EP 611- Fighting for Constitutional Rights Part One

Episode Notes

Transcript

Announcer:

Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Erich Vieth.

Erich Vieth:

Welcome to another episode of The Jury Is Out. I’m Erich Vieth and I’m here with David Roland. Welcome, David.

David Roland:

Thanks, Erich. It’s a pleasure to be here.

Erich Vieth:

And we’re here to talk about your work with the Freedom Center of Missouri, of which you are a co-founder, correct?

David Roland:

That’s right. Back in 2010, my wife and I both decided, you know what? It’s time for us to open a public interest law firm that’s going to focus expressly on Missourians and the constitutional rights that we have not only under the US Constitution, but also under the Missouri Constitution. And so we took kind of a leap of faith back in October of 2010 and launched the Freedom Center, and we’ve been hard at it since.

Erich Vieth:

It’s tempting to go back and try to find the origin story of lawyers and everybody. And was it when you were a baby in the crib, something happened to you to instill a passion for something rather than something else? But you have a good story that certainly starts at the point where this Riverfront Times article came out. And I’m wondering if you’d be willing to recount. It starts with a big case of which you ended up on the losing side, but there’s a nice twist or two to this. Would you be willing to share that story with the listeners?

David Roland:

I would love to. This is one of my favorite stories. So I was very fortunate that when I was coming out of Vanderbilt Law School, I had the chance to start my career with the Institute for Justice, which is a libertarian law firm in Washington, DC, litigated nationwide. So shortly after I came on board, IJ found out that the US Supreme Court had agreed to review one of their eminent domain cases, Kilo versus New London. And for listeners who aren’t familiar, the Institute for Justice has one of its focuses is property rights. And one of the major issues in property rights over the last 60, 70 years at this point has been the question of under what circumstances can the government take property from one private owner and give it to a new private owner? IG had been working for years on getting a case in front of the US Supreme Court that would allow them to revisit this question.

So in New London, Connecticut, the city at the behest of Pfizer, which promised to build a world headquarters in the city of New London, had decided that they were going to get rid of this little working class neighborhood, the Fort Trumble neighborhood.

Erich Vieth:

Can I interrupt? Oh, sure. Was this in any way, shape, or form, a blighted neighborhood or something that was

David Roland:

Buildings falling

Erich Vieth:

Down?

David Roland:

Yeah, so that’s a great question because some of the earlier cases that had dealt with the question of eminent domain had said, “Well, if you’ve got blight in the community or if you’ve got a deteriorated community, then you can, in the name of public health and safety, remove the owners of those properties and hand the property over to new private owners who will presumably fix the blight. They will build up the properties, they’ll build new buildings that are up to code, et cetera.” The allegation in New London was not that there was anything wrong with these properties. They weren’t blighted, they weren’t deteriorated. The only question was, could the city generate more tax revenue if they gave the property to new private owners as opposed to leaving the property in the hands of this blue collar working class owners that currently possess the property?

Erich Vieth:

Let me set the scene a little more because I’ve read the article. I don’t want to spoil it. I’m going to let you say it, but was the wind at your back with regard to the prior decisions on this topic?

David Roland:

Absolutely not. So the Supreme Court and a lot of the lower courts had been leaning against property owners in these kinds of situations for decades. The most recent property rights decision or imminent domain decision that the US Supreme Court had decided was unanimous, nine to zero against the property owner that was losing their property. And so we knew going into it that it was a little bit of an uphill fight, but we had thought that there was a decent chance that with the fantastic set of facts, very sympathetic clients, really kind of Goliath in the government that was acting blatantly unfairly, we thought maybe the Supreme Court would take a different path on this. Let’s talk about the Fort Trumble neighborhood as it existed. So when I say blue collar, I mean, it was a neighborhood where many of the families had lived there for decades, working class, businesses that were locally owned, that had been in families for just interminable number of years.

