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: Second Amendment is not a second-class right

Do the courts treat the Second Amendment like a second-class right?

Supreme Court Justice Clarence believes they do and makes a compelling argument.

This past week the U.S. Supreme Court refused to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling upholding a California law requiring a 10-day waiting period for the purchase of any firearm. Justice Thomas penned a scathing 14-page dissent.

“The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Fourteenth Amendment requires the States to respect that right …” Thomas writes. “Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.”

Thomas says the 9th Circuit upheld the 10-day waiting law based solely on its own determination that it was “common sense,” without requiring any supporting evidence and without acknowledging a lower court’s factual findings that caused it to agree with plaintiffs that the law was unconstitutional when it was applied to people who already own guns, because it would not serve as a “cooling off” period for those who might use a firearm to harm themselves or others.

Thomas’ dissent notes that the 9th Circuit ignored the testimony previously given despite the legal requirement to weigh its validity. “California’s expert identified only one anecdotal example of a subsequent purchaser who had committed an act of gun violence, and the expert conceded that a waiting period would not have deterred that individual,” the justice observes, noting the appellate court allowed California to justify its waiting period with mere “rational speculation unsupported by evidence or empirical data …”

The courts are picking and choosing what constitutional rights to favor and which to ignore, Thomas argues, calling it “emblematic of a larger trend.” For example, the 9th Circuit struck an Arizona law that established a “cooling off” period for a woman seeking an abortion. It also invalidated a county ordinance requiring a five-day waiting period to obtain a nude-dancing license because it interfered with the First Amendment right of free expression. In another case, the 9th held that laws embracing traditional marriage failed because they were based on no evidence other than speculation, though such law reflects “thousands of years of human history in every society known to have populated the planet.”

Thomas does not let his own court off without a few verbal wrist slaps. He notes, “We have not heard argument in a Second Amendment case for nearly eight years. … And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment — even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

The four liberal members of the court are singled out for chiding by Thomas. He says those four would have agreed to hear a case involving a 10-day cooling off period for abortion or a case involving a 10-day cooling off period for publication of racist articles or a case involving even a 10-minute delay at a traffic stop while a dog sniffed the vehicle.

“The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas writes. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

All enumerated rights in the Constitution should be accorded their proper respect and none relegated to a second-class status, subject to different standards.

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.


High court allows Trump travel ban to take effect

Protesters oppose Trump travel ban. (Getty pix)

The Supreme Court today, the last day of its session, lifted lower courts injunctions against President Trump’s executive order restricting travel from six majority-Muslim nations, though its ruling exempted those with existing ties to the U.S. The court said it would hear arguments in the case when it returns in October, though it may be moot by then, because the 90-day ban will have expired.

The justices basically agreed foreigners do not have constitutional rights to enter the country:

But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. … (“[A]n unadmitted and nonresident alien … ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.

At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. … The interest in preserving national security is “an urgent objective of the highest order.” … To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions …

Trump released a statement applauding the decision:

Today’s unanimous Supreme Court decision is a clear victory for our national security.  It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.

As President, I cannot allow people into our country who want to do us harm.  I want people who can love the United States and all of its citizens, and who will be hardworking and productive.

My number one responsibility as Commander in Chief is to keep the American people safe.  Today’s ruling allows me to use an important tool for protecting our Nation’s homeland.  I am also particularly gratified that the Supreme Court’s decision was 9-0.

Actually, Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, wrote a dissent which argued the injunctions should be lifted in their entirety with no exceptions, because:

Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. … The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed …

The court partially restored the congressionally dictated power of the executive branch to control immigration.

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.


Newspaper column: Education savings accounts not yet saved

Though the Nevada Supreme Court this past week jettisoned most of the arguments that somehow the state’s education savings account (ESA) law is unconstitutional, it still barred enforcement of the law, saying lawmakers failed to properly appropriate money for the ESAs.

It is now up to lawmakers to fix that flaw.

The justices found that Senate Bill 515, which sets aside per pupil funding in the Distributive School Account (DSA), did not even mention ESAs and Senate Bill 302, setting up ESAs, did not “appropriate” funds, even though both bills amend the education financing section of state law (NRS 387) and SB302 added to the already lengthy list of DSA deductions “all the funds deposited in education savings accounts.”

A niggling technicality.

Until the court derailed it, SB302 outlined a program under which the state treasurer was directed to establish an education savings account for any eligible child enrolled in a public school for the previous 100 consecutive days — when the clock now starts is anyone’s guess — and for most the account would be equal to 90 percent of the statewide average per pupil funding, or currently $5,139. There is no limit on the number of accounts.

