This post is written by Associate Editor Jennifer Moore. Opinions and views expressed herein are those of the writer alone.

“We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we cannot have both.”

                                                   -Justice Louis D. Brandeis-

Campaign season is upon us and news outlets are reporting on how many millions of dollars in campaign contributions small groups of wealthy donors’ plan on spending to buy the candidates of their choosing. A Washington Post article reports that the Koch brothers held their semi-annual meeting in Indian Wells, California with 550 ultra-wealthy donors to formulate plans that include the spending of $300 million-$400 million dollars on the 2018 midterms.[i] This spending is 60% more than the network of donors spent in the 2016 election.[ii] And this group of politically active, wealthy donors is but one of many groups that intend to spend enormous amounts of cash on the upcoming 2018 mid-term elections. Excessive amounts of money that flow into national party campaign coffers and political action committees (or PAC’s) result in a growing disparity of influence in legislative policy outcomes that strike at the core of our democratic ideals. It’s time to reassess the principle that money equals speech. And it’s time to question whether any limits on political spending that do not trigger a narrow definition of quid pro quo corruption violate the First Amendment. And it’s time to enact strong, meaningful legislation that regulates all forms of political spending. Regulations need to address not only those contributions that flow into national political parties and registered PAC’s, but also those contributions that flow through streams of dark money.

Ever since Buckley v. Valeo[iii], almost 41 years ago, the Court has tried to strike a balance between the freedom of people to spend money in political campaigns without restricting their First Amendment rights to free speech and the need for restrictions that prevent corruption of elected offices by wealthy donors.  According to the Supreme Court, the fundamental presumption of legislation determining limits on political spending assumes that it is permissible for Congress to pass legislation that deters or prevents the corruption of the political process. The presumption also holds that it is impermissible for Congress to pass legislation limiting political spending that does not have the appearance of quid pro quo corruption.[iv]

By narrowly defining corruption as only a quid pro quo arrangement between the candidates and their wealthy donors, as the majority opinion of the Court affirms in Citizens United[v] and McCutcheon,[vi] the Court dismisses the corrupting connection between the enormous amounts of campaign dollars lavished on candidates or spent on behalf of a candidate’s election through political action committees (PAC’s) and the outsized influence those donors have on adopted policies. It has resulted in a government that is far less responsive to the majority of Americans and far more likely to cater to the policy desires of wealthy donors. Even though it is within the power of the Court to broaden the definitions of corruption and the appearance of corruption, the Court has declined to do so. Instead, the Court adheres to the idea that Justice Kennedy put forth in McConnell, that favoritism and influence are not avoidable in representative politics.[vii] He explained that it is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.[viii] He opined that democracy is premised on responsiveness.”[ix]  But the current easing of political spending limits has resulted in responsive democracy for only the wealthy few.

In a study published in 2014, Martin Gilens and Benjamin Page researched theories of influence that different political groups have on US government policy.[x] In their research, a central point that emerged from the research was that economic elites and organized groups representing business interests have substantial impacts on government policy, while mass-based interest groups and average citizens have little or no independent influence.[xi] Generally, the research found that strong support among high-income Americans roughly doubles the probability that a policy will be adopted , while strong support among the middle-class has essentially no effect on policy.[xii] The affluent are better at blocking policies they dislike. When they strongly oppose a policy that the middle class doesn’t strongly oppose, then that policy has only a 4 percent chance of being adopted.[xiii] Many instances exist where high- and middle-income Americans hold similar views on policies, which usually result in a higher probability for both groups to have their preferred policies adopted.[xiv] Gilens and Page call this “democracy by coincidence.”[xv] But this isn’t real democracy at all, it is merely a pale imitation.[xvi]

If the Courts are unwilling to prevent the outsized influence that a few wealthy donors have through stronger limits on campaign spending, then at least the courts could more aggressively insure that public disclosure measures are enforced.  The Court in both Citizens[xvii] and McCutcheon[xviii] seemed to rely on disclosure mechanisms as a preventive to any potential corruption and as a way of providing the public with the information they need to stay informed about how the campaign efforts of PAC’s and the candidates are funded. However, a large percentage of the political expenditures in recent election cycles flow through 501(c) organizations. These political nonprofits are under no legal obligation to disclose their donors.[xix] When they choose not to, they are considered Dark Money groups.[xx] Super PACs can also be considered Dark Money groups in certain situations.[xxi] While these organizations are legally required to disclose their donors, they can accept unlimited contributions from political non-profits and “shell” corporations who may not have disclosed their donors, in these cases they are considered dark money groups.[xxii]

Unfortunately, the agency that is solely authorized to regulate federal election campaigns under the Federal Election Campaign Act, the Federal Election Commission (or FEC), has been crippled by deadlock and inaction for many years now.  A New York Times article from August 2014 notes that the Commission, which is made up of three Democratic members and three Republican members, has deadlocked on 3-3 votes more than 200 times in the preceding six years.[xxiii] The article goes on to suggest that instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.[xxiv] Through this disfunction, the FEC doesn’t just allow dark money groups to pump millions of dollars into the PACs under the radar. The FEC’s lax oversight of these organizations may have also allowed spending from foreign governments to flow into our elections. A news outlet has reported recently that an ongoing FBI investigation has unearthed Russian oligarch’s contributions to the NRA, an organization that has aggressive participation in elections both federally and in local and state elections.[xxv] While it is illegal to use foreign money to influence federal elections, there is not much oversight at the FEC to guard against this.