And the primary client in Kilo versus New London was Suzette Clow. And she had bought a little house in the wake of a divorce and wanted to make it her own, make it beautiful. And so she painted it pink. So we have this little pink house, beautiful, in the middle of this neighborhood. And that became kind of the focus of the case. She was kind of the figurehead of the community that was standing up to the government’s effort to take away what belonged to them, what was so precious to them, and then give it to private developers. Also among the clients was Willamina Dhiry. She was 84 years old. She was born in her house right there in New London, Connecticut, and all she wanted was to be able to die in her house. That’s the kind of sympathetic client that we were dealing with and that we hoped being able to tell their stories on a national stage might help people wake up to the injustice that was being done and perhaps persuade the courts to save their homes.

So also to flesh out a little bit more what was going on with the city of New London, there was a particularly pugnacious mayor who had made some very unsympathetic statements. When she was told about some of these people who didn’t want to leave their homes, she said effectively, “Well, nothing great was ever accomplished without somebody leaving skin on the pavement.” And she had made several other statements that just were not very sympathetic at all. And it really drove home again that there was sort of an uncaring nature to the government machinery that was operating to bulldoze this neighborhood. So shortly after I came on board at IJ, we learned that the Supreme Court was going to hear this case and I did not have a big hand to play. You know when you first come out of law school, they don’t give you the big assignments like you got to learn the ropes, but it was just tremendous to be on the playing field with a case that was going in front of the US Supreme Court.

Well, ultimately we lost. It ended up being a five four decision. We thought that we were going to get Justice Kennedy on our side in that case. And in fact, he ended up deciding to go the other direction. We were, of course, very frustrated. We were heartbroken for our clients, but one of the things about the way that IJ handles its cases is we were always clearly aware that there was a possibility we would lose. And if we lost, we wanted to try and turn that defeat into a victory of sorts. So when we lost and we knew eminent domain was now, it had constitutional clearance to be used to take property from one private owner to give it to somebody else that the city thought could pay more tax revenue, we knew that there would be people all over the country that were trying to change their laws so that it couldn’t happen there.

Well, we wanted to be able to help them, and in order to do that, we needed a legislative affairs attorney. And it just so happened that a Missouri girl named Jennifer Ziegler applied for that job. Now, I had met Jennifer a couple of years before. She was working for a group called the Cato Institute, which is a libertarian think tank. And so we knew each other loosely, but when she applied to come and work at IJ, she asked me if I would help her prepare for interviews. I was happy to do that. So we got together a couple of times, prepared her for the interviews, the interviews took place. And when they were done, honestly, we didn’t think they went very well. Jennifer told me about how her conversation went with one of the senior attorneys. And when I heard about it, I thought, well, maybe she didn’t get this job.

But she invited me to go out to dinner kind of as a thank you for helping her prepare. And we had a great time. So we got together the next week to watch Monday night football together and we had a great time. And we were getting ready to go on a third date. And I walked into my colleague’s office and Jennifer’s resume was on his desk. And I said, “Oh, I thought she was out of the picture.” He said, “No, I’m about to call and give her the job.” So we had to decide if we liked each other well enough that we were going to continue dating while we were going to be working together. And we decided to take the risk and it’s one that has paid off. She did in fact come and work with me at IJ for about a year and a half after that.

And then we decided to get married and come back to her home state of Missouri. So that is kind of the deep dive background in how Jennifer and I ended up coming from Washington DC back to her home state of Missouri and setting up the Freedom Center of Missouri to do public interest litigation here in the state.

Erich Vieth:

And back out east, Pfizer built its big headquarters and now employs many people out there, right?

David Roland:

Yeah. So the Dana Maw, the kicker to this whole thing is the whole premise of using imminent domain and getting rid of all of these homes and businesses was that the city would allow the private developer to build this massive, super expensive redevelopment with five star luxury hotels and high-end condos and all stuff like that. They bulldoze the neighborhood and nothing gets built. And when I say nothing, Erich, I mean up until just the last year and a half, it was an empty field where once all of these homes and businesses had existed, none of the big dreams of the city of New London ever got built. And in fact, the only occupants of that area for decades were a bunch of feral cats.

