David A. Clarke v. United States

BUCKLEY, Circuit Judge,

concurring:

The Supreme Court’s teaching is clear: If a statute regulating conduct imposes an incidental burden on expressive conduct, it is subject to First Amendment scrutiny, Arcara v. Cloud Books, Inc., 478 U.S. 697, 702, 106 S.Ct. 3172, 3175, 92 L.Ed.2d 568 (1986) (citing United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)), including the “important or substantial government interest”/”restriction ... no greater than necessary” test set forth in O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Although the Armstrong Amendment does not regulate conduct as such, it certainly falls within the O'Brien rationale.

As the affirmative vote required by the Armstrong Amendment of the D.C. Council members has “at least the semblance of expressive activity,” Arcara, 478 U.S. at 702, 106 S.Ct. at 3175, I agree that the court’s central analysis is compelled by Supreme Court precedent. Simply stated (and without burdening this summary with *418the citations to be found in the court’s opinion), it is this: As the Armstrong Amendment would require members of the District of Columbia Council to enact a particular amendment to the D.C.Code, it implicates the First Amendment; and as Congress could have amended the Code on its own authority, the Armstrong Amendment fails any of the relevant Supreme Court tests because it places some burden on the members’ speech whereas none is required. (Certainly none can be justified by the contrived reasons advanced by the government and the Senate amicus in support of Congress’ decision to require the District of Columbia to enact the amendment to its Code rather than achieving that end by direct congressional action. See court op. at 414-15.)

This summary constitutes both the basis and the limits of my concurrence because I see no purpose in expanding the discussion (as the court’s opinion does) beyond the limits required to resolve what is an important case of first impression. Thus, for example, I would delete the last paragraph of its discussion of the Pickering test. Court op. at 416-17. Having decided that Pickering is inapplicable because members of the District of Columbia Council are not employees of the United States Congress, there is no need to engage in a discussion of what we might hold were this case governed by Pickering.

I would also delete the final paragraph of Part B. and its accompanying footnote. Court op. at 413. The first sentence of that paragraph suggests that the Armstrong Amendment violates the Constitution just because it commands members of the Council to cast a distasteful vote. As I understand the relevant law, the command, standing alone, merely implicates the First Amendment. The Armstrong Amendment violates the Constitution because its command both burdens the Council members’ speech and fails the tests set forth in both Perry and O’Brien. See court op. at 413.

I find footnote 7 equally inappropriate as neither of the cases discussed in it is apposite. In the case before us, the infringement on the members’ speech is incidental to the Armstrong Amendment’s objective, which is to bring about an amendment to the D.C. Human Rights Act. While this would require the members to participate in a one-time-only vote with which they fundamentally disagree, the measure’s purpose is to amend the Act, not to require Council members to give voice to a particular message. In contrast, as the Supreme Court noted in Wooley v. Maynard:

Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life — indeed' constantly while his automobile is in public view — to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.

430 U.S. 705, 715, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977).

The footnote is unfortunate not only because Barnette and Wooley are so clearly distinguishable, but because, in context, it implies a basis for finding the Armstrong Amendment unconstitutional that goes beyond the application of the standards described in Part C.l. of the court’s opinion. Court op. at 413. As it is, our decision today opens up enough new territory to potential judicial review to suggest the prudence of limiting its scope to essentials. As virtually no government or institution can act today except with the consent of its legislative or governing body, I suspect this court and others may be called upon to answer a number of questions as litigators explore the implications of our decision. At what point, for example, does a federal grant-in-aid program cross the line that separates the encouragement of state or municipal action from its coercion? Are the constitutional rights of corporate directors and university trustees comparable to those of state and municipal legislators? And when (if ever) is a particular government interest important enough to justify any burden on legislative speech?

For better or worse, we may have opened the door to more litigation than we can now appreciate.