9th Circuit torpedoes marina owner’s free-speech claim

Friday, September 10, 2010

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A marina owner in Seattle has no First Amendment right to include political statements in his official permit plan, according to a federal appeals court panel. The 9th U.S. Circuit Court of Appeals panel ruled 2-1 this month that Ed Strickland, the owner of Northlake Marine Works, could not include political statements critical of the city in his permit materials.

The dispute began in August 2003, when Strickland applied for a permit to remodel his pier on Lake Union. One of the city’s conditions for permit applicants is to create and distribute a “Best Management Practices Plan” to marina tenants.

In June 2005, Strickland sent a proposed plan to the city, but officials found it insufficient. Strickland sought to comply with the directives but was upset with the delay in his application. He included in his revised plan a comment about “the City practice of dumping billions of gallons of sewage and storm water … into Lake Union.”

Officials told Strickland to remove the statement. He did, and obtained the permit. However, he filed a lawsuit on behalf of himself and his company, alleging that he had a First Amendment right to include his political speech in the materials he gave to his tenants.

Strickland argued that the city could not compel him to include information about required anti-pollution practices in his BMP plan. He also argued that the city engaged in viewpoint discrimination by prohibiting him from including his critical statement about sewage dumping.

In September 2009, U.S. District Judge Ricardo S. Martinez ruled in favor of the city and against Strickland and Northlake Marine Works. Martinez said Strickland’s First Amendment claims must be dismissed because the best management practices plan was a form of government speech, not private speech.

“Strickland cannot claim that the BMP plan was his own private speech when the government had complete control over its contents,” Martinez wrote.

Under the government-speech doctrine, the government has the right to advance its own messages without being subjected to First Amendment scrutiny.

Strickland appealed to the 9th Circuit. The three-judge panel affirmed the lower court Sept. 2 in Strickland v. City of Seattle. The majority, consisting of Judges William Canby and Consuelo Callahan, relied in part on the government-speech doctrine, writing: “To the extent that the City-approved BMP plan conveys the government’s endorsement of specific practices, it is government speech and exempt from First Amendment scrutiny.”

Judge Sandra Segal Ikuta dissented, noting that Strickland was the author of the BMP plan, not the city. She said the decision conflicted with the U.S. Supreme Court’s decision in Consolidated Edison Co. v. Public Service Commission (1980), in which the Court ruled that New York City could not prohibit a utility company from distributing political commentaries in its billing statements.

Katherine George, one of Strickland’s attorneys in the case, said no decision had been made about whether to appeal.

The divided panel decision is important because the majority and dissenting opinions reflect very different approaches to the application of the government-speech doctrine. If this doctrine is not properly limited, then many First Amendment lawsuits will be restricted.

Just ask Ed Strickland.

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