They have in the last year and a half built or at least broken ground on a community center that in fact is a nonprofit and therefore will not pay any tax revenue at all. So for all of the dreams that were brought to bear to get rid of the existing taxpayers, in fact, none of them came to fruition. And in a very realistic sense, I think that that kind of proves the folly of the project in the first place and also why the decision should be revisited. Hopefully the court’s going to do that. There’s a case in front of them right now that they’re deciding whether or not to review that may call into question the ongoing validity of Kilo versus New London, but as of yet, the Supreme Court has not decided whether they’re going to grant cert.

Erich Vieth:

Tell me a little more about how the Jennifer and Dave story played out in terms of your family and where you live and how … And talk about your firm, how … I assume it’s at your house, right?

David Roland:

It is. Yeah. So let’s start a little bit more with my background first, and then I’ll move on to that.

Erich Vieth:

Absolutely.

David Roland:

So I grew up in East Tennessee and North Alabama, and one of the things that my parents impressed upon me from a very young age was the astonishing nature of the American Republic in the long view of history, how what the founders of this nation and the framers of our constitution did was so unexpected and unusual in terms of the relationship of the people to their government. And I was always taught that the ideas of the Declaration of Independence, that we have unalienable rights to life, liberty, and happiness, that that was something that should be cherished and defended at all costs. And so I had a very strong sense when I was growing up that these were values that I wanted to try and serve in my own life and career. But it was a while before I decided I wanted to go to law school.

We didn’t know any attorneys when I was growing up. I didn’t associate with attorneys. I had never been inside of a law firm. And so it was only when I was in college that I took a class in constitutional law and saw some of the great decisions that the Supreme Court had handed down talking about the Constitution. And I thought, “I want to do that. I want my work to be such that it brings about decisions like this. ” And that’s when I first started really considering going to law school. Fortunately, Vanderbilt University had a wonderful constitutional law program and a dual degree program with the Divinity School. I have a great passion for theology. And so I got my master’s in theology while I was getting my law degree, and that was greatly enriching, but that’s what ultimately led me to Washington DC where I met Jennifer.

Once we moved to Missouri, one of the things that I was very excited about, about coming to Missouri is Jennifer has the most fantastic family ever. My parents in law are just amazing people and I love the idea of being closer to them, especially knowing that we wanted to have kids, to be able to have our kids around them as they were growing up, I thought was a great idea. Now, originally we moved to St. Louis, and so we worked in St. Louis for several years, and that’s where we started the Freedom Center. But our nonprofit turned out to be even more nonprofit than most. And so we ultimately decided that the best move for us to make would be to go back to Jennifer’s hometown of Mexico. And so for listeners who aren’t familiar, Mexico, Missouri is a town that really punches above its weight.

We’ve only got about 11,000 residents, but that town has generated really some very notable people, including former governor and US Senator Kit Bond, former Lieutenant Governor Joe Maxwell, and a couple other, Tyron Lou, coach of the Los Angeles Clippers, former coach of the Cleveland Cavaliers, all came from Mexico, and of course my wife. But so one of the things that Mexico offers is not only being able to live with Jennifer’s parents, but also easy reach all over the state. It’s more centrally located than St. Louis is. And so ever since 2014, we have lived there in Mexico with my in- laws and we work out of their house and we raise our kids and we fight for freedom and we do our best to explain constitutional principles to people. And I have a difficult time thinking of a better set of circumstances. If someone had told me 15, 20 years ago, “You know what?

This is what you’re going to be doing when you’re 47 years old in 2025, I don’t know how excited I would have been about that prospect, but now you could drop a million dollars on me tomorrow and I don’t think I’d change a thing.”