In a ludicrous aside in the opinion, the court noted the education statute has a hold-harmless clause to protect against wild gyrations in enrollment and suggested that “if all the students left the public school system, the State must fund both the school district’s per pupil amount based on 95 percent of the prior year’s enrollment and the education savings accounts for all students, an amount potentially double the $2 billion appropriated in SB515 for just the public schools. Given that scenario, surely the Legislature would have specified a number of education savings accounts or set a maximum sum of money …”

What would a district with no students spend the money on?

At least a couple of major constitutional hurdles for ESAs have been cleared.

The court dismissed the contention that SB302 violates the state Constitution’s prohibition against using public funds for sectarian purposes. “We disagree. Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead private funds of the individual parent who established the account,” the court opined. “The parent decides where to spend the money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools.”

The court also dismissed the notion that the state may only expend funds for public schools, noting repeatedly that the state Constitution instructs the Legislature to support education “by all suitable means” and noted that the drafters of the founding document “rejected the notion of making public school attendance compulsory, and acknowledged the need to vest the Legislature with discretion over education in the future.”

So, ESAs are now on the fast track to legislative approval at some future date before the 8,000 children who have applied for them have children of their own, right?

Attorney General Adam Laxalt, whose office defended the law in court, said, “The Court ruled against the State on a small funding issue that was not even debated or contentious when this bill was passed. Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technicality and allow for the implementation of ESAs statewide.”

Gov. Brian Sandoval put out a statement after the high court ruling indicating he does not plan to call lawmakers into a special session and will leave the fixing of the appropriation up to the 2017 legislative session, which opens in February.

“Although the court found the current funding mechanism for Education Savings Accounts unconstitutional, there may be a path for a legislative solution,” Sandoval said in that statement. “However, such a solution is complex and must be well thought-out to meet constitutional muster. … I also believe it is important to consult with legislative leadership on this issue as we approach the 2017 legislative session.”

The fly in that ointment is that there is an election in November and it is entirely possible Democrats, with the backing of their teacher unions, just might gain a majority in either the state Senate or Assembly — in which case, ESAs are dead for the foreseeable future, because not a single Democrat voted for ESAs in 2015.

On Wednesday, Sandoval called a special session for Monday but did not put ESAs on the agenda.

 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.

Court leaves in place ruling blocking immigration executive orders

The U.S. Supreme Court has refused to rehear the U.S. 5th Circuit Court of Appeals’ decision over turning Obama’s executive fiats granting de facto permanent residency to about 5 million illegal immigrants.

After Justice Antonin Scalia died earlier this year, the court split 4-4 in June on the case of U.S. vs. Texas, letting stand the lower court’s overturning of Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which let the parents of children born in the U.S. remain, and an expansion of the Deferred Action for Childhood Arrivals program (DACA), which lets illegals brought to this country as children remain legally.

But of course it is a decision written in smoke, since the administration will do nothing about deporting a single one of those millions.

Nevada was one of the states that joined Texas in fighting the immigration executive orders that ignored Congress’ refusal to act on similar proposals.

In his press release announcing the Nevada’s joining the list of plaintiffs, Attorney General Adam Laxalt stated: “Our immigration system is broken and clearly needs to be fixed. But just as clearly, the solution is not for the president to act unilaterally disregarding the U.S. Constitution and laws. The solution must be a permanent, legal result that includes, not ignores, the other branches of government and their constitutional roles. Anything less is a false hope undermining the rule of law that injures millions of people in America, including many in Nevada.”

Could the election derail ESAs?

Now that the state Supreme Court has ruled that education savings accounts are constitutional, but lawmakers erred in how they funded them, handing them a mulligan, everything is on course to make ESAs a reality, right?

Not so fast, Bubba.

“Although the court found the current funding mechanism for Education Savings Accounts unconstitutional, there may be a path for a legislative solution,” Gov. Brian Sandoval said in a statement. “However, such a solution is complex and must be well thought-out to meet constitutional muster. I am still reviewing the full decision of the Nevada Supreme Court and it would be premature to speculate on the proper method to administer and fund this important program. I also believe it is important to consult with legislative leadership on this issue as we approach the 2017 legislative session.”

So, no ESA bill will be presented to the special session in which he hopes to dole out tax money for a domed stadium in Las Vegas to be built by a billionaire. That can be crammed through, but not ESAs.

The problem is that there is an election in November and it is entirely possible Democrats, with the backing of teacher unions, just might gain a majority in either the state Senate or Assembly. In which case, ESAs are dead for the foreseeable future.

There is a need for speed, Guv.