Cases by Issue - Miscellaneous

Beard v. Banks - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Beard v. Banks

Media File:

04-1739_20060327-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Louis J. Rovelli

Chief Justice Roberts: We'll hear argument next in Beard v. Banks.

Mr. Rovelli.

Mr. Rovelli: Mr. Chief Justice, and may it please the Court--

The policy challenged in this case applies to a small class of dangerous, disruptive inmates, all confined at level 2 of the Long Term Segregation Unit, which is the most restrictive custody in the Pennsylvania prison system.

These central facts inform every aspect of the Turner analysis which governs the outcome of this case.

The denial of periodicals and photographs, with the opportunity to earn them back by improved behavior, is logically connected both to rehabilitation and security.

Level 2 inmates have a... have failed every attempt at rehabilitation.

Yet, nearly all of them will be released from prison.

The goal at level 2 is to turn these inmates around, to improve their behavior enough that they can be advanced safely to programs with more opportunities for self improvement.

Until that happens--

Justice Stevens: Mr. Rovelli, I... I forget.

How big a class of... of prisoners are we talking about?

Mr. Rovelli: --Less than 40.

Justice Stevens: Less than 40?

And does the record tell us how long they have been in level 2?

Mr. Rovelli: Well, the duration of... of confinement at level 2 varies widely from one inmate to another because it is affected by their improvement.

Justice Stevens: But is there any average or any... is there... does the record tell us how... how long most of them have been there?

Mr. Rovelli: The record does not tell us how long most of them have been there.

At the time of the case in the trial court, which was 2002, 25 percent of them had been promoted to level 1 or had been released from the Long Term Segregation Unit altogether.

Justice Stevens: Does that mean that 75 percent had not?

Mr. Rovelli: At that time, yes.

Justice Stevens: And how long... do we know what the average period of incarceration in level 2 is?

Is it a matter of weeks, or is it a matter of years?

Mr. Rovelli: Well, realistically it's in between.

Again, the... the unit had only been in operation for 2 years at time that the record was made.

So there's very little--

Justice Stevens: I'm trying to understand whether typically they're there for a long period of time on the one hand, or are they there sort of on probation and are periodically reviewed and moved into another system?

Mr. Rovelli: --They're... they're moved when their behavior improves.

The average over a long period of time has been in the range of a year or so.

Justice Stevens: I see.

Justice Kennedy: Were there any prisoners, since the inception to your program, that have been in there for the whole 2 years?

Mr. Rovelli: Through today?

I'm sorry.

Oh, from the time of its inception?

Justice Kennedy: Yes.

Mr. Rovelli: Until the 2-year point.

Yes, there were.

I don't know exactly how many there were, but there definitely were.

Justice Kennedy: Are... do... is... is Pennsylvania alone or nearly alone in imposing this rule, or is this typical of the restraints imposed in... in this maximum restrictive confinement?

Mr. Rovelli: There's a wide variation of privilege grants and withdrawals even at the highest levels of security.

The ACLU's amicus brief points to three other States that... that have the same program as Pennsylvania, and frankly, I'm not even sure as to those, that it's identical.

But the Court has recognized that... that these sorts of variations, particularly when we're talking about high security prisoners, are precisely what Turner contemplates.

Justice Kennedy: Is this one of the most severe restrictions in the Nation with respect to reading material and photographs?

Mr. Rovelli: I'm sure that it is.

Justice Ginsburg: What is the reason that... that the State or the regulations allow paperbacks from the library and not current events?

I'm just... that... the rationality of... of that line escapes me.

Mr. Rovelli: Well, there's... there is certainly a security component to it.

Paperback books, small, compact, much more difficult to use as weapons, and the experience of the prison staff that operate this high security unit is that newspapers and magazines are... have been a... a frequent source of mischief.

Justice Scalia: Can we explain that?

How does one use a newspaper as a weapon?

I mean, you know, maybe disciplining a dog or something.

[Laughter]

Mr. Rovelli: Actually inmates, particularly the worst of the worst, are quite clever at using newspapers.

A newspaper rolled tightly with toothpaste used as an adhesive can be compacted into very nearly the equivalent of a nightstick.

Justice Ginsburg: But you--

Chief Justice Roberts: But a paperback version of War and Peace is less dangerous?

It seems a--

Mr. Rovelli: The experience of prison officials is that, yes, it is, and... and actually it's very common in prison systems to distinguish, for example, between hardback books and paperbacks.

Yes, it's... these are difficult lines to draw, and that's where the professional expertise of the people who deal with the problems every day comes into play.

Justice Ginsburg: --But if the concern is the safety concern, then you would have an equal concern with the Jewish Daily Forward, which is a newspaper format, or... and I don't know what the Watchtower comes out in these days.

Mr. Rovelli: Yes.

Well, Justice Ginsburg, the... the experience of prison administrators is that prisoners are less likely to use religious and legal materials for mischief, and as to paperbacks as well, they do supply an alternative means of receiving information from outside the prison.

But again, if I... if I allude frequently to the experience of prison administrators, it's... it's because that's what these... this policy is guided by.

Newspapers and magazines have a high value to inmates.

Chief Justice Roberts: --Well, that's why I thought your answer would have focused on that rather than the security concerns, is that you take away what it is they want the most because that's most likely to result in them conforming their behavior so they can get it back.

Mr. Rovelli: Yes, and that is... is the primary purpose of the policy overall, and--

Justice Breyer: So why... let's see.

They go to the prison library what?

Once every couple of weeks or what?

Once a week?

Mr. Rovelli: --Actually--

Justice Breyer: One... one visit per month.

And... and how often do they go to the prison library?

Mr. Rovelli: --Inmates at level 2 are not permitted to go to the prison library.

Justice Breyer: It's ordered.

Mr. Rovelli: They can order books from the library.

They are allowed to visit the... the mini law library that's proximate to the unit.

Justice Breyer: Yes, what it says... that's what... it says, to review legal materials, one at a time may be let out of his cell and is escorted to a mini law library in hand.

All right.

Why couldn't you have a... if he wants to see the newspaper in that mini law library, why couldn't there be a copy there, only the parts that are consistent with the censorship policy, just like a news of the day.

Mr. Rovelli: Having--

Justice Breyer: Is there a security reason or is--

Mr. Rovelli: --There's definitely a security reason.

Justice Breyer: --Is there a security reason when he's there in leg irons looking at the books, the law books, in the mini law library?

Mr. Rovelli: Allowing the... the inmate to request to go to the mini law library for an additional purpose or for a separate purpose to read periodicals puts increased demand on going there, and moving these inmates is a... a very demanding operation.

It requires two officers and physical restraints and going through layers of security.

So it puts increased demands on prison resources.

Justice Ginsburg: What does the... what does the inmate have to show in order to go to the law library?

That is, suppose the inmate's position is I want to go there and I want to read Law Week and Legal Times and other... I want to see what's new, what's breaking in the law so that maybe I'll have something I can put in a petition, and that's why I want to go every... every chance I get to the law library.

Could such an inmate go to the library?

Mr. Rovelli: Yes.

The inmate may go to the law library subject to the limitation of one inmate at a time, subject to the sign up list.

The inmate may get--

Justice Ginsburg: Well, that would mean that the inmate could go and look at the legal newspapers, but not... not the Christian Science Monitor.

Mr. Rovelli: --The Christian Science Monitor is not available to him in the... in the mini law library, and... and actually, if he wanted to subscribe, he could receive a... a legal periodical in his cell.

Justice Ginsburg: So he could get Law Week, Legal Times, and--

Mr. Rovelli: Subject--

Justice Ginsburg: --the National Law Journal.

All of those he could get.

Mr. Rovelli: --Subject to the content restriction of religious and legal materials that would fit in one property box, he may.

Justice Souter: Now, on... on your theory of... of behavior modification, would it, nonetheless, be... be open to the State to say, no, you may not receive any more legal materials and you may not go to the library to look at them?

Because that's something you very much want to do.

And in order to do that, you've got to shape up and... and get moved down to a lesser level of security.

Would that... I'm not saying that the State is... is about to do that, but on your theory, could the State do that?

Mr. Rovelli: Yes.

Yes, Justice Souter, the State could, as long as the overall Turner analysis is observed.

And, in particular, I think that would implicate the availability... the availability of alternative means of exercising the asserted right to receive information from outside the prison.

Justice Souter: Well, what would... I mean, you know, one of the arguments made on the other side is that if you accept the behavior modification theory as an adequate justification, the Turner categories essentially become incoherent.

What, for example, would be the alternative means in this case if the State said, we realize that the people in... in... at level 2 want to see legal materials very, very much because that is a source of hope for them, and we want them to have that source of hope only if they shape up and... and get down to a reduced level of security, so we're going to stop it, period?

What would be the alternatives within the... the Turner analysis?

Mr. Rovelli: The inmate would still have unlimited access to counsel visits and can still visit the mini law library and do his own legal research, even if he's not allowed to subscribe to or... or keep legal materials, legal periodicals in his own cell.

Justice Souter: What if the... what if the inmate said, look, the... the lawyers who come to see us are... are great guys, but they're... they're overworked.

They don't have time to be thinking about novel legal theories, which we would dream up perhaps if we could get to Legal Times and these periodicals?

So it's... it's not an alternative.

Mr. Rovelli: Ultimately any prisoner is... is free to challenge the adequacy of his ability to access the courts in a... in an as applied challenge to his own conditions.

Justice Souter: So you're... you're saying there... there's a separate value here, and that is the value of access to courts.

And... and that limits what can be done for purposes of behavior modification.

Mr. Rovelli: Definitely.

Justice Souter: All right.

What about the marriage example?

The... the Court has said, yes, you couldn't... the... the State can't prevent the inmate from... from getting married.

I don't see where the separate source of... of value is that would... that... that would affect that analysis.

No right of access to court.

The associational rights can be abridged and so on.

Why, on your analysis, wouldn't... wouldn't the proper disposition of the earlier case have been to say, yes, the State can preclude marriage too because that's something they very much want and... and the State can preclude that unless they shape up and... and get down to a... a lesser level of security?

Mr. Rovelli: Well, the marriage ban, Justice Souter, of course, is subject to Turner analysis as well, and I think that where Turner might bring up short a ban on marriage for these high security inmates is in the... the logical connection to the rehabilitative purpose in that there being so few inmates and marriage is going to be such an infrequent occasion, it's hard to see the marriage ban as influencing level 2 inmates generally to improve their behavior.

Justice Souter: So you're saying there just is not a logical connection there within--

Mr. Rovelli: Yes.

Justice Souter: --the meaning of the... of the case?

Mr. Rovelli: That... yes.

Justice Souter: But there would be a logical connection for those who want to get married.

Mr. Rovelli: That... that implicates--

Justice Souter: You're... you're saying it might not makes sense as a systemic policy--

Mr. Rovelli: --Yes.

Justice Souter: --because it isn't a big enough problem.

But for... we're not talking about a whole system here.

We're talking about 40 people or less, and if some of those 40 people want to get married, why doesn't it make perfect sense to say no marriage?

Mr. Rovelli: Well, you could say that about all... probably a range of things if you went so far as to query each inmate as to what it is that they value most or what it is they're most interested in doing--

Justice Souter: You can, and on... on your analysis, why isn't that sufficient?

Mr. Rovelli: --It would be an interesting program and I would defend it that you could query inmates on what is most valuable and then deprive them of it subject to--

Justice Souter: Okay, but how do we get around the marriage case then?

Mr. Rovelli: --Well, I... I don't think we need to get around the marriage case in the sense that, particularly as to high security inmates, prison officials have very wide discretion to fashion policies that serve the goals.

And... and to do it--

Justice Souter: So as to these, the... the marriage could be banned, in effect, you're saying.

Mr. Rovelli: --It could be banned, but I do think that it would be subject to a... a pointed challenge on the logical connection, but in theory, it's... it is one of the instruments... a privilege that could be withdrawn for behavior modification purposes.

This case is... is exceedingly similar to Overton where the Court directly observed that withdrawing visitation privileges is a proper and even necessary technique to... to improve the behavior especially of high security prisoners who have few privileges left... left to lose, which is precisely the same situation that we're presented with in this case.

Turner too... I'm sorry.

Overton as well is instructive on the subject of adequate alternatives.

Justice Ginsburg: But I thought there, there was a genuine security concern, which I think you pretty much said doesn't exist here when you consider what they can have in... in the cell.

Mr. Rovelli: I think that... that in both Overton and this case, there were both behavior modification and security concerns.

And I'm not even sure that their weight... they're weighted as between the two altogether different between the two cases.

Actually all of the discussion in Overton was in the context of behavior modification, which is related both to security and to rehabilitation.

But the... the tenor of the discussion was actually, I would say, more directed to rehabilitation.

The Court recognized in Overton, as adequate alternative means of exercising the right, letters and phone calls.

The inmates in this case have the opportunity of unlimited correspondence, family, chaplain, and counsel visits, and as... as we've talked about, books from the prison library.

Quickly addressing the last two Turner factors, accommodating the asserted right would altogether defeat the goals of the policy.

It would have, as I alluded to when I did speak of security, a significant impact on guards and prison resources, and there are no ready alternatives.

If I could reserve the balance of my time.

Argument of Jonathan L. Marcus

Chief Justice Roberts: Thank you, Mr. Rovelli.

Mr. Marcus.

Mr. Marcus: Thank you.

Mr. Chief Justice, and may it please the Court--

Pennsylvania's policy of prohibiting its most dangerous and recalcitrant prisoners from possessing newspapers, magazines, and photos as an incentive to improve their behavior does not violate their First Amendment rights.

Chief Justice Roberts: Where do you draw the line?

I take it somewhere... you couldn't deprive them of food, if that would get them to... to conform.

Justice Souter was asking about marriage.

I mean, how do we tell when... when you can deprive someone of something they... to modify their behavior and when it goes too far?

Mr. Marcus: Yes, Mr. Chief Justice.

This... I mean, this Court has already said that with respect to Eighth Amendment rights, the Turner analysis does not apply.

So with respect to basic... basic necessities, health care, food, and water, the... the Turner analysis doesn't apply, and so you could not sort of create an incentive program to take away Eighth Amendment rights.

And under... with respect to the rights that can be... that can be limited in order to serve legitimate penological interests, we think that... that the Turner approach would give a lot of deference to and a lot of flexibility to States to... to use incentive programs--

Justice Souter: But don't we... don't we have the same problem if we're... if we're dealing with First Amendment interests that we do when we're dealing with Eighth Amendment interests?

In other words, if... if we don't say, well, they get outside of Turner analysis because they require... by virtue of being enumerated rights, they require an analysis specific to them, is the abridgement of the right carried so far that it is unreasonable?

If we don't say that, then I don't see, as your friends on the other side have argued, I don't see where the logical stopping point is if we accept the... the behavior modification theory.

Mr. Marcus: --Well, I... I think... I mean, I think there is... I don't think it's a boundless theory.

I think you have to keep in mind that this program in Pennsylvania was... it's implemented as a last resort.

I mean, the prisoners that this regulation applies to are a narrow class of 40 prisoners who have been the most violent and most disruptive--

Justice Souter: Oh, oh, I... I realize that.

I mean, they're... they're making an in extremis kind of argument.

I understand that.

But if... if we accept an in extremis kind of argument on the theory of behavior modification, then I don't see why that argument does not, for example, cover the marriage case, and maybe... maybe it should.

I don't know why that argument would not allow for a total deprivation of all communication outside of, let's say, access to counsel.

And... and so it seems to me that whether we admit it or not, what's going on here, whether we call it Turner analysis or not, is we're making some kind of a judgment as to whether they're carrying the deprivation for behavior modification purposes in these extreme cases too far.

Mr. Marcus: --But--

Justice Souter: And if that's what... I'll... I'll be quiet in a second.

[Laughter]

If that's... if that's what we're doing, aren't we just as much outside the Turner analysis when we're talking about the First Amendment or associational rights under the First Amendment as we are when we're talking about the Eighth Amendment?

And shouldn't we say so?

Mr. Marcus: --I... I don't think so, Justice Souter.

I think there's still room under the Turner analysis to apply the exaggerated response test, and that's one of the things the Turner analysis does when you go through the four factors, as... as the Government did and the State has done in its brief, that there could be a situation where you would find that there's been an exaggerated response and that their withdrawal of the First Amendment right is actually an exaggerated response.

For example, maybe if... if there was just one minor disciplinary violation for, let's say, using obscene language, and then every... all First Amendment rights to communication were... were pulled out at that point for the remainder of the time--

Justice Souter: So... so but at some point, there's sort of a reasonableness limit then you're saying.

Mr. Marcus: --There is a reasonableness limit, and we've... we've--

Justice Scalia: Do... do you concede that just because a right is enumerated, it means it cannot be entirely taken away in prison?

Mr. Marcus: --No.

This Court--

Justice Scalia: I mean, like, you know, try the right to bear arms.

[Laughter]

Mr. Marcus: --That's right.

No.

I mean... no.

This Court has drawn... has drawn that distinction.

The distinction this Court has drawn is that... that most rights can be limited or even totally prohibited within prison, consistent with... with legitimate penological objectives, deterrence and rehabilitation.

The exceptions this Court has identified are for the Eighth Amendment and also for access... you know, access to the courts, that you could... that... because that also implicates the integrity of the criminal justice system.

Justice Ginsburg: Apart from those two, access to the courts and cruel and unusual punishment, then anything goes for this set of incorrigible prisoners?

They can take away... the First Amendment, in other words, is out the window.

They have no First Amendment rights that the State needs to respect.

Is that--

Mr. Marcus: Well, I think it would be... Justice Ginsburg, I think it would be a rare case where an incentive program like this could be struck down as a... you know, as a facial matter, as... as this challenge is.

I think it would be a rare case.

But I think you do... you do still go through all the... all four factors, and you would look at the fourth factor and see that, in fact, Pennsylvania does give prisoners the opportunity to regain those privileges if they behave well.

As the State pointed out, at the time the record was made in this case--

Justice Ginsburg: --But... but for this... for this group, while they're in that situation, essentially there's no First Amendment rights.

I think that's what your... your argument.

They can regain them, but that's the purpose of the behavioral modification program.

But the... the only thing that these prisoners get is the Eighth Amendment.

Mr. Marcus: --Well, we do think that... that the State can go... can go quite far with respect to restricting First Amendment rights, but this Court still... I mean, under prong two, this Court does look to alternative means to exercise the right.

And here, 99.9 percent of the prisoners in Pennsylvania, do get to possess newspapers, magazines, and photos.

The LTSU prisoners who graduate get to, and on top of that, while they're in the LTSU, the prisoners get to possess two books.

They--

Justice Stevens: Mr. Marcus, I was kind of interested in your calling this an incentive program.

Is there any... there are no intermediate stages.

It's an all or nothing incentive, isn't it?

Mr. Marcus: --Oh, not at all.

There are many... there are many intermediate stages.

There are restricted housing units and then there are SMU's and... and special management units, and... and--

Justice Stevens: No, I mean, with respect to the prisoners in this population.

Mr. Marcus: --There are incentive programs within each of those restricted units, and... and the prisoners that end up at the LTSU... the vast majority of them have already been through the SMU program and haven't made it and have failed that program.

So they've tried numerous other incentives before getting to this point.

Justice Stevens: Well, I didn't understand that the... the prisoners in this particular part of the prison had any intermediate incentive.

They either get out after a year or 2 or they don't.

Isn't that right?

I mean, they either get to a different classification.

Mr. Marcus: Right, and that depends on their behavior.

Justice Stevens: There's no scoring.

You've got 25 points now, so you're pretty close to your goal or anything like... it's not--

Mr. Marcus: Well--

Justice Stevens: --not like most incentive programs I've heard about.

Mr. Marcus: --Justice Stevens, they get a review after 90 days and then every 30 days thereafter.

There's nothing in the record to suggest those reviews are an empty gesture.

Justice Stevens: And... and does the review correlate it in any way with these particular deprivations?

I mean, what is the review... how does the review correlate with their inability to get reading materials?

Mr. Marcus: Well, the... the review correlates with their behavior, and to the extent they show a positive adjustment in their behavior, their... they graduate from level 2 to level 1 where they do have access to newspapers and magazines and then they can graduate all the way out.

And my understanding is a number of prisoners have done that within 1 year.

And with respect to someone who never gets out, that person might have an as applied challenge if that person could show that his behavior--

Justice Stevens: Is there any evidence at all that the amount of reading that they do has any correlation to their opportunity for getting better assignments?

Mr. Marcus: --While they're in the LTSU?

Justice Stevens: Yes.

That there's any correlation whatsoever between how much these people... these prisoners read and when they get into the next level of the prison.

Mr. Marcus: No, I don't think any such study is done.

But again, the court of appeals was wrong to require the State to offer evidence.

I mean, this Court has emphasized in Turner that the connection between the regulation and the goals need merely be logical.

Justice Stevens: So the legal issues would be precisely the same if the State denied totally any reading material to the prisoners.

We have the same issue.

Mr. Marcus: Well, it would be a more difficult case to defend under the second--

Justice Stevens: Why would it be more difficult?

Mr. Marcus: --under the second prong of Turner because under the second prong of Turner, you look to alternative means.

We might still come in here and defend that program, but here they do provide alternative means to read and to see loved ones through visitation and through correspondence and to have two... they have two books in their cell so they can continue reading.

So there... that... that does factor into the balance, and we think it... it's very clear that Pennsylvania's program is reasonable, and it would just be a more difficult case if they totally prohibited--

Justice Stevens: I understood your argument to, in effect, contend that the behavior modification rationale will justify the program no matter what the balancing process is.

Mr. Marcus: --No, that's... that's not our position.

We think there is a balancing under Turner, and you do... you do look at all four factors of the test.

And we think that Pennsylvania's just clearly satisfies that test.

And if you applied this across the board to the general population, it wouldn't.

It wouldn't pass the test.

But... but these are the... these are the worst of the worst and they've gone through many other... Pennsylvania has gone through countless other measures to try to improve these inmates' behavior, and so I think it's wrong to conclude, as the court of appeals did, that this was an exaggerated response.

Thank you.

Argument of Jere Krakoff

Chief Justice Roberts: Thank you, Mr. Marcus.

Mr. Krakoff: Mr. Chief Justice--

Chief Justice Roberts: Mr. Krakoff.

Mr. Krakoff: --may it please the Court--

I'd like an opportunity to respond to several of the points that were made by my colleague.

First, I find it interesting that and also of some relevance in this case that the decision to deny access to secular newspapers and magazines that this policy of withdrawing access to these materials is not a policy of the Federal Bureau of Prisons with respect to its most maximum security inmates, those who are housed in the control units.

I also think it's important to note that while there's a 90-day minimum period that these inmates have to remain in the Long Term Segregation Unit on level 2 status where this... when this policy applies, the policy also says that as long as an inmate is serving a disciplinary sentence within the prison, that he's not eligible for promotion to level 1.

And the testimony from the department's designated witness, Deputy... Superintendent Dickson, acknowledged that most of the inmates in the unit are, indeed, serving disciplinary time.

Justice Kennedy: Well... well, it seems to me that that's an as applied challenge.

If... if a particular inmate... the terms of... the conditions of confinement are particularly harsh and he... he or she has an unrealistic opportunity to get to a less restrictive confinement, then... then he can bring a suit.

Mr. Krakoff: I was... I was simply trying to point out... the... the Court had asked how long are inmates generally in the Long Term Segregation Unit, and... and the point that I made is that it's not unusual for inmates to remain on level 2 for periods in excess of 1 year.

Chief Justice Roberts: Mr. Krakoff, what... I take it you wouldn't have any objection to terminating of television rights, for example.

If prisoners have the right to watch television, they misbehave, the penalty is no television.

Is that all right?

Mr. Krakoff: That is correct.

Our position is that the choice of what vehicle the institution wants to permit through which inmates can gain access to what is occurring outside of the prison walls in political and other public matters, that's the institution's choice.

And the reason these inmates sued for access to newspapers and magazines is because the representative plaintiff, Mr. Banks, was allowed to receive his Christian Science Monitor magazine because it was religious in nature, but was denied the opportunity to receive his Christian Science Monitor newspaper under... under this policy.

There's another very important--

Chief Justice Roberts: What other alternatives would you have the prison administrators rely on?

You have an incorrigible prisoner who's misbehaving.

He won't behave.

They go through every... he gets up to level... level 2.

What... what should they have done instead?

Mr. Krakoff: --Okay.

Bottom line under my reading of Turner and Safley is that there has to be first that logical connection under the first prong.

That's not a... an imperative--

Chief Justice Roberts: I'm sorry.

What should they have done instead?

Let's say he gets out of the prison 1 hour every other day.

Should they have taken that hour out?

I mean, not out of the prison.

Out of his cell.

Should they have taken that hour away, or what... what other options do they have?

Mr. Krakoff: --Well, what their... their argument is essentially that this policy was basically a decision by default, not a decision that was reasoned by prison administrators.

They... they essentially said virtually everything has been taken away from these prisoners.

Chief Justice Roberts: Right, and I want you to tell me--

Mr. Krakoff: And we have nothing left to take away.

Chief Justice Roberts: --I would like you to tell me what else they should have done.

Why is that wrong?

Mr. Krakoff: It's wrong because there is no logical connection to taking something away under the facts of this case when taking away an entire litany of... or a very broad spectrum of things which... in the special management units, where these inmates came from, they had had magazines taken away on their first phase in the special management units.

They had been offered the incentive of earning access to magazines, of earning access to weekly visits with family members, of earning access to telephone calls, in fact, of earning access for release from their cells the 23 hours a day to engage in... in small group activities with other inmates.

And most spectacular was they had the opportunity, while in the special management unit, to earn a 3 to 6-month probationary period in a general population cell block.

Chief Justice Roberts: And none of that worked.

Right?

Mr. Krakoff: Absolutely.

And my point is if... if that didn't work, including magazines, which is the equivalent of... essentially of... of newspapers, they had no logical or--

Chief Justice Roberts: So your answer to my question is there's nothing else they could have done, but they shouldn't have done this because this wasn't going to work either.

Mr. Krakoff: --My answer is that you can't deprive an inmate of his constitutional right of free speech--

Justice Souter: No, but consistent--

Mr. Krakoff: --unless there's reason to do so.

Justice Souter: --Consistently with your answer, it seems to me, you have to say they should give the TV back, they should give the magazines back because none of those worked either.

And those are First Amendment deprivations to some degree.

Mr. Krakoff: What they've done here is they've removed all of the vehicles to--

Justice Souter: No.

But I mean, what's... what's your answer to my question?

It seems to me that your point to the Chief Justice was the courts have to review the efficacy of these moves.

Mr. Krakoff: --That's right.

Justice Souter: And if... if there is no efficacy and there is an infringement of what, at least for people on the outside, would be a protected right, then they have no justification for taking those rights away.

And if that's going to be the analysis, then on... on the argument you just gave, they've got to give the TV rights back, they've got to give the magazine rights back, and so on.

Isn't that correct?

Mr. Krakoff: May I answer it this way?

I know I'm supposed to say yes or no and then--

[Laughter]

--to give an explanation.

Justice Souter: I sure would like that, but--

[Laughter]

Mr. Krakoff: I'll say no.

My instinct is no, and I would also say the--

Justice Souter: But then why?

Why?

Mr. Krakoff: --I've been reading Turner v. Safley and then more recently Overton because this is basic in my practice to represent prisoners.

And my reading of Overton is that you can't have a policy.

The prison officials cannot have a policy unless there is reason to believe that the policy is going to advance a legitimate penological interest.

Justice Souter: Right.

And in... in your argument, in your answer to the Chief Justice, you were pointing out a situation in which taking away the TV didn't work, taking away the magazines didn't work.

Mr. Krakoff: I think--

Justice Souter: Why then do they not, on your theory, have to give TV and magazines back?

Mr. Krakoff: --I... I think that an institution can always make judgments about how extensive they want to allow inmates to--

Justice Souter: All right.

Then where does your efficacy criterion go?

You're saying they may make judgments, and apparently they may... may make judgments and maintain them even if those judgments do not, in fact, advance their interests.

Here, you're saying they... it's not going to advance their interests, so they can't do it.

In these cases, you're saying they don't advance their interests, but they can as a matter of judgment.

And I don't know how to draw that line.

Mr. Krakoff: --No.

I'm... I'm not saying they can't as a matter of judgment.

I... I'm suggesting that they can select among options... we're specifically speaking about access to information outside the prison walls.

And what I'm suggesting is that they can't eliminate every suitable way by which inmates can gain.

And I think the word is of sufficient utility... was the... was the language that was used in Overton.

And I'm saying the bottom line is they can't eliminate all means by which inmates can access information.

Justice Kennedy: But... but... the whole rationale of your case... if I were you writing your brief, I would have this problem.

This really matters to the inmates, but that's exactly the State's point.

That's the reason it's taken away.

It really means something.

And I... I just... I just don't know what to do with that conundrum.

Mr. Krakoff: I've had other--

Justice Kennedy: And... and it seems to me it's the heart of your case and that it surfaces here in the answers you've attempted to give.

Mr. Krakoff: --Obviously, this... this did matter enough to the prisoners to commence a lawsuit.

I don't think that the standard by which a court... this Court or any other Federal court should determine whether or not there's a logical connection or a reasonable connection is whether or not inmates choose to file suit.

That's establishing a litmus test--

Justice Kennedy: Well, but the whole basis of the suit is that it matters to the prisoner, and that's exactly why it's been taken away because there's nothing else left that we can do with these prisoners.

Mr. Krakoff: --But I see a distinction.

There are lots of things that matters to prisoners and lots of things that matter to us in the free world that aren't going to change our behavior.

There... there are some things that are important to us--

Justice Scalia: What about changing other people's behavior?

Your... your assertion that it does no good is based upon the fact that it has not altered the behavior of these people who are in the unit.

But what about other people who don't want to get thrown in the unit?

I mean, don't you have to look at the deterrent effect?

And... and is it easy for you to say that the... that... that the in terrorem effect of being deprived of... of literature, television, or whatever has not induced other people to shape up?

Mr. Krakoff: --They made the argument that this is part of an overarching deterrent program.

Justice Scalia: Well, I think it is.

Mr. Krakoff: Well, but if you look... Justice Scalia, if... if one looks at the record carefully, you see that this policy which, by the way, applies to 40 inmates in one particular institution in a... in a prison system that has 23 adult institutions for men, that this policy is essentially a classified policy.

The policy itself says this is not to be a matter of public dissemination and is only to be given to personnel on an as needed basis.

The inmates who receive the inmate manual in the Long Term Segregation Unit have to sign for it.

They receive a number, and every manual has to be returned.

