Wednesday Writs: First Amendment in Shurtleff v Boston

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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33 Responses

  1. Jaybird says:

    Awesome post.

    I always enjoy unanimous decisions.

    WW2: I don’t think that I agree that it was neccesarily a bad career move. Whomever did it gets hired minutes after being publicly fired. With a raise, even.Report

  2. CJColucci says:

    WW1 The correct result was obvious, but the Festivus-like airing of grievances makes me wonder if the adage “easy cases make bad law” is due to make an appearance.Report

    • InMD in reply to CJColucci says:

      This one really was like a Con Law exam question and not even a particularly creative one. It should have been unanimous and answered on a single page. I’m not certain of much but I feel confident this opinion would have gotten at absolute best a D at my third tier alma mater, and probably a 1 out of 5 on the essay portion of Maryland bar exam.Report

      • CJColucci in reply to InMD says:

        I wouldn’t have made it a Con Law exam question because it is too easy. At least if you don’t tie yourself too tightly to some overarching theory, which you feel the need to propound whether relevant or not.Report

    • PD Shaw in reply to CJColucci says:

      Did one of the opinions leave a sour taste in your mouth?Report

  3. Chip Daniels says:

    WW7;:
    I know a lot of people chortle about “hur hur, Disney vs. DeSantis, root for injuries” but less often considered is, every single medium and small business in Florida is watching and taking notes. Businesses that don’t have an army of white shoe lawyers and billions of dollars at their disposal.

    Do you need a Florida registration or permit of some kind?
    Need a Florida state grant, or waiver of fees of something or another?
    Did your company donate to DeSantis’ campaign, or Republicans in general?

    Or did you donate to the opposition party?
    Did your CEO make some public comment about an issue?

    If so, you can reasonably expect to see the state use whatever power they can to punish you.

    This is the rule of men, not laws.Report

    • Oscar Gordon in reply to Chip Daniels says:

      Yep. But politicians gotta flex their power, even when it’s obvious that they are going to get smacked down.Report

      • Chip Daniels in reply to Oscar Gordon says:

        Political pundits often forget how much of liberal democracy relies on people simply wanting to respect it, just voluntarily respecting other people’s rights even when no obvious power constrains them.

        What we are witnessing is one by one the separate powers of checks and balances fall under the control of one entity, or rather, choose to join it.

        Not one man, or even a group of men is at the controls, but an anti-democratic authoritarian philosophy of how society should be organized, and all the organs of the state are being pulled into its sway.

        In this particular instance, the Florida state government, which is supported by the ostensibly separate Legislature, then overseen by the ostensibly neutral Supreme Court..

        But in reality, all three share a similar outlook that is completely comfortable giving the Governor defacto free rein to punish anyone who displeases him.Report

  4. Michael Cain says:

    WW4: Some research this morning locates the house and its relationship to the par four 15th hole at the country club. Not to be overly blunt, but it has “target” written all over it. It’s very close to the line everyone who thinks they’re a long hitter is going to use to try cutting the corner of the dogleg. If I were underwriting homeowner’s insurance and the owners asked for a quote, I’d have said, “Nope. Not interested in a house that’s going to take the ongoing beating this one is.” House should never have been built.

    The only fix is for the club to rip the hole up from tee to green and rebuild it as a par three. Looks to me like a number of mature trees near another house would have to be relocated to do that and keep the hole consistent with the general character of the course. Almost certainly cheaper to buy the house in the lawsuit for over market value and raze it.Report

    • Oscar Gordon in reply to Michael Cain says:

      Or install tougher siding and windows.Report

    • Kazzy in reply to Michael Cain says:

      I’m wondering how they got to $5M in damages. Is the whole house even worth half that?Report

      • Michael Cain in reply to Kazzy says:

        $100K for damages, $3.5M for mental anguish, plus penalties and interest. Hard-hearted former golfer that I am, I would probably have sided with the country club and told the homeowners, “Don’t buy a house that’s in the line of play.” The owners claim they picked up almost 700 balls over four years. That’s in the line of play.Report

        • Kazzy in reply to Michael Cain says:

          Yowza… mental anguish! I am with you 100%. It seems like it would be in the club’s best interest to just put up a giant net on their side of the property line. See how the homeowners like that.Report

          • Michael Cain in reply to Kazzy says:

            A single big net along the country club’s property line would be a gigantic eyesore, especially for the neighbors on one side (whose lot, and house placement on it, are nicely out of play).

            Looking at the country club’s publicity shots for the course, and Google Maps satellite view, I’d guess the history goes like this. They hired someone who knew what they were doing to lay out the course within the fairly tight confines. Then they cut away enough of the forest, then they did a lot of earth-moving to shape things. For the 15th, the designer said to herself, “Green there, tee boxes back there, then shape the fairway to allow a whole range of risk/reward tradeoffs for the players. The highest risk/reward is for the long hitters who try to carry the trees at the corner of the dogleg.” Then some completely different person said, “We can wedge another house in, right in those trees at the corner of the dogleg.”

