The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today in Supreme Court History: March 3, 2019
3/3/2019: Schenck v. United States decided.
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Schenck v. United States, 249 U.S. 47 (decided March 3, 1919): upholding Espionage Act conviction for mailing young men leaflets encouraging them protest the draft (during World War I)
The Ku-Klux Cases, 110 U.S. 651 (decided March 3, 1884): upholding conviction of men who beat up black man to keep him from voting; 18 U.S.C. §51 (“Enforcement Act”) validly creates liability of private persons for obstructing federal rights
Cohens v. Virginia, 19 U.S. 264 (decided March 3, 1821): Court can review state criminal proceedings (here, conviction for illegally selling D.C. lottery tickets in Virginia; Court then holds that it was a local matter and no jurisdiction!)
Negusie v. Holder, 555 U.S. 511 (decided March 3, 2009): Was Eritrean/Ethiopian applying for asylum (a former prison guard) not persecuted in his home country (forced to beat prisoners) but in fact one of the persecutors? If a persecutor, barred by regulations from asylum, but Court finds the rule developed by the Board of Immigration Appeals to be ambiguous and not based on relevant statute (case then bounced back and forth between the BIA and the Attorney General, with the change of administrations playing a part; still undecided, as far as I can tell)
Federal Republic of Germany v. United States, 526 U.S. 111 (decided March 3, 1999): Court says it has no jurisdiction to rule on International Court of Justice’s order, upon motion of Germany, not to execute German citizen convicted in Arizona of murder (Germany, being part of the civilized world, abolished the death penalty long ago)
Kawaauhau v. Geiger, 523 U.S. 57 (decided March 3, 1998): medical malpractice award for “reckless” conduct dischargeable in bankruptcy; injury not intentional and not within exception for “willful and malicious injury”, 11 U.S.C. §523(a)(6) (no one ever taught me this, but in law school I thought of it this way: if you’re approaching an intersection and don’t check to see if the light’s green, you’re negligent; if you see the light’s red and you still proceed, you’re reckless; if you see someone crossing and drive right into him, you’re intentional — anyone want to weigh in on this?)
Adams v. Robertson, 520 U.S. 83 (decided March 3, 1997): Court can’t review state court proceedings if federal issue wasn’t presented to state court of last resort (here, claim that class members in action against health insurer for fraud were not given chance to opt out)
Reves v. Ernst & Young, 507 U.S. 170 (decided March 3, 1993): accountants not liable under RICO because did not participate in operation or management of farmers’ cooperative (18 U.S.C. §1962(c)), even though they did not inform Board of Directors of possible insolvency
School Board of Nassau Co., Florida v. Arline, 480 U.S. 273 (decided March 3, 1987): teacher susceptible to tuberculosis (1957 hospitalization, relapses in 1977 and 1978; fired in 1979) was “handicapped individual” under Rehabilitation Act of 1973 and protected from discrimination (the school argued that she was placing her students at risk; the Court says, “It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment,” which seems strange to me, especially when children in close contact are involved)
Arizona v. Hicks, 480 U.S. 321 (decided March 3, 1987): Police entering apartment searching for shooter. Suspecting stolen stereo, they could record serial numbers in plain view (that’s not a “seizure”) but needed warrant to move things around to see the numbers (that would be a “search”) (but what if the police officer had a sneezing fit and “accidentally” butted into things?)
They need to bring back descriptive case names for major cases. “The Slaughterhouse Cases,” “The Civil Rights Cases,” “The Ku Klux Klan Cases.” Imagine how much better it would be if Obergefell v. Hodges, which was just the lead case of several consolidated cases, was called simply “The Same-Sex Marriage Cases.” That’s what most people call it anyway.
(Side note: one of the cases Obergefell was consolidated with was Love v. Beshear. With a title like that, how was it not the lead same-sex marriage case? Could have been the Loving v. Virginia of its time.)
My favorite is United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491 (1883),
Spoiler Alert, US wins.