Apart from the prison grapevine, which all of us know there is a prison grapevine, I submit that it's... it's not great enough to tell inmates throughout the system that, in fact, if you get into the Long Term Segregation Unit, this very small unit, that you may lose newspapers and magazines.

I don't think it is known, and I think in order to deter, a policy has to be publicized, as it was in Overton.

Michigan made it very clear to the prisoners, that if they got involved into drug violations, that their visits for 2 years would be suspended.

And if I may--

Justice Ginsburg: So let's say if... if the flaw is it doesn't deter other people because they don't know about it, then if they... if they broadcast it all over so everyone knows about it, then it's okay?

Mr. Krakoff: --Well, I say that in order to make a deterrence argument, at least an argument that makes sense to me, that in order to deter somebody from doing something, they have to know about that policy and they have to know what the consequences are.

If there were a secret policy in the State of Indiana that they, you know, will execute persons committing first degree murder, any argument that that's going to... that the death penalty is going to act as a deterrent I think--

Justice Breyer: But is there other... are there other bases?

Because so far your argument is they're so bad that you might as well give them whatever they want because it won't matter.

[Laughter]

Now, I'm parodying it, but you understand why I don't think it's your strongest for the reasons said.

But are there others which might be a little... you had other arguments--

Mr. Krakoff: --Yes, and... and I... I do want to say... and I don't know how to say it more... more clearly... I understand it, but I'm obviously not framing this in a way that is getting my point across.

I'm not suggesting that because people... these are the most incorrigible, recalcitrant inmates in the entire 38,000 inmate prison system, that that means that they can get anything that they want.

I'm suggesting that when you take away a very significant right... and that is the ability to learn what is happening beyond the prison walls... there has to be a reasonable basis for doing so.

Now, if I've been reading Turner and O'Lone and Overton incorrectly, then I'm doing a disservice to my clients.

Justice Breyer: --No, no.

It has nothing to do with the law.

I understand your argument.

Your argument that you have made is, at the very least, you can't say that this deterrent effect is that big a deal.

I mean, now, there were other reasons justifying it.

They said, for example, if one--

Mr. Krakoff: Security.

Justice Breyer: --Yes, and they made a big case in this.

It's on 188 in the appendix.

Mr. Krakoff: Exactly.

Justice Breyer: And they made a major point.

They said that with the newspapers, they set fires, they throw feces.

They use them as a spear, and then when asked, why couldn't you do the same with library books, or couldn't you do the same with paperbacks, they said, yes, it's possible, but it's less likely because of the size of the document.

And we don't have to forbid everything.

We just forbid the things that we think are particularly likely.

Now, what about that?

Mr. Krakoff: Well, my... my... I suppose my most straightforward answer would be that the Jewish Forward can burn as quickly as the New York Times, that the Christian Science Monitor--

Chief Justice Roberts: Well, then now you're giving... now you're making their situation worse because they tried to make your client's situation better.

I mean, yes, they could... maybe they could prohibit religious journals as well, but they... for various reasons, they decided not to do that.

Maybe they could have eliminated legal materials as well, but again, they decided not to do it.

They take a more circumscribed approach.

So I'm not sure it's a very effective response to say, well, they let religious materials in and that can be used as well.

Mr. Krakoff: --I think it's a realistic... with all due respect, I think it's a realistic response.

I'm not faulting them.

I applaud them for doing what was a reasonable thing.

Justice Ginsburg: I thought you were using that to say that the security concern doesn't hold up because of the papers that they're allowed to have in their cells can be used similarly for fires, similarly to do other bad things.

Mr. Krakoff: Right.

Justice Ginsburg: So I thought that's why you were using that, just to say that the... the security concern is dubious because the materials that they are allowed to have in their cells can... could achieve exactly the same end.

Mr. Krakoff: Well, there are other things, Justice Ginsburg, that are routinely permitted in... in the cells and, in fact, that probably have to be in the cells that can be used.

They're given... they're giving... given writing paper, and the testimony of Deputy Dickson was that they... they fling feces with writing paper and they fling feces quite a ways--

Justice Scalia: Do you know what kind of a fire you can make with the Sunday New York Times?

[Laughter]

Are you going to... are you going to compare that to writing paper and... and to... to the Jewish Advocate or whatever it is?

I mean--

Mr. Krakoff: --Well--

Justice Scalia: --it seems to me a perfectly reasonable line.

Mr. Krakoff: --The... but it's not only... it's not only writing paper.

It's... and they have to have blankets.

The blankets are flammable.

Their clothing is flammable.

The bed sheets are flammable.

Chief Justice Roberts: So if visitors... if there's a security issue with visitors to the prisoner, you're saying you can't prohibit visitors because if you allow the lawyers to come in, because they're visitors too?

Mr. Krakoff: No, I think that would be a specious argument.

Chief Justice Roberts: Well, but it wouldn't undermine the security rationale just because you have some exceptions where there are other countervailing interests that might outweigh the security concern.

Mr. Krakoff: But if, in fact, their suggestion is that... if their suggestion is that the inmates are less likely to burn a Bible, for example, and assuming they're... they're Christians rather than somebody else who has the Bible, they're less likely to burn a... the Bible or some book of scriptures, that makes sense.

But when you suggest that they're less likely to burn a legal newspaper or a religious newspaper, that doesn't make sense.

And I'm suggesting this isn't a question of equities that if they're nice enough to permit these prisoners to read religious based or legal based newspapers and magazines, that forecloses the inmates from saying... does that make a lot of sense?

I don't... I don't think so.

Justice Stevens: May I ask you--

Justice Breyer: All right.

What is it that I should read then in respect to what's actually bothering me?

In Turner v. Safley--

Mr. Krakoff: Right.

Justice Breyer: --the Court says we resolve, when a prison regulation impinges on an inmate's constitutional rights, which is does here, the regulation is valid if it is reasonably related to legitimate penological interests.

That standard is necessary if prison administrators and not the courts are to make the difficult judgments concerning institutional operations.

And that's where I think it's difficult to balance this case.

If we were to decide for you, are we going too far in interfering on what the prison administrators should be doing, or have they gone too far?

Now, if I'm supposed to look at this record and try and make up my mind, which I think is about that question, what do you want me to look at?

Mr. Krakoff: I want you to read the entire brief--

Justice Breyer: Well, I'll read the briefs.

I have no problem with the briefs--

Mr. Krakoff: --No.

I... I suggest that our... my brief might be more coherent than I today.

[Laughter]

And I think we make out a strong case... that we make out a strong case for why the policy in question is not reasonably related to a legitimate penological interest.

I would suggest, looking at another aspect, Justice Breyer, that there was some comment about the adequacies of the... the alternatives, the other avenues, and that's an important consideration under the second prong of... of Turner.

And I think it's... it's strange to suggest that the prison chaplain who visits level 2 inmates for religious purposes and that attorneys, assuming that an inmate has an attorney, generally are going to come discuss either a section 1983 action or a criminal case, and that relatives once a month for an hour are going to discuss current events, and that they're going to act as kind of a quasi wire service by--

Justice Stevens: --May I ask you this question?

Mr. Krakoff: --Yes.

Justice Stevens: You said that the prison grapevine really doesn't tell the prisoners about this particular lack of access to public materials.

Does the prison grapevine let them know that they're going to be in the cell for 23 hours a day and only be out 1 hour a day?

Mr. Krakoff: They're actually, Your Honor--

Justice Stevens: If that is generally known, it would seem to me that that itself would be sufficient incentive to try and avoid this program, whether or not you're going to be able to read the Christian Science Monitor or the New York Times.

It seems to me that the... the... what we're fighting about is trivial compared to the very obvious deterrent value of 23 hours in the same cell 7 days a week, 30 days a month, 365 days a year.

I don't think I'd care about this other stuff.

Mr. Krakoff: --I agree with that point, obviously.

But every inmate in disciplinary confinement stays in what is referred to as... as the restricted housing unit, and they all know--

Justice Scalia: Of course, I could say the same thing about going to jail, I mean, at all.

Mr. Krakoff: --Well--

Justice Scalia: You know, I could say whether I'm there 23 hours or all or not--

Mr. Krakoff: --Yes.

Justice Scalia: --it's enough of an incentive that I... that I don't want to go to jail.

There's... there's incentives and there's incentives.

Mr. Krakoff: Yes, but I suggest that... that living in a cage and exercising in a case in... in seclusion, that's... that's a prison within a prison.

And those things deter normal people, people who--

Chief Justice Roberts: And once you're in that situation already, as these prisoners are, and they're still not conforming their behavior to the prison rules, you have a limited number of options for trying to get them to do that, and your response to my first line of questioning was that there's nothing else you can think of that they could do.

Mr. Krakoff: --At some point, the options expire.

They have taken so much away from these prisoners.

Is that going to then justify?

Say, well, we've taken everything else and this is what we have left.

Is that the kind of situation where deference is supposed to be high because they're making... I don't see that as a real choice.

They're doing what they have available.

Chief Justice Roberts: So your response is they should just grin and bear it.

They--

Mr. Krakoff: My... my response is that they have taken so much away from these inmates who are the most incorrigible, recalcitrant inmates in the system.

And they say in their... in their policy that these inmates are either unwilling or incapable of charging their... changing their behavior.

I submit that some of these men probably are, and I think it's also interesting that they--

Justice Souter: I... may I interrupt you--

Mr. Krakoff: --Yes.

Justice Souter: --with this question?

Aren't you really saying that when the deprivations get beyond some point, some serious point, the issue is not properly analyzed under Turner and Safley, can they do one thing more?

The issue really becomes one of cruel and unusual punishment.

Is the totality that they have taken away so great that it is cruel to maintain these people under these circumstances?

Is that the argument you're really making?

Mr. Krakoff: It isn't.

That's... that's an option if one reaches the point where it truly is cruel and unusual.

We didn't file an Eighth Amendment challenge here based upon the facts that I knew.

Justice Souter: Oh, I know that wasn't... that wasn't the claim that you made, but isn't that the argument that you're making?

Mr. Krakoff: No.

And... and I think that... I know in Overton there was a dissent by Justices Thomas and Scalia that essentially said that that's what you have.

You... you have an Eighth Amendment argument if a policy rises to that level, but if a policy doesn't constitute cruel and unusual punishment, then you're out of luck.

And that kind of swallows up the First Amendment in my view and the other... and other amendments as well.

Now, what I'm suggesting is not that they've reached the point of cruel and unusual punishment.

I'm suggesting that there comes a time when you take away so many things from these prisoners, that you basically... yes, you may have to give up and you may have to keep them in segregation.

And they do keep men in segregation... other forms... for 10, 15... I represented a man who had been in segregation for 30 years.

So it's not as though that's unusual.

They do give up on people in... in the Pennsylvania prison system all of the time.

That would not be unusual.

I suggest that if we reach the point where the law says that if you run out of options, you can do anything that you want as long as it doesn't rise to cruel and unusual punishment, that we may as well forget about--

Justice Kennedy: But... but the State's position is that it wants to avoid that ultimate deterrent.

It... it wants to take away privileges for a while to see if he can conform.

You're depriving the State of the... of the option to avoid the most extreme circumstances of forgetting about him altogether forever.

Mr. Krakoff: --Well, I... I--

Justice Kennedy: And it seems to me that... that your... your argument is... is at cross ends with its own purpose.

Mr. Krakoff: --Well, it... unless there are other questions, I think I've reached--

Justice Stevens: Just let me just ask one... one thing I am curious about.

The argument... it seems to me that there's kind of a flow of these.

Some of them get out of this system and some stay a long time.

What does the record tell us about how often, if they conform to the regular rules without any violation for 40 days or a year, do they... do they get out of this... this situation?

Mr. Krakoff: --The... the rules themselves say kind of in a preamble that... that confinement is for a minimum of 90 days, but that often it's... it's longer than that--

Justice Stevens: I'm not posing what the rules say.

Does the record tell us whether... you know, whether the system is just something we're talking about or whether it really has an effect on people's moving from this classification to another classification.

Mr. Krakoff: --Well, there were... there were 10 inmates in the first 2 and half years of the operation, according to Deputy Dickson, who had moved out of... out of the unit.

The record is silent as to whether any of these inmates ordered subscriptions for newspapers or magazines.

So we don't know whether that even arguably was a factor.

I think that the... that the State has acknowledged that there might be many reasons why inmates might leave the Long Term Segregation Unit that could be unrelated to the... the, quote, incentive of newspapers and magazines.

So we don't know whether any of them have left because they've simply gotten tired of being in segregation for 2 and a half additional years, after flunking out of the special management units, or whether there were other... other factors.

Two... what... what is concerning is that two inmates left straight from the unit to the streets because their sentences expired.

And so they were essentially people who... you know, they... they could read about the... an ancient war in the Bible, but they couldn't read about Iraq.

So they were going to have... I don't know if that's a healthy situation.

That's not from a constitutional perspective,--

Justice Ginsburg: What... this--

Mr. Krakoff: --but from a practical perspective.

Justice Ginsburg: --What other than the periodical, newspaper access differentiates this custody from the next higher--

Mr. Krakoff: Special management unit?

Justice Ginsburg: --Yes.

Mr. Krakoff: Well, all... the various incentives... there's no possibility of earning access to radios or televisions in the Long Term Segregation Unit.

The most there can be would be twice a... twice a month visits if they're promoted to level 1, as opposed to four time a month visits if they succeed in the special management unit.

There's no opportunity for out of cell group activities while in the Long Term Segregation Unit.

They lose that as an... that's not an incentive.

That is an incentive in the special management unit.

There's no probationary period where they can be released to a general population cell block which, as the Court knows, a general population cell block is... offers many opportunities that segregated cell blocks don't.

And that's not available.

Chief Justice Roberts: --Thank you, counsel.

Mr. Krakoff: Thank you.

Rebuttal of Louis J. Rovelli

Chief Justice Roberts: Mr. Rovelli, you have 2 minutes remaining.

Mr. Rovelli: Very briefly, if... if I might turn myself to just the very first point that Mr. Krakoff made about inmates being compelled to stay in the Long Term Segregation Unit until they complete their disciplinary custody.

I would draw your attention to pages 40 and 41 of the joint appendix, which show that... that the unit manager has the authority to set aside disciplinary custody, and an inmate who graduates the Long Term Segregation Unit gets all of their disciplinary custody set aside completely.

So in a sense, the... the disciplinary custody aspect is another incentive.

Justice Scalia: Mr. Rovelli, do the other prisoners know about this?

I'd like you to respond to the... to the assertion that nobody knows about this anyway, so it doesn't deter anybody.

Mr. Rovelli: The principal means by which other prisoners would know about it is the very effective prison grapevine, although it does appear in the... in a chart that's appended to the handbook for the special management unit, and 75 percent of the inmates who wind up at level 2 come from the special management unit.

The other thing I would point out about the effectiveness of this program, as opposed to the give up on them proposition, is that even at... even in 2002, when the program was only 2 years old, 25 percent of the inmates who had been sent there had graduated.

The statistics on that are at pages 7 and 8 of our reply brief.

Finally, if... if the Court were to affirm the court of appeals, then this case has to be sent back to trial and the burden is put on the prison system to demonstrate empirically that this regulation can achieve its goals.

In a sense, I've just demonstrated that it has achieved its goals, but much more importantly, the effect of that would be to totally undermine, if not void, Turner and Overton.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hartman v. Moore - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Hartman v. Moore

Media File:

04-1495_20060110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Edwin S. Kneedler

Justice Stevens: We'll hear argument now in 04-1495, Hartman against Moore.

Mr. Kneedler, whenever you're ready, you may proceed.

Mr. Kneedler: Justice Stevens, and may it please the Court--

Respondent alleges in this Bivens action that petitioners, who were postal inspectors, caused him to be prosecuted in retaliation for activity protected by the First Amendment.

In order to make out such a claim, however, respondent must establish that there was no probable cause for the prosecution.

That is so for three mutually reinforcing reasons.

First, that requirement accords with the deference this Court has consistently held in Armstrong and other cases must be given to the prosecutorial function because that function is core to the executive branch's operations and because prosecutorial decision making is ill suited to judicial second guessing.

Second, that rule accords a... an important objective screen and check against claims of retaliatory prosecution in order to guard against the chilling effect that would otherwise routinely arise from inquiry into the subjective motivations of those involved in the prosecutorial decision making process.

And third, that rule is deeply rooted in history.

A claim of First Amendment retaliatory prosecution is but one species of a claim of malicious prosecution, and it has long been required that an essential element of a claim of malicious prosecution is that the plaintiff show an absence of probable cause for the prosecution.

Justice Souter: I'm... I'm not sure why... why we should make the classification that you did, that... that retaliatory is simply a species of... of malicious.

I mean, I... I can see the similarities, but we've also got an entirely separate First Amendment value here which just is not part of the... the analytical mix when you're talking about malicious prosecution.

So I'm not sure why we should... we... we should classify it as you argue.

Mr. Kneedler: Well, I... for several reasons.

First of all, the... the First Amendment... the alleged First Amendment retaliation describes the malice, a form of the malice that would arise in--

Justice Souter: But it's... it's a peculiar, if you will, a peculiar malice with its own set of constitutional values, and I don't know of anything comparable in... in malicious prosecution generically.

Mr. Kneedler: --Well, to be sure, what renders it malice or wrongful is the First Amendment, but... but the derivation of... of the reason for why it's wrongful does not, I think, detract from the essential relevance of the tort of malicious prosecution.

And if... if I may add to that, the... the reason why the... the tort of malicious prosecution is highly relevant here is not simply because on the malice side of it, but also because it has long been recognized, beginning with Blackstone before the First Amendment and the Constitution were even adopted, that there are critical interests on the other side, not simply the defendant's interests in avoiding badly motivated prosecutions, but the important countervailing public interest of ensuring that wrongdoers are brought to justice and that those who have information about it will come forward.

And... and that was recognized by Blackstone early on and has been recognized consistent... consistently by this Court in... in many, many decisions, including recent cases of this Court involving immunity issues, which is what we have here, specifically recognizing that the tort of malicious prosecution is very instructive in deciding how rules should be applied when a Bivens action or a 1983 action is brought in the specific context of prosecution.

Justice Stevens: But, of course, here--

Justice Kennedy: Suppose there is probable cause for a prosecution, but the prosecutors are extremely busy and they... they have to select their cases and they select one in which they bring the prosecution against the defendant on account of his speech.

Is that a violation of the prosecutorial duty?

Mr. Kneedler: Well, in... in terms... in terms of the responsibilities of the prosecutor, there--

Justice Kennedy: Yes.

Mr. Kneedler: --that... that should not... that should not be a... a selection criterion in itself, but it--

Justice Kennedy: I'm... I'm asking is it a violation of the prosecutor's professional obligations and his professional duties?

Mr. Kneedler: --Well, I... I would think ordinarily yes, but with this caveat.

Unlike race which is never relevant to the prosecutorial decision making process, there can often be a prosecution... and this case is one of them... in which you might have claims of public corruption.

And... and in fact, there was a guilty plea here on the part of a member of the Postal Service board of directors for receiving payments to... for his activity on behalf of respondent's corporation and others.

This... this... involving contracts for $250 million.

This was a very, very important procurement by the Post Office Department and it is understandable that in connection with that prosecution, the prosecutors and the Postal Service investigators would look into issues of respondent's, or people in his behalf, approaching the Government.

Justice Kennedy: Just going back to the hypothetical, if... if you acknowledge... and I think you must... that there's a violation of the prosecutorial duty in... in the instance I suppose, then why shouldn't the law recognize it and... and give force to that sanction and give force to that rule?

Mr. Kneedler: Well, there... there are certain restrictions... certainly restrictions on what the prosecutor may do, but several points about that.

First of all, this is not a Bivens action against the prosecutor.

The prosecutor is absolutely immune from suit.

The prosecutor's decision making process is... is, in fact, as is the grand jury's, a... a critical protection against malicious prosecution--

Justice Kennedy: All right.

Well, then we'll just change the hypothetical to make it the investigators.

The investigators select their case based on this speech that they consider unwelcome.

Mr. Kneedler: --Well, the... the question is whether in that circumstance the... the Bivens plaintiff, the criminal defendant, has a First Amendment right to be excused from prosecution or, after the prosecution is unsuccessful, to bring a civil action, whether he has a right not to have been prosecuted in those circumstances notwithstanding the existence of probable cause and the independent judgment by the prosecutor.

Justice Kennedy: Well, does he have a right not to be singled out because of his speech?

Mr. Kneedler: He does... he does not have a... he does not have a First Amendment claim in those circumstances where there is probable cause for the violation.

The--

Justice Kennedy: I asked does he have a right not to be singled out because of his speech.

Mr. Kneedler: --He does not have a First Amendment right not to be singled out in those circumstances.

Justice Kennedy: In other words, you... you would advise law enforcement officials that they can single out persons for prosecution based on distasteful speech.

Mr. Kneedler: I would not.

I... I'm not... I'm not endorsing the motivation.

What I'm... what I'm saying is what is--

Justice Kennedy: What I want you to do is to agree.

I... I think you have to concede there is this principle in the law, and I think your answer has to be even though there's that principle, there are a lot of problems with enforcing it because there are going to be too many suits, it's hard to... it's difficult for the Government to defend, and... and so forth and so on.

Mr. Kneedler: --Right.

I... I'm not disputing that it... that... that a... a prosecution should not be brought or should not be heard--

Justice Stevens: --And you're not disputing either, as I understand it.

As the case comes to us, we assume the prosecution would not have been brought but for the retaliatory motive.

Mr. Kneedler: --I... it is... we certainly disagree with that with our proposition.

Justice Stevens: But don't you assume that for the purposes of your argument?

Mr. Kneedler: For... for purposes of our probable... probable cause claim, yes.

Justice Stevens: Well, that's the only argument.

Mr. Kneedler: That... that is true, but that, of course, was also true at common law for... for malicious prosecution.

Justice Stevens: But the... one of the differences... am I not correct, that at common law the prosecutor did not have absolute immunity?

Mr. Kneedler: At common law... at common law, yes.

As this Court has recognized in reformulating the common law principles of... of immunity, the... the public prosecutor now has absolute immunity under... under these--

Justice Stevens: Now does, but not at common law.

Mr. Kneedler: --under these Court's... under this Court's decisions.

But at common law, the prosecutor did have the protection of malicious prosecution, and as Justice Scalia observed in his concurring opinion in the Kalina decision, the elements of a tort of prosecution essentially had a built in qualified immunity, and the probable cause requirement was essentially that.

It afforded protection for the prosecutor.

The... the private citizen who... who... the complaining witness... he could not be the subject of a suit for damages if... if the charges were dismissed, not simply upon a showing... it required more than simply a showing of malice.

It required a showing of an absence of probable cause for reasons that are essentially identical to the qualified immunity and absolute immunity... the... the reasons for qualified immunity and absolute immunity.

Justice Ginsburg: Mr.--

Justice Stevens: Well, they're not totally identical because you didn't have the First Amendment interest involved in those cases, whereas you do have a First Amendment interest at stake here.

Mr. Kneedler: But... but on... on the... on the governmental interest side of the balance, the interests are exactly the same in both... in both circumstances.

And that is not to chill... not... not to create circumstances where people would hold back from coming forward with information of violations of the law because of fear that they would be sued and retaliated against afterward.

And that hasn't changed now that we have public prosecutors.

It's still critical.

Justice Ginsburg: --Mr. Kneedler, may... would you clarify just one point about this probable cause?

There was a grand jury that indicted this man, and then there was a trial judge who said, I'm throwing this out at the close of the Government's case.

There is not enough evidence here to convict this man.

Are you saying that as long as the grand jury indicts, there can be no Bivens claim because in order to indict, the grand jury would have had to find probable cause?

Mr. Kneedler: Well, at... at common law under the tort of malicious prosecution, the indictment created a presumption because an indictment does have to depend upon probable cause, and under the... under this Court's decision in Gerstein v. Pugh and other decisions, that can't be reexamined by the court in the prosecution.

But at common law, the... the indictment created a presumption that was subject to rebuttal by the... by the civil plaintiff.

There was some disagreement about what would be necessary, whether you would have to show fraud on the grand jury or whether you could just retry--

Justice Ginsburg: Well, tell me about now, not at the common law.

Mr. Kneedler: --Yes.

We do not... we do not think that the existence of the grand... it has not been our position that the existence of the indictment is dispositive and cannot be challenged, but we do think it--

Justice Ginsburg: But the grand jury did find probable cause.

So what would the plaintiff have to show to overcome... to... to negate that finding of probable cause?

Mr. Kneedler: --We... we think in a... in a... it would have to show by at least a preponderance of the evidence, maybe a clear showing, that there was not probable cause.

And I think that also ties in to the... to the standard for qualified immunity, which is could a reasonable person in those circumstances have believed that there was probable cause.

I think, if the grand jury returns an indictment, that that should be pretty persuasive evidence but not compelling evidence... I mean, not dispositive evidence that there was probable cause.

Justice O'Connor: The case that comes closest, as far as I can see, is probably United States v. Armstrong, and in that case, this Court said in the ordinary case, so long as the prosecutor has probable cause to believe the offense was committed, the decision to prosecute or go before a grand jury rests entirely in his discretion.

But, of course, the discretion is subject to constitutional constraints, the equal protection component of the Due Process Clause.

The decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.

And the standard the Court articulated there was the defendant must present clear evidence--

Mr. Kneedler: Yes, clear evidence, and the Court stressed that it was a--

Justice O'Connor: --to the contrary.

Now, that's different from your proposition of probable cause.

Mr. Kneedler: --Well, I... I think several things may explain that.

In Armstrong, that was a claim of selective prosecution that was brought--

Justice O'Connor: Based on race.

Mr. Kneedler: --Based on race.

That was one of the distinctions I was going to point to.

And secondly--

Justice O'Connor: So why should that be different than the First Amendment violation?

Mr. Kneedler: --Well, as... as this Court's decision in... in Johnson, for example, shows, there... distinctions based on race are subject to strict scrutiny no matter what the context, in that case even in the prison context, whereas First Amendment claims often take account of the context in which they are raised.

For example, this Court in the American Arab Anti Discrimination case held that there would... could be no claim at all of selective prosecution in the immigration context because of the important countervailing interest in enforcing the law.

Justice Scalia: But you're willing to acknowledge... and... and the Government concedes that you can have a different standard when the... the basis for the selective prosecution happens to violate the Constitution from the standard you apply where the basis for the selective prosecution doesn't violate the Constitution, such as I'm prosecuting him because he was mean to my brother in law.

Okay?

Mr. Kneedler: No.

Justice Scalia: Would you apply a different standard there than you would apply where... where the reason is some First Amendment reason?

Mr. Kneedler: Well, no.

The... the other distinction... and... and I'm not sure if this goes to your point or not.

The other distinction is that in Armstrong the claim was made in the criminal prosecution itself.

Here, the claim is the civil action after the criminal prosecution is over with, and it's in that... in that context especially that the analogy to malicious prosecution is very strong and why the element of... that the person has to... that the... there has to have been a favorable termination for the... for the plaintiff and there has to be--

Justice Stevens: But that doesn't--

Justice Scalia: But would you answer my question?

Justice Stevens: --Yes.

Mr. Kneedler: --I'm... I'm not sure that I... maybe... I guess I--

Justice Scalia: It would be a different criterion... you... you say it's going to be different for the First Amendment and the... and... and the Equal Protection Clause, at least where race is involved.

What if there's no constitutional violation at all, but I just selectively prosecute him just because I don't like this guy or because he was mean to a relative of mine?

Mr. Kneedler: --No, I don't... I don't--

Justice Scalia: Is there going to be a different standard--

Mr. Kneedler: --No.

There... there wouldn't be any... any constitutional claim and any... any common law--

Justice Scalia: --Exactly, and would you apply a different standard because there isn't a constitutional claim?

Mr. Kneedler: --No.

There wouldn't be any claim at all.

I mean, there wouldn't be any basis for a claim.

Justice Stevens: --a malicious prosecution claim.

You'd have a malicious prosecution claim.

Mr. Kneedler: There... there... and in the... in the Federal sphere, if there was a malicious... a common law malicious prosecution claim, that would have to be brought under the Federal Tort Claims Act against the United States.

Justice Stevens: But, Mr. Kneedler, I understand your argument to be they should be treated just like a malicious prosecution claim, which is no distinction between a constitutional basis and a common... and just that he hated his brother in law.

I think you're saying they're the same.

That's what I understand Justice Scalia to be asking you.

Justice Scalia: That's what I'm asking.

Mr. Kneedler: Well, yes.

I... I am... I am saying that--

Justice Stevens: Which places no weight at all on the fact the Constitution is involved.

Mr. Kneedler: --Oh... oh, it does because the... because the... the first... the existence of the First Amendment claim is what gives you the Bivens cause of action in the first place.

So otherwise, there wouldn't be any Federal cause of action at all without... without the First Amendment claim.

Justice Stevens: That's how you'd get at least as much protection as if it was an ordinary malicious prosecution claim, but you don't get any more under your view.

Mr. Kneedler: No, because... and... and again, this... this is... this is because of the... of the background of the common law tort of malicious prosecution, which strikes exactly the balance that I... that I'm talking about.

Justice Breyer: But you really want three things.

You say we want the protection, number one, of there... if you're... if there's probable cause, that's the end of it.

Number two, if you're trying to show there wasn't probable cause, you have to bear clear and convincing evidence, and number three, we also have qualified immunity.

And I guess, number four, you have to prove the whole thing by clear and convincing evidence.

Mr. Kneedler: Well--

Justice Breyer: It sounds a little bit like the person who has the overcoat, turns up the heat, you know, five or... what about one?

Mr. Kneedler: --The... the--

Justice Breyer: What about this one?

And I want to know... you simply say you need clear and convincing evidence that that was the motive and it wouldn't have been brought otherwise.

And the existence of probable cause is a strong factor, maybe even a presumption, that suggests to the contrary.

Now, have States and other places tried things like that without the world collapsing?

Mr. Kneedler: --No.

My understanding from... from reading the treatises on... on malicious prosecution, for example, that there has been no watering down of the probable cause requirement because it is understood to be a critical check against--

Justice Breyer: So as far as you know, every State and every jurisdiction where... and investigators if they don't have absolutely immunity, whatever... in all those jurisdictions, nobody has ever said that even a constitutional violation, if there's probable cause, that's the end of it.

Mr. Kneedler: --Well, I'm... I'm focusing on the tort of malicious prosecution which is--

Justice Breyer: Oh, I'm not focusing.

Mr. Kneedler: --which--

Justice Breyer: I want to know--

Mr. Kneedler: --Yes.

Justice Breyer: --if--

Mr. Kneedler: I'm not... I'm not aware... I'm not aware that any jurisdiction has done that.

