A Weird Couple Of Weeks For The First Circuit And The First Amendment

The First Circuit handed down another First Amendment decision today in Del Gallo v. Parent, No. 08-1511. There are a couple of disconcerting things about this opinion.

The first is that it looks a lot like the plaintiff's utterly bizarre campaign conduct had as big an effect on the panel's decision as the actual substantive law. The plaintiff was campaigning for the Governor's Council.* He was hectoring postal patrons and employees in the process. But what if the plaintiff had been a gentle-hearted, polite, intelligent elderly woman? The case might have come out differently.

Here's why: because the postal service regulation in question looks a lot like a content-based restriction on speech. The regulation bars campaign activities in sidewalk areas on postal service property. The First Circuit says on page 29 that "[t]he regulation, which bars election campaigning regardless of the identity of the candidate or the opinions he espouses is clearly viewpoint neutral." This points to a gaping hole (one of many) in current First Amendment jurisprudence: the strained construction of viewpoint neutrality. The reg prohibits campaign speech. It does not bar speech about music. It does not bar speech about birds. No. Just campaign politics. And yet the regulation is called viewpoint neutral. Which is right: unless your viewpoint is that you would rather talk about campaign politics than birds.

There were some other openings here for the First Circuit to hold for the plaintiff. It avoided them all. Which is kind of what the first point is about.

*Why? Because as George Mallory said, it is there. See here for more on this esteemed government body.