A recent court decision threatens freedom of speech and assembly at the local level in Louisiana and thereby demands that the Legislature act as soon as possible to rectify.
Last week, the U.S. Fifth Circuit Court of Appeals ruled against a group that wanted to participate in a 2015 Christmas parade in Natchitoches. Authorities barred the state’s Sons of Confederate Veterans chapter from marching while displaying the Confederate battle flag.
The three-judge panel ruled that city authorities weren’t policy-makers on this matter. Not long before the parade, the city voluntarily had turned over parade administration to a local nonprofit group. The group placed the restriction on the SCV, over which city policy-makers had no control the court decided. However, the mayor did ask the group to impose the restriction, which the group had not thought to do otherwise.
Left unadjudicated was the question of whether the SCV had standing to sue the nonprofit. The Court let stand a lower court ruling that the statute of limitations had expired, mooting that consideration. However, a concurring opinion opened the door to the possibility that the group acted as an arm of government because of a reasonable deduction that coercion was involved, even if never explicitly articulated in communications with the mayor.
But it closed that door by arguing the city’s home rule charter necessitated city council action in the making of policy along these lines. Without its involvement the mayor’s request, the opinion stated, could not reflect official policy and the coercive element that would introduce.
Yet it left one avenue for redress. In some cases, the “state action doctrine” permits a private entity to be sued for its acts as if those acts were those of a state entity. The opinion noted the high constitutional bar that government or government-like entities would have to surpass in order to suppress free expression, and doubted the nonprofit could have done so, had the SCV filed the claim against the group less than a year after denial.
Note the danger of the ruling. In essence, it allows government to farm out a venue for expression and assembly that permits government officials to make demands for the manner of speech permitted during it while bypassing their duty to uphold constitutional protections that otherwise exist if government controlled the event instead.
It’s not hard to envision governments that want to censor speech they deem unpopular, outside of their ideological views, or critical of them, to find, if not sponsor behind the scenes, a friendly group to run the activity that by this ruling enables censorship. Further, because of the statute of limitations claim, it seems unlikely that the full Fifth Circuit or Supreme Court would overrule this decision that lets this doctrine stand.
Perhaps some other case will arise timely filed that brings up similar questions that a future court could use to invalidate that doctrine. But the state could help to do this as well in its own backyard.
As soon as it can, the Legislature must pass a law that defines in the kind of arrangement that occurred in Natchitoches that any third-party administrator of a parade, whether paid, on city streets as a state actor. Making explicit that such an administrator does operate under the color of state law can moot the doctrine.
Robustness in expression, as long as it doesn’t have a legitimate chance to cause immediate harm, needs protection from governmental prior restraint or censorship. Louisiana state policy-makers must act to guarantee this.