Today in Supreme Court History: June 16, 1960

6/16/1960: The 23rd Amendment is submitted to the states.

Comments

[Dan Schiavetta]

Bigelow v. Virginia, 421 U.S. 809 (decided June 16, 1975): with abortion now legal with Roe v. Wade, First Amendment violated by statute criminalizing advertising for abortions

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (decided June 16, 2014): pro-life group making pre-enforcement challenge to law prohibiting false statements during election campaigns alleged enough “imminent” (as opposed to “chimerical”) harm to create “case or controversy” allowing suit to go forward (here, they had falsely claimed that a Congressman had voted for taxpayer-funded abortions) (law eventually struck as in violation of First Amendment, 814 F.3d 466) (BTW he lost the election) ​

Kirtsaeng v. John Wiley & Sons, 579 U.S. 197 (decided June 16, 2016): court doesn’t have to award attorney’s fees (as is allowed by Copyright Act) if losing party pursued reasonably strong argument in defense (defendant bought plaintiff’s textbooks in Thailand and resold them in the U.S. for far less than what plaintiff was charging for them here; his defense was the “first sale doctrine” — any purchaser of a book can re-sell)

Universal Health Services v. United States, 579 U.S. 176 (decided June 16, 2016): parents of Medicaid-receiving teenager who died because of misprescribed drug given by uncertified doctor could pursue qui tam (“private attorney general”) action against health provider under False Claims Act (defrauding government by submitting false certifications for Medicaid reimbursement)

Davis v. United States, 564 U.S. 229 (decided June 16, 2011): illustrates the “good faith” exception to the exclusionary rule: admitting evidence obtained during search that was legal at the time (police can search passenger compartment of arrestee’s car without further suspicion needed, (New York v. Belton, 1981) but later held illegal (Arizona v. Gant, 2009)

Virginia v. Hicks, 539 U.S. 113 (decided June 16, 2003): rejecting defendant non-resident’s argument that ordinance against loitering in public housing development was facially overbroad under First Amendment

Allen v. St. Louis, I.M. & S.R. Co., 230 U.S. 553 (decided June 16, 1913): commission’s rate for intrastate tariff was not confiscatory “taking” because rationally based on proportion of railroad’s interstate v. intrastate business

United States v. Dickinson, 331 U.S. 745 (decided June 16, 1947): Tucker Act claim (compensation for a Fifth Amendment “taking”) for land lost due to flooding from government-built dam accrued not when water began to rise but when it stopped rising

Kent v. Dulles, 357 U.S. 116 (decided June 16, 1958): passport cannot be conditioned on denying Communist Party affiliation; right to travel is a “liberty” protected by Due Process clause of the the Fifth Amendment; Douglas writes for a 5 – 4 Court

NLRB v. Gissel Packing Co., 395 U.S. 575 (decided June 16, 1969): showing of signed, single-purpose authorization cards required employer to bargain with nascent union

[F.D. Wolf]

In 1970, New York became the second state (after Hawaii) to legalize essentially unrestricted abortion up to 24 weeks. As such, it became something of a national destination for women seeking abortions. Bigelow was the editor of a weekly magazine in Virginia, where abortion was not legal, that ran an advertisement promoting the availability of abortion in New York, noting that there was no residency requirement and providing a phone number women could call. Bigelow was convicted of a misdemeanor which prohibited the advertisement of abortion services. He was fined $500 (with $350 of that suspended, as long as Bigelow did not violate the statute again).

The Virginia Supreme Court upheld the conviction. As captcrisis notes, the Court then decided Roe v. Wade (1973). The Supreme Court accepted Bigelow's appeal, remanding the case to Virginia for reconsideration in light of Roe. The Virginia Supreme Court again affirmed the condition, noting that Roe had made no mention of abortion advertising, so the case returned once again to the Court.

Up to this point, the Court had consistently held that commercial speech did not enjoy any First Amendment protection, under the rationale that it was more commerce than speech, which the government was free to regulate. Nevertheless, the exact 7-2 lineup that had decided Roe of the Court overturned Bigelow's conviction. Justice Blackmun (who had also written the majority opinion in Roe, writing for the Court, held that the ad was not purely commercial speech, but also communicated an important political message, entitled to First Amendment protection. Justice Rehnquist, joined by Justice White, dissented, writing that the ad was a typical advertisement for a service, like any other ad, and, under the Court's precedents, could be restricted by the State.