Erich Vieth:

And we haven’t even talked about the beauty of your surroundings, your land where you can take walks. And I’ve been out there and it was wonderful to visit you out of your home. I’m wondering, we talk about wellbeing for attorneys and work-life balance and things like that. It seems like ideal in that way too, where you can be close to nature and you take a break from your desk and walk out and tell me how that interplays.

David Roland:

What I will say is if you’ve got a chance to have a life work set up like this, I would recommend it. So Jennifer’s family owns a fair bit of land. It’s been in their family for several generations now out in Audrey County and there’s a pond right next to the house and there’s plenty of space to walk. There’s the hunting stands that my father and I use out in one corner of the property. And so if I would like to get out early in the morning and do a little bit of fishing or if I’ve had a frustrating decision come down from the courts and I just need to kind of get out and clear my head a little bit, it’s very easy to do that. And so that’s one of the benefits of living kind of out in the country. I know there’s certainly a lot of advantages to being in the city, but I would not trade the situation.

I really enjoy where we are and the community that we’re part of, especially for older attorneys. If you’re looking for a change of pace, I can certainly recommend getting a few acres just outside of town, especially if you’ve got a pond on it. It can be really great for your mental health.

Erich Vieth:

Let me throw out an idea. This might take a minute to develop, but I think there’s some, based on what you said, the constitution and this country are big experiments. And I’m focused on a book by Jonathan Rausch called The Constitution of Knowledge, and he sets out three ideas where a lot of people think, “Well, there’s got to be somebody in charge.” And one of those would be who’s in charge of the country, who’s the king or the ruler, and one would be economics, who should set the prices, and one would be speech. Who decides who can say what, to whom? And so I think there’s, in my experience, there’s a lot of people that would just intuitively think, because it is intuitive. I think it’s counterintuitive to look at the experiment we’re running or trying to run and to think, no, everybody can be in charge, not a particular person who tells everybody else what to do.

Do you find that pushback that a lot of people think, “Well, we got to make sure we’re protected by having somebody in charge of these things, and therefore the government should probably have more power than less.” Well,

David Roland:

Let me provide a little bit of background. So especially when I was coming out of college, I had a lot of confidence that if you just put the very smartest people possible in charge of a situation, that they could come up with the best possible set of rules. And I believe that particularly for economic issues, I didn’t believe it quite so much for questions of speech or the ideas that people would be allowed to express because I had encountered John Stewart Mill in college and I had been pretty thoroughly persuaded that no one should be able to dictate what other people think or express or the opinions that they share. But I didn’t have that same confidence when it came to economics. It was only after I spent some time actually watching what good intentions result in when it comes to kind of top down dictated policy that I realized really the best solution is humility.

The best solution is to understand that when everyone is making the decisions that are best for themselves, it tends to work the most, it tends to generate the most efficient solution overall. It is virtually impossible, even for a super intelligent person, to understand the wants and needs of people over a community of any size. And it’s also, I think, presumptuous to assume that some super intelligent person knows better than the people there on the ground what they need for themselves. And so that’s part of how I became a libertarian. Technically, it’s a classical liberal is what I would classify myself as. But the shorthand term that I think people would be more familiar with is libertarian. And that is, I trust that when people are left to their own devices, they tend to work out solutions that are more efficient than the government could ever devise for itself.

And so that’s kind of influenced some of the work that I do. So one of the things that the Freedom Center focuses on is economic liberty, and that is the right to earn a living in a common occupation without having to jump through a bunch of government imposed hoops. This is a really basic idea that goes back to just after the Civil War. So one of the major problems that we had in the wake of the Civil War is that technically the slaves were freed and they were no longer bound to work for an owner, but states started passing laws that dictated the terms under which these newly freed slaves could work. So for example, they would pass a law that says, “You’re only allowed to work for clothing, room, and board. You’re not allowed to work for cash.” Well, why did that make a difference?

