Today in Supreme Court History: June 22, 1992

6/22/1992: R.A.V. v. City of St. Paul is decided.

Comments

[Dan Schiavetta]

I’ve been blocked — a 403 “your access has been declared unsafe” error.

I’ll keep trying but in case I can’t get through, you can read today’s cases on my own site.

Or -- maybe someone who is considered less dangerous can cut and paste the cases from there to here.

[bernard11]

Something funny going on.

I can't open the comments on the open thread, though I can open others.

I'm also being asked to log in at least once a day.

Anyone else have these problems?

[Dan Schiavetta]

Let me try one case at a time.

Jacobellis v. Ohio, 378 U.S. 184 (decided June 22, 1964): The obscenity case wherein Potter Stewart says, “I know it when I see it.” He is referring to “hard-core pornography”. But at issue here is a 1958 French film called “Les Amants” (“The Lovers”). (It’s on youtube at www. youtube.com/ watch?v=_WMb1V4bhA8. There’s no nudity or sex, though at 49:08 we see the lovers waking up in bed. Maybe the supposed obscenity is in the dialog -- I don’t speak French. The film seems mostly set in Algeria; see it just for the cinematography, which is beautiful.) Anyway, the Court (including Stewart) holds it to be not obscene.

[Dan Schiavetta]

Olmsted v. L.C., 527 U.S. 581 (decided June 22, 1999): ADA outlaws “segregation” of disabled people and is violated when “mentally retarded” and schizophrenic women are kept in institutions when they could be placed in community based programs

Carpenter v. United States, 585 U.S. --- (decided June 22, 2018): police who had properly received robbery suspect’s cell phone records do not need warrant to search cell tower information which shows times and places of suspect’s whereabouts

​

City of Los Angeles v. Patel, 576 U.S. 409 (decided June 22, 2015): City code requiring hotel operators to keep records of all guests and provide them to police on demand (the purpose was to detect and punish sex trafficking of children and smuggling of migrants) violates Fourth Amendment

​

Bell v. Maryland, 378 U.S. 226 (decided June 22, 1964): twelve black students were convicted of refusing to leave whites-only restaurant but then the law changed (so as to outlaw segregated restaurants) -- but -- Maryland had a “savings” statute that preserved liability after any change in law; Court remands back to Maryland’s highest court, the Court of Appeals of Maryland (which held that it was bound by the savings statute, 236 Md. 356, even though the prosecution joined with defendants in urging vacatur!)

Escobedo v. Illinois, 378 U.S. 478 (decided June 22, 1964): a pre-Miranda case excluding statements by an arrestee whose request to see his attorney was repeatedly refused and who was not advised of his right to remain silent

Jones v. Jones, 234 U.S. 615 (decided June 22, 1914): upholding Tennessee law that married slaves could pass their property to children but not other descendants, a rule which did not apply to other married couples (WTF!) (estate passed to widow of the decedent and not to his siblings as would have happened in this case with a white couple) (WTF!)

Michigan v. Summers, 452 U.S. 692 (decided June 22, 1981): police searching a house with a warrant have the right to detain anyone in the house in aid of the search (here, they found narcotics and arrested the guy they had ordered not to leave)

Rock v. Arkansas, 483 U.S. 44 (decided June 22, 1987): strikes down Arkansas rule prohibiting hypnotically refreshed testimony (here, murder defendant testifying that her gun in fact went off by mistake)

[Dan Schiavetta]

The problem is with the R.A.V. case itself.

Let me try again. Maybe sentence by sentence.

R. A. V. v. City of St. Paul, 505 U.S. 377 (decided June 22, 1992):

[Dan Schiavetta]

ordinance that prohibits display of a symbol that “arouses anger,

[Dan Schiavetta]

alarm etc. on the basis of race, color, creed, religion or gender” is

[Dan Schiavetta]

facially overbroad and in violation of First Amendment freedom of

[Dan Schiavetta]

expression

[Dan Schiavetta]

(defendant had burned a cross on the lawn of the black family across the street) (I sure hope they got him on some other charge) (he was the only neighbor not invited to their daughter’s graduation party and I can see their point)

[Dan Schiavetta]

[OK that's it]

[Magister]

I expected that to end with "Burma Shave".