Regardless, Bigelow is not really significant for its own holding as much as for the door it had inevitably opened. The very next year, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Court struck down a Virginia statute that prohibited pharmacists from advertising prescription drug prices, holding, for the first time, that commercial speech was entitled to First Amendment protection. Justice Blackmun again wrote the majority opinion. This time, Justice Rehnquist was the lone dissenter, presciently writing, despite the assurances of the majority and concurrences to the contrary, that "[u]nder the Court’s opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage.”

[Mr. Bumble]

"Up to this point, the Court had consistently held that commercial speech did not enjoy any First Amendment protection, under the rationale that it was more commerce than speech, which the government was free to regulate. "
When did this first come about?

[F.D. Wolf]

Specifically, Valentine v. Chrestensen, 318 U.S. 52, 54 (1941) ("[T]he Constitution imposes no ... restraint on government as respects purely commercial advertising.")

Chrestensen was a very brief, unanimous opinion authored by Justice Owen Roberts. It was always controversial because the Court did not cite a single precedent in support of the quoted proposition.

[Dan Schiavetta]

Commercial speech has enjoyed only a limited amount of First Amendment protection. It doesn't need more. As someone put it, "People will always be aggressive in trying to make money!"

[Mr. Bumble]

“People will always be aggressive in trying to make money!”
Is there something wrong with that?
Speech is speech and I can't see why there should be a distinction for "commercial speech".

[Dan Schiavetta]

The point being, commercial speech doesn't need as much protection. It's not so easily "chilled".

[arbitrary aardvark]

Commercial speech is core first amendment speech. Sure, art and literature and politics are nice perks, but commercial speech is what has allowed the usa to become an economic powerhouse able to defend itself militarily, raise the standard of living here and abroad, advance science. It should be given utmost protection.

I recognize this is not a widely held view.

[Mr. Bumble]

Thanks!

[Dan Schiavetta]

Thanks F.D.!

[taqmcg]

By coincidence given the noted anniversary of Universal Health Services v. United States, today the Court ruled in UNITED STATES EX REL. POLANSKY v. EXECUTIVE HEALTH RESOURCES, in another FCA qui tam case. While IANAL, my quick read suggested that Thomas' dissent was more consistent with the law (especially its history as he traces it). But probably a bridge too far given the disruption his approach would cause both in the immediate case of the FCA (where it could subject the government to having to continue responding in cases where the costs of discovery and such are greater than any award), and in his broader concern about the constitutionality of qui tam cases generally.

[The Margrave of Azilia]

“law prohibiting false statements during election campaigns”

The law being challenged was above and beyond the laws against defamation. The challenged law gave special privileges to political candidates who claimed they were defamed during an election campaign. In addition to their preexisting right to resort to the courts to counteract defamation, the challenged law gave candidates in elections – but not average Joes who got defamed – a fast-track to have their complaint considered administratively and potentially prosecuted.

The plaintiffs weren’t asserting a right to commit defamation, they were asking that they not be singled out for these special procedures for saying something bad about a candidate during an election. Of course a candidate is going to claim any criticism of him is false, whether it’s actually false or not, empowering candidates under the challenged statute to legally harass even accurate critics.

(Maybe the Ohio statute balances out Sullivan, which gives unfair *disadvantages* to public figures. But as they say, two wrongs don’t make a right)

[Frank Drackman]

the "Give DemoKKKrats 3 automatic Electrical Vote Act of 1960"
Ironic in that DemoKKKrats of 1960 weren't really down with "The Cause" Trying to remember the last time DC went Repubiclown...

Frank

[Dr. Ed 2]

Nixon did best in 1972 when he got 20% of the DC vote, and actually won one ward. And that was in a 49 state landslide.

[Syd Henderson]

Apparently DC was more balanced in 1960. Eisenhower and Nixon were in favor, though it wasn't ratified until the next year.

