Persistence: A Required Virtue at IJ

September 24, 2012

By Dana Berliner

IJ client Kim Houghton displays an image of the mural Arlington County has been trying to force her to paint over or turn into a government sign.

Resilience and dogged persistence are required traits for any IJ attorney. We need these qualities because court losses, especially at the initial stages, are inescapable for cutting-edge constitutional lawyers. Indeed, we tend to view an initial loss in a case as a good warm-up to an ultimate victory.

IJ’s cases are always uphill battles because we are trying to change the law. In fact, if they weren’t such challenging cases, there would be no reason for IJ to litigate them in the first place. Easy cases can be litigated by anyone. Instead, we take cases as part of a long-term strategy to improve constitutional protection for individual freedom, particularly in areas of the law where that freedom has been degraded by courts and legislatures over time.

Given the difficulty of the cases that IJ litigates, our record of winning is truly remarkable—70 percent of our cases win in court or result in legislative change to the law we are challenging. But we do not win all of these cases at the trial court or even necessarily at the mid-level appellate courts. Instead, because our cases raise such difficult and important legal issues, we often must go to the appellate or supreme courts to secure a victory that then protects everyone’s rights.

That has certainly been true in the area of eminent domain. For example, in our litigation on behalf of home and business owners against the city of Norwood, Ohio, we lost at the trial court and appellate court. Then, when we tried to prevent the buildings from being torn down during the litigation, we lost again at both the trial and appeals courts. Yet at the Ohio Supreme Court, we secured a unanimous decision that the use of eminent domain was unconstitutional and that the properties could not be torn down.

We had the same experience in the area of school choice. We have won two enormously important school choice cases at the U.S. Supreme Court—Zelman (out of Ohio) and Winn (out of Arizona), and both of those were appeals from losses in the federal courts of appeal. In each case, the U.S. Supreme Court let stand the school choice programs and made it possible for more states to pass programs to enable kids to get meaningful school choice. But those victories came only after earlier losses.

In fact, losing some of our cases tells us that we are litigating the right issues. Losses tell us that rights are in jeopardy and are in need of protection. A series of recent lower court losses in the area of free speech for businesses is serving just this purpose—it is telling us we are on the right track in choosing our cases.

The standard rule is that free speech rights get very strong protection, while government-imposed limits on economic rights get substantial deference from the courts through the “rational basis test.” What happens, however, when businesses want to speak? IJ has brought a series of such cases in recent years. Despite the supposed high levels of protection for free speech in this nation, our cases have not fared well in the courts. The judiciary’s reflexive deference to the other branches of government whenever a law has anything to do with business has outweighed even the strong protections of the First Amendment.

Our three losses in these business speech cases have all been in the 4th U.S. Circuit Court of Appeals, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina. In our Wag More Dogs case, we represent a woman who put up a mural on the side of her dog daycare business showing happy dogs playing. Even though the county sign code was plainly unconstitutional, the courts ruled against us because they thought she was trying to advertise her business. In our Norfolk sign case, the trial court has just denied a preliminary injunction to allow Central Radio to keep its banner objecting to the city of Norfolk’s attempt to take its property by eminent domain. Although it is a political sign, which should get the highest level of protection, the court was unwilling to issue the injunction. Similarly, in North Carolina, the trial court denied a preliminary injunction for our client, Steve Cooksey, which would have allowed him to continue offering guidance on his website regarding a “paleo” diet for diabetics while his legal battle continues.

The 4th Circuit losses tell us that the law is in even worse shape than we thought and therefore that IJ’s work is desperately needed. We must redouble our commitment to protecting the right to earn a living through speaking and the right of everyone to speak freely, including people who own small businesses.

Through resilience and persistence, we will secure protection not only for free speech but economic liberty, property rights and school choice, as well.

Dana Berliner is IJ’s litigation director.

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