The Volokh Conspiracy
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Today in Supreme Court History: June 18, 1787
6/18/1787: Alexander Hamilton introduces his plan to the Constitutional Convention.
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Walker v. Sons of Confederate Veterans, 576 U.S. 200 (decided June 18, 2015): Texas can refuse request to put Confederate battle flag on license plates; it’s “government speech” and government can determine content
Allen Bradley Co. v. Local Union No. 3 Teamsters, 325 U.S. 797 (decided June 18, 1945): Sherman Act violated by union and employers working in concert to exclude competition (here, electrical workers and manufacturers excluding out of state manufacturers outside union’s geographical jurisdiction to bargain with)
Department of Homeland Security v. Regents of the Univ. of California, 591 U.S. — (decided June 18, 2020): cancels Trump Administration’s attempt to end DACA program (Obama-era program allowing those who entered United States illegally as children to apply for deferral of removal, work authorization and various other allowances); rescission was done without explanation (e.g., “what if anything to do about the hardship to DACA recipients”) in violation of Administrative Procedure Act
Yeager v. United States, 557 U.S. 110 (decided June 18, 2009): acquittal on some counts (wire fraud) precluded retrial on Double Jeopardy grounds even though it was logically inconsistent with the jury failing to reach a verdict on the other counts (insider trading and money laundering)
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (decided June 18, 2009): plaintiff alleging age discrimination under ADEA must show but-for causation (i.e., age was the only reason for adverse employment event) instead of mixed-motive causation (e.g., also due to corporate restructuring); 5 – 4 decision
Barnes v. United States, 412 U.S. 837 (decided June 18, 1973): jury did not need to be instructed that defendant possessing stolen/forged Treasury checks must have known they were stolen from the mails (an element of the crime) (I learned a new term, or rather an old one — passing along a forged document, like a check, is called “uttering”)
United States v. Helstoski, 442 U.S. 477 (decided June 18, 1979): under Free Speech and Debate clause evidence of what Congressman actually did in Congress in exchange for bribes cannot be introduced (so how can you prosecute someone like Helstoski, who took money from foreign nationals in exchange for introducing private bills allowing them to stay in the country? because of this decision he went free though the charges ended his career)
Ohio v. Clark, 576 U.S. 237 (decided June 18, 2015): Confrontation Clause did not require cross-examination of preschooler who told teacher that his bruises were inflicted by defendant
Zobrest v. Catalina Foothills School District, 509 U.S. 1 (decided June 18, 1993): Individuals with Disabilities Education Act required school district to provide sign language interpreter for deaf child in Catholic school even though she would be at times relaying religious ideas
Torres v. Puerto Rico, 442 U.S. 465 (decided June 18, 1979): warrant needed to search luggage of persons traveling from mainland United States to Puerto Rico just like with intrastate travel
And passing a forged cattle future is called “uddering”.
And passing unprocessed milk called “buttering”.
It’s Father’s Day and I am permitted to get drunk while my family cooks a steak dinner. I am on my third martini. I have a number of additions to this thread but a “still, small voice” in my head says to not post them.
To all of you out there who have experienced the joys (and sometimes sorrows) of fatherhood, Happy Fathers Day.
Thanks!
“Torres v. Puerto Rico, 442 U.S. 465 (decided June 18, 1979): warrant needed to search luggage of persons traveling from mainland United States to Puerto Rico just like with intrastate travel”
Puerto Rico is an island at least 500 miles offshore and you can’t drive there — everyone flies there. Has this 1970s decision been rendered moot by the TSA’s authority to search luggage — and to tell the cops about any contraband they find?
And while we all know it would never happen, what prevents a police officer from suggesting that a TSA officer pay particular attention to a specific passenger(s) luggage? Actually, under the concept of “see something, say something”, would this even throw out the evidence if the officer admitted to it?
Won’t there be a bridge there like AOC proposed for Hawaii?
Kindler/Gentler Frank,
AOC dreams of things that are impossible to do, which is adorable and is an example of somebody who’s done an amazing job and is being recognized more and more, I notice.
Frank “Happy Juneteenth!!”
When according to the Queen slaves went from bondage to peonage.
…or a train, like Biden just talked about, to the Indian Ocean?
Complementing Walker v. Sons of Confederate Veterans, there was Wooley v. Maynard in 1977, holding that New Hampshire could not require motorists to display the state’s ideological message (“Live Free or Die”). So Texas also could not require all license plates to display the Confederate battle flag. Those who want to can put a bumper sticker with it on their car (and probably do).
Kinder/Gentler Frank here, as the Confederate “Battle” Flag is offensive to many, those who wish to display one should do it where those who may be offended won’t see it. And don’t mention that the current Georgia Flag, that nobody seems to have a problem with, is modeled after the “First National Flag of the Confederacy” it might offend some peoples.
Frank
Magister,
Thanks. Yes I commented on that case on April 20.
The decision came out when I was in college and my political science professor devoted a lecture to it. It showed the intersection between “government speech” and “compelled speech”. Then there was Louisiana v. Hill, 2020, where the state could not put “SEX OFFENDER” (in caps) on driver’s licenses because it was compelled speech.
Your contribution to these posts is much valued and no disrespect was intended. I expected it had no relation with June, let alone today; I just thought it was an interesting bookend (and I was too lazy to find its actual date and look at what was posted then).