[Dan Schiavetta]

Republicans were still the “Party of Lincoln” in 1960, as opposed to all those Democratic segregationists. Not so much in 1972.

[Frank Drackman]

George McGovern considered George Wallace for his running mate in 72', partly because he won the Michigan, Maryland(!), North Carolina and Florida primaries, even visited him in the hospital after Bremer shot him.

[not guilty]

George McGovern considered George Wallace for his running mate??

That would be quite surprising. Where did you get that notion?

[Krychek_2]

IIRC, the last actual Klansman to be elected to public office was Republican David Duke. Once the Democratic Party stopped being the party of segregation, the segregationists all started voting Republican. And, if those Dixiecrats came back from the dead, today they would all be Trumpists; certainly none of them would be welcome in today's Democratic Party.

The repeated invocation of long dead segregationists who no longer speak for the party makes no more sense than would the claim that we should stop supporting Israel because of what Joshua did to the Canaanites. Old history is old history.

I had not heard that McGovern considered Wallace as his running mate. Assuming that to be true (and I will confess to being skeptical), in point of fact politicians consider doing all kinds of things that they ultimately decide are a bad idea. So what?

[Dan Schiavetta]

I can imagine McGovern extending some feelers in that direction, but it's unlikely Wallace would have considered it, even in the interests of Party unity, because he had run for President himself in 1968, and probably would not have been too upset at seeing Nixon win.

[Dr. Ed 2]

Senator Byrd (D-WV) was routinely re-elected until he died.

As to McGovern considering Wallace, isn't that the same thing as Kennedy picking Johnson in 1960? While LBJ was many things, a New England Liberal wasn't one of them, and remember that Wallace was a moderate on racial issues until he lost the 1958 primary for Alabama Governor.

I'm not sure they could play nicely together, but with the extreme positions McGovern was taking on ending the war and providing a minimum annual income, someone like Wallace would be the only thing that could keep the Southern Democrats in the tent.

[Krychek_2]

Senator Byrd repudiated his Klan membership before he was elected to the Senate. I'm willing to credit people for being wiser today than they were yesterday.

Fifty years out, McGovern's position on ending the war doesn't seem extremist at all, and Nixon essentially did so the following year. Picking Wallace might have helped McGovern in the South, but it would have killed him with Democrats everywhere else. If McGovern did entertain the idea I doubt he entertained it for long.

[Frank Drackman]

Senator Bird's the only Senator who voted against both Thouroughly Bad Marshall, and Clarence "Frogman" Thomas, and if he was still alive, probably would have voted against Ke-grungy Jackson Brown, because she can't tell a Dong from a Pussy, (makes as much sense as Howard Heflin voting against Bork because of his Beard). Yes, he turned in his Klan robes, like Obama turned in his opposition to SSM, when it was no longer a popular position...

Frank

[Frank Drackman]

Here's video of McGovern right after paying his respects to Wallace
I have this really expensive research service, it's called "Youtube"

https://www.youtube.com/watch?v=01gbk0zqPBM

[not guilty]

I have heard that Hugo Black, Jr. said of his father´s onetime KKK afiliation: ¨As a young man, my father put on white robes and scared hell out of black people. As an older man, he put on black robes and scared hell out of white people.¨

[Dr. Ed 2]

I don't know if DC was more balanced in 1960, but this was before the Voting Rights Act passed. Just sayin....

[Frank Drackman]

So Marion Barry wasn't Mayor yet?? How horrible!!!!!!

[Dr. Ed 2]

"(defendant bought plaintiff’s textbooks in Thailand and resold them in the U.S. for far less than what plaintiff was charging for them here; his defense was the “first sale doctrine” — any purchaser of a book can re-sell)"

Legalities aside, Wiley charges outrageous prices for it's textbooks and this is an aspect of the higher education market that no one ever talks about. And I'd like to know how much of the foreign market Wiley lost after it raised foreign prices to US levels.

"court doesn’t have to award attorney’s fees (as is allowed by Copyright Act) if losing party pursued reasonably strong argument in defense" Didn't Wiley lose the case at the SCOTUS level?

