Paul Clement is widely considered one of the most brilliant constitutional attorneys in the country. The former Solicitor General under George W. Bush is revered for his legal skill even by those who think he’s wrong most of the time. But he may well have just made the dumbest legal argument I’ve heard offered by anyone not named Mat Staver, Larry Klayman or Orly Taitz.
The case is a suit filed against the city of Seattle over its recent adoption of an ordinance that will eventually push the minimum wage to $15 in that jurisdiction. The entire lawsuit isn’t frivolous; the part about treating franchises differently from other types of businesses is legally plausible. But one of the bases for the suit in the complaint is that it violates the First Amendment because every extra dollar a company has to spend on wages is a dollar it can’t spend on advertising:
166. The First Amendment to the U.S. Constitution provides in part that “Congress shall make no law … abridging the freedom of speech … or the right of the people to peaceably assemble ….”
167. The First Amendment applies to state action through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
168. The First Amendment protects commercial speech and freedom of association.
169. Commercial speech “is a form of expression protected by the Free Speech Clause of the First Amendment,” andthe Ordinance will curtail franchisee commercial speech in at least three important respects. First, by increasing the labor costs of franchisees, the Ordinance will reduce the ability of franchisees to dedicate funding to the promotion of their businesses and brands. Second, the increased labor costs the Ordinance mandates may cause some franchisees to shut their doors, reducing the amount of relevant commercial speech they engage in to zero. Third, and relatedly, the Ordinance will likely cause potential franchisees to forgo purchasing a franchise because of the associated higher operation costs, again eliminating all associated speech.
Wow. That is spectacularly stupid. If a first year law student made an argument that dumb in a con law class, they might well get thrown out on sheer principle. By this “reasoning,” every single government policy that increased a company’s costs in any way whatsoever would violate the First Amendment, including child labor laws and laws against dumping toxic waste into a river or lake. Ordinarily, one would assume that a complaint that contained a claim that idiotic was written by someone in prison and representing themselves, not the foremost appellate advocate in the country. You can read the full complaint here.