PHILADELPHIA, Pa.—Almost exactly two weeks after First Amendment attorneys J. Michael Murray and Lorraine R. Baumgardner filed their reply to the U.S. Department of Justice's opposition to their motion for a rehearing on the appeal of Judge Michael Baylson's ruling in the federal record-keeping and labeling case (aka the 2257 case), the three-judge panel which originally heard the appeal today has granted a rehearing of that appeal.
Although neither of the attorneys was available for comment at press time, it is likely that the grant of rehearing was based largely on the plaintiffs'/appellants' arguments that recent U.S. Supreme Court rulings in the cases of Reed v. Town of Gilbert and City of Los Angeles v. Patel strongly suggest that the Third Circuit was wrong when it concluded, as a matter of law, that the free speech issues in the case of Free Speech Coalition, et al v. Attorney General of the United States should be considered only as at "intermediate scrutiny" level rather than the higher level/more governmentally restrictive "strict scrutiny" that the plaintiffs had argued that it should be from the beginning.
For an analysis of the plaintiffs'/appellants' Motion for Rehearing, click here. For an analysis of the Justice Department's response to that Motion, click here. For the plaintiffs'/appellants' response to that DOJ response, click here.
But despite what seems to be the clear stance taken by the Supreme Court that the church-posted directional signs at issue in Reed were the subject of a content-based restriction by the town of Gilbert, and that that ruling should force a reversal of the Third Circuit panel's original "intermediate scrutiny" decision, there is still room for the Third Circuit to distinguish the 2257 case from Reed on some as-yet-unknown basis.
Moreover, despite its apparent lack of application to 2257, the government's argument that the original "secondary effects" doctrine, as laid out in the 1986 case of City of Renton v. Playtime Theatres, should be the applicable precedent for the appeals court to consider rather than Reed may have found favor with one or more of the panelists, and it might be for that reason that they granted the rehearing.
Having granted the Motion for Rehearing today, the Third Circuit panel will now be asking the attorneys for both sides for the dates that they can be available to re-argue the appeal. While that date has not yet been decided, it is likely that it will occur within the next couple of months.