[Dan Schiavetta]

When I was an undergrad (1970s) textbook overpricing was a big issue. Nowadays, with ebooks, I don't know. When I was in law school (ca. 1990) there was a lot of (illegal) copying going on because professors didn't want to make students spend $75 on a book that had maybe two or three worthwhile chapters in it.

You're right about Wiley. Thanks, will rephrase. The Court never mentions the strength of Wiley's argument which is what threw me off.

[Dr. Ed 2]

Don't forget the Kinko's case: https://fairuse.stanford.edu/case/basic-books-inc-v-kinkos-graphics-corp/

They (and others) were providing spiral-bound textbooks consisting of photocopies of book chapters provided by the author, and when I bought one of these (from a lesbian collective, this was Amherst) as an assigned text, I couldn't understand how it wasn't a violation of the copyright act.

[Dan Schiavetta]

I’ve mentioned the Kinko’s case before.

At the time, my housemate was working at Kinko’s and he got a big kick out of the decision. Particularly, “The extent of Kinko’s insistence that its concerns are educational and not profitmaking boggles the mind.” Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1532 (S.D.N.Y. 1991).

[Syd Henderson]

I thought Wiley won. It was 6 - 3 in his favor. But maybe not on the attorney's fee issue,

[Dr. Ed 2]

"For these reasons we conclude that the considerations supporting Kirtsaeng’s nongeographical interpretation of the words “lawfully made under this title” are the more persuasive. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

IANAA but "reversed and remanded" means that Wiley *lost*. See: https://www.law.cornell.edu/supremecourt/text/11-697

[Syd Henderson]

Oops, I got the names reversed. Yes, Kirtsaeng won 6 - 3, so we're in agreement. But Wiley apparently didn't have to pay attorney's fees, but Kirtsaeng made a fair amount of money from the sales.

[Mr. Bumble]

What does the submission of the 23rd Amendment to the states have to do with Today In Supreme Court History?

[Dan Schiavetta]

As my first girlfriend used to say, "If you really loved me, I wouldn't have to explain -- you'd already know!"

[Syd Henderson]

I can sort of see it for the date it was ratified. Constitutional Amendments do affect the future of the Supreme Court, although I doubt they get more than a few, if any, on the 23rd Amendment.

[Mr. Bumble]

"...although I doubt they get more than a few, if any, on the 23rd Amendment."
Wondering if there have been any cases based on the amendment?

[John F. Carr]

Like the person giving money to a government official doesn't need to specify the quid pro quo. By the time something important is to be decided the official should already know what the guy with money wants.

[SMP0328]

In Adams v. Clinton, 26 F. Supp. 2d 156 (D.D.C. 1998), the DC District Court referred to the 23rd Amendment as both sides had cited it regarding whether DC was entitled to Congressional representation. The court ruled the amendment didn't help either side. The Supreme Court summarily affirmed the District Court's ruling that DC was not entitled to such representation. Adams v.
Clinton, 531 U. S. 941 (2000).

[Champion]

True

[Rev. Arthur L. Kirkland]

Another day, another triviality (birthday, oath, death, nomination, breakfast order) that avoids mention of Supreme Court decisions that conservative Profs. Barnett and Blackman figure their right-wing fans don't want to read about.

Conservatives operate and attend lousy (fourth-tier or worse, nonsense-teaching, censorship-shackled) schools; our nation's strongest research and teaching institutions are operated and attended by America's modern liberal-libertarian mainstream. This blog -- Today In Supreme Court History in particular -- follows a predictable course.

Carry on, clingers.

[Frank Drackman]

YOU carry on, "Coach"
well don't "Carry on" with what got you in
https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
or maybe do "Carry on" as the late/great William H. Buckley said,
"Better to have Homosexual rapes in Attica Prison than Central Park"

Frank

[Mr. Bumble]

Anyone have an inkling as to why the SC is sitting on releasing so many decisions?

[arbitrary aardvark]

two weeks to go, 3 per day on mondays thursdays and fridays takes care of the remaining 18 cases. then a wrap-up day of some gvrs.

[Magister]

I'm expecting a Blackman faux-insider post to explain it, that some subset of the court is doing it just to provoke him, or for an equally unlikely reason that he has discerned by detecting obscure patterns in previous opinions.