Congress could draft legislation that would at the very least bolster the disclosure laws that could shine a light on dark money and other forms of political expenditures, without restricting free speech rights. Instead, a handful of leaders in Congress are quietly, behind the scenes, trying to make it even harder for Americans to discover which wealthy donors are funding the candidates.[xxvi] They have attempted to pass policy riders into important legislation in order to make it harder broaden the avenues for dark money and to make it harder for other government agencies to create rules that require donor disclosure from PAC’s.[xxvii] It appears that many members of Congress are now largely captured legislators, much like government agencies can become captured by the very industries they are meant to police.

These issues specifically center around political speech, not any other kind of speech. As Justice Breyer notes in his dissent in McCutcheon there is a constitutionally necessary “chain of communication” between the people and their representatives.[xxviii] The First Amendment functions to secure these chains of communication between political speech and government action.[xxix] Permitting these enormous political expenditures by a wealthy few drowns out the political speech of those citizens who cannot afford thousands of dollars’ worth of “speech.” As Breyer also states, where enough money calls the tune, the general public will not be heard.[xxx] The Court cannot so willfully continue to turn a blind eye to these corrupting influences on our democracy. The influence these wealthy donors have on our government may not have a quid pro quo connection, but it certainly is corrupting.

[i] James Hohmann & Matea Gold, Koch Network to Spend $300 Million to $400 Million on Politics, Policy in 2018 Cycle, WASH. POST (Jan. 29, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/01/28/koch-network-to-spend-300-million-to-400-million-on-politics-policy-in-2018-cycle/?utm_term=.cc60bab950e9.

[ii]  Cailtin Owens, Koch Network to Spend 4300-400 Million on 2018 Midterms, AXIOS, (Jan. 27, 2018). https://www.axios.com/koch-network-to-spend-millions-on-midterms-1d7f5df8-c1b6-40f7-b5e4-7c1bed25062e.html.

[iii] Buckley v. Valeo, 424 U.S. 1 (1976).

[iv] McCutcheon v. FEC, 134 S. Ct. 1434, 1438 (2014).

[v] Citizens United v. FEC, 558 US 310, 356-357 (2010).

[vi] McCutcheon, 134 S. Ct. 1434.

[vii] McConnell, 540 U.S. 93, at 297 (2003).

[viii] Id.

[ix] Id.

[x] Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 AM. POL. SCI. ASS’N. 564 (Sept. 2014).

[xi] Id. at 565.

[xii] Martin Gilens & Benjamin I. Page, Critics argued with our analysis of U.S. Political inequality. Here are 5 ways they are wrong, WASH. POST. (May 23, 2016), https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/23/critics-challenge-our-portrait-of-americas-political-inequality-heres-5-ways-they-are-wrong/?utm_term=.874fc1915bb0.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Citizens, 558 U.S. 310.

[xviii] McCutcheon, 134 S. Ct. 1434.

[xix] OpenSecrets.org, https://www.opensecrets.org/dark-money/basics.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Nicholas Confessore, Election Panels Enacts Policies By Not Acting, N.Y. TIMES, Aug. 25, 2014, https://www.nytimes.com/2014/08/26/us/politics/election-panel-enacts-policies-by-not-acting.html.

[xxiv] Id.

[xxv] Peter Stone & Greg Gordon, FBI Investigating Whether Russian Money Went to NRA to Help Trump, McCLATCHY, (Jan. 18, 2018), http://www.mcclatchydc.com/news/nation-world/national/article195231139.html).

[xxvi] Ciara Torres- Spelliscy, Congress Could Hardwire Dark Money into Our Democracy, THE HILL (Dec. 4, 2017), http://thehill.com/opinion/campaign/363144-congress-would-hardwire-dark-money-into-our-democracy.

[xxvii] Id.

[xxviii] McCutcheon, 134 S.Ct., at 1467.

[xxix] Id.

[xxx] Id.

SEC RATIFIES ADMINISTRATIVE LAW JUDGES AS PETITION FOR CERT IS GRANTED IN LUCIA V. SEC

 

This post is written by Associate Editor Brison Wammes. Opinions and views expressed herein are those of the writer alone.

