IJ Strikes Again: Entrepreneurs Sue City of Dallas To Overturn Ban on Window Signs

The Institute for Justice filed a new lawsuit today:

The Texas Chapter of the Institute for Justice today filed a federal suit against the city of Dallas, Texas, for violating the free speech rights of local businesses.

Under the new law enacted in 2008, businesses are prohibited from putting signs in the upper two-thirds of any window or glass door, and no more than 15 percent of any window or glass door may be covered by signs.  The only way to comply with the new ordinance is by putting tiny signs at people’s feet—which is not an effective way to advertise.  The law also bans signs that cover more than 25 percent of a building’s façade.

The law only targets commercial messages.  Businesses are free to put anything except a commercial message in their windows.  For example, a business could paint a giant Dallas Cowboys helmet on its window—but not advertise that it offers Cowboys merchandise for sale inside.  Businesses can paint their windows black or put coolers or other items in front of them.  In fact, businesses are not even required to have windows at all.  What they cannot do is put a commercial message in the upper two-thirds of a window or cover more than 15 percent of a window with one.

That law seems rational. Stay tuned.



IJ’s Bone Marrow Case: Judical Engagement, Not Activism

Jeff Rowes has a fantastic new Post on Volokh: IJ’s Bone Marrow Case: Judical Engagement, Not Activism.

Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.

The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans.  Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation.  No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case.  Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like.  As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.

IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement.  Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors.  The state proffered a host of purported health and safety interests this restriction might serve.  But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition.  Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated.  Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered.

Let’s apply judicial engagement to the bone marrow case.  We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility.  What are the legitimate government interests NOTA is trying to advance?  We know a few for sure.  Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk.  Congress also didn’t like that organs don’t regenerate.  Finally, Congress didn’t want organ markets.


I discuss applications of rational basis with bite in my forthcoming article, titled Equal Protection from Eminent Domain. IJ has been promoting the notion of judicial engagement, as opposed to the pejorative judicial activism. I buy the distinction.

Posted in Institute for Justice, Olech, Eminent Domain. Comments Off on IJ’s Bone Marrow Case: Judical Engagement, Not Activism

Shoutout to Texas Supreme Court Justice Don Willett!

A few months ago I attended the Institute for Justice Law Student Conference.

Justice Don Willett of the Texas Supreme Court gave the keynote address. He was awesome. An amazing libertarian Judge from Texas who gets the idea of the role of the courts, understands principles of federalism, and embraces the spirit of liberty that imbibes the human soul.

During his keynote, he mentioned that he had cited YouTube in a footnote in his opinion. Strange coincidence, but in footnote 313 of my Omniveillance article, I had cited him!

FN 313. FKM P’ship v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 639 (Tex. 2008) (Willett, J., concurring in part, dissenting in part), available at http://www.supreme.courts.state.tx.us/historical/2008/jun/050661cd.htm

I realized it, and mentioned it to him after he finished speaking. He encouraged me to mail him a copy, which I did.

I just received a personal thank you note from Justice Willett! I won’t relay the message, but it was so cool.

Even cooler than the thank you note was the stamp on the envelope that reads “Don’t mess with Texas. Official State of Texas Mail. Penalty for Private Use.” Perfect timing for Will Ferrell’s perfect Bushism. Strategery!

Don't Mess With Texas. Especially their mail.

Don't Mess With Texas. Especially their mail.

Posted in Institute for Justice, Omniveillance. Comments Off on Shoutout to Texas Supreme Court Justice Don Willett!