS OF ‘‘CONSTITUTIONAL FACT’’

the Bose Court emphasized that the requirement of

independent review of First Amendment constitutional is-

sues is a rule of federal constitucional law.

It reflects a deeply held conviction that judges—and

particularly Members of this Court— must exercise

such review in order to preserve the precious liberties

established and ordained by the Constitution. The

question whether evidence in the record in a defama-

tion case is of the convineing clarity required to strip

the utterance of First Amendment protection ts not

merely a question for the trier of fact. Judges, as ex-

positors of the Constitution, must independently de-

cide whether the evidence in the record is sufficient

tu cross the constitutional threshold that bars the en-

try of any judgement that is not supported by clear

and convineing proof of **‘actual malice.”’

Bose, 466 U.S. at 510-11 (emphasis added).

Most important, this Court, after delineating the ap-

propriate standard of review, identified the types of ‘find-

ings’? that are subject to independent review:

In each of these areas, the limits of the unprotected

category, as well as the unprotected character of par-

ticular communications, have been determined by the

judicial evaluation of special facts that have been

deemed to have constitutional significance. In such

cases, the Court has regularly conducted an independ-

ent review of the record book to be sure that the speech

in question actually falls within the unprotected cate-

gory and fo define the perimeters of any unprotected

category with acceptably narrow limits in an effort to

ensure that protected expression will not be inhibited.

Bose, 466 U.S. at 504-505 (emphasis added). This Court

emphasized that:

‘*The conelusiveness of a ‘finding of facet’ depends on

the nature of the materials on whieh ihe finding is

based. The finding even of a so-called ‘subsidiary

fact’ may be a more or less difficult process varying

according to the simplicity or subtlety of the type of

‘fact’ in controversy. Finding so-called ultimate

‘facts’ more clearly implies the application of stan-

dards of law. ... Though labeled ‘finding of facet,’ if

may involve the very basis on which judgement of

fallible evidence is to be made. Thus, the conclusion

that may appropriately be drawn from the whole mass

of evidence is not always the ascertainment of the kind

of ‘fact’ that precludes consideration by this Court.

See, e.g., Beyer v. Le Fevre, 16 U.S. 114, 22 S.Ct. 765,

46 L. Ed. 1080 (1902). Particularly is this so where a

decision here for review cannot SCA pe broadly sectat

judqments— judgments lying close to opinion reqard-

ing the whole nature of our Government and the duties

and immunities of citizenship.’ Baumgartner ¢.

United States, 322 U.S. 665, 670-671, 64 S. Ct. 1240,

1243-1244, S88 L. Ed. 1525 (1944).

Bose, 466 U.S. at 500 (emphasis added). See Dunagin v.

City of Oxford, 718 F.2d 738, 748-49, n. & (Sth Cir. 1983),

cert. denied, 467 U.S. 1259 (1984) (‘legislative facts’? or

‘‘questions of constitutional magnitude’’); Lindsay vr. City

of San Antonio, 821 F.2d 1108, 1108, 1. 9 (Sth Cir. 1987),

cert. denied, —U.S.— (Case No. 87-799. Jan. 11, 1988)

‘*constitutional ‘status’ *’); Tavoulareas v. Piro, 759 F.2d

90, 198 (D.C. Cir. 1985), vacated in part by, 768 F.2d 1472

(D.C. Cir. 1985) (‘tultimate constitutional fact’). See,

generally, Pullman-Standard v. Swit, 456 U.S. 273, 286-87,

n. 16 (1982).

This Court, ‘‘in marking out the limits of the stan-

dard,’’? Bose, 466 U.S. at 503, put forth the rule that cer-

tain tindings cross the threshold of ‘‘pure fact’? and be-

come constitutionally significant because they are “*close

to opinion regarding the whole nature of our Govern-

7Examples of such facts which are subject to independent

review under the well-settled precedent of this Couri and the

courts of appeal include whether a writing was “obscene,”

whether there was a “clear and present danger,”” whether there

was ‘actual malice,’’ or other factual conciusions about the

speaker's intent, audience effect, and other elements of con-

text that are not easily disentangled from a decision as to wheth-

er a statement was “‘‘political”’ or directed at ‘public concerns.”

