Today in Supreme Court History: April 19, 1920

4/19/1920: Missouri v. Holland decided.

The White Court (1920)

Comments

[Dan Schiavetta]

Nelson v. Colorado, 581 U.S. 128 (decided April 19, 2017): striking down on Due Process grounds Colorado statute requiring acquitted defendants who seek recoupment of the restitution, fees, etc. they have been required to pay to prove their innocence by clear and convincing evidence (apparently requiring proof by preponderance is o.k.)

Missouri v. Holland, 252 U.S. 416 (decided April 19, 1920): Missouri can't prevent federal game warden from enforcing Migratory Bird Treaty Act (which was based on 1916 treaty with Britain as to protecting birds in Canada and the U.S. and which declared that birds were the property of the respective national governments)

McDaniel v. Paty, 435 U.S. 618 (decided April 19, 1978): Free Exercise clause violated by statute forbidding clergy from serving as delegates to state constitutional convention

Virginia Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (decided April 19, 2011): Ex parte Young exception to state Eleventh Amendment immunity (a legal fiction that a state official who acts illegally has "stripped himself" of his authority and can be sued individually) applies to suit by independent state watchdog (advocating for the intellectually disabled) against state hospital official unlawfully refusing access to records

Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (decided April 19, 2005): investors of corporation which allegedly gave false impression as to FDA approval of new drug resulting in artificial inflation of stock price could allege fraud but not economic loss because no showing of loss due to stock later falling

Stone v. INS, 514 U.S. 386 (decided April 19, 1995): making motion for reconsideration of deportation order doesn't toll 90-day deadline for filing appeal (as might be implied by Administrative Procedure Act)

Rubin v. Coors Brewing Co., 514 U.S. 476 (decided April 19, 1995): requiring beer labels to show alcohol content violates First Amendment right to free speech (belch!)

J.E.B. v. Alabama, 511 U.S. 127 (decided April 19, 1994): Equal Protection violation for state to exclude men from juries in paternity suits (yeah, I would say so!)

United States v. Lara, 541 U.S. 193 (decided April 19, 2004): no Double Jeopardy when defendant convicted in tribal court for assaulting non-Indian policeman was charged in federal court for assaulting federal officer; Congress had allowed tribe to be its own sovereign

Ingraham v. Wright, 430 U.S. 651 (decided April 19, 1977): corporal punishment in public school is not "cruel and unusual punishment" and does not require a hearing

[apedad]

Re: Rubin v. Coors Brewing Co.

Facts of the case

Coors Brewing Co. (Coors) applied to the Bureau of Alcohol, Tobacco and Firearms for an approval of proposed labels. The approval was rejected because it violated the Federal Alcohol Administration Act’s (FAAA) prohibition of disclosing the alcohol content on beer labels or advertisements. Coors filed a claim arguing the regulation violated the First Amendment’s protection of commercial speech. The government argued the regulation was necessary to prevent “strength wars” among brewers, which in this case, refers to breweries competing on the basis of the potency of their alcohol.

The district court found in favor of Coors, but the U.S. Court of Appeals for the Tenth Circuit reversed the judgment and remanded the case back to the district court. The district court subsequently upheld the ban of alcohol content in advertising, but not on labels. The government appealed, and the court of appeals affirmed the judgment of the lower court by concluding that the label ban did not prevent strength wars.

Question

Does the Federal Alcohol Administration Act’s prohibition of displaying alcohol content on beer labels violate the First Amendment’s protection of commercial speech?

Conclusion (Unamious!)

Yes. Justice Clarence Thomas delivered the opinion for the 9-0 majority. The Court held that for the government to regulate commercial speech, the government must have a substantial interest that the regulation directly affects. In this case, the interest the government intended to protect by banning the display of alcohol content on beer labels was to limit the “strength wars” of competing beer companies, which could lead to greater alcoholism. However, the Court concluded that this interest was not substantial enough, since there was no reason to believe that banning the alcoholic content on beer labels would prevent such social harms. The regulation also does not directly advance the suppression of strength wars, especially since other provisions of the FAAA directly counteract its effects. Finally, the Court held the regulation was more extensive than necessary, since there were available and effective alternatives that would not violate the First Amendment.

Justice John Paul Stevens delivered a concurring opinion emphasizing the regulation is unconstitutionality of the regulation because it did not increase consumer awareness, but instead blinded the public to the truth of the alcohol content. (oyez)

I first thought that Coors would be complaining about being REQUIRED to post alcohol content but it was just the opposite, and they complained about the govt PROHIBITING posting the content.

What a dumb rule and reason.

