Summer 2003

A Call to Arms

By Tim Keller

David triumphed over Goliath with a sling and a stone. Though King Saul encouraged David to use the King’s sword, David opted for the simpler weapon. We too appreciate the simple approach. That is why one of the weapons in IJ’s freedom arsenal is the "threat" letter. In a recent issue of Liberty & Law, IJ’s President Chip Mellor termed this "Leveraging Liberty by Letterhead."

We know graduates of IJ’s training programs desire to be engaged in the public debate and to advance the principles of liberty. We also know that our graduates’ careers often require much energy and focus, leaving little time to offer their skills pro bono. And while we all know that taking on government abuse is incredibly rewarding (and amazingly fun)—we forget that it is not necessarily all that time consuming.

The next time you read an outrageous story of government overreaching, rather than settling for writing an op-ed or a letter to the editor, I encourage all HAN members to consider writing a letter to the offending bureaucrats demanding that government act within its constitutional limits.

When writing to government officials, remember that you are writing to more than bureaucrats and government lawyers. Because local elected officials often react virulently to even the slightest negative press, you should take the time to pitch the story to specific reporters who may be interested. Your letter should therefore be complete with SOCOs (in case you’ve forgotten, Strategic Overriding Communication Objectives are those two or three simple statements that encapsulate your theory of the case).

When the City of Scottsdale, Ariz., proposed setting up a local board to govern massage therapists and requiring testing of methodologies outside one’s practice area—even for those already licensed—it rubbed a lot of people the wrong way. IJ’s Arizona Chapter immediately fired off a letter to the City Council designed to prevent the regulations from being implemented—and to shape the public policy debate. And it worked.

The front-page news article quoted our SOCO that “Scottsdale’s proposed economic regulations reveal[ed] the mistaken belief that working in a profession is a privilege rather than a right.” The next week, Scottsdale drastically scaled back its proposed ordinance and decided not to establish, in any form, a local board.

Last summer, one of IJ’s law clerks, and now HAN member, Stewart Rhodes surveyed state constitutions for pro-liberty clauses to employ in our battle to advance the cause of freedom. What he found was a "goldmine of often untapped, long dormant or long disused pro-liberty provisions and case precedents." Letters are a great way to jumpstart the revival of many of these provisions. In Arizona, we have a rich legacy of protecting economic liberty—though the seminal cases date back to the 1940s and have not recently been invoked.

In Yuma, Ariz., where the City’s rental inspection program authorized government officials to enter dwellings without notice to or consent by the tenant, two letters to the City resulted in a lukewarm admission that the program violated the Fourth Amendment with a promise to look into amending the program. IJ waited patiently for some action, but after months of delays it became obvious we needed to prod the City to action. So we filed a complaint. That day the City suspended all inspections and immediately set about rewriting the program. What a difference simply filing a complaint can make!

Mesa, Arizona’s sign restrictions had prevented doughnut shop proprietor Ed Salib from hanging in his windows even a single sign advertising his products. After filing our complaint, the City tried to moot the lawsuit by amending the ordinance. Though Salib is still battling to display more, he is now permitted to place at least three signs on his dozen or so windows.

The lesson is that simply filing a legal action can force local governments to react with a quick legislative solution that sometimes improves the situation, if not completely correcting it, especially after laying the groundwork with letters to the City. Of course, filing a suit could mean litigating it to the end (perhaps student members of the Federalist Society would be willing to do additional legal research should the government refuse to take action).

It is tempting to pull out the "pen is mightier than the sword" cliché, but I’ll instead stick with my original theme: HAN members can slay governmental Goliaths with the stroke of a pen (or a few key strokes). Carpe diem!

Tim Keller is a staff attorney in the Institute for Justice Arizona Chapter—and an expert practitioner of "liberty by letterhead."