Because cash is mobile. And if someone is dependent on an employer for the clothes that they wear, the place that they live or the food that they eat, then it makes it very hard for them to come up with the wherewithal to go somewhere else, especially if they’re in a community where maybe the potential employers are all working together to try and prevent that kind of mobility. And so a number of states came up with provisions called the gains of industry provisions. And Missouri was one of these states. And so in the constitution of 1875, Missouri adopted a provision that says that we have a natural life, a natural right to life, liberty, the pursuit of happiness, and to enjoy the gains of your own industry. And the reason that that got put into our state constitution was to make sure that the government could not stop people, including, and especially newly freed slaves, from offering their services to whoever they wanted, whoever was willing to pay them for those services.

The government could have put up these arbitrary barriers that defined how people would earn a living. It happened at the federal level too in the form of the privileges or immunities clause of the 14th Amendment, but the US Supreme Court pretty quickly cut down the meaning of that provision. And we’re still fighting over it today. One of the goals of the Institute for Justice is eventually to overturn the US Supreme Court cases that kind of stripped the privileges or immunities clause out of the Constitution. But I feel very deeply that our society and our economy work best when there are fewer barriers, fewer artificial barriers to people being able to earn for themselves to decide what work they’re going to do for whom they’re going to do it, but also for consumers to decide who do they want to pay to provide a service. If someone is willing, for example, to pay somebody else to give them some advice about the neighborhoods that they might live in, why should that require a government permission slip?

That was one of the Freedom Center’s first cases, by the way. We were representing a company called Kansas City Premier Apartments, and they came up with a service that was kind of like a one-stop shop for information about apartments in the Kansas City area. So they would say, “Well, here are the places where we have availability. This is what the floor plans look like. ” And you could talk to a live person to tell you about the neighborhoods. So you could get information about these areas that you might be moving into.

Erich Vieth:

That’s the kind of thing people talk to each other about all the time.

David Roland:

Exactly. Not

Erich Vieth:

In a commercial setting, but we ask each other these questions.

David Roland:

Yeah. It’s common sense that if you’re thinking about moving into a neighborhood, you would ask someone, “Well, tell me about this neighborhood. Well, how are the schools? How far do I have to go to get to a grocery store?” Things like that. And so this company was doing really great work. They were a very successful company, but a licensed real estate broker did not like that they didn’t have any licensed real estate brokers on staff and so complained to the state licensing board and the state board tried to shut them down. So we fought that case all the way up to the Missouri Supreme Court. And the interesting thing to me about this, Erich, is the state’s own expert witness in this case acknowledged all of the information that this company was providing was completely factual. There was no suggestion that there was anything misleading or that it was super technical in any way.

It was just purely factual information. Well,

Erich Vieth:

The thing that’s occurring to me is I’m assuming this company did not buy and sell property.

David Roland:

No, not at all. And they didn’t show real estate the way that a broker would. They simply let people know, “Here’s where availability is and here’s information about the neighborhoods.” And so the government’s own expert witness said, “Yeah, this is all factual information. It’s not misleading. It’s not likely to harm anybody, but state law says you’ve got to be a real estate broker if you’re going to be compensated for sharing this information.” I still believe that violated the First Amendment. So one of the things that the courts have been particularly clear on is that if there is no risk of harm to the community from sharing an idea, and again, you have to demonstrate a really high risk of harm in order to clear the constitutional bar, then the government doesn’t get to pick and choose who gets to share various forms of information.

Erich Vieth:

Could you once again state the name of that case? I assume it went on appeal.

David Roland:

Yeah, this was Kansas City Premier Apartments versus the Missouri Real Estate Commission. It was a 2011 case and it was the first case that the Freedom Center took on. And the Missouri Supreme Court heard the case and we lost. We lost five to two. There was a beautiful dissent written by my friend, Judge Mike Wolf and the late Richard Titleman, where they pointed out that there was about 30 years of US Supreme Court precedent that suggested that we should win that case, and yet they did not persuade the majority. By a five two vote, the majority said that you do in fact have to get the government’s permission before you can share this kind of information with anybody if you’re going to earn any money doing it. So we are still continuing to fight these kinds of cases. It’s part of the Freedom Center’s mission when it comes to free speech and expression and the protection of people’s right to share ideas with each other.