On November 30, 2017, the Securities and Exchange Commission announced that it had ratified their prior appointments of several Administrative Law Judges.[1]  This is a significant turn of events for the case of Raymond J. Lucia and Raymond J. Lucia Companies Inc. v. SEC, a case currently pending before the Supreme Court of the United States.  In this case, the SEC is arguing against a claim by Raymond J. Lucia that the SEC’s Administrative Law Judges are officers of the United States that fall under the Appointments Clause of the United States Constitution.[2]  By ratifying the appointments of these SEC Administrative Law Judges, the SEC now claims that because these judges have been appointment in accordance with the Appointments Clause of the Constitution, no further proceedings are necessary, as the Petitioner’s claim is now moot.[3]  However, the case is still set to continue, with oral arguments to be heard by the Supreme Court in the upcoming term.[4]

Lucia has the potential to be a monumental case with regards to prior cases decided by these Administrative Law Judges of the SEC and other executive agencies as well.  If the Supreme Court finds that these judges were officers within the scope of the Appointments Clause, this would call into question every decision made by Administrative Law Judges that were appointed in a similar fashion to those of the SEC.  The result of this would be administratively catastrophic.  Hundreds, if not thousands, of cases will be called into question and the courts will be flooded with the petitions of previously scorned opponents of executive agencies.

[1] Press Release, Securities and Exchange Commission, SEC Ratifies Appointment of Administrative Law Judges (November 30, 2017) (on file with author).

[2] See Raymond J. Lucia and Raymond J. Lucia Companies Inc. v. Securities and Exchange Commission, 868 F.3d 1021, cert. granted, 2018 U.S. LEXIS 621 (U.S. Jan. 12, 2018) (No. 17-130).

[3] Order, In re Pending Aministrative Proceedings, Securities Act Release No. 10,440, at 1 (Nov. 30, 2017) (“Ratification Order”).

[4] Supreme Court of the United States, Granted & Noted List Cases for Argument in October Term 2017 (Jan. 12, 2018), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-130.html.

Circuit Courts Show Diversity Amid the Diversification of Corporate America

This post is written by Senior Editor Cody Dalton. Opinions and views expressed herein are those of the writer alone.

A common trend in employment in recent times is to try and create a diverse workforce.  Having diversity in the workplace has many benefits ranging from learning from cultural customs that may not seem quite customary from your own point of view to creating diverse insight into issues that the company may be facing.  Focusing on inclusiveness in the workplace can also lead to higher moral of employees.  Overall having a workforce that is diverse fosters cohesion amongst people from various races, backgrounds, and belief systems tends to improve the overall dynamic and public perception of almost any organization.

Cultural awareness is at an all time high.  In a day in age where we can turn on the news and see debates about organizations like Black Lives Matter or whether white supremacists should be able to speak their point of view, there is special attention being paid to how we should treat other people who are not like ourselves.  In the context of the work place, Title VII of the Civil Rights Act is in place to ensure that companies treat their employees in an equal manner with respect to their cultural attributes.   Title VII protects against discrimination by employers to employees on the basis of sex, race, color, national origin, and religion.[1]  However, these definitions do not cover all of the biases and prejudices that exist in the world today.  Most notably are the issues that are being faced by the LBGTQ community.

In the wake of Obergefell, the case which gave same sex couples the right to marry[2], society has begun to recognize a need to ensure civil rights are extended to protect the LGBTQ community.  Both gender and sexual orientation are classes that are not currently covered by Title VII, however, there is some movement in the appellate courts which have been changing that construct.  Last year the U.S. Court of Appeals for the 7th Circuit decided Hively in which an adjunct professor at Ivy Tech Community College was fired on the basis that she was a lesbian.  The court held that Hively’s sexual preference was in fact protected under the Title VII.[3]  This is directly contradictory to rulings that have been handed down in other Circuits across the country.

In the 11th Circuit the issue had recently become ripe for appeal to the Supreme Court.  In Evans a split panel made a stare decisis type of ruling on whether sexual orientation would be a protected class under Title VII, indicating in its opinion that it must rely on prior precedent to determine the case and that only an en banc decision could overturn the ruling of the state court which simply said that sexual orientation is not a protected class.[4]  The court declined a motion for reconsideration en banc leaving the 11th Circuit’s dismissal with prejudice in place.[5]  The Supreme Court subsequently denied a petition for certiorari.  The ruling in Evans is in direct contradiction to rulings such as the one given by the 7th Circuit in Hively.  Because of the circuit court split, we may see the Supreme Court take a stance on the issue sooner than later.  A potential reason for denying such an issue could have been the vacant seat of the late Justice Scalia, which has now been filled by Justice Gorsuch; now that there is a full panel of judges, the court may be more inclined to take on these types of pressing issues.

