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WASHINGTON, D.C. — In a move that could lead to a dangerous expansion of the “government speech” doctrine in order to limit any speech that occurs on government property, the U.S. Supreme Court has refused to review a federal appeals court ruling that places highway rest areas off limits for First Amendment activities. In refusing to hear the case of Vista-Graphics v. Virginia Dept. of Transportation, the Supreme Court let stand a decision allowing the Virginia Department of Transportation (VDOT) to restrict the content of privately authored, illustrated, printed and funded travel guides distributed at highway rest areas and welcome centers. The Rutherford Institute filed an amicus curiae brief in the case, warning that First Amendment activities in public places would be endangered if the government were allowed to expand its “government speech” doctrine under the guise of regulating the content of travel guides.

“Virginia’s attempt to restrict First Amendment protected expression, including speech that is political and religious in nature, under the guise of the government speech doctrine represents a dangerous expansion of that doctrine that threatens any private speech occurring in public places,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.  “Not all speech occurring in or around government land, offices, or employees can be and should be considered government speech. Virginia may claim to be for lovers, but it is clearly not for free speech.”

Virginia operates 41 rest areas and welcome centers along the interstate and U.S. highways traversing the state, offering the traveling public services and information about Virginia attractions. Vista-Graphics is a publisher of travel guides, including the Virginia Beach Visitors Guide, GoWilliamsburg Visitors Guide, and Virginia Guide, which provide a variety of information to tourists, including maps, area overviews, listing of lodging options, restaurants, attractions and other services. Until 2012, Vista-Graphics and other businesses and localities distributed travel guides and other information free of charge at welcome centers and rest areas operated by VDOT in accordance with a state regulation recognizing that distribution of these materials is protected by the First Amendment. That year, however, VDOT adopted a program that began charging publishers such as Vista-Graphics a fee in order to distribute travel guides and other information at welcome centers and rest areas. Thereafter, VDOT adopted regulations that prohibited the distribution at these areas of materials that could be considered political or religious, or that would rate travel attractions, events or accommodations.

Vista-Graphics challenged the constitutionality of the fees and regulations in court, asserting they violated the First Amendment. However, the lower courts ruled that the regulations and fees were not subject to challenge because information distributed at welcome centers and rest areas constitutes speech by the government, not individuals, and Virginia could control that speech as it sees fit. In asking the U.S. Supreme Court to hear the case, The Rutherford Institute pointed out that travel guides have historically been considered private speech, and the guides at issue in this case are paid for, printed and distributed by private entities like Vista-Graphics.

DOCUMENTS

The Rutherford Institute’s brief in Vista-Graphics v. Va. Dept. of Transportation

CASE HISTORY

August 31, 2017 • Rutherford Institute Challenges Expansion of ‘Government Speech’ Doctrine, Disputes Claim That First Amendment Doesn’t Apply to Highway Rest Areas

 

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RICHMOND, Va. — Attorneys for The Rutherford Institute have filed a brief with the Fourth Circuit Court of Appeals, asking the court to reject the claims of a Chesterfield County mental health screener that he was not responsible or liable for the seizure and week-long detention in a psychiatric ward of a decorated Marine by a swarm of Secret Service and FBI agents and local police because of controversial song lyrics and political views posted on his Facebook page. In asking the Court of Appeals to reinstate the lawsuit, which was dismissed in February 2014 by a federal judge who termed its concerns over government censorship as “far-fetched,” Institute attorneys argue that Brandon Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech.

“As various free speech cases working their way through the courts right now make clear, the government, a master in the art of intrusion, surveillance and criminalizing harmless activities, is continuing to clamp down on First Amendment activity on the web and in social media under the various guises of fighting terrorism, discouraging cyberbullying, and combatting violence,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “For the 1.31 billion individuals who use Facebook and the 255 million who tweet their personal and political views on Twitter, these cases will determine where the government can draw the line when it comes to expressive speech that is protected and permissible versus speech that could be interpreted as connoting a criminal intent.”

On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Like many Facebook users, Raub, a Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. Without providing any explanation, levying any charges against Raub or reading him his rights, law enforcement officials handcuffed Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was held against his will. In a hearing on Aug. 20, government officials pointed to Raub’s Facebook posts as the reason for his incarceration. A Special Justice subsequently ordered that Raub be held up to 30 more days for psychological evaluation and treatment.

In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013 on behalf of Raub in the U.S. District Court for the Eastern District of Virginia challenging the government’s actions as procedurally improper, legally unjustified, and in violation of Raub’s First Amendment rights. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.”

Attorneys Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott, LLC, and William H. Hurd and Stephen C. Piepgrass of Troutman Sanders, LLP in Richmond are assisting The Rutherford Institute by representing Brandon Raub.