But as of right now, we’re still working to get the law where we believe that the Constitution says it should be on that particular front. It’s interesting, the US Supreme Court actually just took a case that deals with a similar issue. It deals with a different topic in that it’s a case that deals with the extent to which therapists can counsel people about homosexuality issues. So it’s so- called conversion therapy. A lot of states have said that if a therapist utilizes or offers conversion therapy, then they will lose their state license. In other words, they can no longer earn a living in their chosen profession if they share certain ideas. The US Supreme Court has taken up that case and I have a hunch that they may be very … I have a hunch that they are going to be very tough on the states that want to condition somebody’s ability to earn a living on basically declining to share ideas that the government has decided should not be shared.

But we’ll see how that one plays out. That’s going to be argued next term, I believe.

Erich Vieth:

About two weeks ago, I heard, I think it was on Freakonomics, the podcast, a guest named Rebecca Hall, H-A-W Allenswarth. You familiar with her new book?

David Roland:

I got an email from Professor Hallanswarth just a couple of weeks ago. Yeah, we actually met. She’s a professor at Vanderbilt University, my alma mater, and she works in the field of occupational licensing. And yeah, she just published a new book and we- It’s called

Erich Vieth:

The Licensing Racket, How We Decide who is allowed to work and why it goes wrong. Go ahead. You know

David Roland:

Enough about this. So we met a few years ago at a conference. A national association of regulatory boards brought me in to debate some of these ideas around professional licensing and the constitutional issues surrounding it. And she was at that conference. And so we ended up sitting together and chatting for a while. And so she sent me an email to let me know that her book was coming out. Yeah, I was thrilled to see it. I loved the podcast that Freakonomics did. And it supports a lot of what I had seen over the years about the way that occupational licensing is used, and I would argue abused to more to prevent market competition than to protect consumers. So the rationale that frequently gets offered when the idea of occupational licensing is brought up in the legislature is we need these regulations to protect consumers. But in fact, a lot of the research that’s come out over the last 30 years or so has shown that these government barriers to practicing in these different professions don’t actually tend to increase the quality of the services being performed or being provided, but what it does do is restrict the supply and thus artificially increase the price, increase the cost.

And so in other words, people are paying more for the same quality of service than they would pay if people did not have to jump through the regulatory hoops to be able to work in these different professions.

Erich Vieth:

I’m going back to your word humility that you used earlier, and it occurs to me that a lot of ideas that people have are not ill-intended. They’re well-intentioned. Oh, certainly. And as you stated, it seems like sometimes people can’t see the long-term consequence or the collateral damage caused by their ideas. They think hard and they’re confident. And I think we’re all victim to the confirmation bias and the optimism bias and all kinds of … We want to believe that our well-thought idea, our carefully thought idea is going to work, but until you put it in the real world and turn the crank, it’s hard to see where it’s actually going to go. What’s your thought on

David Roland:

That? I think people underestimate the extent to which certain voices, lobbyists frequently can sway the minds of legislators, persuading the legislators that a certain policy is altruistic when in fact it’s actually protectionistic. So I think almost all people that get elected to public office do so because they want to do good, they want a better society. I think that they always have the best of intentions, but they do not realize that best intentions do not always These translate into real world good. So for example, I think the ready example is prohibition. I think people generally speaking had the best of intentions in saying, “You know what? The United States would be a better and safer and healthier society if we banned alcohol.” Well, but when we did that, we saw the consequences and the consequences were it was not actually safer. In fact, people continued to drink alcohol.