[Dilan Esper]

I get the Burma Shave joke. That probably dates me.

[Dilan Esper]

I think you got Carpenter quite wrong and if Prof. Kerr were here he would refuse to buy you a beer until you corrected it.

Carpenter holds that cell phone information provides so much detail about your life that police generally need a warrant and probable cause to search it.

[Dan Schiavetta]

You’re right. I treated the Magistrate’s order as a warrant whereas the Court held that it was (ahem) unwarranted. Will correct. Thanks!

Tell the Prof my tastes are simple. Miller Genuine Draft would be fine.

[not guilty]

Poor Justice Stewart! He reportedly joked that ¨I know it when I see it¨ would probably be engraved on his tombstone.

[Syd Henderson]

For some reason, I guessed it would have been a case where the film would have been obscene. Perhaps the case came about because the couple woke up in bed. That was a no-no in Hollywood for quite a few years under the Hays Code, which was still in effect in 1967 (though not enforced that much by 1964). I didn't think it was applied that strongly to foreign films, or there would have been a number of delightful Sophia Loren films ("Marriage Italian Style," and "Yesterday, Today and Tomorrow") that would have gotten in trouble.

[Syd Henderson]

I was just thinking his gravestone should read: "Potter Stewart, 1915 - 1985, HE KNEW IT WHEN HE SAW IT" but he beat me to it. RIP Justice Stewart.

[Mr. Bumble]

Maybe the problem is with the site itself. Open thread just vanished again.

[bernard11]

I think so.

[SRG]

Re: Rock

I am generally sceptical about the use of hypnosis but under controlled circumstances - as prevailed in this case = the refreshed testimony has evidentiary value that a jury should have been allowed to consider.

Rehnquist's dissent is the usual, "the defendant being guilty, the usual constitutional protections don't apply" with extra verbiage.

I wonder - not rhetorically - about what percentage of criminal appeals to the SC found both Rehnquist and Scalia ruling against the convict.

[Dan Schiavetta]

I tend to make “Type II errors” — I think I don’t know something when in fact I do know it. Someone will ask (for example) whether I’ve ever done a deposition in a police brutality case. I’ll say no. A few nights later I will wake up and remember one I did in 1993.

It would be great if, via hypnosis or otherwise, buried memories can be routinely excavated.

[Magister]

Reliably as well as routinely. But answering "where did I leave my keys?" would still be useful, even if not entirely reliable.

[F.D. Wolf]

Also decided this day in legal history, June 22, 1772, was Somerset v. Stewart, [1772] 98 Eng. Rep. 499 (K.B.).

James Somerset was an enslaved African who had been purchased in Massachusetts Bay Colony by Charles Stewart, a British customs official, who brought Somerset to England with him. While in England, Somerset escaped. but was recaptured. Stewart held him in a ship, with orders that he be sold into labor in Jamaica. Somerset’s godparents from his baptism in England filed a habeas petition on his behalf.

The Court of King’s Bench, per Lord Mansfield, wrote that slavery was an odious practice that it was unsupported and unrecognized under common law, and was only subject to analysis under positive [statutory] law. And since the law of England of Wales did not recognize slavery, Somerset must be set free.

Historians have debated the actual contemporary importance of the ruling, but it did run counter to some earlier cases which treated slaves as property, subject to the common law regarding property, which the court noted in its opinion. The ideas of “law of the locality” and “once free, forever free” in respect to slavery (rejected by the U.S. Supreme Court in Dred Scot) did take root in some states. For example, in Commonwealth v. Dennison (1781), the Supreme Judicial Court of Massachusetts, per Chief Justice William Cushing (later to become an inaugural member of the U.S. Supreme Court), held that slavery was incompatible with the language of the new state constitution.

[Dan Schiavetta]

Thanks!

[Dan Schiavetta]

corrected! (I hope) h/t Dilan Esper

Carpenter v. United States, 585 U.S. --- (decided June 22, 2018): warrant needed for cell phone records over a period of six days which revealed defendant’s whereabouts (including being at place and time of robbery); without saying so, Court holds that 18 U.S.C. §2703(d), which allowed court to sign subpoena for telecommunications records “relevant and material to an ongoing criminal investigation”, violates Fourth Amendment requirement of warrant based on probable cause