But in response to your proposal, the... the... what... what's wrong with that is that it would allow extensive inquiry, discovery, other inquiry into the subjective motivations of persons involved in the decision making process with no mechanism analogous to immunity or the... or the probable cause criterion to weed out--

Justice Breyer: --We have no experience.

We don't know.

Okay.

As your... as far as you can tell.

The other question I have, which you might want to be brief about, is in looking through this record, as far as I could see from the briefs, they went ahead and prosecuted this man with only two pieces of evidence.

The first evidence was that he tore some pages out of his notebook.

But he introduced lots of notebooks to show he always tore pages out when he gave them to his secretary.

And the second was that he told some witnesses be very careful and answer the question.

Now, you know, he said a few other things, but they all seemed like the kind of things that people would always say to witnesses.

Now, if that's the only evidence, except for the fact he owns the company, how is there probable cause here?

Mr. Kneedler: --There... there was much, much more evidence.

Justice Breyer: Well, I didn't see any in the brief.

Mr. Kneedler: There--

Justice Breyer: I saw a lot about other people in the brief, but not about him.

Mr. Kneedler: --Well, for one thing, it's absolutely conceded that there was a conspiracy.

Three people pleaded guilty, including--

Justice Breyer: There are all kinds of things about other people.

Mr. Kneedler: --No, but... but--

Justice Breyer: I didn't--

Mr. Kneedler: --the... it isn't all about other people.

The... the... that crime included... and it's accepted in this case that the Postal Service board of... board member accepted 30 percent of the fees paid by respondent's company to the consulting firm.

Respondent's company.

He was the chief executive officer.

Justice Breyer: --I would like you to limit yourself to what I didn't concede.

I concede it's his company.

I concede that he tore some pages out of his notebook, and I concede that he told... which he did a lot of times.

And I concede that he told witnesses answer the question, et cetera.

Now, is there anything else connecting him, not his company?

Mr. Kneedler: Yes.

In... in the summer of 1984, before there was even a consulting agreement, there was a series of conversations between Voss, the postal board board member, and respondent, including one for which there are notes in which Voss said I am working for you.

There... there was an... there is an abundance of evidence involving Reedy who is... no.

I... I know, but just in... just in terms of... just in terms of the sequence.

There is evidence that Voss and Moore were good friends.

Voss said that he had a close relationship with respondent, and when the contract was first being negotiated, Reedy acknowledged that Voss and Moore were good friends.

They had a close relationship.

They were not distant.

Justice Stevens: Mr. Kneedler, I know you're responding to Justice Breyer's question, but I think for purposes of our decision, we're not supposed to decide whether there was probable cause or not, but we're to give you the opportunity to prove there was if... if you win on your--

Mr. Kneedler: Yes, although I... I certainly do not want to leave the misimpression that... and there is... there is much more.

Justice Stevens: --But that's a disputed issue, and we don't have to decide the probable cause issue.

Is that not correct?

Mr. Kneedler: That... that... you do not have... you do not have to decide it, but I would certainly urge the Court not to proceed on the assumption or make any comments that there is because there were... there were--

Justice Stevens: But because the other side is arguing that even if there is probable cause, the burden shifts when they prove the retaliatory motive, and you have to prove that you would never... you made... you would have brought the prosecution even if there had been no retaliatory motive.

That's what we're arguing--

Mr. Kneedler: --Right, and that is their position.

And that position accords... yes, that is their position.

And that accords no particular--

Justice Stevens: --And the question I would ask is why should this be different from a wrongful discharge case in which there's ample cause to discharge and the issue boils down to whether or not he would have been discharged anyway.

Why isn't it the same... same situation?

Mr. Kneedler: --What is very different is that this is the prosecutorial function.

As this Court recognized in Armstrong, that is a core executive branch function and it is one that the courts are ill suited to second guess because a whole variety of determinations can enter into whether to prosecute somebody, whether they... whether the particular conduct... how culpable the person is, whether the conduct fits into the overall prosecutorial priorities, whether there will be cooperating witnesses, what... what the office's resources are.

There are a whole bunch of... of judgments that courts are ill suited to second guess, and it would be very chilling if the prosecutor had to--

Justice Stevens: Wouldn't... wouldn't all those considerations justify a rule that makes the burden of proving the retaliatory motive very high, say, maybe it has to be by clear and convincing evidence or something like that?

But once you have it acknowledged... I don't know if they're really acknowledged here, but there's strong evidence of retaliatory motive... why shouldn't the burden shift just on that, on the basis of that proof?

Mr. Kneedler: --Well... oh, not... we do not think there is strong evidence of retaliatory motive.

And I... I can... can address that, but--

Justice Stevens: And if you had a--

Mr. Kneedler: --but--

Justice Stevens: --if you had a heavy burden of proof at that stage of the proceeding, wouldn't that protect the interests that mainly concern you?

Mr. Kneedler: --We... we think the more direct... I don't think so for... partly for the reason that I... that I gave to Justice Breyer is that... that that would not protect against discovery and... and the sort of chilling inquiry that this Court has recognized in its immunity cases, and especially in the prosecutorial function where the prosecutor would be required to disclose.

Even though the prosecutor is absolutely immune, the prosecutor's decision making process and his communication with law enforcement agents would... would be exposed for judicial scrutiny, public scrutiny in a way that could chill the prosecutorial function.

Justice Scalia: Mr. Kneedler, the defendant here is not the prosecutor.

Right?

Mr. Kneedler: Right.

Justice Scalia: Just someone who provided information to the prosecutor that... that was erroneous and allegedly maliciously motivated.

Mr. Kneedler: I don't think erroneous.

It was allegedly maliciously motivated.

Justice Scalia: Allegedly maliciously motivated, at least.

I don't understand how you would apply the test, would... you know, would you have prosecuted anyway, when... you know, but for the malicious motive, when the person you're... you're suing is not the prosecutor.

It wasn't up to this person whether there would be a prosecution.

Mr. Kneedler: I think that's a... I think that's a very important point, and before a... a court enters into that, in the end, unknowable question, maybe a court can... can, in the end, determine probabilities, but before a court undertakes that, which requires looking not simply at the motivation of the... of the law enforcement officers, but the prosecutor and... and who knows whether the grand jury would have returned an indictment, and yet a court certainly couldn't be expected to inquire into that.

Now, so we... we think that that's another reason why the probable cause requirement is a critical gateway before a court is... is going to enter into that determination.

And all... and it's important to remember it's not just proving the question of causation, but these are people who are several steps removed from the... from the prosecutorial decision.

And the... and the personal liability would be visited on the law enforcement agents who were doing their job and cooperating with the U.S. Attorney's Office.

This case was... this case got attention at the highest levels of the U.S. Attorney's Office.

The U.S. Attorney personally met with the... the respondent... lawyers for respondent.

Justice Ginsburg: Mr. Kneedler, the D.C. Circuit, looking at this case, looking at the record closely, typed it one in which the evidence of retaliation was strong and probable cause weak.

This is on 28a of the appendix to the petition for cert. That was the appraisal of the D.C. Circuit panel.

And I think you've been arguing that that is not the case, but at least for our purposes at this posture, don't we... shouldn't we accept that that is the picture here, weak evidence of probable cause, strong indications of retaliation?

Mr. Kneedler: I... I don't... I don't think there's any reason to accept that because there's no factual determinations to that effect.

There... there are really just two snippets of evidence that are primarily relied upon by the court of appeals for the view that there was a retaliatory motive here.

And they were... they were really observations that the... that the inspectors made to... to show... the first one was why the corporation should be indicted, not just... not just Moore, but why the corporation should be indicted.

And it was just an observation that the corporation, through its agents, was involved in a lot of activities and should be held accountable.

It was not... it was not evidence of a... of a retaliatory motive, and there were subpoenas for... for documents about political contributions.

But let's remember that this was a case involving bribery of a public official, and it was... it was understandable that the AUSA and the... and the inspectors would... would look to see whether there was money directed elsewhere.

If I may, I'd like to reserve the balance of my time.

Justice Stevens: Mr. McCartan.

Argument of Patrick F. McCartan

Mr. McCartan: Justice Stevens, if it please the Court--

If I may, Your Honors, I would like to start with the very pointed inquiry that Justice Kennedy made at the opening of the argument here.

The petitioners here do not challenge, because they cannot challenge, as was evident from the concession made here this morning, that a criminal prosecution cannot be based upon the exercise of a constitutional right.

What they want is an exception to that rule, an exception that would mean, despite the overwhelming evidence of retaliation of record in this case, there would be no violation of the First Amendment here and that would treat any prosecution based solely upon race, religion, or protected speech the same as a tort for malicious prosecution.

And to accomplish this end, what they are trying to do is to force probable cause as a standard into a framework where it doesn't belong, where it won't work, and which, if done here, is going to be contrary to several existing decisions of this Court.

Justice Scalia: Mr. McCartan, how does... how does your standard work?

The same question I asked Mr. Kneedler.

The... the test you would propose is whether but for the retaliatory motive, the prosecution would have been brought anyway?

Mr. McCartan: That would be the test, Your Honor, for recovery when the matter goes to trial.

Justice Scalia: Right.

Mr. McCartan: The test that I would propose is the very test that this Court set forth in Harlow against Fitzgerald because we're here really on a very limited issue of qualified immunity.

We have to determine whether the defense of qualified immunity is available to the petitioners here.

The standard, the proper standard for making that determination was set forth by this Court in Harlow and it's whether the conduct alleged--

Justice Stevens: But, Mr. McCartan, I don't mean to interrupt you, but I thought the primary issue was not the qualified immunity issue, but whether we have a cause of action in the first place.

Mr. McCartan: --Well, Your Honor, whether... no, I think that the--

Justice Stevens: And on that, they say you don't have a cause of action unless you're able to prove an absence of probable cause.

Mr. McCartan: --I think what they are saying is the defense of qualified immunity should be available if there should be probable cause for the action that was taken here.

I think the case before the Court is on the very limited issue of whether the defense of qualified immunity is available to the petitioners.

Justice Scalia: No.

I think they would say absolute immunity, not qualified.

I... I think they're saying if there's probable cause, the game is over.

Mr. McCartan: That's exactly what they're saying, and what I'm saying is that is the wrong standard to be applying.

Justice Stevens: Well, but there are two questions in the cert petition and it's the second one that's the qualified immunity issue, and the first one is whether there's a cause of action.

Mr. McCartan: All right.

Well, Your Honor, let... let me... let me back up for just a moment then with respect to that.

Let me say that probable cause is not the proper standard which should be applied here.

The proper standard is the standard that is set forth by this Court in Harlow and as refined later in Anderson against Creighton and a number of other decisions.

Justice Souter: But the difficulty I think we're all having with it is that the qualified immunity issue and the standard to which you are... are adverting responds to a question that doesn't arise unless we first assume that there is... that there is a constitutional violation.

Mr. McCartan: That's correct.

Justice Souter: And our questions are what is the standard for determining the constitutional violation.

Once we get that squared away, then we'll get to Harlow.

Mr. McCartan: The standard that is to be set forth to determine whether there is a constitutional violation is that that this Court applied in Mt.

Healthy City School District against Doyle and in Crawford El against Britton, and that is if there is illegally or unconstitutionally motivated conduct, it will not be excused simply because there may be some objectively valid basis for taking such action.

That is the conceptual framework that was established in those cases and which should be applied by way of analysis.

Justice Breyer: If it is applied here, I... I thought we just granted question one.

There were two in the cert petition.

I... my notes say we just granted question one.

And that means what they have is the screen.

We're going to screen out absolutely any such claim as yours if there is probable cause.

Now, the reason they advance for doing that is that in the... a reason is in the absence of a screen like that, here's what's going to happen.

Every single case... not every one, but millions of cases or thousands, anyway... involving companies... well, companies are going to Congress all the time.

They have ads all the time.

They run into agency hostility all the time.

The Hell's Angels?

That's a pretty unpopular defendant.

They say things all the time that investigators disagree with.

And what will happen is in a vast number of cases the defendant will decide to bring a Bivens action, particularly if he gets off, and then we'll have discovery and we'll look into every statement that the... the investigator made to the prosecutor, and before you know it, we have a nightmare of tort cases.

And they say that's unfortunate to cut off a claim like yours, but after all, the prosecutors totally cut them off because they have absolute immunity.

Now, we're saying at least let's restrict them, where investigators are involved, to cases where it turned out there was no probable cause, otherwise the criminal process itself will be seriously injured.

Now, I take it that's the argument.

I'd like to hear your reply.

Mr. McCartan: That is exactly the argument, Your Honor, and what it comes down to is whether the burdens of litigation in a situation of this kind will justify judicial alteration of the protection of the First Amendment.

And I think that's been very clear from the outset in the first question Justice Kennedy asked.

Justice Breyer: No, but are you going to... I mean, is there any light you could shed?

And that's why I asked in my question initially.

I thought maybe there were some jurisdictions somewhere that... that survive without the rule they want, but maybe I'm wrong.

And... and how do I judge this?

I would be concerned.

I don't... the... after all, these other cases you mentioned are civil tort cases and... and they don't involve the criminal process.

And when we get into criminal prosecutions, we have rules on selective prosecution that are designed to screen out all but the very worst.

Mr. McCartan: But see--

Justice Breyer: And that's what he's arguing for here.

Mr. McCartan: --That's what he's arguing, and those are not screening mechanisms, Your Honor.

Probable cause was evident and was present in United States against Armstrong and Wayte against the United States.

It was not deemed by this Court to be a bar to the selective prosecution claims that were advanced in that... in those cases.

Justice Breyer: Leaving... is there anything you can say before I give up on this?

And maybe the answer is no.

Is there anything you can say that would relieve my concern, which is completely practical at the moment, that if I decide in your favor, there suddenly are going to be large numbers of criminal cases where defendants will say the reason I was prosecuted was because of something I said?

I was advocating motor cycles.

I was advocating beating people up.

I was advocating a congressional change of something.

Many, many such cases.

They'll all get at least discovery, and the prosecutor's door will become open to the world.

Now, that's what's concerning.

Can you say anything to relieve that concern?

Mr. McCartan: Yes.

I think, first of all, empirically, Your Honor, there's no evidence to the effect that Bivens has had that result after 35 years in full force and effect.

Justice O'Connor: But if this Court opens that door, don't you think we might see a different problem?

Mr. McCartan: I don't think so, Justice O'Connor.

I think if you examine part IV of the Court's opinion in Crawford El, there is a very careful pattern that is set forth as to how cases of this kind should proceed and what protections are available to protect Government officials against overly burdensome litigation.

Justice Stevens: Which opinion was that?

I missed that.

Mr. McCartan: Pardon, Your Honor?

Justice Stevens: Which opinion are you talking about?

I missed it... missed it.

Mr. McCartan: The opinion in Crawford El against Britton.

Justice Stevens: Okay.

Mr. McCartan: There, the Court held that if there are factually specific allegations that would indicate a violation of the Constitution, that at that point the court may consider whether some additional discovery should be permitted even if there should be an independently valid basis.

Justice Scalia: This wasn't addressing... this wasn't... didn't involve prosecution, though.

It didn't involve unlawful prosecution.

Mr. McCartan: It did not, Your Honor, but it provides the same--

Justice Scalia: It... it was a suit against a prison.

Mr. McCartan: --It provides the same framework for the proper analysis of a claim of this kind.

Justice Scalia: No, but... but we treat prosecutions quite differently.

We do not give, for example, absolute immunity to the wardens of prisons as we give absolute immunity to prosecutors.

Mr. McCartan: That's--

Justice Scalia: This is a specially dangerous area in which to allow litigation.

Mr. McCartan: --It is far less dangerous, Your Honor, than when this is asserted by way of defense in the middle of an ongoing criminal prosecution.

It can be far more disruptive to allege a violation of constitutional rights as a defense to a criminal prosecution, while that prosecution is in progress, and an effort is made to examine prosecutorial decision making than in an after the fact, after acquittal civil action for damages, such as we have here.

You have already permitted that kind of examination in criminal cases where probable cause is present.

Justice Scalia: Mr. McCartan, I... I still don't entirely understand what you would want the Government to prove under your system in order to... in order to... to win this case.

They would have to prove what?

That... that--

Mr. McCartan: They would have to prove that something other than hostility to protected speech was the reason for the prosecution being advanced.

Justice Scalia: --And it would not be enough to show that the prosecution would have gone forward anyway.

Mr. McCartan: No.

That's... that's what I mean.

Absent... if there is an objectively valid basis--

Justice Scalia: Yes.

Mr. McCartan: --the Government claims there is an objectively valid basis for the action they action they would take.

Justice Scalia: Right.

Mr. McCartan: Then if the plaintiff has made a showing that there was an improper motivation, the burden shifts to the Government to show that the prosecution would have proceeded absent the illicit intent.

Justice Scalia: You see now in... in the employment cases where... where somebody is dismissed for a... a racially discriminatory reason and... and you have to prove that the same action would have been taken anyway, you ask the person who fired them with the discriminatory motive whether that person would have taken that action anyway.

Whereas here, the person who brought the prosecution is not in this case.

It's somebody who gave information to the prosecutor.

I don't know how that person could... could possibly establish that the prosecution would have been brought anyway.

It wasn't up to him.

Mr. McCartan: Well, as--

Justice Scalia: It had nothing to do with--

Mr. McCartan: --as... as you pointed out earlier, probable cause is not the standard that governs the investigator's conduct.

These investigators procured a prosecution based upon a violation of the petitioner's... or excuse me... the respondent's constitutional rights.

Justice Souter: Well, they did, but wouldn't you have to prove under your standard not that they would have procured or tried to procure it anyway, but that in fact the prosecutor would have prosecuted anyway?

In other words, that's the distinction between the... the normal case and... and the case that we're dealing with here--

Mr. McCartan: No, I--

Justice Souter: --with a prosecutor who has absolute immunity.

Mr. McCartan: --Well, the prosecutor has absolute immunity.

There's a qualified immunity here with respect to the investigators, and that means that the facts and circumstances of the case are going to have to determine whether there's liability.

Justice Souter: No.

All right--

Mr. McCartan: The burden would shift once the illegal motivation is shown.

It would shift to the Government to establish that the prosecution would have proceeded absent the illicit event.

Justice Stevens: But would it... would it have been a complete defense?

Suppose the prosecutor, who is immune, gets on the witness stand and says, well, I know all about this... the First Amendment stuff, but I was going to bring this prosecution anyway because it seemed to me there was a serious crime here.

That's all he says.

Wouldn't that be the end of the case?

Mr. McCartan: It shouldn't be the end of the case.

There would be an issue of causation at that point, Your Honor, if there were evidence.

Justice Stevens: But... but the question is the motivation for his decision to bring the case.

Mr. McCartan: The motivation for his decision--

Justice Stevens: And he says I... I would have brought it anyway.

Mr. McCartan: --But in this case, the prosecutor's decision to bring these charges to the grand jury I don't think has any probative force whatsoever.

Justice Souter: --Why--

Justice Scalia: --Do you think the defendant can subpoena the prosecutor?

Mr. McCartan: Of course.

Justice Scalia: Why?

I thought the prosecutor had absolute immunity.

Mr. McCartan: The prosecutor is not a defendant, Your Honor.

Justice Scalia: You say he... he can't be brought into court to defend his own... his own judgment, but he can be brought into court when... when an investigator is sued in... in order to take his testimony as to what would have happened?

Mr. McCartan: His testimony was taken in this case and can be taken in this case because at that point in these proceedings... and you have to look at the evidence of record to this point in this proceeding... there is very clear evidence of retaliation as a motive for this prosecution.

Justice Scalia: Well, he may have done it voluntarily here, but I find it hard to believe that he could be subpoenaed, when... when he has absolute immunity from suit against himself, to testify in a suit against somebody else.

It seems to me a very strange kind of a--

Mr. McCartan: Your Honor, the fact that he has absolute immunity does not immunize him from giving testimony in the case.

Justice Breyer: So he's a witness.

Suppose his testimony--

Mr. McCartan: He's a... he's a witness.

Justice Breyer: --Suppose that the person is convicted.

Mr. McCartan: Suppose the person is convicted.

Justice Breyer: Yes.

Can you bring your Bivens claim anyway?

Mr. McCartan: Well, Heck against Humphrey I think would stand in the way of that, Your Honor.

Justice Breyer: Really?

So that's a... but it's not a civil case.

Mr. McCartan: Well, it's not a simple case.

Justice Breyer: So you say that if he's convicted, after all, he may have been convicted but it may be because of the retaliatory motive.

Mr. McCartan: Well, if he is convicted and a civil action for damages is then brought--

Justice Breyer: Yes.

Mr. McCartan: --then I think you are in the framework of Heck against Humphrey--

Justice Breyer: All right.

So you... so you say--

Mr. McCartan: --where the court--

Justice Breyer: --if he's convicted, that's the end of it--

Mr. McCartan: --No.

Justice Breyer: --whether there was a retaliatory motive or not.

Mr. McCartan: No.

I think it's very difficult in that case.

In Heck against Humphrey, which this Court viewed as a collateral attack on an outstanding conviction, the Court held that there had to be a favorable termination of the criminal proceeding in order to maintain the civil action for damages under section 1983.

Justice Breyer: Oh, that's 1983.

Mr. McCartan: The Court went on to say, however, that if the civil damage action would not necessarily impugn the conviction, that the case could proceed even though there had not been a favorable termination, reversal, or expungement--

Justice Breyer: All right.

So what he does is he--

Mr. McCartan: --of the conviction.

Justice Breyer: --he brings his action and he says here I am 20 years in prison and I agree I'm guilty, but they never would have prosecuted me without the fact that they hate the Hell's Angels and they, in fact, criticize everything that we say.

Mr. McCartan: I don't think that action would be permitted to proceed.

Justice Breyer: Because?

Mr. McCartan: It would be viewed as a collateral attack on an outstanding conviction.

Justice Breyer: No, no.

He's saying I was... I was guilty, but the... all right.

Anyway--

Mr. McCartan: I... I don't think--

Justice Breyer: --I won't force you into that.

Mr. McCartan: --with all due respect, Your Honor, that's a real world example.

Justice Breyer: I'll take basically virtually never if he's convicted.

They concede that you could bring this kind of action if there's no probable cause.

So we're talking about that range where there was probable cause but acquittal.

That's what we're talking about here.

Mr. McCartan: That's right.

And why probable cause is not the appropriate standard is because it does not distinguish between what might be an unconstitutional prosecution... that is, one based solely upon race, religion, or protected speech... and one that is not.

When you look to these earlier cases, Your Honor, I agree they arose in employment contexts.

They arose in the context of a prison.

Justice Breyer: Now, you're... you're in the cases, but I'm... I'm trying to pursue this.

You've given me another idea--

Mr. McCartan: Yes.

Justice Breyer: --which is I would like to say one word about this.

I'm sorry to interrupt your train of thought here, but look.

I'm looking for other screens.

Is there... is there... the particular point that they're worried about is you say we want to establish the retaliatory motive.

That's what's worrying them because they see, in that establishment of the retaliatory motive, discovery, and discovery means you not only talk to the investigators, but you're also talking to, as a witness, the prosecutors to find out who said what to whom in order to see if you could establish that they didn't like the speech of the defendant.

Now, can you give me any screen, not your case, but any kind of a screen that will help--

Mr. McCartan: Yes.

Justice Breyer: --weed out the sheep from the lambs--

Mr. McCartan: And I--

Justice Breyer: --the goats from the sheep or whatever--

Mr. McCartan: --Your Honor--

Justice Breyer: --in that area?

Mr. McCartan: --I submit the screen is that set forth by this Court in Harlow, which is an objective standard and which is whether the conduct involved violated a clearly established statutory or constitutional right of which a reasonably prudent law enforcement officer or Government official should be aware.

That's why I tried to say earlier this standard that should govern this case is not probable cause, but the standard set forth by this Court in Harlow--

Justice Souter: --So the... the screen, in effect, is--

Mr. McCartan: --And is a screening.

Justice Souter: --the qualified immunity screen.

Mr. McCartan: That's right.

And there was no screening mechanism in United States against Armstrong.

The Court made it very clear that what you were applying there were ordinary equal protection standards.

Justice Kennedy: Have there been cases where in the context of the prosecution, there's been a motion to dismiss the prosecution because it was brought in retaliation for the exercise of the First Amendment right?

Mr. McCartan: This Court has not decided what the proper remedy would be there, Your Honor.

And the cases--

Justice Kennedy: Have there been cases in the other courts?

Mr. McCartan: --I'm not aware of any cases where that has succeeded except at the circuit court level--

Justice Stevens: No, but it did in the Armstrong--

Mr. McCartan: --where the conviction has been invalidated for that reason.

Justice Stevens: --But in the race context, it is a dismissal of the prosecution itself.

Isn't it?

Mr. McCartan: Yes, Your Honor.

It might be the same here.

Justice Stevens: --with Harlow here.

Justice Kennedy: My... my question was directed to the First Amendment.

Mr. McCartan: For the First Amendment.

No, I'm not aware of... certainly no decisions of this Court, and I think the only cases arise--

Justice Scalia: --Well... well, surely the prosecution--

Mr. McCartan: --in the circuit courts of appeals, Your Honor.

Justice Scalia: --Surely the prosecution would go ahead if there were probable cause.

No?

I mean, suppose it was brought up during the prosecution.

Mr. McCartan: Well, the question--

Justice Scalia: You mean to say if there was... if there was perfect probable cause for the prosecution, that you can stop the prosecution in its tracks by... by an allegation of the First Amendment violation?

Mr. McCartan: --You can move for dismissal of the charges.

But look, as far back as 1886, this Court... this Court found a violation of the Equal Protection Clause in a racially motivated prosecution in a situation where there was clearly probable cause and, indeed, overwhelming evidence of guilt for violation of a facially neutral statute.

In United States against Armstrong, the existence of probable cause did not stand as a bar to the selective prosecution claims.

Justice Breyer: But that... that's true.

I now think we're making some progress.

I don't think it is quite a qualified immunity.

I think it's possible and don't... I'm putting words in your mouth and deny them if I am.

One, he's convicted, no case.

Two, no probable cause, everybody agrees there's a case.

Three, now there is probable cause, but he's acquitted.

Okay?

Mr. McCartan: That's this case.

Justice Breyer: In that circumstance, suppose you say we cannot even allow discovery.

You don't even get to discovery on your retaliatory motive unless you show clearly, question mark, or unless you show likely, question mark, that the investigator not only retaliated, but he retaliated under conditions where any reasonable person would have known that what he was doing was contrary to the Constitution.

Mr. McCartan: Exactly, Your Honor.

That--

Justice Breyer: And if you don't show that as a... as a threshold, you don't even get discovery.

Mr. McCartan: --We don't... that is exactly the Harlow standard.

That is exactly the standard that was applied in Crawford El against Britton as the first step in the stage of developments in that case.

Justice Souter: But if you turn the Harlow standard around... I mean, you're... you're making the... the negation of the Harlow standard the screening device--

Mr. McCartan: Exactly.

Justice Souter: --in Justice Breyer's example.

Mr. McCartan: Exactly.

Justice Souter: Yes.

Mr. McCartan: That's the threshold determination in a Bivens action of this kind.

Justice Scalia: Mr. McCartan, what was the 1887 case or 1880--

Mr. McCartan: Yick Wo against Hopkins.

Justice Kennedy: Yick Wo.

Justice Scalia: --I thought you said Armstrong.

Mr. McCartan: No, no.

Armstrong--

Justice Kennedy: Yick Wo.

Mr. McCartan: --much more recently, but Yick Wo against Hopkins.

Justice Scalia: I thought it was--

Justice Kennedy: Let... let me ask you this.

Suppose the law enforcement official... the postal inspectors bring the prosecution to the prosecutor because of their disagreement with his First Amendment views.

The prosecutor said, I don't care about the First Amendment views.

I'm glad you brought this to me.

I'm going to prosecute because there's probable cause here and this is a bad actor.

What results?

Mr. McCartan: The result is that's a question of causation, Your Honor, if there is evidence.

Justice Kennedy: That's why--

Mr. McCartan: Yes.

If there is evidence here with respect to retaliation, then the question of whether the independent act of the prosecutor somehow immunizes that conduct is a question of fact for the trier of fact in the case.

If the action--

Justice Kennedy: --Suppose the prosecutor said, you shouldn't have brought this to me because you... you're... you're motivated by the First Amendment.

But now that it's here, I have my own independent interest in going ahead.

Mr. McCartan: --That's the evidence the Government can bring forward when the burden of proof shifts upon a showing of an illegal or unconstitutional motive for bringing the prosecution to begin with.

That's the kind of evidence the Government would present to show that the prosecution would have taken effect in any--

Justice Souter: And if the burden does shift that way--

Mr. McCartan: --Exactly.

Justice Souter: --wouldn't it be consistent with the screening mechanism that Justice Breyer suggested and... and that you accepted?

Wouldn't... wouldn't the... the... when the burden shifts, wouldn't the obligation be on... on the point of substance, as opposed to the point of... of screening, not to show that the... that the prosecutor would have brought the prosecution anyway, but to show that the investigator would have acted to procure that prosecution anyway?

So you would have parallel standards.

Mr. McCartan: Exactly.

Justice Souter: Okay.

Mr. McCartan: Because the prosecutor has immunity, cannot be a defendant in the case.

Justice Souter: All right.

But just... I just want to nail this--

Mr. McCartan: No, absolutely.

Justice Souter: --to make sure I understand it.

So you're... you're modifying your position of a minute ago in which you said the standard would be would the prosecution have been brought anyway, and you're now saying, which I think would be consistent with your answer to Justice Breyer, the... the question is would the investigators have tried to procure the prosecution anyway.

And do I understand you correctly, and... and have you changed your position?

Mr. McCartan: Well, I think that is a significant distinction, Your Honor, but I think we have to establish that they procured the prosecution and that it did proceed by reasons of the illegal motivation and not for some independently objective standard.

Justice Scalia: --Right, because the prosecutor could have gotten a lot of other information from other people.

Mr. McCartan: Absolutely.

Justice Scalia: And you're not going to throw out the prosecution just because this one piece of information was bad.

Justice Souter: So it's a dual--

Mr. McCartan: Consider too what the facts of record are here.

This prosecutor was a complicit conduit in this action.

He admitted in the presence of a grand jury witness that he couldn't care less about the guilt or innocence of these people.

He just wanted a conviction so he could obtain a lucrative position in private practice.

I understand he is still a prosecutor at this time.

But that decision of the prosecutor, based upon facts of that kind, has no probative value whatsoever in terms of the independent action that might have broken the chain of causation in a case of this kind.

