Morality can sometimes be Unconstitutional...

By Shawn Carter

Jonathan Kamin Strikes Again!!!

Girls, Girls, Girls!!!

There are those, like my esteemed buddy and verbal sparring partner, the author of this blog, who would likely argue that our fair City was well within its rights, as a municipality, to have taken the action(s) now the subject of an action in federal Court.

Obviously, there are those, like the indefatigable Mr. Kamin, who would argue that what the City did represents indefensible actions on the part of a municipality engendered by nothing short of sheer animus toward a single industry. 

I will not attempt to litigate either proposition here.  I will, however, take the opportunity to share insights I've acquired through my years in government.

A few years back, Larry Flynt came to Pittsburgh, looking to open up an "adult entertainment" venue on the City's North Shore somewhere near Manchester.

After a single meeting with Planning and Zoning, a civil rights action was initiated, in federal Court, alleging, among other things, that Flynt's First, Fourth, Ninth and Fourteenth Amendment rights were to be violated. 

Mr. Flynt, through his corporate entity HDV-Pittsburgh represented by some of the VERY BEST constitutional lawyers in the land, requested relief from the federal Courts under 42 U.S.C. § 1983, known as the "Ku Klux Klan Act", which states:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The argument was simple and devastating.  The Zoning Code's process for approving adult uses was rife with overbroad municipal discretion, and that said discretion would undoubtedly lead to a denial of the requested permits, either by the Planning Commission, City Council, or both.

And as legitimate a threat to the zoning scheme as that presented to our municipality, the bigger threat was posed by an accompanying section of the United States Code, at 42 U.S.C. § 1988(b), which states:

§ 1988. Proceedings in vindication of civil rights

(b) Attorney’s fees

In any action or proceeding to enforce a provision

of sections 1981, 1981a, 1982, 1983, ... , the court, in

its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s

fee as part of the costs...

This little section was established to award attorney's fees to those attorneys willing to take up these "civil rights" actions against governments and municipalities, because as is often the case, the average citizen simply cannot afford to fight a years-long battle with government lawyers merely to vindicate their civil rights, as government never seems to run out of time, money or lawyers.

This section was designed to encourage civil-rights attorneys to take these cases.

And just as with previous civil-rights cases against the City, the City wisely decided not to take the risk of being ordered by a judge to grant the permits AND pay Larry Flynt's white-shoe civil-rights attorneys and decided that a non-money settlement would preserve the public coffers.

Through the years, the high Court has had to deal with the question of government actions which potentially violate one or more clauses of the First Amendment.  Generally speaking, the Court tends not to overturn the government application of "neutral, generally applicable laws" even when they infringe upon one of a citizen's First Amendment rights, like "freedom of exercise".  However, the Court does tend to step in when the infringement of that right also infringes upon other Constitutional guarantees, like freedom of speech, due process or equal protection of the law.

From the article, it appears that Mr. Kamin has turned his attack on free speech, due process AND equal protection.

Essentially, if Mr. Kamin can establish that the City's action discriminates against his client and does so solely against the class of industry in which his client(s) operate, and that the action was based upon an animus toward his client's form of "protected" speech, that no administrative process exists or existed to appeal said determination and that other classes of enterprises have access to said services, those actions amount to an unconstitutional deprivation of services and could require the Court to apply the judicial standard of "strict scrutiny."

What is "Strict scrutiny?"

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.

To pass strict scrutiny, the law or policy must satisfy three tests:

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

Strict scrutiny, as per the legal scholars, is strict in theory, but often fatal in fact.

While I personally don't disagree with the City's actions in this matter, as a deeply-held personal belief, I tend to get instantly leery anytime a government, under color of law, intentionally deprives any person of their rights under the Constitution, because usually when it does, it disproportionately disaffects the vulnerable.

The Constitution tends to cut both ways where freedoms are concerned.  

I don't see Blush as a vulnerable victim, but they may be a victim nonetheless.  

Bram, your turn...