Lindsay, 821 F. 2d at 1108, n. 9; See Bose, 466 U.S. at 505-506;

Anderson v. City of Bessemer City, 470 U.S. 564 (1985); Rankin

v. McPherson, — U.S. —, 107 S. Ct. 2891 (1987); Bartimo, 771

F.2d 894; Dunagin, 718 F.2d at 748-49, n. 8.

Findings which may not be subject to independent review

have been identified as ‘preliminary factual determinations,”

(Tavoulareas, 759 F. 2d at 108), “what was said” (Lindsay, 821

F 2d at 1108), “logic and common experience which are or-

dinarily entrusted to the finder of fact’’ (Bose, 466 U.S. at 501,

n. 17) or any other facts which are not so intermingled with a

conclusion of law as to a federal right to require enalysis by

independent review (Fiske v. Kansas, 274 U.S. 380, 385-87 (1927)).

ment,’’ that is, ‘‘ultimate constitutional fact.’’ Bose, 466

U.S. at 500, n. 162 In such cases, this Court emphasized

that reviewing courts must not only provide protection to

parties asserting First Amendment rights, but also define

the perimeters of those rights to ensure that they are not

abused. Id. See Bartimo, 771 F.2d at 897.

The courts of appeal have followed this Court’s lead

and have recognized the importance of independently re-

viewing “‘ultimate constitutional facts’. In Dunagin v.

City of Oxford, 718 F.2d 738 (Sth Cir. 1983), cert. denied,

467 U.S. 1259 (1984), the court of appeals ruled that the

trial court’s findings are ‘*clearly not’? subject only to a

clearly erroneous standard of review (Dunagin, 718 F.2d

at 745, n. 8):

There are limits to which important constitutional

questions should hinge on the views of social scientists

Who testify as experts at trial. Suppose one trial

judge sitting in one state believes a sociologist who

has found no link between alcohol abuse and advertis-

ing, While another crial judge siting in siother state

believes a psychiatrist who hes reached the opposite

conclusion. A similar situation actually oecurred here,

Should identical conduct be constitutionally protected

in one jurisdiction and illegal in another?

‘Petitioners themselves state “[e|ven where the underlying

judgment is against the party asserting First Amendment rights,

independent review extends only to ultimate conclusions.”

Pet. at 11-12. However, they fail to understand the types of

‘findings’ which comprise ‘‘ullimate conclusions,” or better,

“ultimate constitutional facts.” See Bose, 466 U.S. at 505-506.

See n. 1, supra, at 3. Whether a commercial speech regulation

“directly advances” a government's interest and whether it. is

“no more extensive than necessary” to accomplish its goals is

the type of “ultimate constitutional fact” that is within the pur-

view of independent review. Id.

sw)

Dunagin, 718 F.2d at 749. Most instruetive, the Dimaaqin

court reasoned:

In the first place, the issue of whether there is a cor-

relation between advertising and consumption is a

legislative and not an adjudicative fact question. Ut is

not a question specifically related to this one case or

controversy; it is a question of social factors and

happenings which may submit to some partial em-

pirical solution but is likely to remain subject to opin-

lon and reasoning, See Fed. REvid. 201 advisory com-

mittee note, That reasoning is the responsibility of

legislators and judges, assisted by scholars as well as

social scientists. The specific issue here was undoubt-

edly considered by the Mississippi Legislature when

local option and the curtailment of liquor consumption

were being studied. Now the issue has moved to the

judicial silage, /} the legislative de ton is not bind-

ing at this stage, af least it carries qreat weight. Cer-

taimly it cannot be thrust aside buy two experts and a

judicval trier of fact. The writings and studies of so-

celal science experts on legislative faets are often con-

sidered and cited by the Supreme Court with or with-

out introduction into the record or even consideration

hy the trial court. (cites omitted) Furthermore, ihe

dectston Ol wheihes df regulation | commerceval speech

directly advance s thie slate ‘s inte rest, for exanpli J is

an exercise of constitutional a/judication wherein ap-

pellate conrts play “ specul role, Applying hie legal

tests that hare crolved in constitutional law mmevariably

requires subtle legal distinctions, a sense of history,

and (lil orde rine of} contli fina rights, rales and bi-

ferests, ‘The Supreme Court has often warned that

each First Amendment case must be analyzed separ-

ately, based on the particular method of communica-

tion involved, and the vale. and daneers Tmplicated,

“The protection available for particular commercial

expression turns on the nature both of the expression

and of the government interests served by its regula-

tion.”’ Central Hudson Gas, supra, 447 U.S. at 563,

100 S.Ct. at 2350. The questions raised in such cases

involve mixed questions of law and fact. In this case,

for instance, the extent to which Metromedia, ... and

other cases temper the Central Hudson Gas test is a

legal question.

