Date: September 23, 2013

Kagan v. New Orleans – Free Speech Rights
U.S. Supreme Court – cert petition

The City of New Orleans requires tour guides to obtain a license when speaking on points of interest in the city. We argue that this constitutes a subject matter restriction, which is reviewed under strict scrutiny. Since the licensing requirement only applies when individuals charge a fee for speaking on points of interest in the city, the Legal Center’s brief argues that the City is improperly treating commercial actors as second-class citizens—with lesser free speech rights than ordinary citizens. Accordingly, our brief encourages the Supreme Court to take the case because individuals to not surrender their constitutional rights upon going into business.

Kent Recycling v. Army Corps of Engineers – Regulatory Reform
U.S. Supreme Court – cert petition

In this case the Fifth Circuit Court of Appeal held that a landowner does not have standing to pursue a challenge Army Corps or EPA’s assertion of Clean Water Act jurisdiction over their property. Specifically, the Court held that the only way to bring such a challenge a CWA jurisdictional determination is to either (a) apply for a permit that the owner does not believe is needed, and to appeal a denial of that application; or (b) proceed with development plans without a permit, at which point the owner could raise a jurisdictional challenge as an affirmative defense to a federal enforcement action. In our amicus brief, we urge the Supreme Court to take the case because small business owners have a right to challenge any final agency action that has an immediate affect on the business’ rights. As we argue, a decision to assert CWA jurisdiction over a specific property has immediate consequences because it means the owner cannot make any use of the property without obtaining a costly permit.

If you have a case that impacts small business, please contact us at 1-800-552-NFIB or email us at legalcenter@nfib.org as we are actively looking for opportunities to weigh in on important issues in this state. NFIB Small Business Legal Center is involved in many cases that impact this state and others; to see our complete list of Supreme Court cases click on Washington, DC on the interactive map.

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