Hamburger, Maxson, Yaffe & McNally, LLP January 13, Original Content

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1 HMYLAW Hamburger, Maxson, Yaffe & McNally, LLP January 13, 2015 Original Content Don t Tread on City Property For Whom the Tolls Swell? Illegal Tattoos Don t Tread on City Property In United Veterans Memorial and Patriotic Ass n of the City of New Rochelle v. City of New Rochelle, a U.S. District Court Judge held that City of New Rochelle officials were within their rights to take down a well-known flag declaring Don t Tread On Me, maintained by a veterans group at the City s armory WL According to the complaint, the veterans group is an association that exercise[s] responsibility for all veterans affairs and duties throughout the City of New Rochelle, including organizing the annual Memorial Day and Veterans Day events and numerous other ceremonies. [It] acts as the liaison between the City of New Rochelle and several other veterans groups and provides services to the community, including teaching schoolchildren about military history and providing support to veterans. The New Rochelle Armory (the Armory ) was built in 1931 and was an active duty military post until In 1997, New York State conveyed the Armory to the City by a deed that requires that the property remain open for public use for park, recreation, street and highway purposes. The City generally granted United Veterans... the right to display and maintain flags on the flagpole located on the grounds of the Armory, which are open and accessible to the general public. Since 1997, Plaintiffs have purchased the flags displayed on the flagpole, replaced those flags when they have become tattered, provided and replaced the rope used to hold the flags, and painted the flagpole and anchors when needed. It also paid for and installed a light to illuminate the flagpole. On March 21, 2013, the group held a flag ceremony at the Armory at which they retired a tattered American Flag and replaced it with a new one that had been donated by United Veterans to the City. Below the American Flag, United Veterans hung a historical American flag known as the Gadsden Flag. The Gadsden Flag is named after Christopher Gadsden, a Revolutionary War colonel who gave it to the commander-in-chief of the Continental Navy

2 before the Navy s first-ever mission in The flag is yellow and depicts a coiled rattlesnake above the words Don t Tread On Me. The Gadsden Flag is of particular importance, meaning and relevance to the New Rochelle Armory because it is one of only a few U.S. naval armories still in existence. Plaintiff s purpose in flying the Gadsden Flag at the Armory was to honor and represent our Nation s proud history and strength, as well as the sacrifices of the many Navy and Marine Corps veterans who have served under the Gadsden Flag throughout our Nation's history. After the City received numerous complaints about the Gadsden Flag displayed at the Armory, it was removed by the City, because the flag has become a libertarian symbol associated with the Tea Party and other political groups. One of the City Council members said the flag was divisive and represented a brand of politics that is very offensive to many people in America and many people in New Rochelle. The veterans group challenged the City s action under, among other things, 42 U.S.C for violation of the Fourteenth Amendment and the Free Speech Clause of the First Amendment of the U.S. Constitution. The relief the group sought included an order permanently enjoining the City from preventing it from flying the Gadsden Flag on the Armory flagpole. On the City s motion to dismiss, the Court held that New Rochelle has a valid interest in expressing the messages that it chooses through its flagpole, and may decide to avoid speech that it believes will be perceived by some of its constituents as divisive. Indeed, because it is the City not United Veterans that is perceived as the speaker, the city is the entity accountable for whatever message observers perceive in the Armory's flags. The Court reasoned that absent other speech restrictions, such as the Establishment Clause, case law showed the government is entitled to say what it wishes and to select the views that it wants to express. This is so even when the government was assisted by private sources in the transmission of its messages the First Amendment s Free Speech Clause did not apply to private speech taking place on government property. The Court cited as the leading authority on the government speech doctrine, the U.S. Supreme Court's 2009 ruling in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009). In Summum, a private religious organization attempted to place a stone monument in a Utah city park that already had 15 monuments, including one of the Ten Commandments. Most were donated by private groups. Pleasant Grove City officials denied Summum s request. The group sued, saying the city engaged in viewpoint discrimination. The Supreme Court unanimously disagreed, saying that monuments on public property typically represent government speech, and therefore not subject to scrutiny under the Free Speech Clause. Here, the Court said Summum put considerable emphasis on whether, under the circumstances, a reasonable observer could conclude the government was the speaker, and that it was obvious that the flag would be regarded as government speech, noting there were numerous parallels with the Summum case.

3 The Court said it did not doubt the veterans group s sincerity when it said it flew the Gadsden Flag to honor veterans and the Nation's military history, but the message that the flag conveys cannot be determined by [the veterans group] or any speaker; it is in the eye of the beholder. Flags have great symbolic potential and can hold multiple meanings at the same time meanings that can shift over time, as apparently has happened to the Gadsden Flag as a result of its association in recent years with the Tea Party movement. Indeed, because it is the City not United Veterans that is perceived as the speaker, the City is the entity accountable for whatever message observers perceive in the Armory s flags. [The group is] not being prevented from expressing their own views through other channels they may fly the Gadsden flag on private property and in public fora. Their private speech is not being inhibited by the City s decision to take down the Gadsden Flag, but the City s expressive rights would be diminished were this Court to order the City to display the flag against its wishes. The Court in conclusion held that the display of the Gadsden Flag at the Armory was government speech, which is not regulated by the Free Speech clause of the First Amendment. For Whom the Tolls Swell? In Janes v. Triborough Bridge and Tunnel Authority, the U.S. Court of Appeals for the Second Circuit recently held that New York s toll discounts for residents of certain locales neither violates the constitutional right to travel nor the dormant Commerce Clause of the U.S. Constitution WL (2d Cir. 2014). The U.S. Supreme Court has described the right to travel as follows: It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. Saenz v. Roe, 526 U.S. 489, 500 (1999). The U.S. Constitution s Commerce Clause empowers Congress [t]o regulate Commerce among the several States. U.S. CONST. art. I, 8, cl. 3. Courts have also inferred the existence of a dormant Commerce Clause that imposes certain implicit limitations on state power:

