Notice & Comment

D.C. Circuit Review – Reviewed: Can Hodge v. Talkin Be Distinguished?

Before jumping into this week’s post, I want to express appreciation for and to the D.C. Circuit Clerk’s Office. The D.C. Circuit is closed today because of the weather. The good folks in the Clerk’s Office, however, still docketed the Court’s opinion. Sincere thanks — you are professionals.

March 2 2018

Also, this week the D.C. Circuit announced that it will participate in a new clerk hiring plan. I wrote about the old plan last month. Once more details emerge, I’ll write a new post.


The U.S. Supreme Court heard oral argument this week in Minnesota Voters Alliance v. Mansky, which asks whether Minnesota can lawfully ban “all political apparel at the polling place.”

Why, you may be wondering, am I discussing a case pending before the Supreme Court via the Eighth Circuit? Isn’t D.C. Circuit Review – Reviewed supposed to be about, well, the D.C. Circuit? Fair point. But Minnesota Voters Alliance reminds me of a recent D.C. Circuit case, Hodge v. Talkin. To recap, Hodge upheld the lawfulness of various speech restrictions at the Supreme Court and its plaza.

Okay, sure, but why did I make a connection between that case and Minnesota Voters Alliance? Because of a question by Justice Kagan:

[T]here are clearly some places where we think — you know, the courtroom is a good example, where we don’t want anybody to be wearing buttons or wearing shirts of — of the kind that you’re talking about. But why should a polling place be that sort of place? In other words, you talk about the decorum, the solemnity. Makes it sound a little bit church-like. Why is a polling place that? Why isn’t it just the culmination of what is often a rowdy political process?

That question, with its reference to a court, reminded me of Hodge. (Indeed, it no doubt reminded the parties in the Minnesota litigation of Hodge too; the table of authorities in the State brief lists Hodge with a passim.) There, Judge Srinivasan (joined by Judges Henderson and Williams) upheld against constitutional challenge a federal statute that makes it unlawful “to parade, stand, or move in processions or assemblages in the Supreme Court Building or [plaza]” or “to display in the Building and [on the plaza] a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” Here is the heart of the analysis:

Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court’s actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure.

The key thus was viewpoint neutrality: “There is no suggestion that either clause discriminates on the basis of viewpoint. … Whatever the scope of expressive activities within the reach of those prohibitions …, they operate without regard to the communication’s viewpoint.” Indeed, the federal statute “bans demonstrations and displays in the plaza regardless of whether they support or oppose (or even concern) the Court.”

In Minnesota, the challenged law bars “political badges, political buttons, or political insignia”; the federal law, by contrast, bars “a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” Interestingly, in Hodge, the D.C. Circuit concluded that the federal statute does not apply to merely wearing a shirt with “written words or a logo”:

Because the statute speaks in terms of an affirmative act of “displaying” a “device,” and because the other listed mediums of a “flag” or “banner” involve brandishing an object for the purpose of causing others to take note of it, we assume that the “display” of a “device,” within the meaning of § 6135, would ordinarily require something more than merely wearing apparel that happens to contain words or symbols. The statute, moreover, not only contemplates an act of display akin to brandishing an object, but also requires a display that is “designed or adapted to bring into public notice a party, organization, or movement.” The passive bearing of a logo or name on a t-shirt, without more, normally would not cause the public to pause and take notice in the manner presumably intended by [the statute].

Rather, we assume that the Display Clause means to capture essentially the same type of behavior addressed by rules we have considered in the context of open-air national memorials — i.e., “conspicuous expressive act[s] with a propensity to draw onlookers.” We will not attempt to canvass the various forms of conduct involving clothing that may come within the compass of that description; those cases can await adjudication as they might arise. But a single person’s mere wearing of a t-shirt containing words or symbols on the plaza — if there are no attendant circumstances indicating her intention to draw onlookers — generally would not be enough to violate the statute.

If the Supreme Court draws a distinction,* presumably it will turn on this difference between Hodge and Minnesota Voters Alliance, especially because (presumably) there is less subjectivity when it comes to identifying affirmative acts “designed” to attract public attention than when it comes to determining what is “political.”

This week the D.C. Circuit decided one case: Spanski Enterprises, Inc. v. Telewizja Polska, S.A. It’s an interesting copyright case (note that the United States argued as an amicus, as did “Disney Enterprises, Inc., et al.”). Here is how Judge Tatel (joined by Judges Griffith and Wilkins) summarized things:

When the owner of a foreign website, acting abroad, uploads video content in which another party holds exclusive United States public performance rights under the Copyright Act and then directs the uploaded content to United States viewers upon their request, does it commit an infringing “performance” under the Act? If so, is it protected from liability by the principle—unquestioned here—that the Act has no extraterritorial application? Answering these questions “yes” and “no,” the district court concluded that Polish broadcaster Telewizja Polska was, by transmitting fifty-one episodes of certain Polish-language television programs into the United States via its online video-on-demand system, liable for infringing copyrights held by a company, Spanski Enterprises, Inc., that enjoys exclusive North and South American performance rights in the episodes. Telewizja Polska appeals this determination, as well as the district court’s imposition of statutory damages of $60,000 per episode, for a total of $3,060,000. For the reasons that follow, we affirm as to both liability and damages.

This is an especially well-written opinion. And I suspect a lot of copyright lawyers will be interested in the discussion of American Broadcasting Cos. v. Aereo, Inc. The discussions of oversees servers and foreign copyrights are also interesting. In fact, there is a chance that one day Spanski Enterprises may also be cited with a “passim” in a brief to the Supreme Court.

Recall, however, that passim shouldn’t be used in the D.C. Circuit. (D.C. Circuit Review – Reviewed is, after all, about the D.C. Circuit.)

* It is unknowable, of course, whether Supreme Court will draw a distinction. But it might. Although the Court asked tough questions of both sides, “[t]his exchange,” reports Rick Hasen, “was particularly tough”:

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

MR. ROGAN: No, that would — that would be — that would be allowed. I think — I think, Your Honor —

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent — ­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the — the — ­the line that we’re drawing is one that is — is related to electoral choices in a —

JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?

MR. ROGAN: The — the Parkland?


MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not — ­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be — ­

JUSTICE ALITO: How about the First Amendment?


MR. ROGAN: No, Your Honor, I don’t — ­ I don’t think the First Amendment. And, Your Honor, I — ­

CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

MR. ROGAN: It would be allowed.

It is hard to read too much into oral argument. Yet here, I think it is safe to say that if the Court sides with Minnesota, Justice Alito will dissent. And for what it is worth (trust me, not much!), my read of the transcript suggests there may be a majority for the idea that States can ensure “decorum” in polling stations, but the mushy subjectiveness of this particular scheme may be its undoing.

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