They were just drinking illegal alcohol and the people that were willing to make and distribute alcohol got insanely wealthy and powerful and influential like Al Capone. And you had all of these negative consequences that followed from a very good idea. What if instead of focusing on a legal prohibition, the Temperance Movement had restrained itself to saying, “Let’s just persuade people that alcohol has negative consequences. We’re not going to ban it, but we’re going to work really hard to persuade. Maybe you should moderate your alcohol intake. Drunkenness is a societal ill.” If they had focused more on persuasion, I don’t think we ever would have had the problems, the deep abiding problems that prohibition brought about. And we’re still dealing with some of those similar consequences with the drug and drug. I would not advocate that people go out and use a bunch of hard drugs.

I think that’s a horrible decision to make. But ultimately, when we prohibit certain things, we’re setting up a set of bad incentives. We’re not making the demand go away, not really. You can only make the demand go away by persuading. And so if you’re not eliminating the demand when you put up those artificial constraints, you’re incentivizing black markets, you’re incentivizing crime. The cure becomes worse than the disease, so to speak. So

Erich Vieth:

If anybody is looking for a vivid documentary about the problems caused by prohibition, I’d really recommend Ken Byrnes. I think it’s a two part, maybe three part. It’s not one of its 12 part ones, but it talks about exactly the ills, the unintended consequences that you just described. It’s excellent. Well done. So we just talked about one of, I think about half a dozen major areas that the Freedom Senate of Missouri focuses on, the economic liberty. And we’re going to talk about each of them somewhat. But what is your touchstone? As far as are you trying to change the Constitution? Are you basically saying, “No, just enforce the laws that are already there in the Constitution or is it natural law?” Where do you reach when you’re deciding what kind of case your institution should take?

David Roland:

That’s a fantastic question. So one of the things that excited me about the prospect of the Freedom Center of Missouri is that on paper, Missouri has a constitution that is extremely protective of individual liberty. A lot of people are familiar with the First Amendment, of course, and its protections. They don’t know necessarily that Missouri has a provision of its constitution that is even more explicit and extensive than the First Amendment. And so when Jennifer and I were starting the Freedom Center, we wanted to take these fantastic ideas that are written into the Missouri Constitution and put them into action in a way that the courts really had not been doing. Erich, you and I are both part of Mo Free Speech, which is an organization that’s devoted to the freedom of expression and advancing the ideals of freedom of expression. And one of the things that you and I have talked about is that for decades, the Missouri Supreme Court was really, really good on free speech in part because they were relying on Article one, Section eight of the Missouri Constitution to make their decisions.

But something happened in the middle of the 20th century and Missouri courts stopped focusing on this magnificent state constitutional provision and instead started looking to the US First Amendment for their guidance in deciding free speech issues. Well, at the time, in particular, the US First Amendment had not been interpreted as extensively as the Article one, Section eight of the Missouri Constitution. So we saw from that point, from my perspective, a degradation of the protections for free speech in Missouri courts. And that’s why we thought it was so important to fight this issue out in the Kansas City Premier Apartments case. And we’ve raised it in other cases, arguing that Missouri’s constitution is more protective of speech and should be interpreted and applied that way. So from that perspective, in many of our cases, we are simply trying to have the courts apply the Missouri Constitution as written.

Erich Vieth:

I have in front of me Article one, Section eight, I’m predicting that most people listening haven’t really looked at it for the reasons that you suggested, and I’ll hand this to you. Yeah. And maybe you can read it. You

David Roland:

Read it in.

Erich Vieth:

And it might surprise people to hear that it has some twists and turns. It has some differences compared to the First Amendment.

David Roland:

Yeah. So let’s talk real quick about the First Amendment. So the First Amendment, of course, says, Congress shall make no law of respecting and establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech. And that’s all the First Amendment says about this issue. Everything else that you’ve heard from the US Supreme Court is elaboration on this very simple phrase. If

Erich Vieth:

I could add a footnote here, I’ve become very aware of this in the last few years. It doesn’t say we’re giving you a right to free speech.

David Roland:

No, not at all.

Erich Vieth:

And that’s pretty interesting. When you think about it, it’s not telling you we’re giving you something. So where does that … I know you’re a historian.

