Today in Supreme Court History: January 9, 1919

1/9/1919: Schenck v. United States argued.

Comments

[Magister]

captcrisis already posted in another thread.
https://reason.com/volokh/2024/01/09/the-eu-ai-act/?comments=true#comment-10391044

[Dan Schiavetta]

Thanks but with the correction noted by apedad, I'll repost here.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (decided January 9, 1990): “adult” businesses had Free Speech right to contest zoning ordinance that allowed denial of occupancy without procedural safeguards: applying standard from Freedman v. Maryland, 1965: municipality cannot allow “unbridled discretion”, must put time limit on decision, and must allow for prompt judicial review (for judicial review of some embarrassing City Council dereliction as to an adult business, see http://www.metnews.com/articles/2005/lshs010305.htm, or 22 Cal. Rptr. 3d 805)

United States v. Chicago, N.S. & M.R. Co., 288 U.S. 1 (decided January 9, 1933): ICC can’t suddenly construe regulation as requiring trolley car company to get its permission before issuing bonds, after years of not requiring it from other companies

White v. Pauly, 580 U.S. 73 (decided January 9, 2017): officer who shot and killed man who was pointing gun at him from inside house was not acting in violation of “clearly established” law and therefore was entitled to qualified immunity (reading the opinion one sees ugly behavior on both sides, arising from a report of road rage and drunk driving)

Chao v. Mallard Bay Drilling Co., 534 U.S. 235 (decided January 9, 2002): barge in state territorial waters was subject to OSHA violation on matter not addressed by Coast Guard regulations (uninspected well leaked natural gas and spark caused explosion killing four)

Fiore v. White, 531 U.S. 225 (decided January 9, 2001): granting habeas relief where state supreme court had held that defendant’s conduct (operating unlicensed hazardous waste facility) was not within scope of charged statute but nevertheless had refused to free him and had answered Court’s certified question that its holding as to the statute was not retroactive

[Sarcastr0]

I don't know how inspiring you would find it, but I think that taking notes and thus continuing on next go-round with crowd-sourced improved updates seems like it'd be pretty boss.

[Dan Schiavetta]

That’s what I’ve been doing.

I suppose it's time to (partially) "come out": I've published a book on Amazon of these daily summaries. I only did it after one and a half go-rounds were completed (18 months), incorporating the corrections. Of course as you can see I still get the occasional detail wrong.

[Sarcastr0]

Cool - I have friends who have thought about self-publishing via Amazon but no one I know had actually done it.

No harm in a revised edition!

[Dan Schiavetta]

If too many mistakes pile up, I'll do the revised edition.

Or better yet -- I can put out a new edition annually, incorporating corrections and adding cases that happened in the past year. (The edition I did publish, which came out on Nov. 21, has cases from 2023 that I haven't commented on here yet.)

Publishing wasn't as hard as I thought. There are some quirks in how Amazon wants things formatted, etc. but they weren't insurmountable.

[Commenter_XY]

Wait, are you serious? = 'published a book on Amazon of these daily summaries'. That is awesome!

I like these summaries, captcrisis. How do I get the book? It takes time to compile all this.

[defaultdotxbe]

I searched a bitnon Amazon but wasn't able to find it. Hopefully he'll give us the title at least!

[Dan Schiavetta]

Hint: it’s for people (like me) with short attention spans

Thanks for the compliment

[David Nieporent]

Is there going to be an audiobook version?

[Dan Schiavetta]

If there’s one book that should not be listened to seriatim in audio, it’s my book. An audio version would cause deaths by drivers falling asleep to increase by (I’ve figured this out) 337%.

[Dilan Esper]

The trick would be to get Ben Stein to read it. I'm imagining his slow voice droning on... "National League of Cities versus Usery..."

[F.D. Wolf]

The Chicago, N.S. & M.R. Co. case concerned a statute which prohibited carriers from issuing bonds without ICC approval, but the statute contained an exception for “a street, suburban, or interurban electric railway which is not operated as a part of a general steam railroad system of transportation.” The rail company argued that it fell within this exception. The Court held that while the definitions of the terms used in the exception were not clear, as the ICC had allowed the company, which had already issued many bonds, to claim this exception for ten years, it would not be fair to reverse itself now.

This is, of course, more than 50 years before Chevron (1984), and the Court here is, obviously, choosing not to defer to the ICC. It struck me that this was very similar to the “bump stock” case in which the Court recently granted cert. Cargill v. Garland (5th Cir. 2022). In that case, the ATF, for more than ten years, including the issuance of several decision letter, had held that a bump stock did not fall under the statutory definition of an illegal “machinegun”. In 2018, after the Las Vegas mass shooting, the ATF reversed itself, ruling that a bump stock was a “machinegun”.

The Fifth Circuit, reversing the district court, ruled against the ATF, holding that agencies were not entitled to Chevron deference in cases that involved criminal penalties. The government appealed, and the Court granted cert. I was curious to see if this railway case, which involved potential civil and criminal penalties, was cited at all in Cargill, but it has not been cited since 1962.

[Dan Schiavetta]

thanks!

[not guilty]

Schenck is among the most loathsome judicial decisions in American history.

[Rev. Arthur L. Kirkland]

.

[Stephen Lathrop]

I take it that yesterday's Trump fiasco on immunity is headed for the Supreme Court. Any opinions about the lawyers and their representation? As I listened to excerpts, I found myself wondering why one of the judges—who all must have been aghast—was not startled into asking what I suppose is an inappropriate question of Trump's lawyer: "Have you instructed your client that these arguments are certain to fail?"