4 Our dormant Commerce Clause jurisprudence significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce. It is driven by a concern about economic protectionism that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. McBurney v. Young, 133 S. Ct. 1709, 1719 (2013). The plaintiffs in this case are residents of New Jersey and New York challenging a Triborough Bridge and Tunnel Authority ( TBTA ) program that provides discounted tolls to residents of Staten Island, the Rockaway Peninsula, and Broad Channel Island for crossings over certain bridges. The discounted tolls, called Resident Discounts, allow residents of Staten Island to pay a reduced rate on the Verrazano-Narrows Bridge, which serves as the only direct vehicular artery connecting Staten Island with the rest of New York City. The Resident Discounts also allow residents of Rockaway and Broad Channel to pay a reduced rate when crossing the Marine Parkway-Gil Hodges Memorial Bridge and the Cross Bay Veterans Memorial Bridge. The discount program was initiated in 1983, and last April, Gov. Andrew Cuomo granted a further reduction from $6 to $5.50 in the toll on the Verrazano-Narrows Bridge charged to Staten Island residents. The cash price is $15, and the E-Z Pass rate is $10.66 for nonresidents. Some trucks are eligible for a 20% discount. According to this recent decision, [p]laintiffs principal argument on appeal is that the toll discounts are predicated on an invidious distinction between residents and non-residents and thus violate their constitutional right to travel. In an earlier decision by this same Court, it held that where, as here, toll differentials amounted only to a minor restriction on travel, strict scrutiny review was not required. Strict scrutiny is a form of judicial review used by courts to determine the constitutionality of certain statutes. In contrast to other levels of scrutiny, for a statute to be deemed constitutional under strict scrutiny analysis, it must have been passed by the legislature to further a compelling governmental interest and must have been narrowly tailored to achieve that interest. Instead, a toll policy lacking the markers of invidious distinctions should be analyzed under the three-part test set forth in the U.S. Supreme Court s decision of Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994). Under the Northwest Airlines test, the permissibility of fees charged for the use of state facilities is evaluated under three prongs, which ask whether the fee (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce. 510 U.S. at 369. After analyzing the tolls under this test, the Court concluded in its prior ruling that the scheme at issue did not violate plaintiffs right to travel. Likewise, in this case, the Court concluded that the plaintiffs have presented no persuasive evidence showing that the discounts at issue here are materially different from those in [it s prior ruling] or that they present more than a minor restriction on travel. In fact, the tolls here amount to a smaller discount than the tolls in [the earlier ruling] when viewed in percentage terms. Moreover, the residents who qualified for the discounted tolls in [the prior ruling] and those who qualify in the instant case face comparable levels of geographical isolation. Similarly, the tolls charged in both [the prior ruling] and here are used to defray the cost of

5 bridges, and, in the present case, the facilities of a large integrated transportation system, the operation of which facilitates interstate travel. Finally, no evidence has been presented showing that even one traveler was meaningfully dissuaded from traveling interstate because of the tolls at issue. As for the dormant Commerce Clause challenge, the Court noted that the Supreme Court has explained that the central rationale for the dormant Commerce Clause is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent. But the Commerce Clause does not invalidate all State restrictions on commerce. Analyzing the challenge under the same three-part test set forth in Northwest Airlines, the Court concluded that plaintiffs' dormant Commerce Clause challenge fails for the same reasons as does their right to travel claim. Illegal Tattoos In a new law that takes effect on April 14, 2015, the New York State Legislature has declared it illegal to get a tattoo or a piercing on your pet. Pets, or companion animals as the statute (N.Y. Agriculture and Markets Law 353-f) refers to them, means dogs or cats, as well as any other domesticated animal normally maintained in or near the household of the owner[.] Pets do not include farm animals, which include poultry, cattle, sheep, swine, goats, llamas, horses or fur bearing animals which are raised for commercial or subsistence purposes. The law carves out three exceptions: (1) tattoos performed by a veterinarian for medical purposes, (2) tattoos performed by businesses for identification purposes, where that business maintains an animal identification registry, or (3) a piercing to apply ear tags on rabbits. It reads: 1. No person shall pierce or cause to have pierced a companion animal unless such piercing provides a medical benefit to the companion animal. Such piercing shall be performed by a licensed veterinarian or under the supervision of a licensed veterinarian. Nothing in this section shall be construed to apply to ear tags on rabbits and cavies. 2. No person shall tattoo or cause to have tattooed a companion animal unless such tattoo:

6 (a) is done in conjunction with a medical procedure for the benefit of the companion animal and to indicate that such medical procedure has been done, provided that such tattoo is not for design purposes; or (b) is done for the purpose of identification of the companion animal and not for design purposes, and such tattoo includes only such numbers and/or letters allotted by a corporation that, in the regular course of its business, maintains an animal tattoo identification registry. The bill was introduced by Assembly member Linda B. Rosenthal, after hearing about a woman who was selling gothic kittens on the internet with piercings on their necks and down the length of their spines. Mahatma Gandhi did say: The greatness of a nation can be judged by the way its animals are treated. Original Content