Dunagin, 718 F.2d at 748 (emphasis added). See Central

Hudson, 447 U.S. 557, 563 (1980); Metromedia, Ine. v. City

of San Diego, 453 U.S. 490, 501 (1981).

Most notably, this Court denied certiorari review in

the most recent case which presented to this Court the

same question presented by Petitioners for review in the

instant case. Lindsay v. City of San Antonio, 821 F.2d

1103 (Sth Cir. 1987), cert. dented, —-U.S.- (Case No. 87-

799. Jan. 11, 1988), is a ease astonishingly similar to the

facts and law presented in the instant ease. In that case,

businesses engaged in supplying, leasing, renting and sell-

ing portable siens brought an action challenging, under

First and Fourteenth Amendments, the cons :itutionality of

the city’s commercial speech regulation prohibiting por-

table signs. The distriet court eranted the portable sien

businesses’ motion for preliminary injunction against en-

forcement of the regulation, and the Citv appealed. The

court of appeals held that the citv’s portable sign ban di-

rectly advanced the city’s aesthetic interests and that it

was not substantially broader ‘han necessary to protect

that interest.

In arriving at its holding, the appellate court relied

on the Bose rule and independently reviewed the district

court’s findings germane to First Amendment issues of a

constitutional magnitude.

Thus, the critical inquiries are, as the District Court

stated, whether the ordinance does further the City’s

interests and whether the restriction on speech is

greater than is essential to the furtherance of those

interests.

Lindsay, S21 F.2d at 1109. The court of appeals recognized

that the ‘‘eritical inquiries’? were, in essence, constitutional

questions involving separation of powers between ite

legislative and judicial branches of government.

The limits on such a determination seem boundless.

In a related vein, when a trial court makes such a find-

ing, the potential for the court to substitute its own

judgment about aesthetics for that of the body charged

with making aesthetic determinations is great. Left

open is the possibility that the trial court will decide

that nothing short of full achievement—as opposed to

‘‘furtherance’’ of a governmental purpose is suffi-

cient to justify a particular restriction on speech. In-

deed, in the instant case, notwithstanding, protesta-

tions by the court to the contrary, ie cours gen

eral deseription of the problem with the ordinance

——‘its failure to aecomplish tis aestietic purpose”?

—suggests that the distriet court: tock such an ap-

proach to the question raised under Vincent of

whether the regulation ‘‘furthers an important or sub-

stantial governmental interest.”> Vincen!, 466 U.S, at

805 (cites omitted). It seems that the district court

may have been holding the City to a standard requir-

ing it to cure all visual blight, or none at all.

Lindsay, 821 F.2d at 1109, See City of Reunion v. Playtime

Theatres, Inec., 475 US. 41, 106 S.Ct. 920, G81 C1986).

Under the reasoning employed in Bose, Rankin ev.

McPherson, — U.S. —, 107 S.Ct. 2891, 2896 (1987), reh. de-

nied, —U.S.— (1987), and Denagim, 718 Fd at 748-49, n.

S, the court of appeals found that the findings under the

third and fourth prongs ol the ("; vival lludson test ure

ones for which independent review is appropriate. Thus,

‘the decision on whether a regulation of commercial specch

directly advances the state’s interest is an exercise of con-

stitutional adjudication wherein appellate courts play a

special role.’? Dunagin, 718 F.2d at 745, n. 5. The court ot

appeals was required to apply the legal tests that evolved

in constitutional law, including Metromedia, 458 U.S. 490

(1981) (plurality); Members of the City Covned v. Tax-

payers for Vincent, 466 U.S. 789 (1984); Clarke v. Com-

mittee for Creative Non-Violence, 468 U.S. 285 (1984);

“sy

Harnish v. Manatee County, 783 F.2d 1535 (11th Cir.