For attorneys here, why wouldn't that performance by John Sauer be sanctionable? Does the notion of zealous advocacy extend to flagrant judicial time wasting, to run out the clock until the client can escape accountability?

[SomeGuy 2]

Judges are definitely not going to ask counsel about their communications with their client-- those are questions the attorney can't answer subject to narrow exceptions not relevant here. And I've heard lawyers argue worse in court and not get sanctioned-- people representing death penalty clients will argue anything with a straight face because they typically have no good arguments. I tend to think judges should be more willing to issue sanctions but empirically speaking this is very rare for 'merely' a bad argument.

[David Nieporent]

I tend to think judges should be more willing to issue sanctions but empirically speaking this is very rare for ‘merely’ a bad argument.

Especially in criminal cases. For obvious reasons, when people's liberty is at stake, judges tend to give their attorneys lots of leeway.

That having been said, Lathrop is being Lathrop here; while Sauer's arguments were terrible, they weren't close to crossing the line into sanctionability territory. It's not like he was arguing something actually foreclosed by precedent. Sauer's biggest problem was that because his real audience was Trump rather than the judges, he couldn't make even the smallest concessions that might have made his position narrower and thus less laughable.

[TwelveInchPianist]

"while Sauer’s arguments were terrible..."

One of the arguments was an odd one for a political rival of the current President to make. I wonder if Sauer warned his client of the potential consequences of that argument prevailing.

[David Nieporent]

You mean, "It's okay for Biden to assassinate Trump"? Yes, that was kind of an odd argument by Sauer.

[TwelveInchPianist]

Yup. Maybe Biden will ask the government to concede that one.

[SMP0328]

Schenck did not laid the seeds for anything. The Court simply de facto overruled it in Brandenburg v. Ohio, 395 U.S. 444 (1969), replacing a disgraceful decision from a Court that at the time of Schenck saw individual rights merely as obstacles to be overcome.

[David Nieporent]

Not only was it awful, but it gave us that awful metaphor that people mindlessly use in the service of awful without understanding it because it’s so catchy.

[Syd Henderson]

But another quote gave us the title of a Tom Clancy novel that begat a Harrison Ford movie.

[Dan Schiavetta]

Properly understood, though, the phrase is true. You can be charged with endangerment (or something like that) despite the First Amendment if you know there’s no fire in that crowded theater but shout it out anyway. It’s in effect the same as pulling a false alarm, which as my Congressman found out recently, is a criminal offense.

[David Nieporent]

The problem is, (a) there are key elements of the formulation that get left out of the popular understanding of the phrase ("falsely," and "causing a panic"); and (b) people actually use it for the general proposition that not all speech is protected, from which they immediately jump without any intervening steps to "therefore, this speech I don't like isn't protected."

[Dr. Ed 2]

In defense of Holmes, one needs to understand that "fire in a crowded theater" was a very different thing in 1923 than it is today.

First, while the "safety" film of today is made out of polyester, it was made out of nitrocellulose back then. Guncotton. It was explosive, it was flammable, and it often caught fire in the projection booth.

There were no sprinkler systems, fire alarms if they even existed were nothing more than mechanical bells, and it goes without saying that there were neither smoke detectors nor alarm systems wired into the local fire station. The multiple red boxes with flashing strobe lights that we have today didn't exist.

Fire trucks at the time were still largely horse drawn and consisted of a coal-fired boiler that ran a pump of sorts, the pump having to build up steam pressure before it could do anything. Urban areas had hydrants but they were nothing like the ones of today. And there was no emergency lighting, either.

There weren't fire doors or a lot of other things, and a lot of buildings were made out of structural wood (which burns) as opposed to the concrete and steel of today (which doesn't). We also have exit requirements and other stuff they didn't have -- most of the theaters
of a century ago wouldn't meet code today. They had straw-stuffed seats which burned nicely, as opposed to the fire resistant ones of today.

Fire was a real concern back then -- in a way it isn't now -- and the alarm usually consisted of someone shouting "fire" -- which would then be repeated by others. It was what they had, and the world they lived in.

What upsets me is when people -- on either side -- quote the "fire in a crowded theater" line in the context of today and not when Holmes said it. He could have made a similar statement about manure on the public highway -- something likely common then, but not today.

[Dan Schiavetta]

True

[markm23]

'from which they immediately jump without any intervening steps to “therefore, this speech I don’t like isn’t protected.”'

Which is just what Injustice Holmes himself did in this case - pretending that distributing pamphlets (which cannot cause an immediate panic) was the equivalent of shouting fire. Also pretending that falsity was an element of the crime or had been proven in court. The more truth there was in Schenk's ravings, the more eager the government would have been to suppress them!

[Noscitur a sociis]

The criticism of Holmes's metaphor is that it's used to justify suppressing speech that should be protected (like, for instance, criticizing conscription). It's not that actually falsely shouting fire couldn't really cause a panic.

[Dr. Ed 2]

My point is that his analogy was far more inflammatory then than it would be now -- and hence shouldn't be viewed in a modern light.

Of course the other thing about Holmes and that decision is that he had personal knowledge of the US Civil War -- he was a veteran of it. He undoubtedly was aware of the NYC draft riots, which required active duty Army to suppress. (I'm told they have no idea how many people died because all the bodies were tossed into the river to float out to sea.)

I'm not justifying Holmes nor his decision, merely stating that his view of speech criticizing conscription may have been different from yours or mine because of his lived experiences. And remember too that -- because of immigration dating back to the 1700s -- there was a support for Germany that wouldn't exist in WWII because the latter involved Hitler while WWI was largely an European civil war.

Personally, I don't think we should have gotten involved in that war at all, but I digress...