Jewish World Review April 3, 2011/ 28 Adar II, 5771
Citizens shouldn't have to justify their speech
By George Will
http://www.JewishWorldReview.com | A dialectic of judicial deference and political arrogance is on display in St. Louis. When excessively deferential courts permit governmental arrogance, additional arrogance results as government explores the limits of judicial deference. As Jim Roos knows.
He formed a nonprofit housing and community development corporation that provides residences for people with low incomes. Several times its properties have been seized by the city government, using "blight" as an excuse for transferring property to developers who can pay more taxes to the seizing government.
The Supreme Court's 2005 Kelo decision legitimized this. It permits governments to cite "blight" a notoriously elastic concept, sometimes denoting nothing more than chipped paint or cracked sidewalks to justify seizing property for the "public use" of enriching those governments.
Roos responded by painting on the side of one of his buildings a large mural a slash through a red circle containing the words "End Eminent Domain Abuse." The government that had provoked him declared his sign "illegal" and demanded that he seek a permit for it. He did. Then the government denied the permit.
The St. Louis sign code puts the burden on the citizen to justify his or her speech rather than on the government to justify limiting speech. And the code exempts certain kinds of signs from requiring permits. These include works of art, flags of nations, states or cities, and symbols or crests of religious, fraternal or professional organizations. And, of course, the government exempted political signs. So the exempted categories are defined by the signs' content.
The Institute for Justice, a libertarian public interest law firm defending Roos, notes that signs may be the oldest form of mass communication Gutenberg made advertising posters and they remain an inexpensive means of communicating with fellow citizens. St. Louis says that it regulates signs for "aesthetic" reasons and to promote traffic safety, but it admits that it has no guidelines for the bureaucrats exercising aesthetic discretion and no empirical evidence connecting signs with traffic risks. And why would Roos's mural be less aesthetic and more distracting to drivers than, say, a sign exempted from any permit requirement urging the election of the kind of city officials who enjoy censoring Roos?
St. Louis Alderman Phyllis Young is distressed that Roos's speech might escape government control: "If this sign is allowed to remain, then anyone with property along any thoroughfare can paint signs indicating the opinion or current matter relevant to the owner to influence passersby with no control by any City agency. The precedent should not be allowed."
The alderman's horror of uncontrolled speech is an example of what Elizabeth Price Foley, law professor at Florida International University, calls "an ineluctable byproduct of disregarding the morality of American law." In her book "Liberty for All" (2006, Yale), she says that the growing exercise of legislative power "in the name of majoritarian whims" has eroded America's "twin foundational presumptions" limited government and residual individual sovereignty.
The original constitutional structure has, she says, been inverted: Citizens are required to convince the courts that laws restricting liberty are "irrational"; government should be required to articulate justifications for limiting liberty. The Founders' goal in John Adams's formulation, a nation of "laws, and not of men" has, Foley believes, "been taken much too far."
She thinks that we have become a nation of laws and not of liberty. We are, she notes, a nation with local laws prohibiting the wearing of hats in theaters or courtrooms, catching fish with one's bare hands, carrying a slingshot, teaching others about polygamy, having a garage sale for more than two days a year, serving alcohol within a mile of a religious camp meeting. …
The U.S. Court of Appeals for the 8th Circuit is considering whether St. Louis can regulate what Roos can say concerning what the government has done to him. This case, which arises from unwise judicial deference to city governments wielding the power of eminent domain, demonstrates the dialectic of courts inciting governmental arrogance by deferring to it. So judicial deference often is dereliction of judicial duty.
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