This may leave employers asking, “So is sexual orientation protected or not?”  The answer is not going to be easily addressed for the time being and the best answer may be, “it depends on where you are operating.”  Lawyers may want to take special precautions in advising employers who operate on a national level because the legal outcome of an employment scenario involving sexual preference in one place may be completely different than the outcome in another place, even if the cases appear to be doppelgangers.  The best advice would probably be to avoid this type of discrimination across the board in order to mitigate liability because as cultural trends progress, the law will always grow to protect fundamental civil liberties.  As could be gleaned from the Obergefell ruling and dissent taken as a whole, the principle of stare decisis will not or should seldom be more important than the personal dignity granted to an individual for being who they are.  I would forecast that in the near future, the protections offered by Title VII will include not only sexual orientation but probably gender as well; but only time will tell.

 

 

[1] Civil rights Act of 1964, Title VII.

[2] Obergefell v. Hodges 135 S.Ct. 2584.

[3] Hively v. Ivy Tech, 830 F.3d 698 (7th Cir. Ct. App. 2017).

[4] See Evans v. Georgia Regional Hospital, 850 F.3d 698 (11th Cir. Ct. App. 2017).

[5] See Ford & Harrison LLP, Eleventh Circuit Sets the Stage for U.S. Supreme Court Certification on Whether Sexual Orientation is Protected by Title VII, Lexology, July 11, 2017, https://www.lexology.com/library/detail.aspx?g=db179c88-2330-4a22-96f9-e42734be7476.

GREENER PASTURES? THE EFFECT OF THE FAMILY FARMER BANKRUPTCY CLARIFICATION ACT OF 2017

This post is written by Associate Editor Amy Robinson. Opinions and views expressed herein are those of the writer alone.

 

During the 1980s the American farming community was under much financial duress as interest rates skyrocketed and farm operations which had formerly been profitable were driven out of business.  Variable and adjustable interest rates to farmers were heavily blamed for the disarray that took place in American agriculture during this time period.  Farmers watched as their cost of production would literally triple overnight due to the increased cost of capital funding because of interest rate volatility.  This paved the way for commercial banks to more foreclosures and acquisition of assets than possibly ever before.

One avenue of relief for farmers affected by this financial crisis was to consider a Chapter 12 bankruptcy filing.  Chapter 12 of the Federal Bankruptcy Code is specific to “family farmers” and “family fishermen.”[1]  In order to qualify for this type of relief, a family farm must: (1) be engaged in a farming operation (2) have total debts of his or her operation not exceeding $4,153,150; (3) at least 50% of the total debts that are fixed in amount must be related to the farming operation; and finally, (4) more than 50% of the gross household income for the preceding year must come from the farming operation.[2]  In addition to these requirements, a corporate farm must meet other caveats to qualify, including being a privately-held corporation without publicly traded stock.[3]  The upside to filing Chapter 12 as opposed to Chapters 11 or 13 is its specific tailoring to farming operations.  By comparison, Chapter 11 is much more geared towards large, corporate businesses, while Chapter 13 is friendlier to smaller, wage earner reorganizations.[4]

Filing bankruptcy under Chapter 12 during the farm crisis could have been key for leveling out the agricultural economy during that time period.  However, although many farm families were open and willing to the thought of Chapter 12 and liquidation, often times they were unable to go down this path.  Farmers who liquidated assets by selling would be subject to huge tax ramifications via the federal income tax and the capital gains tax.[5]  Even in Chapter 12 bankruptcy the tax bills would still inevitably be passed on to the already distressed farming operation.  Both farmers and their lenders were in a bind with very limited options.  Even if the lender foreclosed on the property (e.g., by acquiring real estate, equipment, etc.) the farmer-owner would still be subjected to the tax burden.  There seemed to be no good solution.  Many agriculture economists would subsequently argue that the government’s lack of stepping in could be a factor to how long and drawn out the 1980s crisis really was.  If there had been some viable solution for farmers during that time-period, things may have been drastically different for the economic recovery time.

Fortunately in 2005 Congress recognized this issue and amended Chapter 12 procedures in an attempt to remedy the tax problem.  The amendment allowed an eligible farmer under Chapter 12 to liquidate assets and discharge the tax liability as an “unsecured claim” under the plan.[6]  This means that when a farmer sells real estate or equipment while under Chapter 12 bankruptcy, the income and capital gains tax debt can be considered the same as unsecured debt that is outstanding.  Because of this important addition, the unsecured debt was able to be discharged the same as any other unsecured debt.  This was a major victory for farmers who were trying to find relief via Chapter 12 bankruptcy.  However, the courts have since interpreted the statute in many different ways which have been inconsistent from circuit to circuit.[7]  Some of these judicial holdings have been farmer friendly, while others have been more IRS friendly.

In 2012, the United States Supreme Court found more on the IRS friendly side in Hall v. United States.[8]  The issue in this case was whether the income and capital gains taxes incurred during the bankruptcy (through sale of assets) would be dischargeable debt, or if the statute only applied to income and capital gains taxes which occurred as the result of sales before the bankruptcy was filed.[9]  Ultimately the court held that a farmer may not discharge the tax liability if it was incurred during the bankruptcy.[10]  This put farmers in distress essentially back to 1980s era policy surrounding liquidation, which as previously stated, there existed very few options for relief.