Nor does the indictment of the grand jury have any probative value because exculpatory evidence was withheld from the grand jury.

And I think in determining the value of the grand jury's action, you have to really determine not only what was presented to the grand jury, but also what was withheld from examination.

Justice Stevens: May I go back to one question Justice O'Connor asked you earlier?

To what extent are there... is there precedent out there in other courts that have decided this very issue?

Are there... is there precedent for what you're asking us to do?

Mr. McCartan: There... there is precedent in the courts of appeals, Your Honor.

The cases, I think, are cited in our brief where prosecutions have been invalidated based upon violations of constitutional rights.

Justice Stevens: But a violation of First Amendment rights or--

Mr. McCartan: First Amendment rights.

I think that is the case.

Not cited in our brief.

But there are cases to that effect.

Justice Stevens: --And... and were those cases in which the prosecution itself was brought to a halt, or were they post prosecution damage actions?

Mr. McCartan: Post prosecution.

Not post prosecution damage actions but appeals, direct appeals, to invalidate the conviction--

Justice Stevens: The conviction.

Mr. McCartan: --based upon the violation--

Justice Stevens: But is there any precedent for a damage action of this kind?

Mr. McCartan: --Well, Bivens is.

Justice Stevens: Well, but not quite.

Bivens isn't exactly like that.

This is Fourth Amendment.

So is there... is there precedent for a damage action brought on the theory that the prosecution was brought for... to retaliate for First Amendment speech?

Mr. McCartan: I'm not aware, Your Honor, of any precedents--

Justice Stevens: I'm not either.

Mr. McCartan: --in the three circuits where probable cause is not a bar to an action of that kind.

Justice Kennedy: Now, that... that means one of two things, either what you're arguing for is not going to bring a flood of litigation, or everyone has assumed that probable cause is a... is a requirement.

Mr. McCartan: Well, I think it would be the former rather than the latter, Your Honor, since probable cause does not distinguish between what may be an unconstitutional act on the part of the Government and one that might be motivated by a legitimate grievance.

Justice Kennedy: Well, but... but I'm not sure that that proposition has been established in the cases.

Mr. McCartan: No, Your Honor, and that's why I think this case is before this Court at this time.

Justice Scalia: Neither... neither does absolute immunity for the prosecutor distinguish between whether the prosecutor was acting just illegally or just acting unconstitutionally.

I mean, yes.

Mr. McCartan: If I may--

Justice Scalia: You apply the same rule there.

Mr. McCartan: --I'm sorry, Your Honor.

Is that... was that an observation or a question?

Justice Scalia: Yes, well, your... your point that... that there... there has to be a difference between whether there's a constitutional violation or not in this context seems to me not well taken because we don't make that distinction in the context of giving absolute immunity to the prosecutor.

We don't say he doesn't have absolute immunity when... when he's been guilty of a constitutional violation.

Mr. McCartan: But as Justice Souter brought... questioned whether the prosecution was procured for unconstitutional reasons, the immunity of the prosecutor has nothing to do with the reasons for which the prosecution is brought.

It only protects him from civil damage liability.

The investigators themselves have no such immunity.

It is qualified.

Justice Kennedy: No, no.

But the point remains that if in the prosecutorial context the immunity exists whether or not there's a constitutional violation, then that teaches us that the same rule should apply to this case.

That was Justice Scalia's--

Mr. McCartan: No.

I think that is the difference, Your Honor, between absolute and qualified immunity.

The Court has given absolute immunity only to those functions that are so intimately associated with the judicial process, that they have to give immunity to those people, otherwise there would be an unjust interference with--

Justice Stevens: May I ask this question?

Maybe I should ask Mr. Kneedler.

But I am correct in assuming that even if you should lose on the issue that we're faced with today, the case would, nevertheless, go forward because you would still seek to prove an absence of probable cause?

Mr. McCartan: --Well, certainly that would be a question for the jury, Your Honor, absence of probable cause.

Justice Stevens: Yes, but the case wouldn't be over if you lose here.

Mr. McCartan: Well, it depends on what ground we would lose here.

If the Court went on to decide the sufficiency of the allegations in a Bivens type case, which I don't think it should and which the Court declined the invitation to do so in Harlow, then we would not lose.

If you did--

Justice Scalia: I wouldn't worry a lot about that, Mr.--

Mr. McCartan: --All right.

May I say one word about the tort of malicious prosecution, which I say is not a proper analog for the analysis of cases of this kind?

The interests that are protected by the First Amendment are far different from those that are remedied by the tort of malicious prosecution, and the injury to which is of far greater magnitude than what the common law sought to address by the tort of malicious prosecution.

The tort of a malicious prosecution tells us nothing about the interests protected by the First Amendment.

It remedies different interests.

It is not a proper analog and, therefore, shouldn't be involved in definition of what the First Amendment rights may be.

If you look at those cases where the Court has referenced the common law in determining how constitutional rights should be remedied, they have been situations where the interests protected at common law are identical to those that are protected by the particular constitutional provision that is involved.

A good example is Wilson against Arkansas, Fourth Amendment situation, the question of whether the knock and announce principle of common law should be incorporated into the reasonableness determination of the Fourth Amendment.

The interest protected by the common law in that situation against unreasonable searches and seizures was identical to the interest protected by the Fourth Amendment.

For that reason, the Court said that should be taken into consideration in determining the reasonableness of the action under the Fourth Amendment.

Justice Breyer: I'd like to ask you one other question.

Suppose you win on this on the grounds we've been discussing.

What happens in the middle of the trial when a defendant wants to say the same thing?

Can he avoid conviction by showing the same thing?

Mr. McCartan: I'm sorry, Your Honor.

Justice Breyer: What happens when the same claim is made in the middle of a trial that I... whether I'm guilty or innocent?

I haven't been convicted yet, and I want to show that this prosecution wouldn't have been brought in the absence of the retaliatory motive.

Can he make that claim in the middle of trial or not?

Mr. McCartan: Well, if he were foolish enough to make such a claim--

Justice Breyer: Well, no, he believes it.

Mr. McCartan: --I can't believe that a defendant in a criminal prosecution who is acquitted in a subsequent civil suit--

Justice Breyer: No, no.

He's not acquitted.

Mr. McCartan: --Oh, I'm sorry, Your Honor.

You say he's not acquitted.

Justice Breyer: He's in the middle of trial and he wants to say--

Mr. McCartan: Well, I don't think he'd be in the middle of trial under Heck against Humphrey.

Justice Souter: --It's the criminal trial.

Justice Breyer: --It's a criminal trial.

Justice Souter: The original criminal trial.

Justice Breyer: He's in a criminal trial, and what he wants--

Mr. McCartan: This is not a civil action for damages.

Justice Breyer: --No.

Mr. McCartan: This is a criminal case.

Justice Breyer: They read our opinion which holds in your favor.

Then the next thing is in... in the criminal cases the defense lawyers say, hey, I... I think my client wouldn't be here today were it not that the FBI had a retaliatory motive.

Mr. McCartan: That would not suffice.

Justice Breyer: Because?

Mr. McCartan: And that was the whole purpose of Harlow, mere--

Justice Breyer: No, no, no.

They're going to show exactly the elements that we write in our opinion.

Mr. McCartan: --If the... if the defendant in that case had established evidence tending to show the essential elements of the claim, it would present a question for the court, but I think the court would use the admission against interest as a basis for paying no attention to such--

Justice Stevens: Thank you very much, Mr. McCartan.

Mr. Kneedler, you have 3 minutes left.

Rebuttal of Edwin S. Kneedler

Mr. Kneedler: Thank you, Justice Stevens.

I'd like to respond to Justice Breyer's suggestion that this could all be solved by an application of the Harlow qualified immunity standard.

With all respect, I don't think that that would really work at all because if... if the point is that it would be unconstitutional to bring a prosecution only because of protected First Amendment activity, that could be taken as a given and still be enormous inquiry into what actually happened between the investigator and the prosecutor, what the real motivation was, what the prosecution's policies were.

That is the concern we have for the post hoc inquiry into the process.

And not only that, it isn't just the discovery.

It's what... what consequences this will have on law enforcement generally if police officers operate under the assumption that if the prosecution fails, they will be subject to civil liability, which is exactly what Blackstone said, as this Court quoted in Dinsman v. Wilkes.

The reason for the rule is that it would be a very great discouragement to public justice if prosecutors, who have a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried.

Justice Ginsburg: But we're not talking about prosecutors there--

Mr. Kneedler: No, but... but that included complaining witnesses.

That... that was what prosecutor meant at common... at common law.

And there's no reason to grope for some sort of screen because the common law furnishes it.

The tort of malicious prosecution is what this Court relied upon in Heck v. Humphrey for the favorable termination rule, that you could not bring a 1983 suit unless the conviction had been set aside and the proceeding was terminated in favor of the plaintiff.

That same tort, that tort of malicious prosecution, contains the probable cause requirement to guard against an objective screen, to guard against the very thing that Blackstone was worried about and that this Court noticed in... in the Dinsman case.

And that is, that it is important not to have law enforcement officers be chilled from the important function of furnishing information to prosecutors.

And this Court's decision in Armstrong imposed an important objective test that you have to show that there's somebody similarly situated before you even inquire into prosecutorial motives.

You have to show an objective factor that someone else was similarly situated.

Respondent's position would offer no such... no such protection.

Justice Ginsburg: --How about the judge granting a motion to quit at the close of the Government's evidence?

Why isn't that objective?

Mr. Kneedler: Because at... at common law... and I think this was an important insight.

At common law, it was not even evidence of the absence of probable cause because a judgment of acquittal turns on the determination that a fact finder... a reasonable fact finder could not find beyond a reasonable doubt that the defendant had actually committed the crime.

Probable cause is a very different standard, which is whether it would lead a reasonable, cautious, prudent person to believe that a crime had been committed.

That is the--

Justice Ginsburg: I wasn't--

Mr. Kneedler: --An acquittal does not--

Justice Ginsburg: --Your opponent says... says there is no probable cause requirement.

You are now on there's no objective test.

It's all subjective.

I suggest that there could be an objective test.

This is not going to the probable cause question.

Objective test?

Was this case thrown out at the close of the Government's evidence?

Mr. Kneedler: --But... but my... my point was at common law, that the wisdom of the courts was that... that that wasn't even evidence of a... that should... that... that shouldn't allow the suit to go forward because it was a sufficient guard... protection for the prosecutors.

Justice Stevens: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Rumsfeld v. Forum for Academic and Institutional Rights (FAIR)

Media File:

04-1152_20051206-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Roberts: We'll hear argument first this morning in Rumsfeld versus Forum for Academic and Institutional Rights.

General Clement.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court--

The Solomon Amendment conditions the Federal funding of educational institutions on receiving something that any donor would expect, the opportunity to recruit students educated at the funded institutions.

That opportunity allows the military a fair shot at recruiting the best and the brightest for the military's critical and vital mission.

The Federal Government does not insist on any predetermined level of access; rather, it simply asks what other employers receive.

Likewise, the recipient schools remain free to criticize the military and its policies, and, of course, they remain free to decline Federal funds altogether.

As a result of these circumstances, the Solomon Amendment comports with both the Constitution and with common sense.

Justice Scalia: When you say that it asks what other employers receive, but these institutions, I gather, would not allow other employers, who have the same policy against the hiring of homosexuals, to interview at their institutions.

So, you're receiving what other employers in the same situation would receive.

Mr. Clement: Well, I think, Justice Scalia, that you have to look at the... I think, the statute in two steps.

One is, I think it's quite clear that it gives the military a right to gain access to campus as a condition, that it has... that they have to gain access to campus in order to perform their military recruitment.

Justice O'Connor: Yes, but it says... I thought it says that the military must have equal access with any other employer.

Now, every other employer is subject to the same policy, presumably, of the law school.

Mr. Clement: Well, with respect, Justice O'Connor, I think there's several points to be made in response to that.

First of all, I think the Solomon Amendment itself is a recognition that the military is not like any other employer for purposes of its policy and its treatments of homosexuals.

And I think that, unlike any other employer, the military's policy is a result of a congressional mandate.

And--

Justice Kennedy: Well, that's fine, but you were the one that made the argument that they want the same access as other employers.

That's--

Mr. Clement: --And what--

Justice Kennedy: --when you... I just--

Mr. Clement: --what I would say--

Justice Kennedy: --want to make sure what the calculus is, at the outset.

Mr. Clement: --Well, and Justice Kennedy, I think the point I would say is, in terms of gaining access to campus, we want to gain access at a level, and under circumstances, that perhaps some other employer would be excluded.

Well, once access is gained, then the question arose under the prior version of the statute, all right, if access is gained, what level of access suffices?

And on that second order question of what level of access suffices, then you look to what is provided to any other employer.

And so, that's why, when I say that we don't ask for any predetermined level, we don't ask for seven meetings a year, we don't ask for entrance into the public address system or the email system.

We simply say,

"Once you let us on campus, just give us, and extend to us, an opportunity to recruit on the same terms as others. "

And that obviously reflects the commonsense judgment that the military is competing for the same pool of students that the other employers are competing for.

Justice Breyer: The constitutional argument, I guess, is,

"Does the Constitution require access... is... does it permit a statute which says you have to give access to the military, when you wouldn't give access to any other employer? "

Mr. Clement: That's exactly right, Justice Breyer.

Justice Breyer: All right.

Now--

Mr. Clement: And, of course, we take the--

Justice Breyer: --So, then what you're saying, it--

Mr. Clement: --position that--

Justice Breyer: --and then what's the answer to that question, "Does the Constitution"... how does the... what's the answer?

Mr. Clement: --I think there's... I mean, there's... the Constitution is... has no difficulty with such a statute.

It is this statute.

As I say, there's... if you want to think about it being preferential entry into campus, and then, at that point, equal access on terms of the... the terms that are extended... however you want to think about it, though, there's no difficult constitutional question here.

Justice Souter: Well, your argument--

Justice Scalia: No, but it seems me you've got us off galloping in the wrong direction.

The statute doesn't require simply giving the same access that you give to other employers.

It requires much more than that.

It requires that they... it prohibits, or cuts off, funds if an institution either prohibits or, in effect, prevents the Secretary of a military department from gaining access to campuses for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.

So, it seems to me that the statute demands more than simply you give the same access as all other employers.

If you allow any other employer, you have to give it to the military in the same manner.

Mr. Clement: I think that's right, Justice Scalia.

I'm... and I'm sorry if I got us off on the wrong foot.

Justice Ginsburg: General--

Mr. Clement: I think there is this debate--

Justice Breyer: Yes, but it is an important question, because the... there is an amicus brief that says, "Go read the statute".

And, really, the statute was not about homosexuals in the military, it was a statute about universities in Vietnam not letting military people on campus.

So, in the... at the heart of the statute was a matter which was unique to the military.

Now, this is a matter that isn't unique to the military.

So, why not interpret the statute in the way that the amicus brief suggests in order to avoid a difficult constitutional question?

Mr. Clement: --Well, a couple of points, Justice Breyer.

I don't think there is a difficult constitutional question to be avoided here, and I'll get back to that whenever I can.

As to the statutory interpretation question itself, I think that in... the proper frame of reference here is probably not the original 1969 version of this, which conditioned only NASA's fund.

The original starting point is probably about 1996, when the first version of the modern Solomon Amendment was introduced.

And there have been a couple of iterations of it, but I think one important reference point is the version that was in force at the start of this litigation, and that's actually reproduced at page 88(a) of the petition appendix in the District Court opinion.

And if you look at that against 88(a) of the petition appendix, there would be no question that what is at stake here is access to the campus, and the amicus argument that's being raised is not even available; because the statute at that point is, I think, in fairness, materially identical, except for that last clause, which says

"in a manner equal in scope to... in character to that of any other institution. "

So, it's clear that when this litigation starts, there's no argument available to the amicus that the statute effectively accomplishes nothing.

Now, what happens under this version of the statute is, a second order question arises.

Okay, the... in order to comply with the Solomon Amendment, universities have to give access, they have to allow the military to gain entry and gain access to the students in the terms of the then extant statute.

The--

Justice Stevens: May I interrupt with one--

Mr. Clement: --Sure.

Justice Stevens: --brief question?

Would that be true if the university didn't allow any access whatsoever to any employer?

Mr. Clement: As a regulatory matter, the military took the position that if they simply barred access to--

Justice Stevens: No--

Mr. Clement: --anybody--

Justice Stevens: --not the regulatory matter.

The statute.

Mr. Clement: --I think you could read the statute either way on that question, Justice Stevens.

They interpreted it to say that there was no equal... there is no obligation to give entry if no employer was on campus at that time.

The other thing they interpreted in the statute as a regulatory matter, though, was this second order question of,

"All right, if they get some access, is unequal access enough? "

And as a regulatory matter, they said,

"No. "

"We need access that is equal in character and scope to that provided to any other employer. "

And then what Congress did in the iteration of the statute that's at issue here, which is reproduced starting at page 185(a) of the petition appendix is they effectively codified and ratified that regulatory interpretation by adding the phrase

"in a manner that is at least as equal in quality and scope to the access to campuses and to other students that is to provide it to any other employer. "

Justice Ginsburg: --General--

Mr. Clement: But I think--

Justice Ginsburg: --Clement, do I understand, with respect to that brief that offered a statutory interpretation to avoid a constitutional question, your answer is, that would be an unreasonable interpretation of the statute that we now have?

And if we're talking about a predecessor statute in 1968, from the Vietnam days, that... this would have been a highly academic question, because there weren't any such policies in any law schools with respect to recruiting.

Mr. Clement: --No, that's true, Justice Ginsburg.

That's why I said, in response to Justice Breyer, that I think that the proper point to start to focus on is the... these... is the 1994 Solomon Amendment.

And, at that point, there is a question about this policy.

At that point, the American Association of Law Schools does have its recruiting policies beginning in place, and I think the provision has been amended a number of times in the years since 1994.

There have been changes in the scope of the funding that's covered.

First, student aid funds were put in, then they were taken out.

And then, this is the most recent iteration of the provision.

There's no question that what's at issue here is more than just the Vietnam era concerns about ROTC presence on statute, because that's addressed in a different subsection of the statute.

That's addressed in 10 U.S.C. 983(a).

So this provision, 10 90... 10 U.S.C. 983(b) is specifically addressed at the problem of access to campuses for recruiting.

And, I think, especially when you read the statute in light of the relevant history of the prior administrative interpretation, and that being codified and ratified by Congress, it's very clear that this phrase

"in a manner that is at least equal in quality and scope to the access provided to any other employer. "

is just that, it's a regulation of the manner of access, once access is granted.

And it addresses this difficult question of, If you allow some entry and access onto campus, what level of access is sufficient?

And so, I think that--

Justice Scalia: What does Title X of the United States Code deal with?

Mr. Clement: --It deals with the military.

Justice Scalia: Why do you chose to defend this principally on the basis of the Spending Clause, and not on the basis of what it... what it was, seemed to me, enacted in order to achieve, and that is the congressional power to raise and support armies.

Mr. Clement: Well, Justice Scalia, I think the statute is clearly supported under both provisions, under the spending authority and the Article I authority to raise and support armies.

I think, in answering your question, we tended to focus on the fact that it was a spending condition, because we thought, under this Court's precedence, that made it an even more straightforward case.

We certainly think it would be constitutional, even if it were a direct imposition, and we certainly think the fact that this is an exercise of Congress's undoubted authority to raise and support an army, is relevant to the constitutional analysis.

And if I could move over to the constitutional question and address that for a minute, I think one of the arguments that's raised on the other side is that there's an interference with associational interests in this case, and I think there are other statutes that, frankly, have much more of an interference with a university's associational interest.

I mean, Title VII, for example, regulates who can be members of the university.

And I raise that also because another provision in Title... in terms of this same area of the military, requires that there not be discrimination against veterans in hiring and employment.

And you could easily see that a university could take their position to its logical conclusion and say,

"In order to show just how much we don't like the military's policy, we're not only going to not let military recruiters on campus, but we are going to not hire former military people, veterans, and we're not going to admit them to our classes. "

Now, who's in the classroom, and who's a member of the university--

Justice Ginsburg: That would--

Mr. Clement: --seems--

Justice Ginsburg: --be rather farfetched.

The pitch that's being made is an equality pitch, that we are teaching our students equality, the equal stature of all people.

So, I think that your example does not fit--

Mr. Clement: --Well, with respect, Justice Ginsburg, I'm not sure I understand why not.

It's the same idea.

In order to teach equality, that there should be no discrimination against homosexuals, we're going to exclude, (a), military recruiters, and, while we're at it, the former military, as well, because they voluntarily joined the forces knowing that they had a discriminatory practice.

It's no stretch of the imagination to think that the principle that's being articulated by Respondents, would stretch well beyond simply a direct antidiscrimination motive.

For example, NYU... this is in the joint appendix, at page 153... NYU, for 3 years, had a policy of excluding recruiters from the State of Colorado, simply because Colorado had passed Amendment II, which this Court dealt with in the Romer case.

And so, it's not a matter of saying that,

"Well, you know, the only think that's at issue here is excluding employers that are, themselves, discriminatory. "

The free speech interests that are articulated on the other side, would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan, or the discriminatory hiring policies.

I also think, with respect to the issue of discrimination, it's worth pointing out here that there's more than one way to understand whether or not the military's policy is discriminatory.

Certainly respondents are entitled to view it as being discriminatory.

But the Congress that mandates this same policy towards homosexuals, I think, is equally entitled to look at it and say,

"No, there's no discrimination going on here, because you have to take into account the special role of the military. "

Justice Souter: --Okay, but even if you do that, you're still left, it seems to me, with the problem... whether you characterize the problem as discriminatory and antidiscriminatory university policy or not, you're still left with a speech problem that they raise, that, in effect, you are forcing them, in effect, to underwrite your speech, up to a point, and you are forcing them to change their own message.

You're forcing them into hypocrisy, in one alternative.

And those arguments don't depend upon the... sort of, the discriminatory character of what may be at stake.

Mr. Clement: I think that's exactly right Justice Souter, and I think those arguments would be the same even if what was going on here was a concern about the military's other policies.

You would still have a concern that the military is being forced onto campus to make its own speech, and you would still have the concern that that interferes with the message--

Justice Souter: So, discrimination--

Mr. Clement: --the university--

Justice Souter: --or no discrimination, you've got a speech issue that you're going to address.

Mr. Clement: --I agree.

I mean, I think, ultimately, that cuts in our favor, because it shows that the other side's position is not limited to this narrow context, but is a much broader first amendment claim.

Now, turning to that first amendment claim, I think what's wrong with that claim is several things.

I think, with respect to what the military itself wants, it simply does not want a... primarily a speech activity to take place, it wants access for recruiting, which is a traditional commercial enterprise, it is an activity that is something that is regulated by Title VII in other Federal statutes.

Sure, there may be some incidental speech involved in that, but primarily it is an instrumental activity designed to get--

Justice Scalia: It happens, in this case, to be specifically authorized by the Constitution.

Mr. Clement: --It does, indeed, Justice Scalia, and I think, though... I mean, there is this sense in which we certainly concede that there maybe some incidental speech involved; certainly, the military recruiters are engaged in speech.

I'm... we're not sure that's really the relevant speech.

But even the university itself--

Justice Souter: No, but you're making a... if I understand what you're saying, you are making a kind of O'Brien argument that the... that the burden on speech, whatever it may be, is an incidental burden to something else.

Well, that... I think we have to draw this line between recruiting, on the one hand, which is what the military wants to do, and the Solomon Amendment, on the other hand.

As I understand it, the Solomon Amendment is directed, or is responsive, entirely to positions taken by law schools on, among other things, first amendment expressive grounds, so that if we are going to address the Solomon Amendment, I think we are addressing an exclusively first amendment speech expression issue.

Mr. Clement: --Well, Justice Souter, I guess... I'm inferring that you're drawing that conclusion from some of the statements of some of the floor sponsors about their purposes enacting the Solomon Amendment.

I mean, if you look at the test of the Act alone--

Justice Souter: I don't--

Mr. Clement: --I don't think--

Justice Souter: --know of any other reason for the Solomon Amendment.

Mr. Clement: --Well, I think the reason for the Solomon Amendment is to ensure that military recruiters, in fact, have an equal opportunity to recruit the same pool of individuals that all the other employers are trying--

Justice Souter: But--

Mr. Clement: --to recruit.

Justice Souter: --But they're... but the Solomon Amendment, in order to accomplish that, is addressed to a particular expressive problem which occurs for the military... and for the law schools, for that matter... in law school recruiting.

So, it seems to me that... for... I mean, my only point is that the Solomon Amendment seems to have one objective.

Whereas, the "don't burn your draft card rule", in O'Brien, had two... or had a... let's say, had a primarily nonspeech objective with an incidental speech burden.

Here, the sole objective, in the real world, seems to be an expressive objective.

Mr. Clement: Well, if by... "the expressive objective" you're talking about is the military's own recruiting, I guess--

Justice Souter: No, this express--

Mr. Clement: --I agree with you.

Justice Souter: --Yes, but the expressive objective is, the law schools are taking a position on first amendment grounds.

That position is interfering with military recruitment.

No question about it.

I don't know how much, but I will assume that there is no question about it.

The Solomon Amendment is addressed solely, as I understand it, at the expressive activities which have, as you say, this interference.

Its sole objective is expressive.

Mr. Clement: No, I would disagree, Justice Souter.

If the... if the law schools were denying access to military recruiters, for any reason, be it a first amendment reason that they'd say it's a first amendment reason, or just because they couldn't be bothered, the Solomon Amendment would be written exactly the same way, which would say,

"Look, the military has an opportunity to get onto campus, and, once it gets there, it ought to get the same basic opportunities as other employers. "

Justice Scalia: You cannot convert a law into a law directed at the first... at first amendment rights, can you, by simply saying,

"The reason I am disobeying it is to express... whatever, disaffection with the war, my objection to homosexuality, or anything else... or to homosexual discrimination... or anything else? "

Does that convert it to a law directed against the first amendment?

Mr. Clement: Absolutely not, Justice Scalia.

And I would go further and say it's also not a problem, if, in the real world, the conduct that Congress sought to regulate was, in fact, in practice, generated by first amendment concerns.

I think that describes O'Brien.

Justice Souter: Well, in--

Justice O'Connor: Well, let me ask another question that may shed a little light on it.

Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military's views?

Can there be signs up at every recruitment office, saying,

"Our law school doesn't agree with any discrimination against gays? "

I mean, can they come forward with their position on this in every recruitment office without violation of the amendment?

Mr. Clement: Yes, they can, Justice O'Connor.

I think they would be, in fairness... I want to be clear... I think there might be a line where there would be... the recruitment office could conduct itself in a way that would effectively deny access.

But I think, with that caveat, there is--

Justice Stevens: But--

Mr. Clement: --nothing in the Act that prevents the universities--

Justice Stevens: --Let me ask you--

Mr. Clement: --from disclaiming--

Justice Stevens: --this question, to follow up on Justice O'Connor's thought.

Can... are you saying that the school can engage in speech expressing its views about the military policies, can engage in symbolic speech by affording access, which is equal in all functional requirements, but yet sends a message that they are really disagreeing with what's going on by, say... let a law school say,

"Well, for... most employers will let you use the regular law school placement facilities, but, for the military, we will require you use the college facilities to send a message that we disapprove, if the college facility is equally of... good, as a matter of functioning? "

Mr. Clement: --Well, Justice Stevens, I would say, to the... I think, the main thrust of your question, no, which is to say that if what you have in mind is really forcing them to go to the undergraduate campus, I think the military would take the position that that's not equal in scope.

Now, if there's a way, though--

Justice Stevens: But is it not equal because of the message it sends or because it denies the opportunity to recruit as effectively?

Mr. Clement: --It's the latter, Justice Stevens, and only the latter--

Justice Stevens: What if I had an example where they were equal... equally effective as recruitment avenues.

Could they... could they make the military take one that was equally effective, but it sent a message,

"Well, we really don't like what you're doing? "

Mr. Clement: --I mean, my own--

Chief Justice Roberts: Sort of like a separate but equal.

Justice Stevens: Yes.

Mr. Clement: --Well, I mean--

[Laughter]

--I guess I'm... I'm resisting a little bit just because I'm not... I think it would depend on the--

Justice Stevens: So, the--

Mr. Clement: --hypothetical.

Justice Stevens: --the point I'm trying to make is, Does your agreement, that you can engage in speech by posting banners or handing a note, apply to symbolic speech--

Mr. Clement: It could--

Justice Stevens: --the kind of conduct that is symbolic speech?

Mr. Clement: --It could apply to some symbolic speech, I believe.

It's just... I'm having trouble, because, in a practical matter, if you look at the record here, I think it's telling.

If you look, at joint appendix, at pages 215 and 219, describes the real situation at Boston College.

And they want to say that,

"Well, it's not really much of an imposition on the military, because all you have to do is get the recruiting list from the reserve desk at the law library, and then go to-- "

Justice Stevens: No, that's a functional--

Mr. Clement: --the main campus, which is a mile and a half away.

Justice Kennedy: But the--

Justice Stevens: --That's a functional difference.

Justice Kennedy: --the resistance to any statute, I assume, could be justified as symbolic speech.

Mr. Clement: Well, and I think... I mean, I'm... I think that some resistance by some parts of the university might be fine.

I think if the recruiting office... this is the caveat I tried to give Justice O'Connor... if the recruiting office engages in conduct that effectively negates the access that they're providing, then I think you would have a different situation.

Justice Ginsburg: --General Clement, can you be affirmative now?

Because we have an example, from Justice Stevens, which is the Yale example.

The... it was the main campus, instead of the law school.

What... the recruiter is there.

He's in the same room that other recruiters use.

What can the law faculty do to disassociate itself from... to say that,

"We don't tolerate discrimination of any kind? "

What can the law school do, concretely, while the recruiter is in the room?

Mr. Clement: I mean, concretely, they could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.

I would draw the line, though, at saying that they have to go to the undergraduate campus, because I think, as a practical matter--

Justice Kennedy: You mean, they could organize a student protest at the hiring interview rooms, so that everybody jeers when the applicant comes in the door and the school could organize that?

Mr. Clement: --The school could--

Justice Kennedy: As... when it's--

Mr. Clement: --organize--

Justice Kennedy: --when it's, say, a job fair, and all the employers are there, but then they jeer just the... and the school organizes a line jeering the... both the recruiters and the applicants, that's equal access?

Mr. Clement: --I think that would be equal access.

I think you have to draw a practical line--

Justice Kennedy: I'm surprised that--

Mr. Clement: --here between--

Justice Kennedy: --you think that--

Mr. Clement: --between access and allowing the speech, but I think it... you have to be--

Justice Scalia: You're not going to be an Army recruiter, are you?

