Great Moments in the First Amendment

Surprisingly, one issue that seems to crop up repeatedly is whether the wearing of "colors" is protected by the First Amendment or by various Civil Rights laws. In California, there have been a number of cases where a motorcycle gang [or, in their vernacular, a "club"] brings an action under the Unruh Act, which protects the right of people to associate with other people, when bars [aka "adult beverage vendors"] prohibit the wearing of "colors," which are the patches and other regalia by which one group of motorcycle enthusiasts distinguish themselves from other similar groups. It seems that bar owners have noticed a propensity for the destruction of property - chairs, windows, etc. - and personal injuries occuring when different groups of motorcycle enthusiasts get together while wearing their respective indicia of club allegiance.

When the bar owners enforce the "no-color" rules, the enthusiasts hire lawyers. [Now, stop there for a moment. These are motorcycle gangs. Why would any self-respecting motorcycle gang hide behind an attorney?]

Typically, California courts have been reluctant to accord Civil Rights status to "colors" and motorcycle gangs, but the issue is far from clear. [Penner had one of these cases a couple of years ago, where he succesfully defended the bar owner's "no colors" policy.]

Now comes SAMMARTANO V FIRST JUD. DIST. CT. in which the Ninth Circuit struck down a Nevada state court's "no colors" preliminary injunction under the First Amendment challenge. According to the San Francisco Daily Journal, "interestingly, a dozen of the the same bikers from the Branded Few and aother clubs - sporting their colors and chains - had no problem gaining entry to the 9th Circuit's San Francisco courthouse in February for arguments."

Good news for the Mongols, Hells Angels, Branded Few, Scream City and other vigorous proponents of an absolutist position on the First Amendment. Perhaps someday similar concern will be shown towards actual political speech.