Since the Hall decision, Congress has put forth a substantial effort to legislatively address the problem once again.  In October 2017 Congress passed, and President Trump signed into law, the Family Famer Bankruptcy Clarification Act of 2017 (“Act”).[11]  The Act was truly a bipartisan effort to eliminate the ambiguity from the former statute and implement new legislation which would solve the issue once and for all.  The Act eliminated enforcement of the former 2005 amendment to the Code (§ 1222(a)(2)(A)) and implemented a new section for clarification.[12]  The new § 1237 allows a farmer to be discharged of the tax liability even if the liability is incurred through sale of assets during the bankruptcy.[13]  This legislation essentially vacates the decision in Hall, and it removes the requirement that tax liability is only dischargeable if the debt is incurred prior to filing Chapter 12 bankruptcy by removing priority status of the tax debt.[14]

Although the U.S. agriculture economy is not exactly the same presently as it was during the 1980s, farmers are still in a very tough environment today to make ends meet.  Interest rates have remained fairly stable, but agricultural commodity prices are down, while input costs are still at an all-time high.  These market conditions could be the recipe for an agricultural disaster or a repeat of the 1980s.  Congress’ proactive approach and passage of the Act in 2017 was certainly a step in the right direction for both agricultural debtors and creditors when facing adversity.  This tax relief will serve as an important resource in a farmer’s toolbox should the farmer find himself or herself in a situation where Chapter 12 bankruptcy is a viable solution.

[1] 11 U.S.C. §§ 101(18), 101(19A), 109(f) (2016).

[2] Id.

[3] Administrative Office of the Courts, Chapter 12 – Bankruptcy Basics (2017), available at http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-12-bankruptcy-basics.

[4] Ann Shaw, Michael Crowson, Farmers Only (and Fishermen, Too), 50-OCT Md. B.J. 64, 67-68 (2017).

[5] Brett Morrison, Spoiling a Fresh Start: In Re Dawes and a Family Farmer’s Ability to Reorganize Under Chapter 12 of the U.S. Bankruptcy Code, 53 B.C. L. Rev. E-Supplement 89, 92 (2012).

[6] 11 U.S.C. § 1222(a)(2)(A).

[7] See Morrison, at 94-95 (discussing the disagreement among the Federal Circuit Courts).  

[8] Hall v. United States, 132 S.Ct. 1882 (2012).

[9] Id.

[10] Id.

[11] Family Farmer Bankruptcy Clarification Act of 2017, 11 U.S.C. § 1237 (2017).

[12] Id.

[13] Id.

[14] Id.

Matal (née Lee) v. Tam: The Patent Trademark Office is not the Government’s “Peaceful Grove”

 This post is written by Lead Notes Editor Clay Sabourin. Opinions and views expressed herein are those of the writer alone.

And in Peaceful Grove, you write messages, but peaceful messages.

And above all, you don’t write messages that will provoke others to violence or bad feelings.

Okay? Anything wrong with that? I can’t think of anything wrong with that.

There are thousands of places where you can express hostile feelings.

It’s just in this tiny place, one-quarter of an acre, that you yourself have chosen to take advantage of that, because if you can’t, it will destroy the purpose. It will destroy the purpose of Peaceful Grove.

-Justice Stephen Breyer, Oral Argument for Lee v. Tam, January 18, 2017.

 

“So sorry if you take offense

But silence will not make amends”

-The Slants, From the Heart

 

Matal (née Lee) v. Tam: The Patent Trademark Office is not the Government’s “Peaceful Grove”

 

In June of 2017, the Supreme Court of the United States sided with Asian-American “dance-rock” band the Slants, holding the Patent Trademark Office (“PTO”) could not deny the group’s application to trademark its name.[1] All eight sitting justices ruled in favor of the Slants, though the Court split 4-4 on the precise reasoning for the decision. Justice Alito penned the majority opinion (joined by Roberts, Thomas, and Breyer), while Justice Kennedy (joined by Ginsburg, Kagan, and Sotomayor) wrote a lengthy concurrence.

The PTO denied the Slants application, citing the possibility that a large composite of a minority group could find the trademark “disparaging.” The Court’s decision affirmed the Federal Circuit Court of Appeals, which held sub judice that the PTO could not deny the Slants trademark application under section 15 U.S.C. § 1052(a) of the Lanham Act (the PTO’s organic statute).[2] Section 2(a) of the Lanham Act permitted the PTO to deny otherwise valid applications if they “consist of or compromise . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, national symbols, or bring them into contempt, or disrepute.” Both the Federal Circuit and the Supreme Court found section 2(a), the “disparagement clause,” to be an unconstitutional restraint on free speech.