[Laughter]

Mr. Clement: --I don't think the military and the Army recruiters... and I... and I won't be one of them... but I think the Army recruiters are not worried about being confronted with speech, they're worried about actually not being allowed onto the same law schools--

Justice Kennedy: --Well, worried about--

Justice Scalia: --having students driven off.

And if you have jeering and picketing, do you really think that that fulfills the purposes of this amendment?

Mr. Clement: --I don't know if it would fulfill every purpose, but I think the amendment has to accommodate the first amendment--

Justice Kennedy: --You think if you--

Mr. Clement: --interests at--

Justice Kennedy: --have jeering--

Mr. Clement: --a university.

Justice Kennedy: --jeering and picketing if a black person came to recruit and people didn't... and a school faculty didn't like blacks?

Mr. Clement: Well, I think that would--

Justice Kennedy: I think that that's an extraordinary position you're taking.

Mr. Clement: --Well, but, Justice Kennedy, I think you have to distinguish what the Constitution would allow the Government to do and what this statute does, which is to say... I mean, what you have in mind is a--

Justice Kennedy: We're talking--

Mr. Clement: --race example--

Justice Kennedy: --about the practical meaning of "equal access".

Mr. Clement: --Right, but in... the practical meaning has to turn on the statute at issue.

And Title VI, for example, in the race context, forbids all discrimination because of race.

And so, some of the conduct that you have in mind may well violate that statute.

And if Congress wants to write a different statute that provides more rights to the military, we would be here defending it as valid first amendment legislation.

But this statute gives, not a right to be free of any discrimination, but a right to equal access.

And we think that the right way to frame that inquiry is say,

"Access, yes, but be respectful of speech. "

And the last thing I would say, if I could reserve the rest of my time for rebuttal, is simply that it's worth remembering that the recruiting office is not the heart of first amendment activity on campus.

And if the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that's a commonsense way to accommodate the interest of the military recruiters and the first amendment.

If I may reserve.

Argument of E. Joshua Rosenkranz

Chief Justice Roberts: Thank you, General.

Mr. Rosenkranz, we'll hear now from you.

Mr. Rosenkranz: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court--

This case is not about whether military recruiters will be barred at the campus gates.

Congress had a law on the books that guaranteed entry to campus, but that was not what Congress really wanted.

So, it passed a new law.

What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message, which is why it gave us the current version of the statute.

The current version isolates for regulation the most communicative aspects of the law schools' resistance.

The law schools--

Chief Justice Roberts: No, that's--

Mr. Rosenkranz: --are saying--

Chief Justice Roberts: --I'm sorry, but the most communicative aspect is saying what you think about a particular policy.

This is conduct, denying access to the military recruiters.

Mr. Rosenkranz: --Your Honor, this is a refusal to disseminate the messages of the military recruiters.

It is a refusal to send emails, host bulletins, and make arrangements for mutual exchange of ideas.

It is "conduct" only in the sense that they are moving molecules, but it's speech that they are being forced to engage in.

And I have to emphasize, this case is not about entry.

The Solomon Amendment does not require schools to give entry to military recruiters, it requires them to give entry to a recruiter only if they provide entry to some--

Chief Justice Roberts: Well, no that--

Mr. Rosenkranz: --other employer.

Chief Justice Roberts: --So, if you had a policy that,

"We're going to deny any employer that uses tanks. "

do you think that would pass muster under the Solomon Amendment?

Mr. Rosenkranz: Well, Your Honor, for a pacifist religious institution, absolutely.

Chief Justice Roberts: What about Yale Law School?

Mr. Rosenkranz: No, because it has no morally based, conscious driven reason for refusing to disseminate that message.

Justice Scalia: Oh, where do you find that?

In... it has to be a morally based, conscience driven--

Mr. Rosenkranz: Well, Your Honor--

Justice Scalia: --I thought we were talking about freedom of speech, not the religion clauses.

Mr. Rosenkranz: --Well, Your Honor, what I'm saying is, under the... under this Court's jurisprudence in the first amendment, it's actually relevant whether the reason for refusing to disseminate the message lies at the heart of the first amendment.

Justice Souter: Well, is... what about Hurley?

Is there something deeply moral or conscience driven about the position to exclude the gay rights contingent in the parade, in Hurley?

Mr. Rosenkranz: Well, Your Honor, it was certainly a reason that they gave, and it was based upon a political view of the legitimacy of homosexuality.

Justice Souter: So, you're--

Mr. Rosenkranz: But I hasten to add, I'm not arguing that that is a required element of a compelled speech claim.

I'm simply arguing that when someone has a reason for resisting disseminating a message, that situates it further... closer to the heart of the first amendment.

Congress came back, after it--

Justice Souter: --Well--

Mr. Rosenkranz: --had a--

Justice Souter: --Excuse me, that... I understand that, so far as the associational claim may go.

But so far as the speech claims may go, I don't understand it.

Mr. Rosenkranz: --Your Honor, I--

Justice Souter: I can say, or refuse to say, anything I want to, for any reason I want to, however bad that reason, however nonmoral that reason is.

And I don't see how, in the speech... on the speech claims, we get into moral basis at all.

Mr. Rosenkranz: --Your Honor, I accept that as a proposition of the compelled speech doctrine, absolutely.

And what I'm trying to point out is that in this case what Congress has done is to engage in the most viewpoint oriented regulation of speech.

The reason Congress does not... the reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law--

Chief Justice Roberts: But it doesn't--

Mr. Rosenkranz: --schools themselves--

Chief Justice Roberts: --it doesn't insist--

Mr. Rosenkranz: --in providing--

Chief Justice Roberts: --It doesn't insist that you do anything.

It says that,

"If you want our money, you have to let our recruiters on campus. "

Mr. Rosenkranz: --Yes, Your Honor, and, under the doctrine of unconstitutional conditions, the analysis is exactly the same.

Chief Justice Roberts: Under... what about South Dakota against Dole?

South Dakota had a constitutional right, under the twenty first amendment, to set whatever drinking age it wanted, and yet we upheld the Spending Clause condition that if they accepted Federal funds, they had to set their drinking age at 21.

Mr. Rosenkranz: Yes, Your Honor.

And in subsequent cases... and, in fact, in Dole itself... this Court pointed out that all bets are off when there is a superceding constitutional right.

Here, we're talking about the Bill of Rights and the first amendment.

I mean, Rosenberger and Rust--

Chief Justice Roberts: There's the right to... in the Constitution, to raise a military.

Mr. Rosenkranz: --Well, that is a Government interest, for sure.

All Government interests--

Justice Kennedy: What--

Mr. Rosenkranz: --can be--

Justice Kennedy: --What you're--

Mr. Rosenkranz: --traced--

Justice Kennedy: --What you're arguing is that what is, for all intents and purposes, "conduct" can be infused by the school, at its option, with a first amendment quality.

Yet your argument would allow schools to exclude anybody in uniform from a cafeteria.

Mr. Rosenkranz: --Absolutely not, Your Honor, because--

Justice Kennedy: Why not?

Mr. Rosenkranz: --because--

Justice Kennedy: What's the point?

Mr. Rosenkranz: --what the law schools are engaging in--

Justice Kennedy: It's an express... it's an... it's solely for an expressive purpose.

Mr. Rosenkranz: --Your Honor, there's a difference between refusing to abide by a universally applicable regulation of conduct, on the one hand, and the Solomon on... Amendment, on the other hand, which is refusing to assist the dissemination of a message.

Recruiting is all about speech.

Yes--

Justice Scalia: What do you--

Mr. Rosenkranz: --it has--

Justice Scalia: --What do you do about the... about the cases where we have required colleges to allow some student activities to put forward their views on campus, when other student activities are allowed to do that?

It seems to me that that flatly contradicts the proposition that when you compel an institution to permit somebody else to speak, you are violating that institution's first amendment rights.

Mr. Rosenkranz: --Well, Your Honor, that is for public schools, and public schools are subject to the first amendment rights of those who want to enter their forum.

But there is a critical difference between that forum, Your Honor, which the schools opened up to everyone, and the forums in career services, which the schools filter on the basis of one very important--

Justice Souter: No, but, Mr. Rosenkranz, isn't the... I thought the distinction was that in determining the forum for recruiting, the university is speaking.

The university isn't creating a forum from a lot... for a lot of third parties; it's speaking, itself.

And I understand the essence of your claim to be that its speech is being affected, either by being mixed with something it doesn't want to say or by being, in effect, forced to support it doesn't... something it does not want to say.

Mr. Rosenkranz: --Your Honor, it's important to keep in mind that there are two messages going on here, and they are clashing.

There is the military's message, which the schools are interpreting as,

"Uncle Sam does not want you. "

and there is the school's message, which is,

"We do not abet those who discriminate. "

"That is immoral. "

And--

Justice Ginsburg: And you would take, Mr. Rosenkranz, that same position.

If this was not special to law faculties... I mean, we're told that the recruiters could go to the main campus; most of these places, the restriction is limited to the law faculties.

Suppose it was universitywide policy that we do not give equal access to military recruiters.

I think your argument says it doesn't matter if it's special to the law school or the whole university.

Do I understand it correctly?

Mr. Rosenkranz: --Yes, Your Honor.

If the university had such a policy, then the university would be able to enforce it.

But I hasten to add--

Justice Kennedy: And so for members--

Mr. Rosenkranz: --the university--

Justice Kennedy: --for medical schools, we can't get medical schools for our Armed Forces... chaplains, the same way, because it... schoolteachers who teach on military bases... in order to make the point.

Mr. Rosenkranz: --Your Honor, at this point, and for some--

Justice Kennedy: And that's--

Mr. Rosenkranz: --several--

Justice Kennedy: --that's all for an expressive reason.

Mr. Rosenkranz: --Justice Kennedy, for several decades, law schools have had these policies and applied them to career services offices.

No other schools within the--

Justice Breyer: But that isn't--

Justice O'Connor: But--

Mr. Rosenkranz: --universities.

Justice Breyer: --that isn't relevant.

Justice O'Connor: --But the Government takes the position that the law school is entirely free to convey its message to everyone who comes.

Mr. Rosenkranz: Yes, Justice O'Connor, and--

Justice O'Connor: So, how is the message affected--

Mr. Rosenkranz: --Well--

Justice O'Connor: --in that environment?

Mr. Rosenkranz: --let me answer in two parts.

First, of course, under the compelled speech cases, the ability to protest the forced message is never a cure for compelled speech violation, but--

Chief Justice Roberts: But--

Mr. Rosenkranz: --what's going on--

Chief Justice Roberts: --I'm sorry, but, on compelled speech, nobody thinks that these... law school is speaking through those employers who come onto its campus for recruitment.

Everybody knows that those are the employers.

Nobody thinks the law school believes everything that the employers are doing or saying.

Mr. Rosenkranz: --That's correct, Your Honor, but, again, endorsement is also not an element of compelled speech claim.

But let me... let me bring those two questions together on a factual point.

The law schools are disseminating a message that they believe it is immoral to abet discrimination.

When--

Justice O'Connor: But--

Mr. Rosenkranz: --they--

Justice O'Connor: --they can say that to every student who enters the room.

Mr. Rosenkranz: --And when they do it, Your Honor, the answer of the students is,

"We don't believe you. "

"We read your message as being that there are two tiers. "

"There's a-- "

Justice Breyer: Oh, there are--

Mr. Rosenkranz: --"# double standard"--

Justice Breyer: --students--

Chief Justice Roberts: The reason they don't believe you is because you're willing to take the money.

What you're saying is, "This is a message"--

[Laughter]

"# we believe in strongly, but we don't believe in it, to the tune of $100 million. "

Mr. Rosenkranz: --That's right, Your Honor.

And the problem with this Solomon Amendment is that the unconstitutional conditions doctrine says that you can't put a private speaker to that crisis of conscience.

Justice Stevens: May I just be sure I have one thing straight?

The content of the compelled speech, as I understand it, is you're aiding in the recruitment of the Armed Forces, right?

Mr. Rosenkranz: That's correct--

Justice Stevens: And so, it--

Mr. Rosenkranz: --Your Honor.

Justice Stevens: --would still have been compelled speech if, 25 years ago, Congress passed a statute saying,

"University, you must allow our people on campus to recruit. "

and they some... for some reason, didn't want to help.

But that would have been a violation of the first amendment of the school if there were no other debate, just they didn't want the Army on because they had to provide facilities that would aid recruitment.

Mr. Rosenkranz: Yes, Your Honor.

If it was... certainly, if it was against their conscience to do so--

Justice Stevens: So that it would have violated the first amendment during World War II when the... whenever they are trying to raise an army, if they had compelled an unwilling university to provide recruitment facilities to the military.

Mr. Rosenkranz: --Well, yes, Your Honor, unless there is a compelling need.

And the difficulty with the Solomon Amendment--

Justice Stevens: Well, that be compelled speech, though, in your view.

That's the kind of speech we're talking about, anything that helps the military raise an army.

Mr. Rosenkranz: --Anything that... not anything that helps the military raise an army; any communication that a school is required to engage in.

Justice Souter: Okay.

Justice Stevens: So, why isn't--

Justice Souter: Isn't that the point?

I mean, your point is not that... as I understand, that, for any reason, if the... if the university, for any reason, during World War II, had excluded recruiters, and there had been the equivalent of the Solomon Amendment, that there would have been a first amendment problem.

As I... is... maybe I don't understand your argument, but I thought your argument was, or is, that if they do it for some purpose of conscience, which implies a message... e.g., if it is a pacifist college... there would be a first amendment problem.

But if they're doing it simply because space is short and they would rather provide one more biology classroom, there wouldn't be a first amendment problem, World War II or today, would there?

Mr. Rosenkranz: That is absolutely right... correct, Justice Souter, which is why I answered your very early question with--

Justice Scalia: So, you--

Mr. Rosenkranz: --an answer that is--

Justice Scalia: --are saying that--

Mr. Rosenkranz: --by conscience--

Justice Scalia: --that every time somebody gives as his reason for violating a law that he wants to send a message that he disagrees with that law--

Mr. Rosenkranz: --No, Your Honor.

Justice Scalia: --that raises a first amendment question.

Mr. Rosenkranz: No, Your Honor.

Every time--

Justice Scalia: Well--

Mr. Rosenkranz: --someone says that as a reason for refusing to host a message of an unwelcome messenger, that's a compelled speech violation.

Justice Breyer: --So, in fact, to be clear, you also think schools that are angry at the military because they're too favorable to gays in the military, they have the same right.

Mr. Rosenkranz: Absolutely, Your--

Justice Breyer: Okay.

Mr. Rosenkranz: --Honor, because--

Justice Breyer: And also the same right Bob Jones University, because they disapprove of social mixing of the races?

Mr. Rosenkranz: --If... to answer the first hypothetical first, if that's a matter of conscience, absolutely--

Justice Breyer: All right, so--

Mr. Rosenkranz: --if we're talking--

Justice Breyer: --so, what... and there are a lot of people in the country, they may... there's few, anyway... may not believe in either affirmative action, they may not believe in... they may not believe in diversity, they may not... they may even believe in racial segregation, for all I know.

I hope there are not too many--

Mr. Rosenkranz: --Your Honor--

Justice Breyer: --but there might, and those people all have the same right.

Mr. Rosenkranz: --Well, they have the same first amendment right.

Justice Breyer: Yes, okay.

So, if that--

Mr. Rosenkranz: But--

Justice Breyer: --if that's the case, then of course it's going to be pretty tough--

Mr. Rosenkranz: --But, Your Honor, the--

Justice Breyer: --for the military to get people on campus.

And I just wonder, if that's an important need, why you don't have here what I'd say is normal in the first amendment area, that the remedy for speech you don't like, is not less speech, it is more speech.

Mr. Rosenkranz: --Your Honor, the problem with the Solomon Amendment is that the Government is demanding absolute parity.

We have a statute before us that demands exactly the same services, without regard to whether the military actually needs them.

In order for Congress to justify the parity requirement, which is the only statute before this Court, Congress has to state a need.

It has to say why it needs what--

Justice Scalia: --Here's a need.

How about this?

We have said in our opinions... and I am quoting from Rostker versus Goldberg...

"Judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. "

And that's precisely what we have here.

Mr. Rosenkranz: --Your Honor, this Court defers to Congress, in matters of the military, when the military or the Congress is especially expert and this Court is especially naive.

This Court has never deferred to a congressional statute about military when--

Justice Scalia: I don't think it has to do with expertise.

I think it has to do with immense national importance.

Mr. Rosenkranz: --Your Honor, it has to do with expertise, as well.

That's precisely what this Court--

Justice Breyer: But I would--

Mr. Rosenkranz: --said in Rostker.

Justice Breyer: --I would like the answer to my question, because I'm thinking, as you correctly say, if you have that right, so do all the worse segregationists you can imagine, et cetera.

Mr. Rosenkranz: And the--

Justice Breyer: And here... yes, and here there is a need of some kind to get the military in.

And what the Government in this statute asks you... because I, personally, couldn't find anything in the record that finds that student who thinks, by letting the military person in, that that school, which basically is completely against the military in this area, suddenly becomes for it.

And I haven't even found in the record an instance where there was a recruiter who told people that they couldn't join the military if they were gay.

Mr. Rosenkranz: --Well--

Justice Breyer: So, we have not a tremendous demonstration there of a need on the university side.

And my question was, What's wrong with the Government saying,

"University, you disapprove of what we do. "

"The remedy for such a situation is not less speech, it is more speech. "

Mr. Rosenkranz: --Your Honor, the--

Justice Breyer: You can go and explain.

Mr. Rosenkranz: --the direct answer to that last question is that all bets are off when what the Government is doing is compelling the speech of a private actor, because the Government is not allowed--

Justice Ginsburg: Does it compel the speech of a private actor when the Government says,

"Colleges and Universities, you are not going to get Federal money if you discriminate on grounds of race or gender. "

"And we don't care what your private attitude may be, we will refuse to contract, we will debar you from future contracts, if you don't... not only say, 'We won't discriminate, ' but have an affirmative action plan. "

You know that is not hypothetical.

This was the U.S. policy in the early '70s.

Rebuttal of Paul D. Clement

Mr. Clement: Yes, Your Honor.

I understand the hypothetical, at least... especially as to the first half, which links to Justice Breyer's earlier question.

There is an enormous difference, under this Court's jurisprudence, between antidiscrimination laws and the sort of law we have here, the Solomon Amendment.

And the difference is, the Government... it is both on the need side and on the infringement side.

On the need side, the Government has a compelling interest that is different from just regulating the conduct.

The compelling interest that the Government has is a completely separate interest in seeing to it that not a penny of Federal money ever goes to support an institution that taxpayers would not be in a position to go to.

That's Bob Jones and Norwood.

And, on the infringement side, this Court has said, that the act of discriminating against individuals is entitled to no first amendment protection, regardless of whether there's a first amendment right at stake.

And I should add, also, that the vast majority of schools that are subject to Title VI or to Title IX have no such expression that is at stake.

They are not articulating a message,

"We really need to discriminate on the basis of race or on the basis of gender. "

Justice Scalia: Mr. Rosenkranz, could you tell me which elements of your argument rest upon compelled actual speech and which rest upon compelled symbolic speech?

Because the latter, I have to tell you, I'm not very fond of.

What compelled actual speech is imposed on the... you mentioned something about emails, they have to send emails to say where the recruiter will be located--

Rebuttal of E. Joshua Rosenkranz

Mr. Rosenkranz: --Well--

Justice Scalia: --is that the compelled speech you're worried about?

Mr. Rosenkranz: --It is... Your Honor, it is the forced hosting of a messenger based decision--

Justice Scalia: Well, that's symbolic speech.

I'm talking about actual speech.

What expression is the university... real, you know, words... words... is the--

Mr. Rosenkranz: --Well, but--

Justice Scalia: --university--

Mr. Rosenkranz: --with the--

Justice Scalia: --compelled to utter by this legislation?

Mr. Rosenkranz: --Under the parity requirement, what the university is compelled to do is sit down with the employers and help counsel them on what their students are interested in and how best to shape the message.

The Third Circuit went out of its way to point out that, and the National Association for Law Placement brief is very compelling on that.

They also have to disseminate literature, post bulletins on bulletin boards, help the recruiter... or, excuse me, the law firm develop cocktail parties--

Justice Scalia: No, I suppose when you... when the police knock at the door and say, you know, "I have a warrant", I suppose somebody has to say, "Come in".

Is that compelled speech?

Does that--

Mr. Rosenkranz: --No, Your Honor, there are--

Justice Scalia: --Does that... does that raise a first amendment problem?

Mr. Rosenkranz: --It does not.

And there are many circumstances in which words are used that are incidental to an action.

These are not words used that are incidental to the action.

Justice Kennedy: What's happening here is the perspective employers, the recruiters, are proposing a commercial transaction.

And it seems to me quite a simple matter for the law schools to have a disclaimer on all of their emails and advertisements that say,

"The law school does not approve... and, in fact, disapproves... of the policies of some of the employers who you will meet. "

Mr. Rosenkranz: Your Honor--

Justice Kennedy: That's the end of it.

Mr. Rosenkranz: --no matter what the Government does, it cannot convert the career services enterprise into value neutral proposition.

For the law school, from its perspective, it's especially value driven.

Yes, the--

Justice Kennedy: Do law schools have an interest in the Constitution that other people don't?

Mr. Rosenkranz: --Your Honor, I'm not claiming any exceptionalism for the law schools.

The AAUP brief does--

Justice Kennedy: All right.

Well, I--

Mr. Rosenkranz: --a brilliant job--

Justice Kennedy: --I suppose, under your view, law schools really shouldn't permit firms... law firms on campus if those firms, say, oppose... take litigation positions opposing gay marriage.

Mr. Rosenkranz: --Your Honor, as Dale points out, it's up to the private institution to decide what its metrics--

Justice Kennedy: That's--

Mr. Rosenkranz: --are going to be.

Justice Kennedy: --That's your position.

Your position is, the schools could, and probably should, do that to make their message known.

Mr. Rosenkranz: My position, Your Honor, is that the schools are entitled to make their own judgments about what messages they will disseminate.

And even--

Chief Justice Roberts: Dale is... Dale--

Justice Kennedy: Even with reference to commercial... proposed commercial transactions?

Mr. Rosenkranz: --Yes, Your Honor.

But, I would hasten to add, that is not what recruiters are doing.

It is no more commercial than what United Foods was doing in an... advertizing, saying... or resisting the message, "Mushrooms are good".

Justice Breyer: Do you agree with the Government, that the statute, as fairly interpreted, is violated when a school which uniformly applies to all employers the rule,

"You can't come in if you have the discrimination against hiring gay people? "

Mr. Rosenkranz: Yes, Your Honor.

Justice Stevens: --You agree that it is violated.

Mr. Rosenkranz: Yes, Your Honor.

The statute focuses on the manner of providing access; and the manner of providing access is through the career services--

Justice Ginsburg: Would you require any accommodation... I mean, you have said,

"It's up to the faculty to choose which causes to assist. "

--I think you put it that way, or one of the amici did... "and which to resist".

And you've already told me that this happens to be the law school, could be the whole university.

Could the law faculty, or the university, take the position,

"We're not going to... we don't like your message, and we are not going to let you have any of our facilities. "

"We're not going give you the room on the main campus. "

"Just a total bar? "

Mr. Rosenkranz: --Your Honor, we're certainly not advancing that position here.

The Solomon Amendment requires no such thing.

The Solomon Amendment does not require that schools give entry to military personnel.

Justice Ginsburg: No, but a school--

Mr. Rosenkranz: It says you must do it only if the other guy does it.

Justice Ginsburg: --a school, as a matter of its own policy says,

"We don't like discrimination, and we're not going to give discriminators access to any of our facilities, period. "

Mr. Rosenkranz: Your Honor, are... you're asking me what I would be arguing for my clients if they were actually making--

Justice Ginsburg: I'm asking--

Mr. Rosenkranz: --taking that position?

Justice Ginsburg: --you, Is there any obligation, since you've said there is a compelling State interest... compelling Government interest in recruiting, is there some obligation to accommodate, or could the faculty just say,

"We choose the causes that we assist and the ones we resist? "

Mr. Rosenkranz: And that is as to entry to campus, Your Honor?

You're--

Justice Ginsburg: Yes.

Mr. Rosenkranz: --asking if... we are not pressing this point to the Court.

If the Court is asking what my opinion would be if I--

Justice Ginsburg: I'm asking--

Mr. Rosenkranz: --were a judge--

Justice Ginsburg: --is the... if it logically follows, from your position, about

"choosing the causes we resist and the ones that we assist. "

Mr. Rosenkranz: --Your Honor, if I were advancing that argument, it would be, this is a viewpoint discriminatory statute which is subject to strict scrutiny.

The Government is advancing a single message, and, even when the first amendment rights that are at stake are minimal under this Court's opinion in R.A.V., strict scrutiny would apply.

The Government has never come forward which a shred of evidence that it actually needs to be on campus, as opposed to directly off campus, or as opposed to publishing notices in student publications, or advertizing.

But--

Justice Stevens: When you--

Mr. Rosenkranz: --we are not advancing--

Justice Stevens: --were talking about--

Mr. Rosenkranz: --that argument.

Justice Stevens: --the government's message, the message is, "Join the Army".

Is that right?

Mr. Rosenkranz: Yes, Your Honor.

The message is, "Join the Army".

What the schools hear is--

Justice Stevens: And that's a viewpoint discriminatory message.

Mr. Rosenkranz: --No, I'm sorry.

The viewpoint discrimination, Your Honor, is in the congressional statute that says,

"We will force you to host a single speaker with a single message. "

just as in Pacific Gas--

Justice Stevens: The single message is, "Join the Army".

Mr. Rosenkranz: --I'm sorry, Justice Stevens, I didn't--

Justice Stevens: The single message is, "Join the Army".

Mr. Rosenkranz: --The single message is, "Join the Army", that is correct.

And the Government is promoting only that one message.

But this--

Justice Souter: I thought your argument was, the single message is,

"Join the Army, but not if you're gay. "

Mr. Rosenkranz: --Yes, Your Honor--

Justice Souter: And--

Mr. Rosenkranz: --that is--

Justice Souter: --which leads me to the question, in response to your answer to Justice Ginsburg a moment ago, in your view is the compelling interest on the part of the Government recruitment or the refusal to accept gays?

Mr. Rosenkranz: --The compelling interest on the Government's side is the recruitment interest.

We're not arguing that the Government has a compelling interest in excluding anyone.

That's precisely why--

Justice Souter: No, but, are you--

Mr. Rosenkranz: --the law--

Justice Souter: --are you saying that the Government... that the only compelling interest argument that the Government can raise here is the discriminatory argument?

Since nobody denies that, if the Government were recruiting without the discrimination, that there would... there would... there would be no problem with it.

Everyone would agree with... that that was a compelling--

Mr. Rosenkranz: --Well--

Justice Souter: --interest.

But, I thought your argument on compelling interest was that the only compelling interest that the Government can assert is the discriminatory interest.

Mr. Rosenkranz: --No, Your Honor, what I'm saying is, if the Government wants to assert a need, it has to identify the need.

It has to say,

"We need more than contact information. "

"We need more than a room... entry to campus... a room on campus, a posting on a bulletin board. "

"We need everything. "

The story of the Solomon Amendment, Your Honor, is the story of private institutions trying desperately to accommodate the Government's need, even in light of their own moral scruples.

Justice Breyer: Well, the speech is on their side.

The Government just says, "Let our recruiters in".

So, why isn't it sort of like, "Pay the property tax"?

"I don't want to. "

"I hate the government. "

Mr. Rosenkranz: Well, Your Honor--

Justice Breyer: "# I'm withholding the money because I want to express my message. "

Mr. Rosenkranz: --The speech is on both sides, because the schools are being forced to host the Government's message.

The--

Justice Breyer: The message is, "Join the Army".

The--

Mr. Rosenkranz: --The message--

Justice Breyer: --message of the property tax is,

"Pay the... pay for the-- "

Mr. Rosenkranz: --The message--

Justice Breyer: --"# Government's expenses".

Mr. Rosenkranz: --The message that the schools are hearing is,

"Join the Army, but not if you're gay. "

And the schools have been trying desperately to accommodate the Government, up until the point where Congress says,

"We don't actually want any of those things. "

"We want them only if you supply them to someone else. "

"We want them only if you have viewpoint based reason that you don't want to give it to us. "

There's some reason in the law school's conscience, or the academic institution's conscience, that it wants to treat this category of employers differently from any other.

Congress's--

Chief Justice Roberts: --And you... and you're perfectly free to do that if you don't take the money.

Mr. Rosenkranz: --Your Honor, Congress, here, is imposing a sanction, which this Court has treated as exactly the same as a penalty.

When--

Justice Scalia: Suppose that a law school faculty could decide that it does not favor a particular war, and use that as the basis for excluding recruiters,

"By allowing this recruiter to come on campus, you are making me speak, in effect, to our students, saying, 'Join the Army and fight the war that we're now engaged in. "

"'. "

Mr. Rosenkranz: --Your Honor, again, we're not--

Justice Scalia: "And I don't want to do that. "

Now--

Mr. Rosenkranz: --We are not talking about--

Justice Scalia: --what would be the difference?

Mr. Rosenkranz: --coming on campus.

We are talking about affirmative assistance to the highest degree--

Justice Scalia: Yes, okay--

Mr. Rosenkranz: --in disseminating the--

Justice Scalia: --fine.

I'm saying the same thing.

Mr. Rosenkranz: --The answer is yes, Your--

Justice Scalia: But I'm saying--

Mr. Rosenkranz: --Honor.

Justice Scalia: --you would say that the same situation would apply if the university faculty does not favor the particular war that the United States is--

Mr. Rosenkranz: Yes, Your Honor.

Justice Scalia: --engaged in, and, therefore, obstructs the effort to raise--

Mr. Rosenkranz: Your Honor--

Justice Scalia: --an army--

Mr. Rosenkranz: --it's very--

Justice Scalia: --by not allowing them to come on campus.

Mr. Rosenkranz: --It is very important to distinguish obstruction from refusal to subsidize, which, at the Government's instance, this Court has been doing for 30 years, both--

Justice Scalia: It's obstruction when you refuse to give them what you give what you give everybody else.

Mr. Rosenkranz: --It is refusal to treat them the same as everyone else, because they are not the same as everyone else in the law schools' estimation.

And the Government--

Justice Scalia: --fighting a war.

Mr. Rosenkranz: --Well, the Government has to identify precisely what its need is, why it needs Yale college personnel rather than Yale... excuse me... why it needs Yale law school personnel rather than Yale college personnel--

Justice Stevens: May I ask you--

Mr. Rosenkranz: --to make the appointments.