David Roland:

As a brief digression, when the Bill of Rights was being fashioned, the prevailing understanding was that many of our basic rights are preexistent, that they are not dependent on government, but rather that they are things to which all people are entitled. And there was some argument against the Bill of Rights that by putting these ideas for these specific rights on paper, it would allow the argument that rights actually come from government. Whereas the people that were arguing against the Bill of Rights says, “We shouldn’t even plant that idea.” I honestly think that the anti-Federalists who were pushing against the idea of the Bill of Rights have to a limited extent had their concerns borne out because now a lot of people say, “Well, basically these rights are granted by the government and the government can take them away if they want. ” But yeah, so that’s a little bit of a digression there, but let’s compare that simple text of the US First Amendment to Article one, Section eight of the Missouri Constitution.

And this is language that goes well back into Missouri history.

Erich Vieth:

Well, there’s some form of it way, way back.

David Roland:

Oh yeah, some form of it dates back to 1820 when the first Missouri Constitution was written. So Missouri has had four operative constitutions. The first was drafted in 1820, the second was in 1865 towards the end of the Civil War. 10 years later, they revised it again into 1875, and then in 1942 and 43, they had another constitutional convention, and that ended up in the ratification of the 1945 Missouri Constitution. The primary idea of Article one, Section eight of the Missouri Constitution goes all the way back to the 1820 Constitution, but its current form dates more towards the 1875 Constitution. And this is what the 1875 Constitution said, that no law shall be passed impairing the freedom of speech, no matter by what means communicated, that every person shall be free to say, write, or publish or otherwise communicate whatever he will on any subject being responsible for all abuses of that liberty, and that in all suits and prosecutions for libel or slander, the truth thereof may be given in evidence and in suits and prosecutions for liable, the jury under the direction of the court shall determine the law and the facts.

So as you see, the phrasing of that constitutional provision is significantly more expansive than the US First Amendment, and Missouri courts historically applied it that way. They took seriously the idea that the government does not get to intrude in the individual’s freedom to say, write, publish, or communicate whatever they will on any subject. It’s a very powerful protection as long as the courts apply it. And of course, the concern that we had in the Kansas City Premier Apartments case is that the government was saying, “You cannot communicate on this particular subject unless you get the government’s permission.” And that was the argument that we made and alas, or five of the judges did not see it our way.

Erich Vieth:

Courts would be more inclined to rely on this provision, I would assume, if lawyers were more inclined to bring cases based on the Missouri Constitution, which raises my question, if I’m a private practitioner and I sue based upon the Missouri Amendment, I don’t have Section 1983 that gives me attorney’s fees.

David Roland:

No, that’s true. Yeah.

Erich Vieth:

And I’m wondering what effect that might have on … Maybe we would’ve had a much more developed Missouri Section one, Article eight if there had been more incentive to bring it.

David Roland:

That’s a really interesting observation. And this is where a public interest law firm perhaps has a leg up on traditional practitioners because public interest law firms, if they’re doing things properly, are not looking for what’s going to get us paid. The idea of public interest law is that you’re supposed to be litigating cases to try and vindicate constitutional principles, even if that’s not necessarily going to pay the bills for you. But you’re right, that is a challenge is that any number of the wonderful provisions of the Missouri Constitution will not produce attorney’s fees if you win on those theories. And so that may discourage some attorneys from pursuing those particular theories. But I do think that it’s not only worthwhile, I think it’s important to make sure that citizens are enjoying the protections that they wrote for themselves, both into the US Constitution and more specifically into the Missouri Constitution.

Erich Vieth:

We’re going to take another pause in this conversation. We’ll be back with more.

David Roland:

Oh, thanks so much, Erik.

Erich Vieth:

All right. This has been another episode of The Jury Is Out. I’m Erich Vieth. We’ll see you next time.

Announcer:

The jury is Out is brought to you by the Simon Law Firm. At the Simon Law Firm PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at [email protected] and subscribe today because the best lawyers never stop learning.

Continue Reading