Tuesday, January 06, 2009

Metro Lights v. City of Los Angeles (9th Cir. - Jan. 6, 2009)

Larry! My man! Welcome back!

I learned a massive amount from Larry Tribe, my former boss and professor. I can't say enough about him, both professionally as well as personally. I shan't regale you with stories from my youth, but suffice it to say that Professor Tribe is a gem. On all fronts.

One of the things that I learned from Larry is the ability of an academic to be actively tied to the real world, particularly in the appellate context. Larry always did a fair number of appellate cases, both in the Supreme Court as well as in other appellate courts, and while I was in law school I was fortunate enough to be able to work with him on quite a few. My goal was to eventually be half as smart and hardworking as he was (and is), and I'm proud to say that I'm almost a tenth of the way there.

But even though Professor Tribe is an incredibly active appellate advocate, it's been over a half decade since he's graced either the Ninth Circuit or California Supreme Court/Court of Appeal. So my heart skipped a beat -- and happily so -- when I saw his name as counsel in this opinion. And the fact that the lower court's ruling in the case was issued by my former boss and colleague (and now district court judge) Gary Feess only made my heartstrings tug that much harder.

It's a First Amendment case, which is a topic (amongst many) right in Larry's wheelhouse. And there's a fair amount at stake, which helps pay his fee. The issue is whether Los Angeles can constitutionally ban nearly all offsite commercial advertising while simultaneously allowing (and auctioning off for itself) a massive amount of offsite commercial advertising on its own bus stops and benches. It's a great case, and while Larry ends up losing -- with the Court reversing the district court and holding that such a regime is perfectly fine -- it's a darn good fight, and I think that the plaintiffs have a pretty good argument here.

I doubt that Larry was especially happy once he saw the panel he drew, which consisted of Judges Thompson, O'Scannlain and Tallman. There are lots of upsides of being a famous advocate, but one of the many downsides is that while you're famous and loved for your positions by some judges, you're famous and far-from-loved for your positions by others. Those in the latter category may also feel a little more inclined to take free shots at you in the opinion than they would less renowned (and perhaps thick-skinned) advocates. Hence, to give one example, the following line about Professor Tribe from Judge O'Scannlain's opinion:

"Not to be deterred, Metro Lights drew our attention to additional precedents at oral argument in support of a further variation on this allegation of unconstitutional favoritism. Upping the rhetorical ante, Metro Lights accused the City of “auction[ ing] off First Amendment rights” to the highest bidder, in this case CBS. This is strong, if rather sloganeering, language, but after reviewing the case law on which Metro Lights relies, we believe it to be little more than a canard."

Regardless of who's right or wrong, it's a neat case. And it's great to see Larry back in the Ninth.

P.S. - Nice new web site, Ninth Circuit. Fancy! (Though, I'll add, incredibly slow, at least thus far.)