Justice Stevens: --this question, with that very point in mind?

Does it necessarily follow, if there are occasional applications of this statute that might be invalid, that the whole Solomon Amendment needs to be struck down?

Mr. Rosenkranz: Your Honor, the... this is not about application of the statute in one circumstance.

The whole statute has to be struck down, because the Government is demanding absolute parity and there's no way for this Court to rewrite the statute.

We don't know whether Congress would go back and go to the entry requirement, just bear entry, to entry plus, or to a parity requirement, which is... which it has now shifted to.

So, there is simply no way to know exactly how Congress would rewrite the statute.

But this is, at its heart, an as applied challenge.

It's about law schools with nondiscrimination policies.

Chief Justice Roberts: Thank you--

Mr. Rosenkranz: Thank you--

Chief Justice Roberts: --Counsel.

Mr. Rosenkranz: --Your Honors.

Rebuttal of Paul D. Clement

Chief Justice Roberts: General Clement, you have 4 minutes remaining.

Mr. Clement: Thank you, Mr. Chief Justice.

I'd like to make just a few points in rebuttal.

First of all, in starting with the compelled speech problem, there are only two kinds of speech that are at issue here.

First, there is the compelled speech of the military recruiters.

And no one thinks that that speech is being misattributed to the schools.

Even in the secondary school context, in Mergens, this Court understood that secondary students could distinguish between the school's message and that of school groups.

Now, the second piece of speech that's at issue is that of the university, when they incidentally send an email around telling the students where the military recruiters are going to be on a certain day.

And certainly in the context of recruiting, that kind of incidental speech does not implicate any compelled speech doctrine.

In the Title VII context, for example, if an employer says that there's a job opening, and says that to a white applicant, it has to say the same thing to an African American applicant.

Nobody would think that that other... saying that to the African American applicant, which is, of course, compelled speech by Title VII, violates the Constitution.

I would also say, just as the last point on compelled speech, that it's something of a stranger in a strange land in the context of this case, since we are talking about a funding condition, not a compulsion.

Second, let me move to the argument that the Respondents have about trying to distinguish this case from Justice Stevens' World War II hypothetical.

And, as I understand it, it boils down to the argument that the way that the legislature was reacting here to this problem and observing what it observed on campus somehow implicates different constitutional issues, different first amendment issues.

And I think the O'Brien case stands as an obstacle to that argument.

In that case, if you look at it, the argument was exactly the same.

There already was a prohibition that required you to have your draft card with you.

Congress then passed a second statute that prohibited burning your draft card.

Now, what did the Representatives say about that?

Well, Representative Bray, of Indiana, said that this was an effort to get at "communist stooges and beatniks".

Now, this Court did not strike the statute down on that basis.

It looked at the text of the statute and upheld the statute as a reasonable statute.

Let me also, then, move to what you could call the "Bob Jones problem".

And I think you have to have be cautious about interpreting this statute in applying a rule and having it come back in the context of other statutes that even the law schools like, like Title VI and Title IX.

I don't think it's enough to simply say that race is going to be different.

For one thing, Federal statutes also prohibit, as a condition on funding, universitywide discrimination on the basis of disability and on the basis of age.

Now, those aren't things that trigger heightened scrutiny, and I think one has to be worried about converting this rule in this case to something that's going to threaten those statutes.

This Court, in Hishon, for example, made the point that all discrimination can be recharacterized as somebody simply saying... exercising their associational rights,

"I don't want to associate with you, because you're female. "

in Hishon.

You have to be leery of that kind of recharacterization.

The last point I would make is that there's simply no limit on Respondent's argument in this case.

I don't think their matter of conscious limitation is going to be enforceable by the courts.

And, beyond that, I think, even in this case, there is more at issue here than just the military's policy on homosexuals.

If you look at the original statement of the American Association of Law Schools... which is in the joint appendix at 246 and 249... they were concerned, first and foremost, about the military's policies on homosexuals, but also about the discrimination in sex, on what kind of combat roles that women could have, what they call career advancing positions.

So, even if Congress changed "don't ask, don't tell" tomorrow, the... presumably, the law schools would still be here protesting the military's position on gender, or perhaps the war in Iraq, or perhaps the war in Afghanistan.

And the last point in showing there is no limits on their position is, as Justice Kennedy pointed out, any conduct can be imbued with communicative force just by saying,

"We're opposed to this, and, therefore, we're going to engage in this conduct. "

That's simply not enough to generate a significant first amendment interest.

Thank you.

Chief Justice Roberts: Thank you, General. The case is submitted.

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Garcetti v. Ceballos - Oral Reargument

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Case:

Garcetti v. Ceballos

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04-473_20060321-reargument.mp3

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

1 GIL GARCETTI, ET AL., Petitioners, v. RICHARD CEBALLOS.

No. 04-473

March 21, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES: CINDY S. LEE, ESQ., Glendale, California; on behalf of the Petitioners.

EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting the Petitioners.

BONNIE I. ROBIN-VERGEER, ESQ., Washington, D.C.; for the Respondent.

PROCEEDINGS

CHIEF JUSTICE ROBERTS: We'll hear argument next in 04-473, Garcetti versus Ceballos.

Ms. Lee.

ORAL ARGUMENT OF CINDY S. LEE

ON BEHALF OF PETITIONERS

MS. LEE: Thank you. Mr. Chief Justice, and may it please the Court:

At its core, the first amendment is about free and open debate on matters of public importance. It's about citizens' rights to participate in public debate and contribute their personal opinions and views whether they are mainstream or not. The first amendment is not, however, about policing the workplace. It is not about constitutionalizing the law of public employment. Nor should it be. Yet, if the Ninth Circuit's approach is accepted or adopted, this is what it will do.

In this Section 1983 action, a deputy district attorney prepared a disposition memorandum, pursuant to his prosecutorial duties, setting forth the reasons why, in his prosecutorial judgment, the criminal case that he was supervising was likely to be dismissed. The fact that the supervisor did not agree with the content of that memorandum should not give the plaintiff a constitutional right to challenge adverse employment decisions that he claims were in response to the product of that memorandum.

There are no first amendment interests that are served when public employees are allowed to perform assigned job duties in such a way as to the disagreement of the public employer. Essentially, what the --

JUSTICE KENNEDY: Well, I --

MS. LEE: -- Ninth Circuit --

JUSTICE KENNEDY: -- I suppose the public might have an interest in knowing about this debate. I don't know if you can say there's no public interest served. It might be that there are other counterbalancing first -- interests, but I don't think you could say we have no interest in speech. This was -- this is a -- on its face, a rather interesting -- a rather interesting argument that they're -- that they're having.

MS. LEE: When --

JUSTICE KENNEDY: They're interested in criminal law, criminal procedure, et cetera, et cetera.

MS. LEE: Well, it's our position that when speech by public employees cannot fairly be said to be speech as a citizen, then the Government should have a presumptive right to manage its personnel affairs and internal --

JUSTICE KENNEDY: Well, that -- yes, that's something different. But your statement, that there's just no first amendment interest --

MS. LEE: Well, there's on core first amendment values that are furthered when public employers have to justify employment decisions that they make on a routine basis.

JUSTICE SOUTER: Well, why wasn't that equally true in Connick?

MS. LEE: Well, the difference in Connick is that the employee -- the prosecutor in that actions spoke more closely with a citizen, and the Government - -

JUSTICE SOUTER: Yes, but I mean that's --

MS. LEE: -- had --

JUSTICE SOUTER: -- that's a fine characterization, but I'm not sure that that helps us. In Connick, the one subject of the speech that was held to be protected was the speech questioning political pressure to help in campaigns and so on. The issue here that would arguably favor protection is the issue of calling public attention to lying by police officers in criminal cases. And it seems to me that the -- that if there's a public interest in political pressure, there's a public interest in mendacity in law enforcement.

MS. LEE: Well, if the employee is required to investigate or report that kind of conduct pursuant to their normal duties of employment, then that is speech that the employer should absolutely or presumptively have an ability to monitor.

JUSTICE SOUTER: Well, yes, but why?

JUSTICE SCALIA: Well, that's the difference, not the lack of public interest --

MS. LEE: That's --

JUSTICE SOUTER: Yes.

JUSTICE SCALIA: -- that you're --

MS. LEE: -- absolutely right.

JUSTICE SCALIA: -- pointing to, is that in one case he is making this statement as an employee; and you say the employer, if it's a stupid statement, ought to be able to fire him for it. In --

MS. LEE: That's correct.

JUSTICE SCALIA: -- the other case, he's making the statement as a member of the public. And what the first amendment is all about is that we allow stupid statements to be made. Right?

MS. LEE: If it's not part of -- if it's -- if it's not part of your core job duties that you -- that employers should evaluate.

JUSTICE SOUTER: No, but it may well -- I guess the point that I'm trying to get at -- and it goes back to your original public-interest issue -- is, let's assume -- as Justice Scalia's hypo had it, let's assume that the statement made by the employee on the subject within job duties -- case like this one -- is, in fact, a "stupid statement." Let's assume it's wrong, it's inaccurate, whatnot. The issue is not whether an employer, it seems to me, should, if that turns out to be the case, be able to fire. The issue, it seems to me, is whether, if it is not stupid, it should be totally unprotected, so that the employer could do anything, even if it's an accurate statement. And my understanding is that your argument on public interest was an argument that says, even if it's accurate and they were lying and so on, that there should be no protection. Am I -- and do I understand you correctly?

MS. LEE: Well, our position is, whether or not the prosecutor in this case made an accurate statement during the performance of his job -- so, in other words, if his disposition memorandum -- if the employer accepted it and agreed with it, and the case didn't go any further, there wouldn't be a basis of first amendment, because normally he is acting pursuant to his job duties and it's up to the employer to evaluate whether or not he's adequately performing those job --

JUSTICE SOUTER: Sure, but take --

MS. LEE: -- duties.

JUSTICE SOUTER: -- take the case in which the employee says, "It was accurate." The employer says, "No, it was stupid. You got everything wrong." I take it, in -- your position is that regardless of whether the employee got it right or not, there shouldn't be protection, because it's within job duties. Is --

MS. LEE: Right. It --

JUSTICE SOUTER: -- that correct?

MS. LEE: -- should not be protected under the first amendment.

JUSTICE SOUTER: Okay.

MS. LEE: That's not to say that the public employer is free from being challenged with regards to the employment decision. It may be a matter for the employee to seek, through the grievance procedure, that -- like Mr. Ceballos did initially, or even pursue it to civil service remedies. And those are the type of decisions that the personnel in those departments are more ably, I think, to decide.

JUSTICE SCALIA: Or he could go public, I assume. He could say, "I got fired for saying this. And this was true." Right? Take it to the press. The press would love it.

MS. LEE: If his job --

JUSTICE SCALIA: Right?

MS. LEE: -- is not -- if that speech was not required to be kept --

JUSTICE SCALIA: I'm assuming it was --

MS. LEE: -- internally.

JUSTICE SCALIA: -- not required to be kept - -

JUSTICE ALITO: But if he -- if it's part of his job to speak publicly, then he has no -- things that are said publicly in the performance of official responsibilities have no first amendment protection?

MS. LEE: In our view, no. If it's a job -- if the public employee's assigned job duties is to, on behalf of the Government or the employer, speak to the public about certain things that are going on in the office, and he happens to get disciplined for it, that wouldn't pass our step.

JUSTICE ALITO: So, what if the employer tells the employee to go out and lie? There's no first amendment protection if the employee, instead, tells the truth?

MS. LEE: Well, I don't know if that's a -- if that's a detailed enough hypothetical. I mean, if the employee's core job duties are to report X, Y, and Z, and that employee goes out to the public and reports X, Y, Z, E, and F --

JUSTICE KENNEDY: Well, no, that's not --

MS. LEE: -- I think that's --

JUSTICE KENNEDY: -- that's not -- that's not the hypothetical. So, suppose that a supervising district attorney tells the deputy district attorney, "Go in and make a misrepresentation to the court, or conceal evidence," or whatever --

MS. LEE: Well, the question would be if he's --

JUSTICE KENNEDY: -- and he refuses to do that, or he goes in and he says the opposite, he tells the truth, and he's fired. What result?

MS. LEE: Well, I think the plaintiff could argue that, "That's not my core job duties. My job duties is to" -- if it's a prosecutor, "is to make statements" --

JUSTICE KENNEDY: Oh, so --

MS. LEE: -- "pursuant to" --

JUSTICE KENNEDY: -- so you're saying that there's an exception to your rule, so that if, in this case, he has a -- he has a defense if he said, "Well, it's my duty to call it as I see it"?

MS. LEE: Absolutely --

JUSTICE KENNEDY: Then --

MS. LEE: -- not.

JUSTICE KENNEDY: Well, then, if that's so, you ought to remand this case.

JUSTICE SCALIA: Well, sure you'd agree with that, if it's his duty to call it or -- just as it's the duty of a -- of a lawyer not to lie to the court. If there was a similarly clear legal duty for him to say something, you'd say that was part of his job description, right?

MS. LEE: That would be the required assignments of his job.

JUSTICE KENNEDY: And -- and I suppose, in this case, in the hypothetical we propose, that the California courts and the California bar would have disciplinary mechanisms against the senior attorney who hypothetically told the junior attorney to mislead.

MS. LEE: Well, that would be an issue of fact.

JUSTICE KENNEDY: Does California have, or have not, disciplinary procedures in the hypothetical case where a senior attorney who tells a junior attorney lie to the court --

MS. LEE: They do.

JUSTICE KENNEDY: All right.

JUSTICE GINSBURG: What is the --

JUSTICE ALITO: Well, what if it's --

JUSTICE GINSBURG: -- what is the California remedy? Let's say his boss says, "Don't turn over Brady materials."

MS. LEE: And the employer goes ahead and turns it over?

JUSTICE GINSBURG: Yes.

MS. LEE: If the boss makes a determination that, "This is not Brady materials. I don't want disclosed," and the employee goes ahead and discloses it, our position is, that would not be protected first amendment speech.

JUSTICE GINSBURG: What about -- you were talking about public speaking. There was, as I remember, a talk that was given to the Mexican-American Bar Association, and that was not something that his employer required him to do, but he --

MS. LEE: No, it wasn't. And it's not part of this lawsuit, because there's no dispute that the communication at issue in this case is that disposition memorandum that he prepared purely pursuant to his prosecutorial duties.

JUSTICE GINSBURG: But would have a 1983 case if he were disciplined or disadvantaged in the workplace because of the talk that he gave to the Mexican-American Bar Association in which he criticized DA office policies?

MS. LEE: Then our position is, it gets past step one, because it's not normally something that a prosecutor is required to do, and it would be subject to a balancing --

JUSTICE KENNEDY: Pickering balancing, I take it.

MS. LEE: Correct.

JUSTICE SOUTER: But I thought -- correct me if I'm wrong, just as a matter of fact -- I thought his 1983 claim listed the speech to the Mexican-American Bar Association as one of the reasons that he was demoted, or whatever it was, transferred.

MS. LEE: It was initially alleged, but, through the course of discovery, the focus of it was a disposition memorandum, because by the time he went to the Mexican-American Bar Association, he had already been disciplined, so there is no causation between his public speech to the Mexican Bar Association and the disciplinary actions that were --

JUSTICE SOUTER: Well, the --

MS. LEE: -- are at issue.

JUSTICE SOUTER: -- the focus may have changed, but, I mean, he hadn't dropped the -- he hadn't dropped the claim that that was one of the causes --

MS. LEE: Well, in --

JUSTICE SOUTER: -- of the --

MS. LEE: -- in essence, he did, when we --

JUSTICE SOUTER: Did he?

MS. LEE: -- when we went to the summary judgment motion. And that's why the District Court was very clear that the issue --

JUSTICE SOUTER: Okay.

MS. LEE: -- in this case was the communication in the disposition memorandum. And that was -- it was undisputed that that was purely pursuant to his prosecutorial duties --

CHIEF JUSTICE ROBERTS: The Court --

MS. LEE: -- and --

CHIEF JUSTICE ROBERTS: -- the Court of Appeals did --

JUSTICE SOUTER: Okay.

CHIEF JUSTICE ROBERTS: -- the Court of Appeals specifically did not address the Mexican- American Bar Association speech. It focused only on the memorandum, correct?

MS. LEE: Correct.

JUSTICE KENNEDY: And you concede that's Pickering balancing, anyway.

MS. LEE: Well, in -- to the extent that he's alleging that if that's -- "I went to the Mexican- American Bar Association, and I alleged -- or I made statements that there were some improprieties in the district attorney's office," that would probably get past step one and the matter of public concern, and then the question would be whether or not his interest in speaking as a citizen outweighed the interests of the Government.

JUSTICE SOUTER: But let me -- let me raise this question. If, in this case, he gets past step one because of the Mexican Bar Association speech, and if, as you suggested in answer to a question a little while ago, that anybody could go public and get at least past step one of Pickering, what is to be gained by the extremely -- well, strike the "extremely" -- what is to be gained by the restrictive view that you take that if he doesn't go to the Bar Association, or doesn't go public, there's no protection at all? In other words, it seems to me that the public is being protected in a way subject to an immediate end run.

MS. LEE: Well, I think what Your Honor is really asking is, if the plaintiff in this case had taken his disposition memorandum, and, rather than give it to his supervisor, which what he -- what he was required to do, he went to the public and gave it to them on a pending case, I don't necessarily think that would be protected under Pickering, as well.

JUSTICE SOUTER: But what if he simply goes to the public and says, "Look, there's Brady material here, and it should be turned over, and, instead, my boss is telling me to suppress it." That wouldn't be turning over his work product. And I took it, from what you said earlier, that, in that case, you would say at least he gets pasts step one of Pickering for the --

MS. LEE: Well, he certainly --

JUSTICE SOUTER: -- newspapers --

MS. LEE: -- wouldn't be speaking in his capacity as a prosecutor, but that doesn't necessarily mean that his interests would be outweighed by the employer's interest. In --

JUSTICE SOUTER: Oh, he might -- he might ultimately lose, just the way, on all issues but one, the employee in Connick lost. That's quite true. But at least --

MS. LEE: And --

JUSTICE SOUTER: -- there would be a claim to go through the balancing --

MS. LEE: Well, in --

JUSTICE SOUTER: -- exercise.

MS. LEE: -- in some respects, if you're talking about job-required speech that you are -- part of those duties, and the function, is to keep it internally until at least there's some decision by the supervisor, and, rather than do that, you send it to the press or leak that information out, I think a governmental disruption in efficiency can be presumed there. So, I don't think it's as -- I don't think it's as clear that that -- that Mr. Ceballos would have ultimately prevailed under the balancing. I mean, if he had taken the --

JUSTICE SOUTER: Yes.

MS. LEE: -- the speech externally, I think there -- that he ultimately would have lost, as well --

JUSTICE SOUTER: Oh, I understand your point.

MS. LEE: -- because there is --

JUSTICE SOUTER: You're not saying he would win on Pickering balancing, but he would at least get to the point of going through the balancing exercise.

MS. LEE: And ultimately the result would be, there's no protected --

JUSTICE SOUTER: Maybe.

MS. LEE: -- first amendment speech.

JUSTICE SOUTER: Yes.

JUSTICE ALITO: How do you go about determining whether something falls within somebody's job duties? How specifically does that have to be set out?

MS. LEE: If it's a function of the person's job -- assigned job duties. So, the -- you look at the speech at issue. And here is -- it's a disposition memorandum that was purely pursuant to what the -- what his duties required. He's -- it's normally a function that the employer would take into consideration for things like promotions --

JUSTICE ALITO: And you have to look at --

MS. LEE: -- or demotions.

JUSTICE ALITO: -- you have to look at a job description? And does it have to be listed specifically in a job description? Could there ever be things that it's understood that are things that any employee ought to be concerned about, such as very serious wrongdoing within the office?

MS. LEE: I mean, there could be situations where there's a general code of conduct by all employees; you know, employees who feel that they've been, you know, harassed, sexually harassed, or feel that others are, should report that. But that may not be that person's assigned job duties. In other words, that person is not assigned to investigate and report those type of things.

JUSTICE SCALIA: Of course, if --

MS. LEE: And --

JUSTICE SCALIA: -- if you adopt a principle that every employee ought to -- ought to report to his superiors known wrongdoing by his co-workers, and that that's part of his job duties, you -- then you always cut off the ability of that employee to go public, right? I mean, that's a -- sort of an expanding category, "job duties."

MS. LEE: Well, it would be assigned job duties, things that normally the employer would take into consideration for things like terminating or promoting.

I'd like to reserve the remainder of my time for rebuttal.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Lee.

Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER

FOR THE UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE PETITIONERS

MR. KNEEDLER: Mr. Chief Justice, and may it please the Court:

Much of the work of public employees is performed by speaking or writing, and much of that work concerns matters of public interest. Under the Ninth Circuit's decision, public employees engaged in such work have at least a presumptive first amendment right to perform their jobs as they see fit.

That conclusion rests on a fundamentally mistaken view of the first amendment. When the Government pays for somebody to do its work, it has an absolute right to control and direct the manner in which that work is performed. That is a basic rule of agency law, and insofar as Federal employees are concerned, it's a basic rule of our constitutional structure. Article II of the Constitution gives the President the power and responsibility to take care that the laws be faithfully executed. Effectuation of that power, and effectuation of the principle of accountability that it embodies, requires that supervisors in the executive branch be able to control and direct the work of their subordinates. The first amendment, which was adopted just a few years after the Constitution, was not meant to interpose the first amendment in that relationship between supervisor and subordinate or otherwise to regulate the internal affairs of the executive branch. That is the function of civil service laws adopted by the legislature and internal executive branch directives taking into account the relative costs and benefits of certain types of regulation. And finally --

JUSTICE SOUTER: No, you take the position, then, that -- going to the earlier hypothetical that somebody brought up, that, say, in a Brady case, if the --if the Federal prosecutor believes there was Brady material that -- and let's assume he's correct, just to make it a simple case -- that there's Brady material to be turned over, and the U.S. attorney says, "Do not turn the Brady material over," that if the -- if the U.S. -- if the -- if the prosecutor tells this to a court, that he can be disciplined?

MR. KNEEDLER: Well, there would, no doubt, be other restrictions. Justice Kennedy mentioned ethical rules. Under the Federal whistle-blower statute --

JUSTICE SOUTER: Oh, I'm sure --

MR. KNEEDLER: -- there would --

JUSTICE SOUTER: -- that's so --

MR. KNEEDLER: -- be a restriction.

JUSTICE SOUTER: -- but what about, you know, the basic first amendment --

MR. KNEEDLER: The first amendment would not be the -- would not be the source of protection. Whether there would be some argument that, if the employee could not be fired, it would be an unconstitutional condition to require him to put his job at peril for committing a due process violation or something like that, whether there would be a claim like that, that would be a different matter. But the first amendment --

JUSTICE SOUTER: But why would you recognize a due process violation if you wouldn't recognize a first amendment violation?

MR. KNEEDLER: Because the first amendment does not address speech that an employee undertakes in the performance of his duties.

JUSTICE SOUTER: Well, neither does due process.

MR. KNEEDLER: No. No, I was just suggesting there would have to be some unconstitutional condition.

Well, the due process --

JUSTICE SOUTER: Yes, but to get to the unconstitutional condition, wouldn't you normally look to the first amendment?

MR. KNEEDLER: My point is that the due process -- due process clause does address the conduct at question, which is the requirement that exculpatory material be turned over to the defendant. And so, the question is that the employee would be put in a position where he would -- where he would be instructed not to perform what he understood to be a constitutional violation. I think most civil service laws, most ethical rules, would take care of it. And, as I mentioned, the Federal whistle-blower statute, in 2302(b)(9), I think it is, has a provision that protects employees who refuse --

JUSTICE KENNEDY: And --

MR. KNEEDLER: -- to obey an order --

JUSTICE KENNEDY: -- perhaps, 1983, if you go the unconstitutional condition argument, and certainly in 1983 -- or arguably a civil rights prosecution against the senior who ordered --

MR. KNEEDLER: Yes, there would be -- there would be those sorts of restrictions. My only point is that the first amendment is not addressed to speech or writing that an employee undertakes in the -- in the -- in the course of his official duties. This --

JUSTICE ALITO: But isn't there this -- isn't there this anomaly in the position that you're advocating? It would seem to me that categories of employee speech that are most likely to be disruptive would be public speech that's outside of the employee's duties, or internal speech that is outside of the employee's duties. How much of a -- of a problem is it that employees are bringing first amendment claims based on largely internal speech that falls within their own job duties?

MR. KNEEDLER: I think that would be a huge problem, because it would effectively constitutionalize the day-to-day interactions between supervisors and subordinates within the Government, and put the Federal Courts in charge of overseeing that. Even if these cases might ultimately be disposed of on summary judgment, there would be discovery, there would be the burdens of the litigation. And in a case like this, where the -- where the Government is taking the position that the -- these actions were not even taken against the employee because of this disposition memorandum -- they say they had perfectly valid other reasons -- but this case exemplifies what the problem would be, is that the employee could identify something that he said or did in the course of his duties that involved speech and say, "That's the reason that I was disciplined."

JUSTICE ALITO: But are these going to be difficult cases under Pickering balancing? You have the case like this, where the employee, let's say, says to the prosecutor, "I think the case should be dismissed." The prosecutor says, "Well, I'm the supervisor, and I disagree. We're not going to dismiss the case." Typically, the employee wouldn't be disciplined for doing something like that. Now, if the employee persists and, you know, is insubordinate, there would be another basis for taking disciplinary action.

MR. KNEEDLER: Well, but in this case, if we look at what the Ninth Circuit said, for example, when it got to step two, it said that the employee could only be disciplined if the -- if the agency could show that there was disruption or reckless disregard for the truth. But when somebody is actually carrying out his job duties --not engaged in outside activities that may reflect back and be disruptive, but engaged in the job duties themselves, the employer has a right to insist on more than that the employee not be disruptive or reckless; he has a right to insist that -- the employer has a right to insist that the employee affirmatively contribute to the work of the office and exercise good judgment. And the -- and the supervisor has to be in a position to make judgments about whether that judgment was good or not.

JUSTICE ALITO: Well, is this going to lead to difficult problems in determining what falls within the job duties of a particular employee?

MR. KNEEDLER: I don't -- I don't think it -- I don't think it will, and certainly no more problems than the -- than this Court has wrestled with, and the lower courts have, in terms of what's a matter of public concern. I think it's a common inquiry to determine what a person's job duties are. And I think it's a very important place to have a clear line, just as there is a clear line with respect to matters of public concern.

JUSTICE ALITO: Suppose, in the memo here, the assistant district attorney had said, "I think that this deputy lied, and I think the deputy should be fired." Now, whether the deputy should be fired or not probably isn't within the job duties of this -- of this employee. So, would that be outside of your rule?

MR. KNEEDLER: No, I think it would probably be inside the rule. I think -- I would think, particularly for a -- for an assistant DA to make a recommendation about the consequences of illegal conduct would be within his -- within his job duties.

I also want to say that this Court's decision in Pickering, and in that line of cases, I think, fully support this, because, as this Court pointed out in Connick, this Court has repeatedly stated that the protection afforded by Pickering is for action taken as a citizen on matters of public concern. That "as a citizen" phrase was reiterated in virtually all of this Court's cases in the area. And the underlying principle is that --

JUSTICE STEVENS: But does the Givhan case fall within that?

MR. KNEEDLER: Yes. Yes, it does. But all the Court addressed in Givhan was the question of whether, if you take your concerns not publicly to the newspaper, but express them to the -- in that case, the principal, that you don't lose first amendment protection. But the Court did not address the question of whether those comments were within the scope of the employee's duties. And I think a reading of lower court's decision in Givhan indicates that they were not. She was an English teacher, and she was commenting to the principal about employment practices at the school. That would not have been within the scope of her employment. And then --

JUSTICE GINSBURG: But if she was the vice principal, that would be -- then it would come --

MR. KNEEDLER: I'm --

JUSTICE GINSBURG: -- within your --

MR. KNEEDLER: It might be -- it might be closer to that, yes. I think, again, it would depend if she was -- if she was vice principal for administration or something, I think -- I think it clearly would.

But the purpose of the Pickering line of cases is to protect employees when they go outside of their -- of their job, that they shouldn't be penalized for having taken a job to be able to participate in public affairs, as the Court put it in Pickering. That does not suggest that the -- that the employee brings the first amendment into the job workplace and can use it as a shield or a sword in the day-to-day interactions with his supervisors, and to do so would be constitutionalize, as I said, the day-to-day operations of employment. And this is a classic example, where somebody wrote a disposition memorandum in the course of --

JUSTICE STEVENS: And you're suggesting --

MR. KNEEDLER: -- in the course of those activities.

JUSTICE STEVENS: -- that a remark made internally could not provide the basis for discipline, but saying exactly the same thing publicly could. I mean -- or vice versa.

MR. KNEEDLER: Well, if it's made publicly in the capacity as a citizen, assuming the public -- it isn't a speech that he's making in the course of his duties -- if he writes something to the press, he's speaking in his capacity as a citizen. That doesn't mean that it would be constitutionally protected; it simply means that you get to step two of the Pickering balancing, because he's not carrying --

JUSTICE STEVENS: Well, I'm assuming --

MR. KNEEDLER: -- out the job duties.

JUSTICE STEVENS: -- a case in which it would be constitutionally protected. But you're saying if he says it publicly -- assuming we pass the balancing test -- that if he said the same thing to his boss directly internally, no protection.

MR. KNEEDLER: No, that -- at least not if it's part of his job duties. And I would think --

JUSTICE STEVENS: Which is a --

MR. KNEEDLER: -- ordinarily in that --

JUSTICE STEVENS: -- rule that would sort of encourage people to go public rather than --

MR. KNEEDLER: No, I mean --

JUSTICE STEVENS: -- exhaust their internal remedies.

MR. KNEEDLER: Two things about that. When he's saying it internally, he's doing his job. When he's going externally, he may be violating office policies.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Kneedler.

Ms. Robin-Vergeer.

ORAL ARGUMENT OF BONNIE I. ROBIN-VERGEER

ON BEHALF OF RESPONDENT

MS. ROBIN-VERGEER: Mr. Chief Justice, and may it please the Court:

Petitioners contend that the first amendment provides no protection when the Government silences or punishes a public employee for speaking up on a matter of vital public importance in the course of performing his job, even if the Government has no legitimate employment reason for doing so. Such a sweeping rule would stifle speech that lies at the very core of the first amendment. Recognizing Richard Ceballos's claim in this case would not convert every public employment dispute into a constitutional case.