[Dan Schiavetta]

You're right. I totally got this case wrong. (One of a series . . . )

Boasting about alcohol content does not put the brewers in a flattering light. They're aiming at 21-year-old beer drinkers who want to get as drunk as possible.

Will correct the summary for future use.

[Dr. Ed 2]

All Canadian beer, at least in the PdQ, had an alcohol percentage on it back in the '80s. Except the Canadians measure it differently, which results in a higher number...

[Frank Drackman]

Oh those Canadians and their measurements!

[Rev. Arthur L. Kirkland]

These comments concerning the Coors case indicate there are not many constitutionalists to be found here (or, perhaps, on that Court).

[Michael P]

Rubin v. Coors Brewing Co., 514 U.S. 476 (decided April 19, 1995): requiring beer labels to show alcohol content violates First Amendment right to free speech (belch!)

I am reminded of one alcoholic beverage manufacturer that got in trouble for advertising their alcohol content, although I have forgotten the details and DuckDuckGo is not finding them. As I recall, this manufacturer first prominently showed the ABV label in advertisements, promoting it as relatively high-alcohol. They were ordered to stop doing that, so they ran the same ads but with a black diamond(?) shape covering the ABV label. The government did not think that a clever workaround, and ordered them to stop doing that too.

[Dan Schiavetta]

I remember that, or something like that. It's what got me confused.

[Frank Drackman]

So "Mad Dog 20/20" wasn't referring to Visual Acuity??

[juris imprudent]

Not even in hindsight.

[Krayt]

Should have put a black bar with "Censored" on it, then let the government order that censored, too.

[defaultdotxbe]

which declared that birds were the property of the respective national governments

It is punishable by death to take one of the King's deer.

[Dan Schiavetta]

Execution via Winchester 94, done by a guy in orange from 100 feet, and afterwards the body is strapped to the outside of a car and driven around town.

[John F. Carr]

The beer case got me thinking about drug advertising regulations. We are flooded with ads for drugs and the ads don't tell us the most important thing, what the drug does. "Ask your doctor if cyanide is right for you." But they can't say it is used to treat dysphoria.

Will the new respect for commercial speech undermine regulations controlling ads for drugs?

[Krayt]

I suspect if they don't say what the drug is supposed to do, they don't have to run those long ads with a fast talker discussing potential side effects.

Like, ok, free speech means the government can't stop you from advertising a drug, but truth in advertising, if you do, you gotta 'splain it all, not just the good stuff.

Otherwise run music and old people walking around in the sun with grandkids and suggest talking to your doctor about the mystery drug.

[Dr. Ed 2]

As much as I value free speech, I don't think these drug ads should be allowed.

[David Nieporent]

Then you don't value free speech very much.

[David Nieporent]

What? Of course the drug ads say what the drug is supposed to do. (That is, what conditions the drugs are approved for.) You need to rewatch them.

[John F. Carr]

In J.E.B. the state used peremptory challenges to exclude men. At the time Batson applied only to race-based jury selection.

The factual side of paternity cases is a lot simpler with DNA testing. The case was decided two months before Nicole Simpson was murdered and the nation got to learn about PCR. Associated Press, August 3, 1995:

With the inventor of a sophisticated DNA test looking on, a scientist told O.J. Simpson’s jurors Thursday that the landmark PCR method used to link Simpson to a double murder is unreliable in criminal cases.

[John F. Carr]

Nelson v. Colorado rejected a preponderance of the evidence standard:

But to get their money back, defendants should not be saddled with any proof burden. Instead, as explained supra, at [137 S. Ct.] 1255 – 1256, they are entitled to be presumed innocent.

[Dan Schiavetta]

Thanks. I'll make the change.

[Frank Drackman]

Coors has alcohol in it??
and Adolph Coors certainly went out with a bang, (more accurately a "Splat") in 1929

[Magister]

My first thought (based on captcrisis' initial description) was that beer companies were trying to avoid admitting how little alcohol is in their light beers.

[Dr. Ed 2]

“Migratory Bird Treaty Act (which was based on 1916 treaty with Britain as to protecting birds in Canada and the U.S.”

And what a disaster that has been — it’s protected two very invasive species — Canada Geese and Seagulls.

Canada Geese don’t migrate if they were born here and they are doing everything from fouling drinking water with their feces to bringing down airliners. (Remember “Miracle on the Hudson”?)

And as to the “rats with wings”, aka Seagulls, they not only eat the young of actually endangered birds, but have literally defoliated much of the Maine shoreline. A century ago, all those treeless island and such actually had trees on them, except that the gull feces is so acidic or basic (I forget which) that they killed all the trees.