1986); Supersign of Boca Raton, Inc. v. City of Fort

Lauderdale. 766 F.2d 1528 (11th Cir. 1985); and Lindsay

v. City of San Antonio, 821 F.2d 1103 (Sth Cir. 1987), in

order to interpret the third and fourth prongs of the

Central Hudson test as it applies to the tacts in the case.

Such application invariably requires subtle legal distine-

tions, a sense of history, amd an ordering of conflicting

rights, values and interests. Dunagin, 718 F.2d at 748.

These cases, contrary to Petitioners’ argument, are

instructive and control the decision in the instant case.

Without repeating all of the findings in the case sub judwe,

it is appropriate to say that it is on point with the facts

in Lindsay, and that the findings were quite similar, The

Eleventh Cieruit, in accordance with these established prin-

ciples, independently reviewed the First Amendment issues

of constitutional magnitude. The proper application of the

controlling constitutional law on the substantive issues re-

quired the court of appeals to independently review these

‘judgments lying close to opinion regarding the whole na-

ture of our Government,’’ which this Court calls **ultimate

constitutional facts.”’

PETITIONERS’ ARGUMENT IS FALLACIOUS

RESULTING FROM CONVERSION OF

AFFIRMATIVE PROPOSITIONS IN

BOSE AND ITS PROGENY

Respondent submits that Petitioners’ glib argument is,

in fact, a house of cards constructed of non sequiturs* and

out-of-context quotes.

Whether or not a party asserting First Amendment

rights won or lost at the trial court level is not deter-

minative of whether or not fundamental constitutional

principles are involved and whether the reviewing appel-

late court is empowered to conduct an independent review.

See Bose, 466 U.S. 485 (1984); Lindsay, 821 F.2d 1103

(5th Cir. 1987), cert. denied, — U.S. — (Case No, 87-799.

Jan. 11, 1988); Dunagin, 718 F.2d 738 (oth Civ. 1985),

cert, denied, 467 U.S. 1259 (1984); Bartimo, 711 F.2d se4

(5th Cir. 1983), cert. denied, 475 U.S. 1119 (1986): Tavou

larew v. Washmgton Post Co., 759 F.2d 90 (D.C. Cir.

1985), vacated in part by, 763 Bild 1472 (D.C. Cir. 1985).9

*Although never stated or implied by the Court in Bose

or any of its other cases, Petitioners suggest that the decision

by district courts (whether against or in favor of the party as-

serting First Amendment rights) will always determine the stan-

dard of review to be applied by reviewing courts in First Amend-

ment cases. Such a position is ridiculous. See Bose, 466 U.S.

at 510, n. 29; Bartimo, 771 F. 2d at 898, n. 3.

‘Respondent submits that it is significant that Petitioners

fail to contest, or even address, the substantive issues presented

below in the district court and court of appeals. The merits be-

low, which are not under consideration by the Court in this

case, concerned the third and fourth prongs of the tour-part

commercial speech test established in Central Hudson, 447 U.S.

(Continued on following page)

It is evident from reading the entire opinion of the

Court in Bose® that the rationale of Bose applies here.

Petitioners simply ignore the Court’s broad language in

Bose, which makes no distinction whatever between cases

where judgment was in favor of the alleged defamer and

those where judgment was in favor of the alleged defen-

dant. The Fifth Cireuit in Bartiino observed that if the

Court had intended to make such a distinction, it would

have so limited its holding in Bose. Id.’

[Definition of First Amendment protection requires

inclusion as well as exclusion and the former is no less

a judicial function merely because it does not pose a

direct threat to First Amendment values. Including

speech within the protected category requires no less

careful an evaluation of constitutionally significant

facts than excluding such speech.

Bartimo, 771 F.2d at 897, cert. denied, 475 US. 1119

(1986). (emphasis added).

Indeed, this Court did not limit its holding in Bose

and, in faet, indicated just the opposite proposition as to

Petitioners’ argument. The Court underscored the signifi-

(Continued from previous page)

557 (1980). Specifically at issue was whether a commercial

speech regulation prohibiting portable signs directly advanced

the government's aesthetic goals or was more extensive than

necessary to accomplish those goals. Don's Porta Signs, Inc.,

829 F. 2d 1051, 1053-54, n. 9.

6Petitioners, by sleight of hand, attempt to string together

bits and pieces of the Bose opinion in an attempt to camouflage

the weakness of their petition as well as to invent grounds on

which to base their petition.