CHIEF JUSTICE ROBERTS: I think it's probably a bit much to say that the core of the first amendment is internal employee grievances or speech. And I think the concern on the other side is that you may -- as a lawyer, you may have a view of what the -- what Brady requires. Your superior may have a different view. And just because that disagreement exists doesn't mean that you have a constitutional right to continue to voice your view when your superior has reached a different decision.

MS. ROBIN-VERGEER: I agree with that. The first amendment doesn't bar the Government from disciplining employees for insubordination or poor job performance or for continuing or persisting in a matter once their supervisor's told them to stop. Where an adverse employment action's motivated by such legitimate employment reasons, there's no first amendment violation. But the Petitioners here have not claimed any legitimate interest in punishing Ceballos for what he said, nor have they made the case --

JUSTICE KENNEDY: Well, their -- the interest they claim that of supervising their employees.

MS. ROBIN-VERGEER: That is not correct. In this case, the Petitioners --

JUSTICE KENNEDY: I mean, that's the interest that we're concerned with, is of having the Government have the capacity to be able to control the speech of its employees so they could have a consistent policy and so that it can explain to the people what it's doing.

MS. ROBIN-VERGEER: They've articulated that as an abstract principle that has no application on the facts of this case, because on the --

JUSTICE SCALIA: Well, why --

MS. ROBIN-VERGEER: -- facts of -- sorry.

JUSTICE SCALIA: Go on. I'll let --

MS. ROBIN-VERGEER: On the facts of this --

JUSTICE SCALIA: -- let's hear your --

MS. ROBIN-VERGEER: -- case, they never claim that Ceballos did anything improper, that he exercised poor judgment, that he was insubordinate. They just said, "We didn't retaliate." That was their defense of this case. And that presents a fact question for the jury.

JUSTICE KENNEDY: But you're the one that's asking us to adopt a rule. And I'm suggesting to you that there is an interest that's sacrificed by the rule that you request, and that is the Government's interest in regularity and consistency of its speech. They don't have to claim it on a case-by-case basis. You're the ones that are asking us to make this rule.

MS. ROBIN-VERGEER: With respect, I disagree with the characterization, because -- well, there are three reasons why Petitioners proposed per se rule, which would be unwise. And it is they who are asking for a per se exclusion where the Court has not previously adopted a per se exclusion. And the reason why it's unwise is that it will chill speech of paramount public importance by prosecutors and many other public employees. It will force many public employees to go public if they want any chance of constitutional protection, and it will lead to arbitrary and unworkable linedrawing regarding whether an employee's speech falls --

JUSTICE SCALIA: Well --

MS. ROBIN-VERGEER: -- within his job duties.

JUSTICE SCALIA: Because public employee unions are so weak? They're the only strong unions left in the country. I mean, really.

[Laughter.]

JUSTICE SCALIA: You need the Constitution to protect employees against things of this sort?

MS. ROBIN-VERGEER: Absolutely. The Court has recognized, in Pickering and in other cases, that the threat of dismissal from public employment is a potent means of inhibiting speech. Public employees who speak up within their workplaces about police brutality, falsification of evidence, disaster preparedness, and so on, should not be compelled to shade the reports and the recommendations and tell their superiors only what they want to hear or else face reprisal for their candor.

JUSTICE SCALIA: No, but neither should a superior be required to get a report from a subordinate that he thinks is way off base, just a result of poor judgment, thinking that there -- that there was a violation here, when there -- when there obviously wasn't, or using facts that were not sufficiently established in order to claim such a violation. Surely, the employer is entitled to say, "On the basis of this report, which you gave me, you're fired."

MS. ROBIN-VERGEER: That's absolutely --

JUSTICE SCALIA: Or -- you know, or --

MS. ROBIN-VERGEER: That's absolutely correct. And if, in this case, that judgment had been made by Ceballos's employer, that he had exercised poor judgment, that he was rash or reckless in his conclusions, then the employer would have had a valid basis for taking an adverse employment action against him. But that is not what happened in this case.

CHIEF JUSTICE ROBERTS: Well, but you're just hiding behind the fact that they claimed that it wasn't in retaliation. Your assertion still puts them in the position of having to defend a constitutional claim on a case-by-case basis every time there's a disagreement between a subordinate and a superior about, as in this case, what Brady requires.

MS. ROBIN-VERGEER: Well, actually, the disagreement -- there wasn't any disagreement. He came forward and exposed police misconduct. And his supervisors were on his side.

CHIEF JUSTICE ROBERTS: There was a disagreement about whether or not his memorandum accurately reflected, in an appropriate way, what was at issue there. There was a disagreement about the content of the allegations.

MS. ROBIN-VERGEER: I don't think it's important, for, maybe, purposes of this, to iron this out, but I -- respectfully, I don't agree with that characterization, because, even in the resolution of the grievance internally, the -- what they found in the grievance was that they took no adverse action against him because of what he said --

JUSTICE BREYER: That doesn't --

MS. ROBIN-VERGEER: -- in connection with this case.

JUSTICE BREYER: That isn't the point. I think the point is, at least for -- I think point is who is going to decide whether there was some justification here. And I read this memo. I thought that the DA had a pretty good claim, that the police didn't do anything wrong. And there's also an argument they did. All right. So, who decides that kind of thing? A constitutional court or a State, under its protection laws or whistle-blower statutes?

MS. ROBIN-VERGEER: No --

JUSTICE BREYER: And the argument that you have to face, I think, is that it will be very disruptive to have constitutional judges dive into this, when there are so many other remedies, and where the very act of their doing it, allowing discovery, allowing court cases, allowing juries, itself, will disrupt the Government. Now, if you say they give you no protection at all, I want to hear what you have to say as to what the standard is to separate the sheep from the goats.

MS. ROBIN-VERGEER: Okay. There are a few points embedded in the question, and I'd like to take them one by one.

With respect to the standard, the standard is, if the employer makes a judgment that the public employee has not performed his or her job properly or has been insubordinate, so long as that judgment isn't based on a censorial type motive, like, "We don't tolerate criticism of the sheriff's department," something like that, then the employer's judgment prevails. And I'm not suggesting that a District -- Federal District Court has license to second-guess that judgment, so long as that judgment's actually the judgment that was made. I mean, there's a pretext analysis that might be made in this case --

JUSTICE BREYER: The only cases that would go into court are cases where the employer says, "I have no reason at all for firing him"?

MS. ROBIN-VERGEER: Well, in a case like this, the county never came forward --

JUSTICE BREYER: But that's because --

MS. ROBIN-VERGEER: -- and said that --

JUSTICE BREYER: -- they think they have a better claim on the other part. I mean, if -- even if you're right in this one, I promise you, the next one will come along, and they'll say, "Of course we had a good reason for firing him. One, we didn't fire him for that reason. Two, if we did, we would have been justified," or whatever. So --

MS. ROBIN-VERGEER: But --

JUSTICE BREYER: -- if your standard is, the only cases that go into court under the first amendment are cases where the employer says, "I had no basis for doing anything to him whatsoever," then I think there will be few such cases, though you might convince me that that standard --

MS. ROBIN-VERGEER: Well --

JUSTICE BREYER: -- wouldn't do any harm.

MS. ROBIN-VERGEER: -- that's why I said that it would be subject to a pretext analysis. The employer, of course, might come back and -- and, post hoc, come up with a rationale for --

JUSTICE SCALIA: But that'll --

MS. ROBIN-VERGEER: -- why they did --

JUSTICE SCALIA: -- always be --

MS. ROBIN-VERGEER: -- what they did.

JUSTICE SCALIA: -- the claim. That'll always be the claim. They'll always say, "Oh, yeah, you said you did it because of that, but you did it because you're retaliating" --

MS. ROBIN-VERGEER: You know --

JUSTICE SCALIA: -- "for this or that." I mean --

MS. ROBIN-VERGEER: -- we're not operating in uncharted territory here. The rule that the Ninth Circuit has adopted has been the prevailing rule in the Circuits for years. And I just want to clarify something that came up in the last argument, where I cited some very rough statistics about the numbers of cases. There's a rough -- a rough cut at the universe of public employee free-speech cases, of which this type of case, where the speech is part of the job, is only a tiny subset. These cases are not dominating the courts, and you don't have all the litigation that is being --

CHIEF JUSTICE ROBERTS: Is that because --

MS. ROBIN-VERGEER: -- claimed would occur.

CHIEF JUSTICE ROBERTS: -- they're addressed -- is it -- they're addressed under State and Federal whistle-blower laws, or --

MS. ROBIN-VERGEER: No, that's -- actually gets me back to the second part of Justice Breyer's question, which is protection. And it's a complete hit-or-miss situation across the country. And just to respond to something that was said about the Federal Whistle-blower Protection Act, that statute has a gaping hole in it, as construed by the Federal Circuit, because the Federal Circuit has construed it to exclude protection for speech that is part of the employee's normal duties. So, in any case that would come up with a Federal employee, leaving aside what judicial remedies are even available for a Federal employee in this area, the Federal employee would be largely unprotected by the Federal Whistle-blower statute. And with respect to what the state of law is across the country, it's complete patchwork. Different types of speech are protected, there's huge holes in coverage. There is no --

JUSTICE GINSBURG: What about California, which was the State where this episode occurred? Was - - I think you mentioned that he did not make a claim under the State statute.

MS. ROBIN-VERGEER: That's correct. And it's sort of interesting that neither the Petitioners, the United States, or any of the amici have cited a California whistle-blower statute that would have been applicable to this claim. I, frankly, think that there was one that potentially might have been applicable, not cited by any of the parties, but the law was in flux, and it really wasn't all that clear. And that's -- and California's probably one of the better States, in terms of whistle-blower protections, compared to -- and we're talking about a local government employee, and the odds of protection -- it's just hit or miss across the country.

JUSTICE KENNEDY: Are you saying --

MS. ROBIN-VERGEER: The --

JUSTICE KENNEDY: Are you -- are you saying the California courts would tolerate a situation where a member of the bar told one of his employees to misrepresent to the court?

MS. ROBIN-VERGEER: If you're --

JUSTICE KENNEDY: The California courts --

MS. ROBIN-VERGEER: -- referring back to hypothetical --

JUSTICE KENNEDY: The California courts are certainly not tolerating -- and, in fact, this case was heard by a California court, and the -- and the judge, as I read the record -- it's not altogether clear -- seemed to agree with the -- with the police officers.

MS. ROBIN-VERGEER: The motion to reverse that was heard by a State Court judge was not run -- that hearing was not run by Ceballos. It was run by the defense lawyers in that case. And Ceballos's testimony was limited by the prosecution's own objection. So, you can't judge anything from how that disposition came out, whether the State Court judge thought it was -- the police had lied or not lied. And you can't judge anything by the way that hearing was conducted.

But I want to return to why it's so important that the Court not shrink first amendment activity in the workplace. It is of the utmost importance that public employees, who internally report matters of public concern, enjoy first amendment protection, and for two basic reasons. First, the public needs to have a Government of public servants who do their jobs honestly and with integrity, and not yes-men afraid to tell public officials the bad news. A per se exclusion of first amendment protection creates a powerful disincentive for deliberation within Government. The last time, I cited an example of a FEMA employee who was punished for saying to a supervisor that FEMA wasn't ready to handle the next hurricane. But the facts of this case are just as compelling, denying a first amendment protection for prosecutors who expose police misconduct. And his disposition memo wasn't just a prediction about whether -- how a judge would rule on a motion; he exposed police misconduct that --

JUSTICE SCALIA: Well, that's --

MS. ROBIN-VERGEER: -- was so --

JUSTICE SCALIA: -- that's not -- that's not established. That's not established at all. His supervisor obviously thought he didn't --

MS. ROBIN-VERGEER: I'm sorry, I didn't mean to suggest that -- the truth of that allegation may be open to question, but what is not open to question --

JUSTICE SCALIA: Yes, but it's a very serious allegation for somebody who's in the position that this employee was to make against police officers. And as I understood the case, the supervisor said, "Wow, I don't want loose cannons around down there who are accusing perfectly honest and respectable police officers of violating the law." Now, that --

MS. ROBIN-VERGEER: And --

JUSTICE SCALIA: -- hasn't been proven, either. But --

MS. ROBIN-VERGEER: Right. I --

JUSTICE SCALIA: But that is certainly a possibility. And I do not want to exclude the ability of a supervisor to fire somebody, if that possibility exists, without having to go through extensive litigation.

MS. ROBIN-VERGEER: With -- regardless of whether he was ultimately correct or not, there's no question, and there's no serious argument here, that he had a legitimate basis for believing that police misconduct had occurred. He conferred with his supervisors and his colleagues before writing the memo. Everyone agreed that there was a problem with the warrant. And they took his allegations so seriously that they released a defendant who had --

JUSTICE BREYER: Say it's a --

CHIEF JUSTICE ROBERTS: But if --

MS. ROBIN-VERGEER: -- been --

JUSTICE BREYER: -- borderline case --

CHIEF JUSTICE ROBERTS: -- none of that were true -- if none of that were true, he could still file his complaint. Presumably it survives a motion to dismiss, and it goes at least to summary judgment. And that's true in every case of a disagreement between a subordinate and a superior.

MS. ROBIN-VERGEER: That's true of every public employee government -- excuse me -- public employee speech case, period. Almost all of these cases go to summary judgment. They can't be dismissed at the pleading stage, by and large, because they require factual development. So, all that -- all that this per se rule does is add complexity and the need for greater factual development. It's not the magic bullet that the Petitioners seem to think it is. The Givhan case suggests the unworkability of drawing the first amendment line as what's part of an employee's job. Conferences between a teacher and her principal take in the same level of generality as writing a disposition memorandum --

JUSTICE ALITO: But what about the cases -- putting aside the clear-cut case where the employee's statement is either clearly correct or clearly incorrect, but what about the case where the objection to what the employee is doing is the manner of the speech? It's on the matter -- it's on the matter of concern, but the supervisor just thinks that it's being handled in a way that's ham-handed or indiscrete. Aren't they going to -- aren't these cases going to cause terrible litigation problems?

MS. ROBIN-VERGEER: No, they won't, and they haven't. If the employee -- employer has a concern about the manner in which it's communicated, that is a valid employment concern. I mean, suppose Ceballos had gone -- had a big meeting with --

JUSTICE ALITO: But under --

MS. ROBIN-VERGEER: -- sheriff's department - -

JUSTICE ALITO: -- then under Pickering --

MS. ROBIN-VERGEER: -- embarrassing them?

JUSTICE ALITO: -- the test is going to be whether the manner, which may be difficult to recreate, caused -- how much of a disruption it caused to the operations of the office.

MS. ROBIN-VERGEER: These -- you'd think that if there was that type of disruption and hindrance of the way public agencies were carrying out their missions by these kinds of cases, which have been around for a long time, that you'd see citations to them in the Petitioner's brief, in the United States brief. And their silence on this point is both deafening and telling, because, in fact, it has not been the problem that is being posited here, and this is not a new approach that we're talking about.

But getting back to the Givhan case, conferences between teachers and principals are a part of the teacher's job, and it's pure formalism to make the protected status of the Givhan teacher's speech turn on whether the employee manual says a teacher has to work to root out race discrimination. Or what if she was a part-time ombudsman who is charged to improve race relations in the school? Under their approach, you know, boom, it's not protected speech anymore, even though the underlying first amendment value is exactly the same. It also makes it completely subject to manipulation by the employer in making everything a part of an employer -- employee's job, in terms of reporting duties, which --

JUSTICE SCALIA: The first amendment value may be the same, but it -- but what is present is another value. And unless the person is going to go public, in which case the balancing occurs, and assuming there's no prohibition of it, that other value is a very significant one, the ability of public officials to run their offices.

MS. ROBIN-VERGEER: But here's the problem with going public. It's perverse to creating incentive for employees to go public, especially employees in sensitive position -- in a sensitive position. The first amendment consequences here are especially grave, because Ceballos had no realistic alternative channel for communication open to him. Had he gone to a blog, Web site, podcast, and so on, as Petitioners say in their reply brief, or held a press conference, or gone to Los Angeles Times, and so on, he'd be fired, and he'd lose any first amendment case that he brought. So, what avenue does a prosecutor who wants --

JUSTICE BREYER: But what he has --

MS. ROBIN-VERGEER: -- to bring --

JUSTICE BREYER: But the argument that I think people are worried about, against you, is, you have a case -- it's actually a wonderful example. Your client thinks that, in the affidavit that the sheriffs gave supporting the warrant, they didn't tell the truth, because they said that whoever was looking into it, you know, said there was a private driveway and that there were tire tracks, and there were no tire tracks, and it wasn't a private driveway. The other side says, "Yes, it was a long road, but sort of like a driveway, and the edge of the -- of the driveway was broken down, and that's what the sheriff's deputies were referring to." I found it a dispute on both sides.

MS. ROBIN-VERGEER: Well, you know --

JUSTICE BREYER: Now, if, in fact, he's being disciplined for that, the other side is telling you he has a lot of remedies, he has a variety of remedies. Go to the bar associations. Many States have laws, the statutes that protect people under these situations. And why suddenly go to a constitutional court to get the same relief which will short circuit all the other remedies? And if you do, there are going to be thousands of cases less good than yours, and they'll all run to -- to the constitutional court. All right. So, now, what's your reply?

MS. ROBIN-VERGEER: There is no baseline level of protection that is available by statute or civil service protections. If the Court recognizes that the speech involved here, exposing Government misconduct and so on, is important for first amendment purposes, as it has previously recognized, then it's -- then it needs to be a baseline level of first amendment protection. And then if whistle-blower statutes are passed that protect it beyond the baseline level, that's fine. I'm not maligning whistle-blower statutes. But there is no such level of protection that is guaranteed. For someone in his position, if the first amendment does not protect his speech, it's just not protected.

And I want to get back to -- I started to say why it's so important that the speech be protected. It's not just that the public needs to have a Government of public servants, but the Government needs to know how it's operating. How can Government function efficiently and effectively if it does not possess the information it needs to make responsible choices? When an employment decision is actually made because the employee has made a bad judgment and he reached an unwarranted conclusion in his memo, or the manner in which he conveyed it was terribly indiscrete, he publicized n front of the whole sheriff's department, and embarrassed them, when that's an issue, then the employment can respond, and the courts will make quick -- short shrift of those cases, as they do now.

JUSTICE ALITO: When --

CHIEF JUSTICE ROBERTS: Well, that --

JUSTICE ALITO: It --

CHIEF JUSTICE ROBERTS: -- was my point earlier. They can't make short shrift of those cases, because they're not going to be thrown out at the pleading stage. They're going to have to progress at least to summary judgment, probably in every case in which an employee is terminated, because now one of his defenses against termination is, "You're violating my first amendment rights."

MS. ROBIN-VERGEER: But, I mean, the Court needs to appreciate that for the universe of public employee free-speech cases, they're mostly decided at summary judgment; they aren't decided on the pleadings. That's already the case. And all that adding a job- duty element to it is, adds complexity and requires more factual development. It -- there's a number of issues here. First of all, what counts as part of an employee's job? Does the speech have to be required by the job, or merely related to the job? How do you judge if the speech meets the test? Do you go by the job description? Common practice? What if the employee's speech is not required by the job, but some independent ethical duty compelled him to come forward --

JUSTICE ALITO: If Pickering --

MS. ROBIN-VERGEER: -- as is the case here? And, also, what if the employee --

JUSTICE SCALIA: Cases involving those questions would have to go to the courts, I assume. But they'd be a small percentage of all the cases that would go to the courts if we adopt your position. I agree, there will still be some cases left that'll have to go to the courts to sort out these questions that you mentioned. But that's going to be a small percentage of the totality.

MS. ROBIN-VERGEER: Well, it's already a small percentage of the totality, because cases of this type, which involve speech by a public employee while they're doing their job, however that is formulated, are already a small subset of the universe of public employee --

JUSTICE SCALIA: Perhaps --

MS. ROBIN-VERGEER: -- cases.

JUSTICE SCALIA: -- because it's been unclear, until this Court has spoken to the subject, and especially in light of the dicta in our prior cases, which says that he has to be speaking publicly. The reason for the -- for the -- for the paucity of cases can be, simply, that the law was not clear, and most people thought the way -- the way your opponent in this case thinks.

MS. ROBIN-VERGEER: That's incorrect. I mean, most of the Circuits have addressed this question, and virtually all of them are -- have sided with the Ninth Circuit and has -- have refused to draw a bright-line rule when speech has come up as part of the job.

And the -- and as -- Justice Scalia, you seem to be referring to the "as a citizen" phrase the Court has used in its opinions. And I want to address that. No decision by this Court has ever turned on the "as a citizen" phrase, and it's always been used in conjunction with "matter of public concern." The most that can be said is the phrase characterizes the facts of the cases in which the Court used it. The Court hasn't addressed whether speech that's part of the job --

JUSTICE SCALIA: Yes, but the Court didn't say this guy had blue eyes.

MS. ROBIN-VERGEER: Speech --

JUSTICE SCALIA: It said he was speaking as a -- that seemed to the Court to be important to its decision.

MS. ROBIN-VERGEER: Speech -- and I don't mean to suggest it has no meaning, but "speech as a citizen" means speech that one can readily imagine a concerned citizen engaging in. You can imagine a concerned citizen coming forward to report race discrimination --

CHIEF JUSTICE ROBERTS: But that's not --

MS. ROBIN-VERGEER: -- in a school.

CHIEF JUSTICE ROBERTS: -- the context in which this law developed. It developed, originally -- if you were a public employee, you did not have free- speech rights as a citizen. As Justice Holmes said, you know, you might have the right to speak, but you don't have the right to be a policeman. So, the "as a citizen" part didn't come out of happenstance.

MS. ROBIN-VERGEER: Right.

CHIEF JUSTICE ROBERTS: It was recognizing that when you are speaking "as a citizen," juxtaposition to "as an employee," then you do have first amendment rights.

MS. ROBIN-VERGEER: But if you look at the way it was used in Pickering, which, of course, is a different case -- but, in Pickering, the Court was emphasizing that public employees, like all citizens, have an interest in speaking on a matter of public concern. The Court, in Connick, suggested that if the prosecutor there had spoken to bring to light actual or potential wrongdoing or breach of public trust, her speech would have presumptively been protected. If she had done that, she'd be speaking in the same capacity that Ceballos spoke here. One can readily imagine a concerned citizen stepping forward to expose Government misconduct. And it can be difficult to sort out in which capacity an employee is speaking. And sometimes an employee can speak in more than one capacity at once.

JUSTICE ALITO: If Pickering balancing is done, is there anything special about the situation where the employee's speech is part of the employee's job duties? Is the test applied differently in that situation?

MS. ROBIN-VERGEER: It does, because if the employer makes a judgment -- as I said before, if the employer makes a judgment that the employee has carried his job duties poorly, incompetently, insubordinately, and so on, that interest is -- it's either dispositive of the balance, or it's nearly so. And it -- so, from that standpoint, the Court could put a gloss on the Pickering balance that explains or emphasizes that the employer's interests are controlling how the jobs are performed, prevails.

But to get back, for a moment, to the --

JUSTICE ALITO: No, I'm not sure I understood that answer. So, in this situation, if the employer said that Mr. Ceballos was performing his job poorly, that would be enough to tip the balance in the employer's favor --

MS. ROBIN-VERGEER: If that was --

JUSTICE ALITO: -- under Pickering here?

MS. ROBIN-VERGEER: If that were really the case. In a case like this, it would be clearly pretextual, because not only -- not only was that not the basis that was actually offered, but the employer sided with him initially and released the defendant and said he had a legitimate basis for speaking, and called a meeting with the sheriff's department, and took all these steps to show that they actually sided with him. And only when the sheriff's department accused him of -- as acting like a public defender and said, "We're going to get sued if you don't back us up," then the office changed its position and went against Ceballos. So, in a case like this, it would clearly be pretextual. In another case, however, it would not -- presumably there are cases where it would not be pretextual.

JUSTICE ALITO: So, basically, the test -- the Pickering balancing is the same in this situation as it is in, let's say, the Givhan situation.

MS. ROBIN-VERGEER: Well, this case is almost identical to Givhan. The only -- the only thing is that the Court, in Givhan, didn't expressly opine on what capacity in which she was speaking. But it clear that --

JUSTICE SOUTER: No, but I --

MS. ROBIN-VERGEER: -- a teacher speaking --

JUSTICE SOUTER: May I --

MS. ROBIN-VERGEER: -- in both capacities --

JUSTICE SOUTER: May I interrupt you? I thought you said that, in this case, as distinct from Givhan, there would be cognizable employer interests in incompetence, the truth of what was said, the capacity to do the job without roiling the waters unduly, and so on. And that, I take it, is not necessarily so in a Givhan situation. Or is it?

MS. ROBIN-VERGEER: In --

JUSTICE SOUTER: Maybe the employer has the same interest in each. I --

MS. ROBIN-VERGEER: I think --

JUSTICE SOUTER: -- I have --

MS. ROBIN-VERGEER: -- the employer had the same interest in both cases. The question in Givhan was the fact that it was an internal report to the employer: Did that matter? Did that reduce its protection? And the Court said no. So, the only thing that it would take to make Givhan exactly like this is to put it in the employee manual or make her an ombudsman so it's -- so there's not even room for argument that it was part --

JUSTICE SOUTER: No, but in --

MS. ROBIN-VERGEER: -- of her job.

JUSTICE SOUTER: -- in Givhan, if the employee's assigned duties were all done competently, but she had just gone off the deep end on racial balance or something, the employer would not have had - - if -- so long as it was the -- a private communication like that, I don't know that the employer would have had an interest in saying, "Well, you're incompetent on the subject of racial balance, and therefore I -- you know, I'm going to demote you or fire you." But in the case in which the employee is talking on the subject within the job description, then the employer has got -- I thought you were saying he's got a direct interest in competence, truth, and so on.

MS. ROBIN-VERGEER: Yes, that's --

JUSTICE SOUTER: Okay.

MS. ROBIN-VERGEER: -- that's correct. That's right.

Let me turn, just for a second, to -- getting back to the complexity here, and the linedrawing that has to be done. The Petitioner's own hypotheticals underscore the arbitrariness and unworkability of their approach. In -- if you look in the reply brief, at page 13, note 11, they cite, as an example, a county emergency-room doctor who -- and then they put "is not part of their normal duties," to sort of build it into the hypothetical -- would have a right, a first amendment right, to come forward and talk about inefficiencies in a county emergency room. Whereas, the State health inspector, who finds health code violations in nursing homes do not. The first amendment value in those situations are the same. And, if anything, it's greater for the county emergency -- for the -- for the -- I've said this backwards -- the county emergency-room doctor who's talking about how the -- how the county hospital is operating. There's no difference there. And it's a completely arbitrary linedrawing.

Suppose Ceballos had gone outside the chain of command, suppose he had reported to Garcetti that there was police misconduct. It's not clear where that position would -- where their position would lead them. Now it's not part of his normal job duty to go talk to the DA. He's bypassed the chain of command. But it seems that they would say that, "Well, because it was not part of his normal job duty, it -- then it would be protected." And, if so, what message is that sending public employees about whether they should follow their employer's own rules about how you communicate in the workplace and what the chain of command is? It doesn't make any sense to force public employees to go public, as that does more to increase disharmony and disruption in the workplace than having an employee like Ceballos, who followed every rule and every order and instruction regarding how to handle the case and how to communicate within the workplace.

Connick said that the first amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a Government office. The proposed rule is inconsistent with that primary aim. It doesn't do anyone any good to have U.S. attorneys and DAs blind-sided by coverups in their office because their employees were afraid to come forward and tell their supervisors the bad news.

JUSTICE ALITO: Well, for that reason, they're -- for that reason, they're not likely to -- in most instances, they would not be hostile to receiving that kind of information, if it was provided to them.

MS. ROBIN-VERGEER: May I answer?

CHIEF JUSTICE ROBERTS: Sure.

MS. ROBIN-VERGEER: Unfortunately, there's too much evidence, there's too much water under the bridge, that shows that public employees who deliver bad news, and are the unwelcome messenger, do face retaliation in their workplaces. And here, Ceballos told his workplace, his supervisors, that police misconduct had occurred, and that was an unwelcome message, and he was retaliated against for that reason.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Robin- Vergeer.

Ms. Lee, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CINDY S. LEE

ON BEHALF OF PETITIONERS

MS. LEE: Thank you, Your Honor.

I think that's an important point, Justice Alito. I mean, in this case, it's exactly what happened. The supervisors took Mr. Ceballos's assessment seriously. And the difference was, after they further thought about it, they didn't think -- they didn't agree with the proper course of action for the district attorney's office, especially since there was a motion pending, "Let's let the courts decide that." So, if -- where -- I think Plaintiff's suggesting that, but for protecting speech that's required by the duties of employment, employees really would not have much of a right or a remedy if it turns out that the employer believed that maybe they weren't performing their jobs correctly, or, in our case, if the supervisor had considered the speech and said, "You know what? You made a bad judgment call, and we don't think it's entitled to a promotion," that shouldn't give the Plaintiff a constitutional right to challenge that decision. If that -- if the -- if Mr. Ceballos was, in fact, doing his job, that was required of his job, and he was doing it competently, his remedy is not the first amendment. His remedy is not even -- he doesn't even need a whistle-blower statute for that. He could go through civil service, he could go through a formal grievance procedure, and though -- although State statutes on whistle-blowers do vary, there is no State statute, in my understanding, that covers broadly than what the Ninth Circuit does here --

JUSTICE SCALIA: Ms. Lee --

MS. LEE: -- which is --

JUSTICE SCALIA: -- what do you respond to the argument that this has been the law in a number of Circuits and the sky has not fallen?

MS. LEE: Well, the reason that job-required speech may not be -- may not be filed, or basis for first amendment retaliation, or the reason why we may not have seen that, may simply be because public employees understandably do not believe they're exercising their first amendment rights when they are simply performing their duties of employment, when they're speaking pursuant to their job duties or writing reports or memorandums pursuant to their job duties. Just because there may not be the significant increase of first amendment litigation in the public employment context for purely job-required speech does not mean that this Court should not consider this issue.

And I disagree with the representation that the facts in this case are identical to Givhan. This Court commented in that decision that Givhan was citizen speech. And I don't necessarily think that -- and it -- what -- that -- where our proposal -- our approach would add further complexity to first amendment litigation in an employment context. It's certainly not a difficult decision -- analysis in this case.

CHIEF JUSTICE ROBERTS: Thank you --

MS. LEE: Thank you.

CHIEF JUSTICE ROBERTS: -- Ms. Lee.

The case is submitted.

