A minister pays $2500 to put up a billboard with a Bible verse on it condemning homosexuality in New York. The president of the Borough of Staten Island writes a letter to the company that owns the billboard urging them to take down the billboard and they do. Minister sues claiming his free speech rights have been violated. District court grants a motion for summary judgment to the defendants, appeals court remands back to the lower court. Lower court dismisses the case again, appeals court upholds the dismissal. Now the minister has asked the Supreme Court to hear the case.
It’s a very interesting case, I think. The government in this case did not actually take down the billboard or order it taken down, but they did engage in some intimidation of the billboard company to get it taken down. The article notes:
In his letter to PNE’s president Molinari, a Republican, said “I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our borough.” He went on to remind the company made a lot of money from billboard signs in Staten Island.
Okinedy sued PNE for breach of contract but Federal Judge Nina Gershon dismissed the suit.
Okwedy went to the Court Appeals Court which ordered the case revisited. The court ruled that “Molinari’s letter could be found to contain an implicit threat of retaliation if PNE failed to accede to his requests.”
Yet the court dismissed the case anyway and the appeals court seems to be arguing that all Molinari did was express his opinion, which he of course can do. The appellate ruling says:
Even if we were to conclude that city officials acted pursuant to a policy or custom-whether contained in Section 8-101 or elsewhere-of criticizing speech deemed to be intolerant, such a policy or custom would not violate the First Amendment, as applied to the states through the Fourteenth Amendment. When the government speaks, it is not bound by principles of viewpoint neutrality and can make persuasive arguments for its own favored point of view. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1014 (9th Cir. 2000); Connell v. Signoracci, 153 F.3d 74, 82 (2d Cir. 1998) (“The Mayor is privileged, for example, to organize a rally against pornography, to call the topless bars a ‘black eye on the community’ and a ‘slimy business,’ and to call for a boycott of the establishments.”). Such speech is permissible as long as the government does not “threat[en], coerc[e], or intimidat[e].” See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 1999). Government speech criticizing Okwedy and his message, alone, does not constitute “viewpoint discrimination” or violate the First Amendment.
But if the lower court concedes that the letter in this question contained at least implicit threats and intimidation and still granted summary judgment, it seems odd to me that the appeals court would behave as though there was no threat. After all, we are dealing with appellate review of a granted motion for summary judgment; the court is bound to consider all of the facts in the most favorable light to the plaintiff in such a case, both at the district court and appeals court levels.
The plaintiffs were making both a facial challenge and an as-applied challenge to the borough’s actions, based on the New York City Administrative Code, Section 8-101. Here is the court’s description of that code:
Section 8-101 states an official policy against “prejudice, intolerance, [and] bigotry” and establishes an agency to combat discrimination in housing, employment, and public accommodations, as well as “to take other actions against prejudice, intolerance, bigotry, discrimination and bias-related violence or harassment.” See id. Section 8-101 does not itself prohibit or regulate speech.
But it would seem that an as-applied challenge here is appopriate. And the appeals court’s standard for showing such a violation strikes me as very odd:
Indeed, plaintiffs do not argue that the text of the statute is unconstitutional but rather that officials have construed it in a way that makes it so. Although plaintiffs are correct that we must look beyond the text to “authoritative constructions” of the law, see Forsyth Cty., GA v. Nationalist Mvmt., 505 U.S. 123, 131 (1992), plaintiffs fail to cite any construction that supports their theory that the City interprets the Human Rights Law to suppress speech that conflicts with its anti-discrimination policy.
I don’t understand why this matters at all. Regardless of what statute the government thinks might justify its actions, it is the action that is to be deemed constitutional or unconstitutional. If the action itself violates his free speech rights, then it shouldn’t matter whether the borough president thought he was acting in accordance with this section of the administrative code or not. The Court makes it even more odd when they note the following in a footnote:
In our earlier summary order, we noted that “plaintiffs acknowledge that [Borough President] Molinari acted pursuant to the general policy against ‘intolerance’ and ‘bigotry’ expressed in New York law and the New York City Administrative Code § 8-101.” Okwedy, 69 Fed. Appx. at 5. Insofar as that language may have suggested that we read Section 8-101 to authorize or require the City’s response to the billboards, we take this opportunity to clarify that such is not the case. Rather, our earlier order was meant to explain that plaintiffs had produced no evidence that Molinari’s intent, in criticizing their billboards, was to suppress religious expression, and that, to the contrary, Molinari’s actions were supported by the city’s “general policy” against discrimination, of which Section 8-101 is one expression.
A very strange argument. Why does his intent matter? Again, the only legally relevant issue is whether Molinari’s actions did violate the plaintiff’s rights, not whether he intended to do so or whether he thought his actions were legally justified or not. Which goes back to the question of whether the implied threats and intimidation in the president’s letter constitute a violation of his free speech rights because that letter led the billboard company to pull the ad.
I think there’s a strong case here and I hope the Supreme Court takes it up. If you disagree, I recommend flipping the facts around. Imagine if someone took out a pro-gay billboard and a conservative Christian city council president sends them a letter to the company that owns the billboard saying that he thinks the billboard advocates immoral behavior and reminding the company that most of their billboards are within the city limits and thus subject to zoning regulations set by the city. Would you say there was no intimidation there? I think there would be in both cases.