Court breathes life back into 10th Amendment

In a sports book.

What a refreshing concept: Congress may exercise only those powers granted to it by the Constitution, all other powers belong to the states and the people themselves.

In an opinion issued today, Justice Samuel Alito tossed the Professional Amateur Sports Protection Act of 1992, which outlawed sports gambling, though Nevada a couple of other states were grandfathered. The decision was 6-3.

Here is what Alito stated:

The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.

The legalization of sports gambling requires an im­ portant policy choice, but the choice is not ours to make.

 

Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens … The Constitu­tion gives Congress no such power.

The long dormant 10th Amendment lives.

 

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Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

Justices ask questions about California law requiring abortion information

On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.

The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech:

I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences.

And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.

And there have been a lot of cases on — there have been some cases on this in the lower courts. But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? 

How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents?

I mean, wouldn’t we be getting into very dangerous territory if we do this?

The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.

And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?

Justice Neil Gorsuch offered this:

Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? If — if it’s about just ensuring that everyone has full     information about their options, why should the state free-ride on a limited number of clinics to provide that information?”

Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.

Would this billboard have to include a message on where to get an abortion under California law? Yes.

Editorial: Survey finds widespread campus intolerance for free speech

Welcome to the coming mobocracy.

It appears we are rearing a generation that already has all the answers, knows what needs to be said and done and will brook no deviation from the preordained norm. Debate is not an option.

In the face of a deluge of anti-free speech activities, including actual riots, on college campuses across the country, Brookings Institution researcher John Villasenor conducted a survey of 1,500 current undergraduate students at the nation’s colleges and universities in order to determine just how well the First Amendment is understood and embraced on campus.

One of Villasenor’s first questions was whether or not “hate speech,” whatever that is, is protected by the First Amendment. Fully 44 percent said it is not, while only 39 percent said it is. A distressingly high 16 percent of college students did not know one way or the other.

These answers came shortly after the Supreme Court ruled in June that a trademark could not be denied simply because it contained a racial slur. An Asian-American rock band had been denied a trademark for its name “Slants.”

Justice Samuel Alito stated categorically: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Apparently not on campus.

The Brookings survey also asked about the acceptability of the so-called heckler’s veto by setting up the scenario that a controversial speaker has been invited to campus and asking: “A student group opposed to the speaker disrupts the speech by loudly and repeatedly shouting so that the audience cannot hear the speaker. Do you agree or disagree that the student group’s actions are acceptable?”

A majority, 51 percent agreed that is acceptable, while 49 percent disagreed. Among Democrats fully 62 percent agreed to 38 percent disagreeing, while only 39 percent of Republicans agreed and 61 percent disagreed.

Perhaps even more disturbing was the next question in that scenario: “A student group opposed to the speaker uses violence to prevent the speaker from speaking. Do you agree or disagree that the student group’s actions are acceptable?”

Nineteen percent called using violence to prevent a speech acceptable, including 30 percent of males.

Villasenor observed, “These results are notable for several reasons. First, the fraction of students who view the use of violence as acceptable is extremely high. While percentages in the high teens and 20s are ‘low’ relative to what they could be, it’s important to remember that this question is asking about the acceptability of committing violence in order to silence speech. Any number significantly above zero is concerning. The gender difference in the responses is also notable.”

The survey also found an incredible ignorance of what the law requires when it comes to free speech. A strong majority of students are under the impression that the  First Amendment requires that an on-campus organization hosting an offensive speaker is “legally required” to ensure the event includes an opposing view.

Not even the FCC still insists on the Equal Time Doctrine.

But 62 percent of college students thought there is — not should be, but already is — a legal requirement to provide an opposing view.

Villasenor found, as should we all, the survey result highly disturbing, especially the fact that so large a faction found violence an acceptable deterrent to speech they find offensive.

“Given these results, what should be done?” Villasenor asks. “First, I think that college faculty and administrators have a heightened responsibility to do a better job at fostering freedom of expression on their campuses. Getting this to occur will be challenging. I expect that if college faculty and administrators were asked the questions in this survey, the results would, at least in broad terms, be similar to the student results presented above. That said, I would hope that results such as these can help spur faculty members and university administrators to think about the importance of creating a campus environment in which students are exposed to a broad range of views, including some that students may find disagreeable.”

(Prediction: In this age of identity politics, the survey will be dismissed simply because it was financed by one of the Koch brothers.)

We must champion free speech before it is lost.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Nineteen percent of college students called using violence to prevent a speech acceptable.

In trademark case Supreme Court upholds principle that government may not limit free speech

The Slants

The Supreme Court has struck a blow for free speech in a case that might on its face seem rather petty, but maintains the principle that government must butt out of judging what is a permissible level of offensiveness.

