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Friday, November 13, 2020

Retaliation or Evidence?

A weird case from MD Fla: The owner of an indoor farmer's market, a vocal opponent of masks, sues over enactment and enforcement of a county mask ordinance, in which the market was twice cited for having maskless customers. Among the claims was First Amendment retaliation--that the county singled the business out because the owner has spoken out against masks.

But this seems an odd retaliation case because his speech would appear to justify the county in enforcing against him because it provides evidence of a possible violation. Garden-variety retaliation is the owner of a business criticizes the mayor about something, so the county singles him out for enforcement of general code provisions, unrelated to the speech (e.g., the owner criticizes the mayor's redevelopment plans, so the county sends in the health inspector). But here, the speech that was retaliated against seems to provide cause, or at least evidence, for the enforcement decision. If county officials are trying to determine where to direct enforcement efforts and what businesses might not comply with the mandate, it is is reasonable to infer that the business owned by the outspoken critic of masks might violate the ordinance. It becomes problematic if his is the only business cited. But it is a stretch to claim retaliation that his is one, or even the first one, to be cited.

The case is at the 12(b)(6) stage, so more will be fleshed out later in the case.

Posted by Howard Wasserman on November 13, 2020 at 09:38 AM in First Amendment, Howard Wasserman | Permalink


Seems reasonably similar to Wayte v. United States, 470 U.S. 598 (1985), where the majority found no improper selective prosecution or First Amendment burden by prosecuting only vocal Selective Service registration refusers.

Posted by: Jack | Nov 15, 2020 1:54:53 AM

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