            After looking at it while longer, I could (mostly) take the house out of play. Probably require putting in a bunch of tall hedges that don’t match the character of the rest of the course. But it would force everyone to play the hole the same way, and make it a lot more boring.Report

            • Kazzy in reply to Michael Cain says:

              That was kind of my thinking… put up something so ugly out of spite.Report

              • Michael Cain in reply to Kazzy says:

                Members-only course at a country club that doesn’t post its membership prices (usually indicates quite high). Zillow estimates the house at $1.1M. A house across the street sold for $1.2M last year. Nobody’s going to put up ugly.Report

            • PD Shaw in reply to Michael Cain says:

              Now we’re doing some serious research. A little googling found a story which explained that the homeowners built a wall on their property but it didn’t work, they consulted golf experts who said a net could not be constructed high enough, and since the verdict was entered the club has reconfigured the 15th which has stopped the balls.

              https://www.fox29.com/news/family-wins-nearly-5m-lawsuit-against-country-club-after-home-pelted-with-golf-balls-for-years

              The story also mentions that an injunction was entered, so I wonder if the damage award is bifurcated between past injury and future injury if the club does not take steps to stop golf balls.Report

            • PD Shaw in reply to Michael Cain says:

              Now we’re doing some serious research. A little googling found a story which explained that the homeowners built a wall on their property but it didn’t work, they consulted golf course experts who said a net could not be constructed high enough, and since the verdict was entered the club has reconfigured the 15th which has stopped the balls.

              The story also mentions that an injunction was entered, so I wonder if the damage award is bifurcated between (1) past injury and (2) future injury if the club does not take steps to stop golf balls. In any case, they are appealing.

              [link deleted]Report

              • Michael Cain in reply to PD Shaw says:

                The club has temporarily reconfigured the 15th. Since they plan to appeal, I’m comfortable that they haven’t brought in the bulldozers and started resculpting the green, sand traps, and tee boxes. I am not interested enough to read a big enough pile of papers to find out if the club used my defense: by the time the house was built, it was a well established fact that the lot was in the line of play for the golfers. And that was an intrinsic part of the original design.

                There is a certain cost to the club if they have to drop the “Pascuzzo/Graves designed course” because Pascuzzo objects to changes.Report

              • PD Shaw in reply to Michael Cain says:

                Right, they did a temporary fix that they don’t want to make permanent; not clear what it is. From my perspective, it’s interesting that plaintiffs received an award of more money than the property is worth. A significant portion of the judgment is interest on the damages at a rate of 12% per annum from when the complaint was filed, something like $1.3M. That seems to be a punitive rate, well beyond prevailing market rates.Report

        • PD Shaw in reply to Michael Cain says:

          There is a legal defense of “coming to the nuisance” that would probably apply here in many states.Report

          • Oscar Gordon in reply to PD Shaw says:

            The whole “you can’t sue the farmers for the sounds and smells of cows when you buy a house right next to a working farm”?Report

    • Slade the Leveller in reply to Michael Cain says:

      That’s a good solution. I was wondering why so many balls were hitting it. One thing the article doesn’t address is what was there first.Report

      • The tax records say the house was built in 2014. The course architect’s site lists the course as built in 2001, and it’s one of the top several courses shown in his portfolio. The architect is well enough regarded that (a) ripping out a hole and replacing it is not something to undertake lightly (for reputational reasons) and (b) reinforces my thought that the corner where the house sits today was intended to be in play.

        I found a picture of this hole from the regular tees, along with a description. The summer I made my beer money on the golf course, you can be sure that on this hole I would be subtly encouraging at least one of my — opponents is the nice word, I think — to flirt with those trees.

        You can find a stupid amount of stuff on the internet these days.Report

        • Slade the Leveller in reply to Michael Cain says:

          I looked on Google Earth but I couldn’t make out which one is 15. There is a hole on the far western edge of the course with a couple of houses insanely close to the green, but the hole from a normal tee is only 380, which is too long for even a decent amateur to go for it in 1.Report

          • Slade the Leveller in reply to Slade the Leveller says:

            Never mind, found it. Those houses are way left of the fairway, and seem to be pretty well protected by the tree line. They must have some fantastically bad golfers at that course.Report

  5. WW5: The thief-in-chief.Report

  6. WW1: Would the same ruling apply if Boston refused to fly a KKK flag, or are some kinds of viewpoint discrimination allowed?Report

    • PD Shaw in reply to Mike Schilling says:

      Basically Boston was too lazy in allowing any flag to fly and then not allowing this one because they thought they would get sued. They needed to establish limits in advance so that the flag pole could not be considered a public forum. Texas was not required to provide specialty plates to the Sons of Confederate Veterans because those plates were subject to review by a government agency that found the design offensive.Report

  7. Kazzy says:

    Relatedly, some anger emerged in my town when the village government refused to fly a Pride flag last June. As I understand it, their reasoning was that to that point they hadn’t allowed any non-governmental flags to fly so doing so without doing their homework because it might put them in a position where they then have to fly any and all flags brought by community members. That fell on deaf ears to a lot of folks who just wanted the flag flown and thought it was an obvious decision. They pointed at other towns who flew flags, though didn’t necessarily dig in to see if those towns protected themselves from negative fallout and/or were leaving them exposed to bad outcomes.

    While I fully support pride, I appreciated that the government seemed to be taking a prudent approach and didn’t leave the community vulnerable to flying noxious flags and/or lawsuits.

    Ultimately, a private flag owner flew the flag, and at a higher point than the official village pole.Report