Girl Scouts can’t claim free-speech right to drop councils

Monday, June 6, 2011

The national organization of Girl Scouts does not have a First Amendment right to gerrymander some of its local councils out of existence.

So ruled the 7th U.S. Circuit Court of Appeals last week in Girl Scouts of Manitou Council v. Girl Scouts of the United States of America. In doing so, the court rejected the national organization’s claim that the group’s plan to redraw local councils’ boundaries constituted expressive conduct protected by the First Amendment.

The case was rooted in the national organization’s decision in 2004 to reduce its more than 300 local councils by two-thirds. To accomplish this, the organization proposed to redefine the exclusive territories previously granted to local councils. One of the local councils to be eliminated under this proposal was the Manitou Council in eastern Wisconsin.

The Manitou Council sued, arguing that the national organization’s plan violated Wisconsin’s Fair Dealership Law, which protects franchisees from arbitrary termination of their franchises. After the federal district judge refused to enjoin the plan, the 7th Circuit in 2007 reversed and ordered further proceedings in the trial court.

During those proceedings, the district judge ruled again in favor of the national organization, this time holding that applying the Fair Dealership Law would violate the organization’s First Amendment right to free expression.  Because one of the national organization’s goals was to increase diversity among Girl Scouts, the judge reasoned, the proposed realignment constituted expressive conduct. The Fair Dealership Law therefore could not be applied in this case without running afoul of the First Amendment.

But in its ruling issued May 31, the three-judge 7th Circuit panel disagreed, primarily because the national organization had not offered any evidence linking the new boundaries to the enhancement of diversity. The court, however, also was skeptical of the sincerity of the organization’s constitutional argument.

“The First Amendment was barely hinted at in the first appeal of this case, and was just a small part of the national organization’s argument in the district court,” the court noted, “but when it became the district court’s sole ground for ruling in its favor the national organization embraced it eagerly. Yet this ground for overriding the fair-dealership law cannot be taken seriously in the absence of any evidence of a connection between realignment of the councils and promotion of diversity – and none was presented.”

“If the national organization wants Manitou to recruit minority girls more vigorously, it can order Manitou to do so,” the court continued. “How changing the territorial boundaries would increase the recruitment of girls from minority groups is nowhere shown.”

Without such evidence, the appellate court concluded that – at worst – the Fair Dealership Law was a law of general application that might indirectly and unintentionally impede the national organization’s efforts to communicate its message. As such, the panel said, the Fair Dealership Law in these circumstances did not violate the First Amendment.

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