Today in Supreme Court History: December 23, 1745

12/23/1745: Chief Justice John Jay's birthday.

Chief Justice John Jay

Comments

[Dan Schiavetta]

International News Service v. Associated Press, 248 U.S. 215 (decided December 23, 1918): wire services can’t steal stories from one another (the Court, creating pre-Erie “federal common law”, held that this was common law misappropriation of property; such a tort in this context has been preempted by the Copyright Act of 1976, see 650 F.3d 876)

Singer Mfg. Co. v. Rahn, 132 U.S. 518 (decided December 23, 1889): sewing machine salesman was agent of employer (even though working on commission) and therefore employer was liable when salesman ran his horse-drawn cart into plaintiff

Capital Square Review and Advisory Board v. Pinette, 510 U.S. 1307 (decided December 23, 1993): denying stay of order forcing state of Ohio to allow Ku Klux Klan to put up a “Latin cross” in front of statehouse because harm already done and it would be removed the next day anyway (upon direct appeal the Court held that under First Amendment private parties cannot be prevented from putting up unattended cross on publicly owned square designated by law as forum for public discussion of issues, 515 U.S. 753, 1995) (btw the cross, anchored in temporary fashion in a pail of cement, sure looks like it’s ready to be burnt on the lawn of some black family -- look at the photo and judge for yourself -- https://www.mtsu.edu/first-amendment/article/734/capitol-square-review-and-advisory-board-v-pinette)

[David Nieporent]

such a tort in this context has been preempted by the Copyright Act of 1976, see 650 F.3d 876)

The "hot news" misappropriation doctrine still exists, narrowly, though. See, e.g., Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011), which — while finding it preempted in that particular case — lays out its elements.

[Dan Schiavetta]

Thanks!

[Dan Schiavetta]

P.S. I like that court's little joke at Fn. 3.

[The Margrave of Azilia]

OMG, that joke was filthy, the court should be ashamed of itself!

[apedad]

Is your Capital Square Review decision date (December 23, 1993), correct?

Looks like it was decided at the SC on June 29, 1995.

https://supreme.justia.com/cases/federal/us/515/753/

[Dan Schiavetta]

I'm reporting on the motion for a stay. (On slow days like Dec. 23, I resort to "shadow docket" stuff.) As noted, the decision on the full appeal is at 515 U.S. 753.

[apedad]

Got it!

[JoeFromtheBronx]

Capitol Square Review and Advisory Bd. v. Pinette is one of a handful of SCOTUS cases involving alleged government endorsement of religion arising from holiday displays.

This one was 7-2 on one point (display allowed), 5-4 on another (Scalia's broader argument lost out).

I'm sympathetic to Justice Stevens' dissent in the case when it was decided on the merits. Nonethleless, the right of all comers to equally put in place a display in a certain designated area is a reasonable compromise. A governmental display should also be properly diverse.

[Again, there are problems with this approach, but it's a reasonable compromise overall.]

At any rate, what the people in the days of Chief Justice Jay thought of this matter (if they ever did) should not be determinative.

Happy Holidays!

[apedad]

I appreciate Justice Thomas' concurrence and the nuance he highlights that the cross was not a religious symbol - in this case - but a political symbol.

"I join the Court's conclusion that petitioners' exclusion of the Ku Klux Klan's cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one.

There is little doubt that the Klan's main objective is to establish a racist white government in the United States. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan. The cross is associated with the Klan not because of religious worship, but because of the Klan's practice of cross burning."

[Dan Schiavetta]

For its positions on racism and antisemitism, the Klan unfortunately had plenty of Biblical support to draw from.

[JoeFromtheBronx]

Thomas was still asking questions during the oral argument back then before his long hiatus. He asked some good questions regarding the KKK's usage of the cross. See also, Virginia v. Black. It is good he is asking questions again.

[The Margrave of Azilia]

Apedad must be drinking too much Egg Nog if he, a progressive, says something positive about Justice Thomas.

[JoeFromtheBronx]

Sometimes, the actual SCOTUS thing on a specific day involves an execution. There will be 37 fewer opportunities.

I noted in the past that I had doubts that President Biden would commute the sentences of those on federal death row. At least one person quite firmly said it wouldn't happen.

As Chris Geidner reported, in the words of the president:

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

https://substack.com/inbox/post/153498574

We can imagine the responses. Geidner provided multiple cases, including letters from victims' families [in a past substack], of people supporting the move. Others will oppose it.

On that front, one thing that stands out in my memory involves a long ago execution involving the murder of an elderly man in a robbery. His two brothers split on their views.

[Dan Schiavetta]

As I've said before, one of the things that embarrasses me as an American is the fact that we still have a death penalty at all.

[Mr. Bumble]

Another day that will live in infamy.
Joe Biden cements his place as the worst President in US history.

[Syd Henderson]

He commuted the sentences to life without parole. It's not like they're going free any time soon.