Frank
The Sodomy Cases.
Schenck, of course, gave us the memorable but idiotic phrase “shouting fire in a crowded theater,”¹ which authoritarians across the political spectrum robotically intone as justification for whatever they want to censor, despite the fact that (a) it’s a phrase devoid of any real content; and (b) the case is not even good law.
Some wags on Twitter like to respond to people who use “fire in a crowded theater” as the reason why their desired censorship is permissible with, “So you’re saying that the government can punish people who hand out leaflets opposing a war?” And every single one of those people walk into the trap, saying, “Of course not; don’t be silly. Why are you bringing up something irrelevant like that?”
¹This is not in fact an accurate quote, but it’s what almost everyone remembers it to be.
that’s what it is? always thought it was “Shouting Theater in a crowded Fire” makes sense now.
and who knew it was such a problem??
From AlGore’s Internets, so you know it’s true
The Canonsburg Opera House disaster occurred on August 26, 1911 in Canonsburg, Pennsylvania. A false shout of “fire” triggered a panic that killed twenty-six people.
During the evening showing of a motion picture, a projector malfunction resulted in a sudden flash of light on the screen. Although no fire resulted, a crowd of theater patrons rushed to the exit of the second story theater and became lodged in the doorway which served as the theater’s main entrance and exit.
Frank “Theater!!!!!!!!!!!!!!!!”
Indeed. (This is addressed to David, not the troll.)
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (emphasis added)
Schenck, 249 U.S. at 52.
“So you’re saying that the government can punish people who hand out leaflets opposing a war?”
The prosecution was for suborning resistance to the draft, the leaflets did not merely “oppose a war”.
If you enter an intersection against the light and run over a black gangbanger, it’s negligence. If you enter an intersection against the light and run over a pretty white girl, it’s recklessness. If you enter an intersection against the light while fleeing police, it’s murder.
One Massachusetts prosecutor won a murder conviction for a guy who ran a red light while fleeing police. Ordinarily we don’t call traffic accidents murder. But we do take your license away for 15 years for negligently causing a death. Not even criminal negligence, just plain old negligence proved beyond a reasonable doubt.
“If you enter an intersection against the light while fleeing police, it’s murder.”
True. I represented a defendant convicted of felony murder for colliding with a patrol car that had pulled into his path at an intersection and killing the police officer. The prosecution theory was that the defendant was fleeing from an unsuccessful attempt to steal clothing at a shopping mall several miles away, thus an attempt to commit theft was the underlying felony.
The driver was fleeing from police at the time of the fatal crash, but the pursuit had not been continuous from the shopping mall. The jury rejected my argument that they should convict of reckless or criminally negligent homicide.
Thanks — interesting to hear a real life story on this issue.
I remember a story, my memory says out of Cleveland, where a man was convicted of homicide after a police officer blocks away was involved in a fatal crash. I forget what degree of homicide. The press often accurately reports a charge as “murder” under local law when the same offense is called manslaughter in other states.
“defendant convicted”
Of course, you were his lawyer.
What ever happened to Schenck’s 13th Amendment argument?
It was ignored in the case because this was a 1A issue.
However, in 1918, in Arver v. United States, the Court upheld the Selective Service Act of 1917 (Selective Draft Law Cases), and more generally, upheld conscription in the United States.
The Court upheld that conscription did not violate the Thirteenth Amendment’s prohibition of involuntary servitude, or the First Amendment’s protection of freedom of conscience. (wiki)
He didn’t have a 13th Amendment argument. What are you talking about?
(Yes, his leaflet argued that conscription violated the 13th amendment, but since he wasn’t conscripted that had nothing to do with the case.)
1919. Not 2019.
1619
Thanks!
I appreciated that simple illustration too. Maybe you should be a teacher?
Thanks!
I’m not a teacher by trade but I present a lot of CLE’s for lawyers, now that I’m struggling to find lawyer work. During which I relate a lot of stories about my legal experience — I make a point of talking mostly about my many screwups, not my victories.