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The U.S. District Court for the Eastern District of North Carolina recently handed a victory to a former marine, now a civilian worker at Camp Lejuene, who had several anti-Islamic decals pasted to the vehicle he drove and parked on base. Senior Judge Malcolm Howard ruled that the U.S. Marine Corps base’s commanding officer and traffic court officer enforced an otherwise viewpoint-neutral regulation in an unconstitutional, viewpoint discriminatory manner when, in response to complaints from others on base, the officers forced the plaintiff to remove the decals from his car and later banned his car from Camp Lejuene and “any other federal installation” until the decals were removed. The decision, Nieto v. Flatau, is available here.

The court ruled on the defendants' pending motion to dismiss and the parties’ cross-motions for summary judgment at one time. After first denying the defendants’ motion to dismiss, the court undertook a forum analysis to determine the standard of scrutiny to apply to the regulation. Applying the standards set forth in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), the court held that Camp Lejuene is a “non-public forum”—the base is “public property that has not traditionally been open for public debate or assembly and has not been designated as such.” Because the base is a non-public forum, the government may restrict speech on the base “as long as the restrictions are reasonable and ‘not an effort to suppress expression merely because public officials oppose the speaker’s view.’” This standard is, of course, less exacting than the strict scrutiny standard that requires a speech regulation to serve a compelling government interest and to be narrowly tailored to achieve that interest.

One of the most interesting aspects of the Nieto case is that, even with the more lenient standard applied to speech regulations in a non-public forum and the deference the court recognized the military is granted with regard to speech regulations, the court still found the application of the regulation in this case did not pass constitutional muster. 

The regulation at issue prohibited “the display of ‘extremist, indecent, sexist or racist messages on . . . motor vehicles in any format (bumper stickers, window decals, art or other adornments)’ on the Base.” The court determined that the regulation was viewpoint neutral on its face but was not applied to the plaintiff in a viewpoint neutral manner. The court wrote:

Plaintiff has been prohibited from displaying anti-Islamic messages, such as “Islam = Terrorism.” Yet, testimony by defendants establishes that decals espousing pro-Islamic messages, such as “Islam is Love” or “Islam is Peace” would be permitted upon the Base. As applied, the regulation allows “one message while prohibiting the messages of those who can reasonably be expected to respond.” Such viewpoint discrimination is the most egregious form of content discrimination and is impermissible regardless of the nature of the forum.

Although the regulation was apparently adopted to prevent speech intended to “inflame the passions of those within the base,” the court rejected this justification, finding that decals with the words “Islam is Love” could be just as inflammatory to some people as “Islam = Terrorism” is to others. Moreover, the court applied to the military regulation the well settled principle that the offensiveness of the speaker’s message is not a proper basis for banning expression.

In the end, the court granted the plaintiff’s request for a permanent injunction barring the base officials from enforcing the regulation in a viewpoint discriminatory manner.

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As has been widely reported, the U.S. Supreme Court will review a case this session involving a federal statute that criminalizes the sale of depictions of animal cruelty.  Last year, in United States v. Stevens, the Third Circuit declared the statute unconstitutional and vacated the conviction of Robert Stevens, who was prosecuted for selling videos of illegal dog fighting.  (Law.com covered the Third Circuit decision when it was released last year.)

The basic question for the court is whether or not the statute on its face runs afoul of the First Amendment.  As the Third Circuit framed it, the question for the Supreme Court is, more specifically, whether or not depictions of animal cruelty constitute a new category of speech that receives no First Amendment protection.  If it is a new category of unprotected speech, then depictions of animal cruelty will join the likes of obscenity, child pornography, false and misleading advertising, “fighting words,” and similar kinds of speech that may lawfully be criminalized or banned by the government.  However, as the Third Circuit pointed out in its 2008 opinion, the Supreme Court has not recognized a new category of unprotected speech in about 25 years—which may suggest that the Court will be reluctant to do so in this case. 

Of course, at least theoretically, the Supreme Court could decide more narrowly that depictions of animal cruelty may be limited under certain circumstances, or that the speech at issue is commercial in nature and may be regulated consistent with existing commercial speech principles.

A case like Stevens puts First Amendment principles to the test.  On the one hand, as this article discusses, advocates for freedom of expression are concerned that adding another category of speech to the list that the government may lawfully prohibit chips away at the First Amendment and leaves it vulnerable to further attack. On the other hand, other people argue that depictions of animal cruelty are inhumane and, like obscenity, have little or no social value that render them worthy of First Amendment protection.  It’s too soon to tell which side of the debate a majority of the Supreme Court will favor.

Oral arguments in the case are scheduled for October 6, 2009.  We will continue to follow the story and keep you updated.

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