Vittitow v. City of Upper Arlington: As Mixed Questions of Law and Fact, Should Ordinances and Injunctions be Reviewed Under the Madsen and Frisby Standards of Review by Using a De Novo Standard or a Clearly Erroneous Standard?

Abstract

This Comment concerns the appropriate standard of review for appellate courts in anti-abortion picketing cases. In Vittitow v. City of Upper Arlington, the Sixth Circuit used a de novo scope of review and applied the intermediate standard of review, developed for content-neutral limits to manners of protests. The Author argues that appellate courts should narrow their scope of review and could do so without risking any chilling effects on the First Amendment. Use of the “clearly erroneous” standard would speed up the enforcement of injunctions, make enforcement more certain and more equitable to all parties, and help ameliorate a climate that is becoming more and more violent