Blog: Ruling in running for First Amendment decision of the year

Tuesday, July 13, 2010

If there were an award for First Amendment ruling of the year, then U.S. District Judge Mark W. Bennett’s July 7 opinion in Dorr v. Weber should receive a nomination. The federal ruling in Iowa reflects an understanding of First Amendment history and law and applies those principles to an unpopular speaker and a retaliatory government official.

The case involved Paul Dorr and his son Alexander’s unsuccessful attempts to obtain applications for concealed-weapons permits in Osceola County. Sheriff Douglas L. Weber denied the applications in 2007 even though he had given Paul Dorr permits for 2005 and 2006. In 2007, Dorr made a public-records request for salaries and duties in the Osceola sheriff’s department. Dorr had been hired as a consultant by the Osceola County Taxpayers Association to investigate spending by county offices. In this capacity, he exercised his First Amendment rights by handing out leaflets and writing editorials criticizing local government policies.

Dorr and his son alleged that Weber denied their weapons permits in retaliation for their exercising their First Amendment free-speech rights. Judge Bennett agreed that the sheriff retaliated against Paul Dorr for exercising his First Amendment freedoms, writing that in denying his permit, “Sheriff Weber single handedly hijacked the First Amendment and nullified its freedoms and protections.” (The court found that Weber denied Alexander Dorr’s permit because he was under age.)

Bennett opened the conclusion of his opinion with an extended quote from Justice Oliver Wendell Holmes Jr.’ s dissenting opinion in Abrams v. United States (1919). In the passage, Holmes articulated what became known as the “marketplace of ideas” metaphor for freedom of speech — that the government should not censor speech, but let it enter the marketplace:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market… .”

Perhaps most important, Bennett — who used to be general counsel for the Iowa Civil Liberties Union — recognized that the First Amendment protects the unpopular speaker as well as those in the mainstream. “This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, a kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular view,” Bennett wrote.

Bennett’s opinion should be lauded not only for its understanding of history and of the need to protect unpopular speakers, but also because he sent a message to officials who retaliate against people for exercising their free-speech rights. Bennett ordered Weber to take, complete and pass a class that provides “college level instruction on the United States Constitution, including — at least in part — a discussion of the First Amendment.”

Bennett’s opinion in Dorr v. Weber itself should become part of any course that discusses the Bill of Rights and the First Amendment.

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