The US Fish & Wildlife Service can hire people to shoot gulls, but it’s a crime for us mere mortals to do so. My uncle used to shoot one each spring and put it, upside down, across the bow of his lobster boat. It kept the other gulls away from his bait, and the tourists away in general.

And then protecting the seals is why we are having problems with sharks, and a shortage of herring for other animals (including humans) to eat. And the New England Regional Office of the National Fish & Wildlife is built on wetlands -- I am not making this up...

[John F. Carr]

In the 2000s the Fish and Wildlife Service accepted that resident Canada Geese did not deserve the protection of a treaty protecting migratory birds. With that policy decision made, FWA could implement it the simple way or the complicated way. The simple way is to say "nesting Canada geese in the lower 48 states are not protected by the Act". The government way included a list of methods by which were allowed to "take" resident Canada Geese. I think you can oil the eggs but not smash them. And so on. FWS could not stand the thought of leaving them unregulated.

Despite this concession, I don't believe there is any principled distinction between migratory and non-migratory birds in regulations. There is a distinction between native and non-native birds. The three common city birds, house sparrows, pigeons, and starlings, are all unprotected. There is a longer list of unprotected birds published at the direction of Congress in the 2000s, but those are the only ones you are likely to see.

[Dr. Ed 2]

Heaven forbid they defer to the states -- who have jurisdiction over non-migratory animals.

Smashing eggs is ineffective in that the bird will lay more -- but not if there are already eggs in the nest.

During the Depression, what people used to do was smash all the eggs in a gull nest, and then come back and get the newly-laid ones and use them for food like hen's eggs. Apparently they are edible.

[Brett Bellmore]

Almost all eggs are edible. Bird or reptile, or even platypus. Flavor varies a bit between species, though.

I don't know, possibly some fish eggs might be toxic.

[Syd Henderson]

However, the Court decision was correct. They reasoned that protection of migratory birds had to be done on a national scale (actually any protection of wildlife), and that the constitution makes treaties the high law of the land

[Dr. Ed 2]

I'm not saying that there wasn't a legitimate problem in the 1920s -- there was. Lots and lots of increasingly rare birds were coming close to extinction because they were being used to make increasingly ornate hats for women. Sometimes there would be two or three birds on just one hat...

Notwithstanding what people believe today, it was the hat industry that nearly exterminated the Atlantic Puffin -- which has now made a comeback -- see: https://downeast.com/land-wildlife/project-puffin-at-50/ -- and you can see how a few of those, stuffed and mounted on a woman's hat, would have been attention-getting.

But this was back when the steam locomotive was state of the art transportation -- when people wouldn't worry about Canada Geese getting sucked into jet engines because jet engines didn't exist. And for all the talk of a "living constitution", we do need to have "living treaties" that reflect current realities and not those of the Wilson Administration.

[Magister]

"Canada Geese don’t migrate if they were born here"

OK, please note that this cannot be blamed on birthright citizenship.

[Michael P]

Would building a wall help prevent mass migration without a visa or residency permit?

[The Margrave of Azilia]

I think the Court was right in Missouri v. Holland, even though it spoke through Holmes.

There's nothing in the Constitutin indicating that the subject of treaties have to be among the Congressional powers listed in Art. I.

Some high-falutin jurist once said that treaties had to be on matters of international concern. Well, if there's enough of an international concern to prompt a treaty, then game, set, match, it sounds constitutional.

Exceptions: Treaties contradicting a specific provision of the Constitution, such as, say, a treaty requiring the abolition of trial by jury, or banning guns.

[Syd Henderson]

I was surprised it was 7-2.

[David Nieporent]

Well, if there’s enough of an international concern to prompt a treaty, then game, set, match, it sounds constitutional.

No, because nowadays many treaties are about purely domestic matters — e.g., the convention on the rights of the child — that people just want to codify as international law for emphasis, not because they raise international factors.

[ReaderY]

I think there are limits on Congress’ treaty power. I don’t think that Congress could sign a treaty doing things that it definitely cannot do.

But Congress can likely do by treaty pretty much anything it can do by statute.

Today it would be straightforward that when birds migrate, they are commercing among states and (more importantly here) countries. Since it’s pretty clear Congress could pass a statute on the same issue, and migratory birds are at least arguably an international matter, a treaty seems very straightforward.

[Dr. Ed 2]

I have a problem with it in that it was an end run around the 10th Amendment -- I never knew about the two prior court rulings.

Congress could have dealt with the hat problem via the Commerce Clause -- the dead birds were being taken across state lines to be made into hats, and often then again to be sold.

[ReaderY]

The corporal punishment in public schools ruling is still good law.

[Dr. Ed 2]

Subject to state law! It's the state who will investigate.

[David Nieporent]

No, it's great law.