The case involved the Patent and Trademark Office refusing to grant a trademark to an Asian-American rock band that wanted to call themselves “The Slants.” The agency cited a section of the law that denies trademarks for names that are “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute …”

According to the opinion by Justice Samuel Alito, the band wanted to use the ethnic slur as its name to “reclaim” the term and drain it of its denigrating force.

But the government argued that issuing a trademark was tantamount to the government engaging in disparaging speech, citing a previous case in which the court held that the state of Texas was not required to issue car license plates commemorating Confederate Veterans.

Alito held that license plates are government speech but a trademark is not. He wrote that the federal law did not create trademarks but merely was instituted to protect trademarks from being usurped:

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” … We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

“The principle underlying trademark protection is that distinctive marks — words, names, symbols, and the like — can help distinguish a particular artisan’s goods from those of others.” … A trademark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of another’s product as his.” … It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid.

“[F]ederal law does not create trademarks.” … Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. … For most of the 19th century, trademark protection was the province of the States. … Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. (Citations omitted.)

Justice Anthony Kennedy strongly concurred and wrote:

At its most basic, the test for viewpoint discrimination is whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed. … (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). In the instant case, the disparagement clause the Government now seeks to implement and enforce identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols.” Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination. …

A law that can be directed against speech found offen- sive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

As The New York Times points out, this bodes well for the Washington Redskins football team, which had been granted trademark status for many years but was denied in 2014 because of the disparagement clause.

But more importantly it underpins the principle that government may not approve or disapprove of the content of a message for whatever excuse.

 

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Reid hypocritical about Supreme Court nomination

Some people are ambidextrous. Harry Reid is ambioratory. He speaks out of both sides of his mouth.

This past week one of Sen. Reid’s staffers penned an op-ed column that ran under his name in The Washington Post on the topic of replacing the late, great, conservative Supreme Court Justice Antonin Scalia, who had died only days earlier.

The Democratic Senate minority leader took umbrage with something the Republican Senate majority leader, Mitch McConnell, said shortly after Scalia was found dead at a West Texas hunting resort. McConnell said the American people should have a voice in the replacement process, meaning no new justice should be confirmed until the next president is seated, rather than allow lame-duck Obama to nominate someone like his two liberal rubber stamps on the court — Elena Kagan and Sonia Sotomayor.

Reid countered that the American people voiced their opinions by twice electing Obama president and handing him the constitutional power to nominate Supreme Court justices.

“That is how our system works and has worked for more than 200 years,” the op-ed proclaims. “Until now, even through all the partisan battles of recent decades, the Senate’s constitutional duty to give a fair and timely hearing and a floor vote to the president’s Supreme Court nominees has remained inviolable. This Republican Senate would be the first in history to abdicate that vital duty.”

A couple of days later Republicans McConnell and Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, took to the same pages of the same newspaper to remind the same senator who had lectured them days earlier of what he had said in 2005 on the floor of the U.S. Senate.

According to a transcript of that speech, Reid chided President George W. Bush for rewriting the Constitution and reinventing reality when he said two days earlier that the Senate had a duty to promptly consider each nominee, debate their qualifications and give them an up-or-down vote.

“Referring to the president’s words, duty to whom?” Reid asked rhetorically back then. “The radical right who see within their reach the destruction of America’s mainstream values. Certainly not duty to the tenets of our Constitution or to the American people who are waiting for progress and promise, not partisanship and petty debates.

“The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.”

Reid later lectured, “The Senate is not a rubber stamp for the executive branch. Rather, we are the one institution where the minority has the voice and ability to check the power of the majority.”

Fast forward to this past week’s op-ed in the Post. Reid concluded his thundering accusation against Republicans by saying, “Pursuing their radical strategy in a quixotic quest to deny the basic fact that the American people elected President Obama — twice — would rank among the most rash and reckless actions in the history of the Senate. And the consequences will reverberate for decades.”

We seem to recall that by 2005 Bush had been elected twice, but efforts to circumvent his high court appointees seem not to reverberate a single decade later.

It is just as we have come to expect from Harry Reid and his ilk — politics first, last and always. No argument is so compelling that it can’t be reversed, refuted or abandoned. Reid says Obama will nominate someone in two weeks.

If McConnell’s call to give the American people a voice in Scalia’s successor sounds familiar, perhaps it is because Reid’s Democratic Senate colleague Chuck Schumer said in 2007, two years before the end of Bush’s second term:

“For the rest of this president’s term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another (John) Roberts; or Justice Ginsburg by another (Samuel) Alito. Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.”

Reid, Schumer, then-Sen. Obama, Hillary Clinton and Joe Biden all voted to filibuster Alito and Roberts.

All ambioratory and hypocritical.

A version of this column appears this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.