See n. 9, infra, at 15.

one. the rationales behind the rule:

A similar concern with the need to ‘‘preserve the

right of free speech both from suppression by tyran-

nous, well-meaning majorities dud from abuse by irre-

sponsible, fanatical minorities,’’ (cite omitted) was

identified by Justice Brandeis .. .

Bose, 466 U.S. at 510, n. 29 (emphasis added). The rule of

independent review, as the Court has concluded, is exer-

cised not only to profect the party asserting First Amend-

ment rights, but also to prevent abuse by that party.

Most instructive is the Fifth Cireuit’s well-reasoned

decision in Barltwo v. Horsemen's Benevolent and Pro-

lective Ass'n, 771 F.2d 894 (oth Cir. 1985), cert. denied, 475

U.S. 1119 (1986).5 in Bartimo, the trial court found that

’The Fifth Circuit has noted that:

The Supreme Court has declared that while summary dis-

positions of appeals are decisions on the merits that bind

lower federal courts, such decisions extend only to “the

precise issues presented and necessarily decided by those

actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977).

Respondent suggests that this Court’s denial of certiorari review

in Dunagin, Lindsay, and Bartimo provides binding precedent tor

federal courts of appeal and district courts to follow. Each of

these cases presented the same question presented for review

in the instant case to this Court. For example, in Lindsay this

Court was presented with the following “question presented

for review:”’

Whether the rule announced in Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949,

80 L. Ed. 2d 502 (1984) requiring that courts of appeal ex-

amine the whole record of a proceeding to assure that

First Amendment rights are not intruded upon was prop-

erly applied to overturn a district court’s preliminary in-

junction protecting Petitioner's rights to free expression.

no actual malice existed and dismissed plaintifi’s defama-

tion claim. In so doing, of course, the trial court ruled

im favor of the party asserting First Amendment rights.

In reviewing the trial court’s finding in favor of the party

asserting First Amendment rights, the Fifth Circuit exer-

cised the rule of independent review which was stated by

this Court ‘in terms broad, clear and without exception.’’

Bartimo, 771 F.2d at 897. The defendant’s claimed that the

Bose rule did not apply because *‘tie district court’s find-

ing of no actual malice and its dismissal of the plaintiff’s

defamation claim present no threat to the First Amend-

ment values,’’ Bartimo, 771 F.2d at 897, but the Fifth Cir-

cuit flatly rejected that argument.

First, it is not clear to us that the rationale of Bose,

is inapplicable here, for definition of First Amend-

ment protection requires inclusion as well as exclusion

and the former is no less a judicial function merely

because it does not pose a direct threat to First

Amendment values. Including speech with the pro-

tected category requires no less careful an evaluation

of constitutionally significant facts than excluding

such speech.

Bartimo, 771 F.2d at 897 (emphasis added).

Petitioners rely upon a Seventh Circuit Court of Ap-

peals decision in Planned Parenthood Association/Chicago

Area v. Chicago Transit Authority, 767 F.2d 1225 (7th Cir.

1985). Petitioners argue that the Seventh Circuit opinion

in Planned Parenthood stands for the proposition that

where the trial court rules in favor of the party asserting

First Amendment rights, the standard of review estab-

lished in Bose should not apply.? Planned Parenthood

recognized that Bose required independent review of ‘‘cer-

tain facts that have been deemed to have constitutional Siq-

nificance.”’ Planned Parenthood, 767 F.2d at 1229 (empha-

sis added). The Seventh Circuit emphasized that the rule

reflects a special solicitude for claims that the protection

afforded by the First Amendment have been unduly

abridged.

