Doing Doors in Kewaskum

Last Tuesday, a consent judgment was entered in the Eastern District of Wisconsin resolving a free speech claim brought by a self-described “traveling evangelist.” The plaintiff Michael Foht was told by the Kewaskum Police that he could distribute religious literature only to people who said that they wanted it. This meant that he could not leave literature at private residences (he must first knock on the door and ask permission) or leaflet automobiles.

This instruction was based on an extraordinarily broad village ordinance which prohibited the distribution of “any printed matter on literature on public or private property” or the placement of such literature on motor vehicles. The ordinance had an exception for the distribution of literature to persons “willing to accept” it.

Foht apparently attempted to clarify the matter with the village attorney, who failed to return his calls. That turned out to be expensive.

Foht filed suit and the village, finally obtaining the proper legal advice, repealed the ordinance. The consent decree declares that the ordinance was facially unconstitutional and should not have been applied to Foht and awards him $11,000 in attorneys fees and costs.

The result is unexceptional, but the fact of the case may be instructive. What the law requires and whether it is complied with are two different matters. I doubt that this type of ordinance was only to be found in Kewaskum, Wisconsin.

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When Should Records Be Sealed in Employment Discrimination Cases?

Sealed_record Thanks to friend of the blog, Jack Sargent, for pointing me to this fascinating dispute before the U.S Supreme Court now concerning the sealing of a record in an employment discrimination case.

From the reporters committee for freedom of the press blog:

The Reporters Committee for Freedom of the Press today filed a brief asking the U.S. Supreme Court to review a decision that allowed all records in a federal employment discrimination case to be hidden from the public. The Reporters Committee filed the brief on behalf of itself and 29 other leading media organizations.

The friend-of-the-court brief was filed in support of The Legal Intelligencer, which petitioned the Supreme Court for review after the Third Circuit Court of Appeals rejected its request to intervene in Doe v. C.A.R.S. Protection Plus Inc. The newspaper sought to unseal the docket and record in Doe, a case in which the plaintiff claimed she was wrongly fired because she had an abortion.

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What Do Reasonable Jurors Get to Decide After Scott v. Harris?

This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

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