Hmm, I now wonder if putting my unflattering true weight on my driver’s license is compelled speech that I could object to. (In fairness, it showed my 16 year old weight for decades, so I’ve probably come out ahead.)
Magister,
In no way was I offended! And thanks for your compliment.
So said the Louisiana Supreme Court, anyway. The U.S. Supreme Court denied cert in Hill. It relied heavily on Doe v. Marshall (M.D. Ala. 2019) which had ruled that a state requirement that sex offenders carry a special ID that said “criminal sex offender” was unconstitutional compelled speech.
But at least three other federal district courts have said otherwise in similar cases, albeit all were unpublished. Doe v. Kerry (N.D. Cal. 2016) (Passport is government speech, not subject to compelled speech analysis, though sex offender identifier in this case was an alphanumeric code, not the words “sex offender”); Benson v. Fischer (D. Minn. 2016) (civil commitment program that required participants to wear badge that said “Minnesota Sex Offender Program”); Reed v. Long (M.D. Ga. 2020) (requirement of prominent sign that said “sex offender” placed at homes around Halloween).
In Carney v. Oklahoma Department of Public Safety,875 F.3d 1347 (10th Cir. 2017), the court rejected the plaintiff’s claim that a “sex offender” label on his state ID violated the Eighth and Fourteenth Amendment, though it did not address the First Amendment issue, as plaintiff had forfeited the argument.
Thanks as always F.D.!
And thanks to you, as always! If not for your tremendous efforts, we’d have little to say on these threads. How much does anyone really have to say about Hamilton’s plan or the birthday of some justice who was born 200 years ago and spent six uneventful years on the Court?
I don’t think that decision was correct. Worth noting it’s a SCOLA decision, not a federal court decision.
Not saying I like it, but hard call. I’m generally very suspicious of anything that has a chilling effect on speech, even when repugnant.
Agree on Helstoski, I mean, if a Congressperson made a true threat on the floor of Congress would that be protected?
Without any doubt, yes, he would be. He would only be liable to the discipline of the House itself.
The main purpose of the Speech and Debate Clause is to protect Congress from the executive, who has the power to prosecute. It originates as a response of the King in England charging members of Parliament with sedition. It essentially is borrowed directly from the English Bill of Rights 1689, passed in the aftermath of the Glorious Revolution of 1688, in which Parliament deposed James II and replaced him with William III and Mary II.
The Supreme Court has acknowledged that it is a privilege that members of Congress can, and do, abuse, but that was the conscious choice of the Founders.
As for Helstoski, the Court said the government could introduce evidence that he took money in exchange for introducing a bill, but not evidence of the bill itself. The crime was complete when he took the money, even if he had never introduced the bill at all. This admittedly makes prosecution more difficult, as a jury will essentially see in incomplete picture, but not impossible.
Thanks.
The drafters of the clause were also thinking about the difficulty Parliament had with Charles I, who entered Parliament with troops and tried to put its members under arrest.
Parliament was set up by Edward I in 1292 as a means of legitimizing tax levies and afterward no monarch could rule without it. When it was king vs. Parliament, Parliament always won. The Framers consciously continued this tradition when they made Congress (Article I) predominant over the Executive (Article II) (and also over the Judiciary, Article III, though that’s another story).
Reminds me of the Rick Perry case in Texas years ago, where certain factions tried to charge him with violating laws for withholding money unless some unfavored person resigned.
It came out that even with tit for tat bribery, the illegality on that was on the agreement, even if neither side fulfilled their part, but that the government action, veto in this case, was not itself illegal because of that, because that would be a law from the legislative branch controlling the (state) constitutional exercise of an executive branch power.
Anyway, the governor had the power to withhold this as a form of arm twisting, and, IIRC, the money isn’t allocated until he signs the law, and vetoing it means it isn’t allocated and so couldn’t be withholding money under the terms of the law.
Unfortunately for us Congress has ceded much of its authority to the Executive either by commission or omission.
Another issue in the case was whether Helstotski had waived the privilege by repeatedly testifying in nine grand juries about the issue, and whether the privilege can be waived at all. The Court held he had not waived the privilege, so it did not reach the second question.
It is my opinion that the privilege cannot be waived, because it is an institutional privilege as well as an individual privilege.
Say someone accused a congressman of being belligerent during a committee meeting and yelling racial slurs. The congressman denies this and sues for defamation. Obviously, this would require his testimony about events at the meeting. He would probably want to call others who were at the meeting. Some might want to block this testimony concerning the meeting. It would be a mess. IMO, a court should block such a lawsuit from proceeding.
In the UK in the 1990s, a law was passed to address similar cases, allowing the suing MP to waive privilege. This was highly controversial, and the law was eventually repealed. (Forgive me for not providing more specific details off the top of my head).
Well, you get into gray areas. If it was part of a floor speech, it’s probably protected. But if he’s just milling about the wings while someone else is speaking, or while they’re voting, etc., then perhaps not. Obviously, a physical assault would not be protected.
But any arrest would be made by the US Capitol Police and not normal law enforcement, who have no authority on Capitol Hill.
This is the part about Jan 6th that everyone misses and why Nancy Pelosi really should be asked “where were all the cops?”
The Capitol Police could not have anticipated the scale of what happened. According to Trump supporters, the uprising was a surprise and unexpected (as well as unauthorized by Trump). Are they correct about that?
True, it was a Legislative Branch agency — but don’t you think Trump should have responded to Pelosi’s call for help? Is the Executive Branch that scrupulous as to Separation of Powers?