In determining whether the Bose rule should apply to

the factual questions on appeal in that case, the Seventh

Circuit recognized that only three of the Distriet Court's

factual findings were being challenged: **(1) That CTA

has previously accepted ‘controversial public-issue adver-

tising,’ (2) that CTA has no policy against aceepting such

advertising, and (3) that CTA’s expressed reasons for

rejecting abortion-related advertising are unfounded and

speculative.”’ Planned Parenthood, 767 F.2d at 1228. None

of the fact questions were mixed questions of fact and law,

or ‘constitutional facts.”* Indeed, each of these ‘factual

s¢

findings’’ of the distriet court which were challenged on

appeal was the type of finding that truly involves **pure

fact.’’ None of the fact questions presented to the Seventh

Circuit in that case involved ** judgements lving close to

opinion regarding the whole nature of our Government”’

and did not constitute an ‘‘ultimate constitutional fact.”’

*Petitioners’ argument to apply the independent review

standard only if the trial court ruled against the party assert-

ing First Amendment rights would introduce the possibility of

a particular record being reviewed by two different standards

as it made its way through the appellate process. Bartimo, 771

F. 2d at 898, n. 3. “We think judicial economy is best served

by requiring the same standard of review at all levels, regard-

less of the outcome below.” Id.

See Bose, 466 U.S. at 500, n. 16. Petitioner’s reliance on

Planned Parenthood through the artifice of out-of-context

quotation should be ignored.

In Dunegin v. City of Oxford, T18 F.2d 738 (Sth Cir.

1983), cert. denied, 467 U.S. 1259 (1984), the Fifth Circuit

once again exercised independent review in a case where

the party asserting First Amendment rights prevailed at

the trial level. And once again, tle same question was pre-

sented for review as the one prescuted by Petitioners in

this case.'? In that case, and its connected case, the court

of appeals independently reviewed two trial court deci-

sions that split'' on the issue of whether Mississippi’s in-

trastate liquor advertising ban unconstitutionally abridged

plaintiffs’ commercial speech rights. In Dunagin, the dis-

trict court found against the party asserting First Amend-

ment rights. In the companion case, the district court

found in favor of the party asserting First Amendment

rights. Finding itself in the unique position of having

both sides of the argument before it on the same First

Amendment questions of constitutional magnitude, the

Fifth Cireuit stated that the trial courts’ findings are

‘clearly not’’ subject only to a clearly erroneous standard

of review (Dunagin, 718 F.2d at 745, n.8):

See n. 8, supra, at 15.

"Two suits were filed attacking, principally on First Amend-

ment grounds, a Mississippi commercial speech regulation pro-

hibiting intrastate liquor advertising. The U.S. District Court

for the Northern District of Mississippi upheld the regulation

(against the party asserting First Amendment rights) in Dunagin

v. City of Oxford, 489 F. Supp. 763 (N.D. Miss. 1980); the South-

ern District invalidated the regulation (in favor of the party as-

serting First Amendment rights) in Lamar Outdoor Advertising,

Inc. v. Mississippi State Tax Comm'n, 539 F. Supp. 817 (S.D.

Miss. 1982).

Furthermore, the decision on whether a regulation of

commercial speech direcily advances the state’s inter-

est, for example, is an exercise of constitutional ad ju-

cation wherein appellate courts play a special role. Ap-

plying the legal tests that lave evolved in constitu-

tional law invariably requires subtle legal distinctions,

a sense of history, and an ordering of conflicting

rights, values and interests. The Supreme Court has

often warned that each First Amendment case must be

analyzed separately, based on the particular method

of communication involved, and the values and dan-

gers implicated. **The protection available for par-

ticular commercial expression turns on the nature both

of the expresison and of the government. interests

served by its regulation.’* Central Hudson Gas, supra,

447 U.S. at 563, 100 S.Ct. at 2350. The questions raised

in such cases involve mixed questions of law and fact.

In this case, for instance, the extent to which Vetro-

media, ... and other cases temper the Central Hudson

Gras test is a legal question.

Dunagin, 718 F.2d at 748 (emphasis added). See Central

Hudson 447 U.S. 557, 563 (1980): Metromedia. Ine. v. City

of San rego, 453 US. 490, 501 (1981).

CONCLUSION

For the foregoing reasons, the writ of certiorari to the

United States Court of Appeals for the Eleventh Circuit

should be denied.

Respectfully submitted,

CHaARLEs L. SteMoN

(Counsel of Record)

Wituiam W. Merritt III

Sremon, Larsex, Marruix & Purpy

1800 Second Street, Suite 903

Sarasota, Florida 34256

(813) 955-9050

Counsel for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.