Though undoubtedly exciting for free speech enthusiasts (and the Slants), the majority opinion written by Justice Alito left plenty of unanswered questions. The concurrence written by Justice Kennedy had similar shortcomings. It is worth emphasizing that the decision was a clear victory for the “marketplace of ideas” –– a lively affirmation of the First Amendment. The majority opinion was a blistering, at times even mocking rebuke of the PTO’s (and by extension, Congress’) attempt to implement an obnoxious “happy-talk” clause into the federal trademark program.[3] The Concurrence flatly concluded the government was attempting to silence speakers and messages it disfavored, constituting facially invalid “viewpoint discrimination.”[4]

Nevertheless, both opinions failed to answer critical questions. Though presumably “strict,” the Majority did not explicitly declare the level of scrutiny it was applying. Furthermore, the Majority and the Concurrence declined to resolve whether trademarks are commercial or private speech, concluding section 2(a) of the Lanham Act was unconstitutional either way. The Concurrence at least mentioned the government can continue to suppress speech that is fraudulent, defamatory, or incites violence.[5] On this point, the Majority held its cards closer to its chest. The extent to which other questionable aspects of the Lanham Act survive going forward––the “scandalous or immoral” clause for instance––is open to debate.[6]

Perhaps the most salient takeaway was the Court’s forceful condemnation of the Government’s primary argument that trademarks are “government” speech, immune from customary constitutional precepts. The government relied heavily on Walker v. Texas Div., Sons of Confederate Veterans, Inc., a case in which the Court held Texas did not have to offer license plates depicting confederate flags.[7] Texas objected to the plates over concerns confederate flags could be deemed offensive. In Walker, the Court sided with Texas, stating, “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”[8] In Tam, the Court didn’t think the government was speaking at all. The Court wryly observed, “if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make. Believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)?”

The Slants typified a sympathetic champion to defeat the trademark office’s ban on “disparaging” speech. In fact, the Slants vigorously argued at every appellate level its proposed trademark was not disparaging at all, but instead was meant to empower Asian-Americans by way of “cultural reappropriation.”[9] There is no reason to doubt the Slants’ sincerity on this point. However, more questionable trademarks with even more questionable purposes are looming. The National Football League’s Washington Redskins, who notably had their trademark protection stripped due to the perception “redskin” was a disparaging racial slur towards Native Americans, are nearly certain to be re-registered.[10] The Redskins, much like the Slants, argued strenuously that its name was a term of empowerment for a minority group. However, unlike the Slants, the ownership of the Redskins is not comprised of Native Americans.[11] In fact, numerous Native American organizations have publicly voiced their displeasure with the team’s use of the term.[12] These considerations make it difficult for the trademark office to discern the Redskin’s true intentions. In the wake of Matal v. Tam, however, it is no longer a concern of the government. An inevitable wave of offensive trademarks are about to be registered, but the consuming public, not the government, must choose an appropriate response.

 

 

 

 

 

 

 

 

 

[1] Matal v. Tam, 582 U. S. ___, 1-2 (2017).

[2] Id. at 5-6.

[3] Id. at 25.

[4] Matal v. Tam, 582 U.S. ___, 1-2 (2017) (Kennedy, J., concurring)

[5] Id. at 2 (citing United States v. Stevens, 559 U. S. 460, 468 (2010)).

[6] https://www.natlawreview.com/article/historic-ip-decision-future-immoral-scandalous-and-disparaging-trademarks

[7] See Generally Walker v. Texas Div., Sons of Confederate Veterans, Inc., 125 S. Ct. 2239 (2015).

[8] Id. at 2245.

[9] Tam, Petitioner’s Merits Brief, at 21-22.

[10] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/the-slants-and-the-redskins-win-the-government-cant-deny-full-trademark-protection-to-allegedly-racially-offensive-marks/?utm_term=.77e66ce5b775

[11] http://www.espn.com/blog/washington-redskins/post/_/id/16046/washington-redskins-ownership-at-a-glance

[12] http://ftw.usatoday.com/2017/12/washington-redskins-name-change-hoax-redhawks

Bail is Being Revolutionized in Modern America, but the Job is Not Done

 This post is written by Associate Editor Lindsay Mumley. Opinions and views expressed herein are those of the writer alone.

There have been two major improvements to the bail system in America during a recent push for bail reform: the use of risk-based assessments and getting rid of the money bail system1 Only New Jersey and Washington District of Columbia have abolished the money bail system. The rest of the country continues to utilize the money bail system but have added the risk assessment in an effort to foster objective reasoning in determining bail.

The risk assessment utilized in pre-trial is derived from empirical research that evaluates a defendant’s likelihood to make all future court appearances and have a successful pre-trial free of any new charges 2 The assessments vary depending on the jurisdiction but generally have similar factors that are weighed.3 These factors include criminal history, age, previous failures to appear, and other individualized characteristics.4

The assessment results in the defendant being scored based on his risk level.5 Virginia uses a numerical based scoring that ranges from one to five, five being the highest risk level. States like Kentucky and Colorado translate the numerical score derived from the assessment into categories: low risk, medium risk, and high risk.6 The judge uses this score to make a determination about bail.

