Court neuters dog owners’ First Amendment challenges

Friday, May 6, 2011

Just because a law seems unfair and unjustifiable doesn’t mean it violates the First Amendment.

Central to any free-speech challenge is that the activity regulated by the government be sufficiently expressive.  Otherwise there is no First Amendment claim to make. The California Court of Appeals sounded this theme in its recent decision involving an interesting challenge to a Los Angeles pet ordinance.

The law requires all dogs and cats in the city to be neutered or spayed when they are four months old or older. The city passed the law in February 2008 to deal with an overpopulation of abandoned pets. The city council claimed the law would serve the valid purposes of public health and safety, prevent inhumane treatment of animals, and lower rising costs for animal control.

The ordinance providea six exceptions, including for animals bred and groomed for competitions, or used as hunting or guide dogs.

The Concerned Dog Owners of California and several members of the group challenged the constitutionality of the law in state court. CDOC contended that the law violated the First Amendment by infringing on freedom of speech and freedom of association. The group also argued that the law was too broad.

After a trial court rejected the arguments in July 2009, the group appealed.

In its appeal, the group argued that the law violated the First Amendment because it compelled speech by forcing people to use the designation “breeder” to obtain a breeders’ permit. The plaintiffs also claimed that the law violated their free-association rights by forcing them to join a registry and adopt the “breeder” designation.

These somewhat creative arguments did not succeed in court. In its April 29 opinion in Concerned Dog Owners of California v. City of Los Angeles, the California Court of Appeals affirmed the lower court and rejected the constitutional challenges.

Central to the appeals court’s analysis was the requirement that a First Amendment claim involve speech or expressive conduct.

“The First Amendment does not extend to conduct which cannot be interpreted to be expressive in nature,” the appeals court wrote. “The Ordinance does not require any individual to convey any verbal or symbolic statement.”

The appeals court reiterated its logic in addressing the free-association and overbreadth arguments. “The only mandatory requirement under the Ordinance is to spay and neuter one’s dog or cat,” the court said, adding that “such activity is not expressive in nature and as such it does not fall under the ambit of the First Amendment.”

Some pet owners may vehemently object to the Los Angeles ordinance; to many it may seem like government overreaching. But that doesn’t mean that the law violates the First Amendment.

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