Court to take a varied look at the First Amendment
Lyle Denniston, Constitution Daily’s Supreme Court correspondent, breaks down the new cases accepted by the Court on Thursday, including four that involve constitutional questions.
The Supreme Court, often interested these days in how far the First Amendment goes to protect freedom of expression, moved back into that area on Thursday as it selected new cases to be decided in the term that opens formally next Monday.
Among eight new cases the Justices scheduled for review were four that involve constitutional questions, and two of those focus on the First Amendment. Beyond those four, another case involves an issue that is close to constitutional in nature – the sovereign status of America’s Indian tribes. And another turns on the duty of courts to use fair procedures – a guarantee similar to what the Constitution requires in criminal cases – when they impose money penalties on lawyers for professional misconduct.
Before Thursday, the Court had already accepted 27 cases for decision in its new term. Those probably will be heard in the next three months. The newly added cases will come up for hearings early in the new year. It is still not clear when, or even whether, the court will have a ninth Justice to hear any of the cases accepted so far for the new term. The stall in the Senate on the nomination of federal Judge Merrick B. Garland continues.
The court had hundreds of cases that had built up in recent months, and it had full discretion to take or deny any of them, but it chose only eight. The absence of a ninth Justice may have played some role in limiting the number of newly granted cases; eight is a comparatively low number for the first round of grants.
The two First Amendment cases new on the decision docket are very different. One involves the question of whether it violates the guarantee of free speech for the government to refuse to grant a trademark that would “disparage,” or be offensive, to someone; the other tests whether it violates the concept of free commercial speech for a state law to control how merchants explain to their customers a higher price they incur when they use a credit card.
The trademark case (Lee v. Tam) involves an appeal by the federal Patent and Trademark Office, seeking to have the court revive the disparagement law. It has been struck down by a federal appeals court, in a case involving a rock music band that wanted to register its name, the SLANTS, for protection as a trademark. The denial of that registration, the appeals court said, stifled the band’s free speech rights.
The court also had under consideration a slight variation on that First Amendment issue in a case (Pro Football, Inc., v. Blackhorse) involving several trademarks that the Washington professional football team has had for years for its name, the Redskins. That case does not involve denial of a trademark, but revoking one that already existed. The team wanted the Supreme Court to take on its case along with the rock band case, to have the court make a broader look at the trademark question under the First Amendment.
The law against disparaging trademarks has existed since 1946, but the Supreme Court has never interpreted its meaning or scope. That has meant that the Patent and Trademark Office had wide discretion about what would or would not be banned under the law.
The commercial speech case (Expressions Hair Design v. Schneiderman) involves the constitutionality of laws in New York (as well as in nine other states) that allow merchants to charge higher prices to customers who pay with a credit card rather than with cash, but make it a crime to tell the shopper that the added amount is a “surcharge” that is being tacked on. The added amount is usually called a “swipe fee” and credit card companies do not like having it described as an added fee. The federal appeals courts are in conflict over whether such laws restrict the speech that merchants can convey to their customers.
A question of constitutional due process is raised in a new case from Colorado. While that state, like a number of others, allows a person to get a refund of a fine that had been imposed for a criminal conviction, if that conviction has been overturned, Colorado makes it harder to qualify for a refund. The individual must make a strong showing that he or she was, actually, innocent. The validity of that requirement is at issue in the case of Nelson v. Colorado.
The other new constitutional question is whether a federal criminal law that may be invalid because its scope is too vague may, despite that, be used as the basis for ordering the deportation of an individual who has been living legally in the United States. The federal government has taken that issue to the court, arguing that the Constitution should not be as vigorous in demanding precision in-laws when they are used in the deportation context. That case is Lynch, Attorney General, v. Dimaya.
The question of the sovereign immunity of Indian tribes to being sued without their consent arises in a case from Connecticut, involving an auto accident involving an Indian tribal member who was driving a limousine carrying casino passengers. The limousine crashed into the rear of a car, resulting in an accident that injured two people. Those two sued the Indian driver but did so targeting him as an individual not as a representative of his tribe. The Connecticut Supreme Court, however, ruled that the driver shared in the tribe’s immunity because the accident occurred while he was performing his job for the tribe. The case is Lewis v. Clarke. The Court apparently took the case because lower courts are split on the issue.
The question of how federal courts should go about imposing money penalties on attorneys for professional misconduct tests whether the kind of fair procedures that are used in criminal prosecutions should also govern the sanctions process for attorneys. The Justices agreed to decide that issue in two cases that will be heard together (Goodyear Tire v. Haeger and Musnuff v. Haeger).
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
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