While a step forward in much-needed reform, risk assessments can be an incomplete picture of what will determine success in pre-trial. A defendant may be low-risk, however, more intrusive court services are warranted due to a drug addiction or mental health issue.7 Ultimately, the judge is expected to weigh the score and other extrinsic, relevant characteristics in determining bail.8 However, judicial latitude in making these determinations are the reason why more reform is required to restore the presumption of innocence in pre-trial.

 

The Supreme Court repeatedly affirms that liberty and justice are not luxuries of the rich defendants.9 However, using a risk assessment score alone results in two defendants with identical risk scores with vastly different fates: one jailed for being poor and the other, just as “risky” defendant, on the streets. Continuing to use a monetary bail system violates any notion of equal justice or fundamental fairness as required under the fourteenth amendment.10 Reforming how unjustly the impoverished are affected during pre-trial is fundamental in overhauling bail because they make up almost 80 percent of the criminal population.11

Often judges are making an arbitrary bail decision without taking into account the individual financial capabilities of the individual.12 Only half of the individuals are able to meet the financial obligation of bail.13 The other fifty percent are deprived of equal justice despite frequent supreme court rulings disavowing incarcerating an individual because he is poor. The true violation of fundamental fairness is evident when looking at the unjust effect of remaining incarcerated has on the defendant’s criminal case.

Even if innocent, a defendant who is detained pre-trial is more likely to plead guilty in order to be released.14 Regardless of guilt, remaining detained pre-trial has profound effects on the sentence the defendant will ultimately receive. A detained defendant is least three times more likely to be incarcerated and face sentences three times longer than their released counterparts.15  The current bond money system is manufacturing unjust results for being poor and should be abolished.16 It is already happening and the results illustrate that money bail is not necessary to protect the government’s interests.

New Jersey has not only implemented a risk assessment tool but has essentially eradicated the money bail system.17 During the implementation of these new polices, the jail population dropped over thirty percent.18 The community is safer with an unprecedented drop in violent crime and overall crime.19 New Jersey accomplished this without unjustly affecting the impoverished.

The District of Columbia has been without money bail for many years and as a result has one of the lowest pre-trial detention rates in America.20 Ninety-two percent of defendants are released pre-trial and inability to pay is never a factor.21 While release rates are high, the research shows the governments interests to prevent future crime and ensure court appearances are met.22 Ninety percent of released defendants had no issue making all future court appearances.23 Of the defendants released, eight-nine percent were not rearrested on new charges and ninety-eight were not re-arrested on violent charges.24 The District of Columbia is another jurisdiction illustrating that the justice system does not need money bail to ensure appearance rates or protect the public.

The United States Supreme Court held that “in our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.” 25 In order to achieve that aspiration, eradicating the money bail system and enforcing objective risk-based assessment is an absolute.

 

1 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

2 Pretrial Justice Institute, Pretrial Risk Assessment: Science provides guidance on assessing defendants. Issue Brief, May 2015, http://www.pretrial.org/download/advocacy/Issue%20Brief-Pretrial%20Risk%20Assessment%20(May%202015).pdf

3 Id.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 The supreme court held that, there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 591 (1956). And further held that depriving a defendant of liberty based on his inability to pay was contrary to the fundamental fairness required by the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 673, 103 S. Ct. 2064, 2073 (1983).

10 Id.

11 Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National       Crisis, 57 Hastings L.J. 1031, 1034 (2006).

12Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, National Institute of Corrections, (2014). note 13, Std. 10-1.1, at 25.

13 Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009 –Statistical Tables, Bureau of Justice Statistics (2013).

14 Justice Pol’y Inst., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (2012), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf.

15 Laura & John Arnold Found., Pretrial Criminal Justice Research (2013), available at http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF-Pretrial-CJResearch-brief_FNL.pdf

16 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

17 New Jersey State Police, Uniform Crime Report, January-September 2017, generated December 13, 2017. http://www.njsp.org/ucr/pdf/ current/20171013_crimetrend.pdf

18 Id.

19 Id.

20 Pretrial Justice Institute, The State of Pretrial Justice in America. Report. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

21 Id.

22 Based on statistics from 2007 to 2012. Criminal Justice Policy Program, Harvard Law Sch., Moving Beyond Money: A Primer On Bail Reform 14-18 (2016), http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf 36 moving beyond money

23 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

24 Id.

25 United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095 (1987)

 

 

 

Carpenter v. United States: Warrantless Tracking

This post is written by Symposium Editor Matt Kriege. Opinions and views expressed herein are those of the writer alone.

 

Recently, the Supreme Court heard oral arguments in the case of Carpenter v. United States. This case is about location data that is transmitted from cell phones to cell towers in order for the cell phone carrier to know where to send calls when your number is dialed. The case dates back to 2011 when police arrested a man (Carpenter) for a number of armed robberies. One of the co-conspirators in the robberies provided the FBI with the cell phone numbers of all the other participants. Using these telephone numbers, the FBI was able to convince a magistrate judge to issue orders for the “transactional records” of each of the numbers “under the Stored Communications Act, 18 U.S.C. 2703(d).”[1] It is important to note that these orders were not a warrant and did not require the burden of proof that is required for a warrant to be issued. Under Stored Communication Act, 18 U.S.C. 2703(d), “the government may require the disclosure of certain telecommunications records when ‘specific and articulable facts show [] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.’”[2] This standard is much easier to meet than the probable cause standard that would be required if requesting a warrant from the judge. With the orders obtained under the Stored Communications Act, the prosecution was able to obtain 127 days’ worth of cell site data from the defendant’s cell phone carrier.[3] The issue in the case is whether the warrantless search and seizure of this data constructed a violation of Carpenter’s fourth amendment rights. “Carpenter . . . argue[s] that the Fourth Amendment [] required the government to obtain a search warrant, pursuant to a showing of probable cause, before collecting the data.[4]

When this case came up to the 6th Circuit Court of Appeals they drew a strong distinction between the content of the communication and the “information necessary to get those communications from point A to point B.”[5] This distinction comes from a history of case law that holds the same, this distinction has held in regard to emails and phone calls. The content of the emails are protected by the 4th Amendment, but not the metadata that gets sent along with them.[6] The 6th Circuit held that the business records at issue, in this case, are similar to metadata with emails or phone numbers with phone calls, not protected by the 4th Amendment. The records obtained by the prosecution contain nothing about the content of the phone calls they are only data points, keep by the cell provider, regarding location, duration, and time of the call. Therefore, according to the 6th Circuit Court of Appeals, the governments obtaining of these records was not a search. The court reasoned that Carpenter had no property interest in the data that was being transmitted. As well as, that any reasonable cell phone user would know that their location data was being transmitted to the cell phone provider and therefore would have no reasonable expectation of privacy in the data.

Carpenter puts forth a number of arguments. First, he states that this case is like Jones where The Court deceived that long-term GPS surveillance impedes on a person’s Fourth Amendment rights. The Court states that Carpenter had no expectation of privacy in these records, first they were business records of a third party and second, he knew or should have known this information was being transmitted to this third party.  Also, the court makes a point to note that this is not GPS data that is being pulled from the smartphone, instead it is general location data based on where the phone was pinging cell towers that were kept by the cell phone provider.[7]

In oral arguments in front of The Supreme Court on November 29th counsel for Carpenter was berated with questions. The level of voluntariness of this information going to the phone company, the consumer’s property rights in the data, and the third-party doctrine, were of particular focus. The reason that this case is so important to watch is “[i]f the court determines the government doesn’t need probable cause to access volumes of individuals’ location data, it could open the doors to a new era of official surveillance.”[8] The amount of data that individuals expose to third-parties through the use of smartphones is incredible. Under the current outdated third-party doctrine, all this data is available to the movement without the need for a warrant.

Justice Kegan even acknowledges third-party doctrine is dated. In oral argument, the Government states that “[if] the government reaches into the phone, pulls out information. That, I would concede, is a search. What we’re doing here is not going to the individual and extracting information from him. We’re getting information from a third-party provider, relying on the line of cases that Justice Alito alluded to, that allow us to use subpoenas.”[9]

However, Justice Kegan responds, “that line of cases was developed in a period in which third parties did not have this kind of information.” Justice Kegan makes a really good point here.  Just by going into my settings on my iPhone and looking under “privacy” I can see that there are roughly 100 apps that have access to my location data either while I am using that specific app or all the time. These apps using my location make things easier for me. When I get out of my car my phone, it knows where I left it parked. When I have to be at a certain place at a certain time, my phone knows when I should leave based on my location. The sharing of this type of data with those third parties is for my convenience, however, that doesn’t mean that just because I am sharing for my convenience I should lose all expectation of privacy in that data. This doesn’t even scratch the surface of information I am sharing. I have health data, photos, contacts, and even data regarding smart lights installed in my bedroom. Is there even a way to have a reasonable expectation of privacy in anything anymore with the third-party doctrine and our increasingly connected lives.

 

To learn more about this case check out these links:

[1] Carpenter v. United States, Oyez, https://www.oyez.org/cases/2017/16-402 (last visited Nov 29, 2017).

[2] Id.

[3] United States v. Carpenter, 819 F.3d 880, 886 (6th Cir. 2016).

[4] Id.

[5] Id.

[6] See, e.g., United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007).

[7] Carpenter, 819 F.3d 880.

[8] The US could be on the verge of dismantling digital privacy as we know it, Quartz https://qz.com/1140277/carpenter-v-united-states-the-us-could-be-on-the-verge-of-dismantling-digital-privacy-as-we-know-it/ (Last visited November 29th,2017).

[9] Transcript of Oral Argument at 68, Carpenter v. United States (No. 14-1572)