[Whereupon, at 2:00 p.m., the case in the above-entitled matter was submitted.]

Attribution:

The Oyez Project

Garcetti v. Ceballos - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

Garcetti v. Ceballos

Media File:

04-473_20051012-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Cindy S. Lee

Chief Justice Roberts: We'll hear argument now in Garcetti v. Ceballos.

Ms. Lee.

Mr. Lee: Chief Justice Roberts, and may it please the Court:

The issue presented is whether the first amendment requires protection for all public employee speech that touches on a matter of public concern without any consideration of whether the speech was expressed as a citizen.

The ninth circuit's approach affords no consideration for the role of the speaker as a citizen or an employee at the time of the speech.

This approach, however, plants a seed of a constitutional claim in virtually every speech that public employees express while carrying out their regular job duties.

Justice Souter: Well, that's... I mean, I can see--

Justice O'Connor: Do you think that the court tried to apply the Pickering test?

Mr. Lee: The ninth circuit clearly did not apply the Pickering test when they were doing the initial analysis, a threshold analysis, of whether or not the speech at issue was constitutionally protected.

Justice O'Connor: Do you think that the Pickering test, properly applied, would have reached a different result in this case?

Mr. Lee: Not necessarily, not the way the ninth--

Justice O'Connor: It could have--

Mr. Lee: --circuit viewed it.

Justice O'Connor: --certainly.

Mr. Lee: Well, in the ninth circuit's view, the capacity of an employee at the time of the speech is of some factor.

It's a determinative factor.

But, in its view, it was a factor that should be weighed against finding no constitutional protection.

In its view--

Justice O'Connor: Do you think that the proper application of Pickering would yield a different result in this case?

Mr. Lee: --Our view is that--

Justice O'Connor: Could it?

Mr. Lee: --if the application of the Pickering is re articulated such that when job required speech is at issue, like in this case, the employer should invariably win or have a... an easier time of prevailing.

But, in this case, the ninth circuit didn't see it that way.

The ninth circuit took the view that the capacity of an employee at the time of the speech is a factor, but it would be difficult for an employer to justify employment decisions made when the employee is speaking as required by the duties of employment.

Justice Souter: --Counsel, you made the point that if we go the ninth circuit way, every time an employee gets Dutch there's a potential first amendment issue.

Why hasn't that been a problem since 1988 in the ninth circuit?

I think 1988 was the year of the circuit's Roth decision.

So, we haven't seen a deluge, and doesn't that rather discount your argument?

Mr. Lee: Well, our view is that if we accept the ninth circuit's approach, then speech by public employees expressed while carrying out their assigned job duties would virtually... invariably be--

Justice Souter: No.

Mr. Lee: --a matter--

Justice Souter: I realize that, but that... as I understand it, that has been true since the ninth circuit's Roth decision in 1988.

And apparently we have not seen a deluge of these claims, or we would have had citations to the cases.

So, doesn't that rather discount the concern that you express?

Mr. Lee: --Not necessarily.

The ninth circuit and the other circuits that have made, primarily, content the determinative factor in finding presumptive first amendment protection have, in some regards, considered the capacity of an employee as whether or not the speech should be protected under the first amendment, but they've done so in the context of whether or not it is a matter of public concern.

So, the ninth circuit is alone in having addressed squarely whether or not job required speech should not be afforded presumptive first amendment protection.

The other--

Justice Souter: But didn't... maybe I'm wrong on my assumption, but didn't the ninth circuit take that position, back in 1988?

Mr. Lee: --That's correct.

Justice Souter: Okay.

Chief Justice Roberts: What do you do if a public university professor, who... is fired for the content of his lectures?

Certainly, in the course of his employment, that's what he's paid to do.

That has no first amendment protection?

Mr. Lee: Well, it would be our view that if the assigned job duties of that university professor was to speak on a particular topic or content, and they were getting paid for doing that, that that is a job required % speech and that it should not be entitled, presumptively, % to first amendment protection.

Now, that is a far cry from--

Chief Justice Roberts: "Should not be entitled, presumptively, to first amendment protection. "

what does that mean?

That there might be first amendment protection, in light of the particular context--

Mr. Lee: --Our--

Chief Justice Roberts: --of the speech?

Mr. Lee: --Well, according to the ninth circuit's view, anything... anytime a public employee speaks, and that speech relates to a matter of public concern, that is presumptively entitled to first amendment protection, such that the burden is on the employer to justify the decisions for the employment actions taken.

Our view is that the employer should not have that burden until the first threshold is made, that the speech is expressed as a citizen on a matter of public concern.

Justice Scalia: I suppose that, in the situation the Chief Justice mentioned, the professor would still be able to contend that the university fired him because it disagreed with the political content of his speech or because of the university's politics.

He could still make that claim, couldn't he?

Mr. Lee: Our approach would not prohibit that--

Justice Scalia: But the--

Mr. Lee: --kind of--

Justice Scalia: --burden would be on him, as it would be in most cases--

Mr. Lee: --That's correct, Justice Scalia.

Justice Scalia: --to show that that was true.

Mr. Lee: That's correct.

Justice Scalia: Whereas, the ninth circuit would put it on the... put the burden on the university to show that it wasn't true.

Mr. Lee: That's correct.

The ninth--

Chief Justice Roberts: I would have thought you might have argued that it's speech paid for by the Government, that's what they pay him for, it's their speech; and so, there's no first amendment issue at all.

Mr. Lee: --In essence, the principle of our approach is supported by those Government subsidizer cases, like the Rust v. Sullivan.

Our--

Justice Ginsburg: But in Rust v. Sullivan, the Government was buying a commodity.

It was the Government's program, and it was employing people, funding people to implement that program.

Here is a person whose job includes being candid, serving justice, serving truth.

If that's part of his job responsibilities, that's quite different from speaking the speech that the Government wants spoken.

Mr. Lee: --Well, in this case, we think that the job duties are aligned with those subsidizer cases.

We have a deputy district attorney whose job duty was to assess the merits of the prosecution's case, which he did.

That includes assessing the credibility of a witness.

Because his conclusions in this case were that the prosecution's witness was not very credible does not make that task extraordinary.

Justice Scalia: I guess if your job is to speak truth, and you speak falsehood, that's a good reason to fire you, which is what happened here.

Mr. Lee: That could be a--

Justice Scalia: But you don't--

Mr. Lee: --legitimate reason.

Or--

Justice Scalia: --contend that, do you?

Mr. Lee: --or the employer doesn't--

Justice Stevens: Do you contend--

Mr. Lee: --necessarily have to--

Justice Stevens: --that his statement was false?

Do you contend the speech was false?

Mr. Lee: --Our position is that the speech was inaccurate and that--

Justice Souter: Well, but how do we know that?

We're at summary judgment.

Mr. Lee: --Well, we have the... the deputy district attorney's disposition memorandum assessed that... in his view, that the prosecution was going to lose on the pending motion to dismiss, in... on the grounds of that the search warrant was going to be... was going to be found invalid.

That was the essence of the deputy district attorney's assessment.

And in his memorandum, as part of his prosecutorial duties, he evaluated that.

He told his supervisor,

"Look, you know, I'm looking at the credibility of the officer. "

"I conducted an investigation. "

"I don't think we're going to win on this case. "

The supervisor initially thought,

"Okay, you have a point. "

but ultimately decided,

"You know what? "

"I'm not as sure as you are. "

"We have a motion to traverse on calendar, where we have a judge who's going to be assessing that, so let's see what happens. "

That judge found that the search warrant was valid.

And so, in essence, we have a public employee who is challenging employment decisions made by his supervisors--

Justice Souter: No, I realize that, but where do you... how do you infer, from that, that the individual, the employee, was not telling the truth?

Mr. Lee: --That--

Justice Souter: If--

Mr. Lee: --It is not our--

Justice Souter: --if I--

Mr. Lee: --position--

Justice Souter: --if my ethical record amounted to a lie every time I made a... an inaccurate prediction about what a court was going to do when I was a young lawyer, I would have had a very short career.

[Laughter]

And that seems to me as much as you can infer from what this individual did.

Mr. Lee: --Justice Souter, it is not our position, and we have never taken the stance, that the deputy district attorney in this case was reckless in regards of his speech--

Justice Souter: Oh.

Oh.

Okay.

Mr. Lee: --or his evaluation.

Justice Souter: So, we don't--

Mr. Lee: Our view is that--

Justice Souter: --we don't know why it didn't pan out the way he said it was going to, and we don't know that he was... that he was lying.

Mr. Lee: --Correct.

What--

Justice Souter: Okay.

Mr. Lee: --we do know is that the... it is our view that the supervisor... while the supervisor contended that he did not react to this speech adversely, that he could have.

We have here speech that was required by the job.

The employee here... if we take the ninth circuit's approach, we would be providing public employees a constitutional right to perform their assigned job required duties in a way that is to the dissatisfaction of the public employer.

Justice Scalia: Yeah, but you don't have to establish that he was lying; just that his prediction... his job, was to predict, and he made a... an erroneous... a false prediction.

Don't have to show that he intended to do that.

Mr. Lee: That's correct, Justice Scalia.

Justice Stevens: Yes, but the disposition by the... I mean, his grievance by the hearing examiner was that there was no retaliation.

He assumed that the speech was proper and there was no inefficiency or misconduct on the part of the speaker.

Mr. Lee: Well, the internal grievance procedure resulted in the finding that the supervisors did not retaliate against the deputy district attorney for the... for his job required duties.

Justice Stevens: And, in my understanding, that was the only defense that was made for the charge, that, "We didn't retaliate".

There was no claim that the speech was improper in any way.

Am I wrong on that?

Mr. Lee: That's correct--

Justice Stevens: Yeah.

Mr. Lee: --Justice Stevens.

Justice Stevens: So, we assume, for purposes of our case, that what he said was totally accurate and did not, itself, provide the basis for saying he was incompetent or something of that... like that.

Mr. Lee: Well, we assume, for purposes of the summary judgment motion, that he was within his prosecutorial duties in making those assessments.

Justice Stevens: Can I ask you one--

Justice Scalia: Excuse me, I'm not sure I understood the answer to the first question, John.

Was he not fired because he had made an improper assessment?

Justice Stevens: --No.

Mr. Lee: No, our position has never been that the supervisors took any retaliatory action as a result of his speech.

He was not fired.

What the--

Justice Scalia: Yes.

Mr. Lee: --deputy district attorney--

Justice Scalia: Right.

Mr. Lee: --challenges here is various employment decisions by his supervisor, claiming that they were in retaliation for him having prepared and communicated a disposition memorandum that was within the course and scope of his employment duties.

Justice Scalia: And your defense is that the--

Mr. Lee: Our--

Justice Scalia: --actions were not taken with any reference to this... to this at all.

Mr. Lee: --our position has been that the employer could certainly have reacted, or responded, to the speech or the way he conducted his job, or performed his job, but they didn't, in this case.

There were... there were legitimate business reasons for the employment--

Justice Scalia: But that's surely a--

Mr. Lee: --decisions made.

Justice Scalia: --surely a factual inquiry, which will be disputed.

If you want to win on summary judgment, it seems to me you have to establish that, assuming he was fired because of this speech, that would be... or not promoted because of his speech... that would be perfectly okay.

Mr. Lee: That's correct--

Justice Scalia: That's where--

Mr. Lee: --Justice Scalia.

Justice Scalia: --we are.

Mr. Lee: That's--

Justice Scalia: We assume--

Mr. Lee: --that's correct.

Justice Scalia: --that that was the reason for the later actions.

Mr. Lee: And the problem with the ninth circuit's approach is that every time there is job performance at issue that's required by the public employee, it essentially puts the question before a jury or a Federal court to assess the motives--

Justice Ginsburg: But what is your position?

Mr. Lee: --to assess the reasonableness of the decisions made.

Justice Ginsburg: Ms. Lee, is your position that job required speech... an assistant district attorney's obligation is to give his best opinion... that job required speech is outside the first amendment protection?

You say the ninth circuit went too far, in one way.

But are you saying that as long as it's related to his job, it's simply not protected by the first amendment?

Is that your position?

Mr. Lee: Our view is that job required speech is not of a character for which principles of first amendment should protect.

In Pickering, the public school teacher sought to be treated as a member of the general public when he sent his letter to the newspaper criticizing the allocation of financial resources by the school board.

Justice Ginsburg: Yes, I understand--

Mr. Lee: Nothing like that arises--

Justice Ginsburg: --I understand that, but I was confused by your answer to Justice O'Connor, because the question was, Would this come out a different way under Pickering?

And I take it your answer is, this doesn't come in the door, because he's not speaking as a citizen.

Mr. Lee: --Under the current... my... under my current understanding of the Pickering balancing... which is... shifts the burden to the employer to justify the employment decisions made... that we don't... I don't necessarily believe that the Pickering would clearly weigh in favor of the employer in this case, even though the speech was so connected to the duties of employment--

Justice Ginsburg: I'm confused.

You think that this... there was an aspect of it that was citizen speech?

Why--

Mr. Lee: --No.

Justice Ginsburg: --I--

Mr. Lee: We contend that it should... in situations where the speech at issue is job required, and that employee is getting paid for engaging in that kind of duty, that the balance should weigh in favor of the employer.

And I believe the respondent--

Justice Ginsburg: --Well, what do you mean--

Mr. Lee: --concedes as much.

Justice Ginsburg: --by

"the balance, weigh in favor? "

Because, a moment ago, I thought you answered me,

"This kind of speech simply is not shielded by the-- "

Mr. Lee: That's correct.

Justice Ginsburg: --"# first amendment".

Mr. Lee: Our... the... our view is that job required speech should not be protected under the first amendment, so there is no need to go into the balancing, there is no need to go into the weighing of the interests of the employer versus the interest of the employee.

The balancing has been required in the... in the line of cases that the court has held... the language that the court has used in this first amendment public employment context is, when you do the balancing, you weigh the interests of the State, as an employer, versus the interests of the employee, as a citizen, when engaging in this speech.

Our view is that the balancing should only be required when the--

Justice Stevens: You would give--

Mr. Lee: --public employee--

Justice Stevens: --greater protection to a public speech than to a comment from... on the job from... to one's superior.

Can you give me an example of a statement that would provide... be entitled to complete first amendment protection if made in a speech, but could justify a discharge if made face to face with your employer?

Mr. Lee: --I'm sorry, could you repeat that?

Justice Stevens: Could you give me an example of a statement that would be protected in a public speech, but, if made privately to your superior, could provide the basis for a discharge?

Mr. Lee: I believe the Court's referring to facts similar to Givhan, where there you had speech made privately to a supervisor, and--

Justice Stevens: Which was--

Mr. Lee: --this Court--

Justice Stevens: --protected.

Mr. Lee: --this Court has found that it was protected under the first amendment.

Justice Stevens: Yes.

Mr. Lee: However, the Court did not need to address the role of the speaker in that case, because there you had an English teacher who was criticizing the racial--

Justice Stevens: You're not--

Mr. Lee: --policies--

Justice Stevens: --responding to my question.

My question is, Can you give me an example of a statement that would be entitled to protection if made in a public speech, but could be a basis for discharge if made face to face?

Mr. Lee: --It could be in this case, where the prosecutor, who is assigned, or authorized, to speak on behalf of the DA's office in a pending criminal action, made comments to the press about the nature of the case, but, rather... and, in this particular scenario, goes too far, goes beyond what the DA's office allowed him to speak on.

Justice Stevens: No, I'm--

Mr. Lee: He could--

Justice Stevens: --asking you if--

Mr. Lee: --certainly be discharged for that.

Justice Stevens: --what he says privately could the basis for a discharge.

Surely, he couldn't be discharged for what you just described.

Mr. Lee: The... under our approach, the issue is not whether it's privately or publicly.

If the job requires him to speak in a... within the internal channels, then that speech... he's doing his job, he's getting paid for it, and he should not be entitled to first amendment protection.

Unless there are any other questions--

Justice Souter: Is that--

Mr. Lee: --I'd like to--

Justice Souter: --is that true in this case?

I realize they didn't get to it on summary judgment, but is that true in this case with respect to a Brady disclosure?

Mr. Lee: --Brady disclosures are the obligations of the district attorney's office.

So, in this case, when the deputy district attorney believed that it should be disclosed, his supervisor had an absolute right to, say, on behalf of the DA's office, challenge that decision to disclose.

Justice Souter: What if... what if the lawyer simply believes that he has an ethical obligation to make the disclosure, and he makes it, and he is then subject to retaliation?

No first amendment claim on his part?

Mr. Lee: Those ethical obligations would build... would arise from his capacity as a prosecutor.

Prosecutors are employees.

Governmental employees have a general standard of ethical conduct.

That doesn't mean that they are getting paid for the same assigned job duties.

Justice Souter: Well, does that mean... what's your answer to my question?

If he makes the Brady disclosure because he believes that is an ethical obligation, and he is then subject to retaliation, does he have a first amendment claim, or not?

Mr. Lee: It's our view that he does not.

I'd like to reserve the remainder of--

Chief Justice Roberts: Thank you--

Mr. Lee: --my time for rebuttal.

Argument of Dan Himmelfarb

Chief Justice Roberts: --Ms. Lee.

Mr. Himmelfarb.

Justice O'Connor: What's your answer to that last question, Mr. Himmelfarb?

Mr. Himmelfarb: A Brady obligation is an obligation of a prosecutor in his capacity as a prosecutor; and a Brady disclosure, like a recommendation to a superior that there should be a Brady disclosure, constitutes the exercise of the prosecutorial function by a prosecutor.

It is employee speech, and that speech, if it engenders an employment action, should not be sufficient for the employee to get past the first step of the Pickering balancing.

If there is--

Justice O'Connor: So, no free speech protection under Pickering.

Mr. Himmelfarb: --That's exactly right, Justice O'Connor.

Justice O'Connor: And how about this case?

Could it not be resolved under a proper handling of Pickering?

Mr. Himmelfarb: Well, we think a proper handling of Pickering is that respondents should not get past step one of the balancing, because the speech is expressed in his capacity as an employee.

Justice O'Connor: Now, what about retaliation claims that the employee may have?

What about whistleblower type claims by an employer?

Are they... are they separate from the first amendment concerns?

Mr. Himmelfarb: We don't think they are, Justice O'Connor, if the whistle blowing is required by the employee's speech.

If an investigator in an inspector general's office, whose job it is to investigate and report government misconduct, reports misconduct, and an action is taken as a result... an employment action is taken against them as a result... he is demoted or transferred, because it's the view of his superior that he didn't perform his job properly in speaking on that issue... that should not enable the investigator to get past the first step.

Justice Scalia: What if the reason... what if the reason for the... for firing him is that he's a Democrat and it's a Republican Administration, and the speech is used as the pretext?

Mr. Himmelfarb: Justice Scalia, I think that case would be covered by this Court's patronage cases, which would absolutely prohibit that sort of employment action.

But in a case where it's not party affiliation that motivates the employment action, if the speech is expressed in carrying out the employee's duties, he may have a civil service remedy... indeed, that's precisely what the civil service laws were designed to deal with, a situation where the employee is just doing his job, an action is taken again him, and there's a dispute as to whether he was doing his job properly, about whether he was insubordinate, or simply about whether he was--

Justice Breyer: Suppose that we have an instance where it is job related.

He is not speaking as a private citizen, and it's also a public concern.

Now, in such an instance, could we say that, at least if the matter of public concern rise to the level where it's related to an independent constitutional protection... say, founded in the due process clause... under those circumstances, the employer cannot unreasonably... though we give him an area of discretion, he cannot unreasonably retaliate.

Mr. Himmelfarb: --I don't think so, Justice--

Justice Breyer: Why not?

Mr. Himmelfarb: --Breyer.

Justice Breyer: Why not?

And here is an independent obligation.

Mr. Himmelfarb: To--

Justice Breyer: It's very unusual--

Mr. Himmelfarb: --To--

Justice Breyer: --but it's there.

Mr. Himmelfarb: --To use the example of this case, if respondent advised his supervisor that, in his professional judgment, a Brady disclosure should be made, and if the supervisor disagreed with him, and if reasonable minds could differ as to whether the disclosure should be made, and he made it, nonetheless, he would be insubordinate.

And we don't think that that is the--

Justice Breyer: You'd only lose... the Government would lose, only where you can conclude that they could... "they", the Government... could not... could not reasonably conclude that he'd been insubordinate.

Mr. Himmelfarb: --Justice Breyer--

Justice Breyer: So, we covered the case of the Democrat, Republican, et cetera.

In other words, we'd give him... should we give him total discretion?

Can't we limit that discretion of the supervisor?

Mr. Himmelfarb: --If it's... if it's a situation where reasonable minds cannot differ, and the superior directs him not to make the disclosure, in clear contravention of the due process clause as interpreted in Brady, that is a situation--

Justice Stevens: But, Mr. Himmelfarb, in that case he could also be fired if he made the statement in a speech, could he not?

Mr. Himmelfarb: --If he made the statement in a public speech--

Justice Stevens: Right.

Mr. Himmelfarb: --or in a letter to the editor of a newspaper, we think that speech would be presumptively protected by the first amendment.

Justice Stevens: But could he not be fired if the scenario you just described as--

Mr. Himmelfarb: Maybe he could, Justice Stevens, but that would be subject to balancing, and it would be the employer's duty to justify the firing, based on workplace disruption.

Justice Stevens: --It seems to me odd that the employee has greater protection if he goes outside the regular channels and makes a speech than if he does... he goes right to his superior and says,

"I think this is what's wrong and should be remedied. "

Mr. Himmelfarb: Well, it's not that odd, Justice Stevens, because if you have an obligation to report misconduct... take, again, the example of the investigator in the inspector general's office... you will ordinarily be better off by reporting it through the ordinary channels.

Justice Stevens: Right.

Mr. Himmelfarb: Because, ordinarily, you have--

Justice Stevens: You may have no constitutional protection.

But if you go ahead and make a speech, you do.

Mr. Himmelfarb: --Well, you have presumptive first amendment protection.

If you work in the inspector general's office, and there is a prohibition on disclosing pending investigations, and you hold a press conference, there is a very good chance you're going to lose at step two of Pickering, which is why it's in your interest to disclose it through appropriate channels, because--

Chief Justice Roberts: But it's going to be clear that that's violating your job, and it has an adverse impact on your job related duties, because you're going public, instead of going through the channels.

Mr. Himmelfarb: --Well, that's right.

If you have an... if it's a part of your job, you have an incentive to do it, just like any other job requirement.

And it's ordinarily not the case that public employees are punished for doing their jobs.

They're more often punished for not doing their jobs.

So, in that situation, the employee is going to likely be better off by making the disclosure through appropriate channels.

Justice Stevens: But he has less constitutional protection.

Mr. Himmelfarb: That's true, Justice Stevens, but civil... it's our view that civil service laws are the mechanism for dealing with a situation where you're doing your job and there's a dispute as to whether you're doing it properly or not.

Chief Justice Roberts: How comfortable are you that this line you're trying to draw is one that's going to be workable in practice?

I mean, suppose the employee writes a memo, and the boss comes and says,

"If you don't promise me you're not going to talk about this publicly, you're fired. "

And he says,

"Well, I'm not going to promise that. "

And so, he's fired.

Now, is that internal, or is that external?

Mr. Himmelfarb: If the... if the memo is required by his job, it's--

Chief Justice Roberts: Right.

Mr. Himmelfarb: --a recommendation about what policy the agency--

Chief Justice Roberts: That's--

Mr. Himmelfarb: --should take--

Chief Justice Roberts: --required by his job.

But

"promise that he's not going to talk about it. "

is not required by his job.

And this case, kind of, raises the question, because the only reason it's squarely presented on the memo is because the court didn't reach the Brady disclosure or the talk to the bar association that were related to the memo.

Mr. Himmelfarb: --That's right.

In answer to your question of how difficult it's going to be to draw the line, I think in most cases it won't be difficult to draw the line.

I don't think it was difficult in this case.

I'm not aware of any cases that applied principle we advocate where it has been.

There may be some cases where it will be difficult to draw the line, but--

Justice Kennedy: I suppose you have the rule which distinguishes between employment related and outside speech, under the hypothetical... difficult hypothetical posed by the Chief Justice, it would be an... the promise would be an unconstitutional condition, or something like that.

Mr. Himmelfarb: --That may--

Justice Kennedy: I--

Mr. Himmelfarb: --that may... that may be, Justice Kennedy.

Justice Kennedy: --I suppose--

Justice Scalia: And I suppose that what constitutes a matter of public interest is not the clearest line in the world either, is it?

Mr. Himmelfarb: That's absolutely right, Justice Scalia.

This Court has already decided that it's important to draw a line at step one in distinguishing between speech on a matter of public concern and speech on a matter of private concern, even though it will often be hard to draw that line.

And the reason that line has to be drawn is that the alternative is, in effect, to constitutionalize the law of public employment.

Justice Souter: Do you... let me ask you this... do you propose drawing the line... or at least drawing a line in some circumstances this way: That, at step one, if it can be concluded that a private communication between the employer and the employee would have constituted the discharge of the employee's assigned work... so that it would have been within the scope of his employment, and, therefore, not subject to Pickering balancing, if he had made the statement to the employer... that, therefore, the statement cannot be regarded as a statement of public interest, even if he had disclosed it publicly, or if he took a further step and went to the bar association and whatnot?

Mr. Himmelfarb: Justice Souter, we see these as two separate requirements to get past step one.

The speech has to be on a matter of public concern, but it also has to be speech in the speaker's capacity as a citizen.

Justice Souter: But if it is within... I'm sorry, but if it... if it is within the speaker's assigned duties as an employee, does that preclude a conclusion, later on, that he was speaking as a citizen, even if he goes public with it?

Mr. Himmelfarb: I don't think it does, Justice Souter.

If--

Justice Souter: So, we do have, then, the problem that Justice Stevens has raised.

Mr. Himmelfarb: --That's right.

I don't... I don't see it as much of a problem, for the reasons I tried to give in responding to Justice Stevens.

Justice Ginsburg: What about the hearing at which this office had testified?

I thought that part of the complaint was,

"When I spoke at the hearing, I was speaking in a public forum, and they fired me for it. "

Mr. Himmelfarb: May I answer the question?

Chief Justice Roberts: Yes.

Mr. Himmelfarb: My understanding is that that's not part of the complaint, Justice Ginsburg.

And my understanding also is that, in the district court, respondent took the position that his testimony at the hearing was in his capacity as an employee.

Argument of Bonnie I. Robin-Vergeer

Chief Justice Roberts: Thank you, Mr. Himmelfarb.

Ms. Robin Vergeer.

Mr. Robin-Vergeer: Mr. Chief Justice, and may it please the Court:

Ever since Pickering, it has been the law that the first amendment protects public employees from being fired or punished for expressing views on matters of public importance where, as here, there is no harm or disruption to their employers.

Petitioners in... the United States asked this Court to scrap that.

It is not just the ninth circuit.

Justice Scalia: Well, it--

Justice Kennedy: Well, I'm not sure that that was clear from the decisions of this Court.

Certainly, that wasn't what was involved in Pickering.

That was outside speech.

Mr. Robin-Vergeer: That's correct.

But it's been the--

Justice Kennedy: And the same... and the same with Connick.

So, I'm... if you're saying that this is what the circuits have understood, fine, but that's not this... that's why we took this case.

Justice Scalia: --And I think all the cases did say

"expressing views as a citizen on a matter of public concern. "

Wasn't that qualifier always used?

Mr. Robin-Vergeer: --The qualifier has always been used in conjunction with the phase "on matters of public concern".

Justice Scalia: So, what does it mean?

What is... what is your explanation for that qualifier, "expressing views as a citizen"?

Why do we--

Mr. Robin-Vergeer: It--

Justice Scalia: --continually say that?

Mr. Robin-Vergeer: --it was used exclusively to explain, and especially to look at the context in which the phrase first appears, in Pickering, that public employees, like all citizens, have an interest--

Justice Kennedy: Well, let's assume that--

Mr. Robin-Vergeer: --on matters--

Justice Kennedy: --I think that that's an open question under Pickering, and that this case presents it.

Do you... do you concede... and maybe you don't... that there is any category of first amendment speech, as a matter of public concern, which an employee cannot direct to the employer?

Are there... are there some matters as to which the employer can protect its own interests and stifle the employee's speech?

Mr. Robin-Vergeer: --Speaking on a matter of public concern only gets the employee presumptive first amendment protection.

Justice Kennedy: So, there's always Pickering balance.

Mr. Robin-Vergeer: There would be a Pickering balance, yes.

And the Pickering balancing test is quite deferential to the employer.

The Court observed, in the Pickering case, that it's proper to look... that a court should look at the proper performance of the employee's daily duties.

In Rankin, the Court talked about the questions whether the speech interferes with work, personnel relationships, or the speaker's job performance.

The bar is already quite high for the employee, coupled with causation burdens, qualified immunity, and so on.

And so, it is not the case that just because a... an employee speaks on a matter of public concern, that that employee is necessarily going to win a first amendment case.

Also--

Justice Ginsburg: Ms. Lee... Ms. Lee told us that the ninth circuit weighed the capacity of the plaintiff as an employee, rather than a member of the public, in favor of the employee and against the employer.

Is that how you read the ninth circuit's decision?

Mr. Robin-Vergeer: --No, I think... it's not quite right.

I think the ninth circuit just looked at whether his speech was reporting Government misconduct, a type of speech that the circuit said uniformly recognized was of paramount public importance.

Justice Kennedy: But--

Mr. Robin-Vergeer: And--

Justice Kennedy: --any comment that an employee makes regarding how the office is working is a matter of public concern.

I would concede that.

I mean--

Mr. Robin-Vergeer: --With--

Justice Kennedy: --that has to be.

Mr. Robin-Vergeer: --with respect, I don't--

Justice Kennedy: And the consequence of your view is to have the first amendment being used for courts to monitor the discussions that take place in every public agency... local, State, and Federal... in the United States.

It's... you are advocating a sweeping rule.

Now, you'll say,

"Oh, well, Pickering balance will protect it. "

Mr. Robin-Vergeer: --With--

Justice Kennedy: But I still think the intrusive consequences of your... of your rule are sweeping.

Mr. Robin-Vergeer: --With respect, the public concern threshold is not so easily met.

The court has said--

Justice Breyer: I guess our law clerks would meet it every day.

Mr. Robin-Vergeer: --Maybe.

Maybe not.

Justice Breyer: Yeah, maybe, maybe not.

I don't--

Mr. Robin-Vergeer: But the court has--

Justice Breyer: --anything that goes on in my chamber that isn't a matter of public concern, and I would think everything at OSHA and everything at... look, I'll... let me put my question to you, because you're going to make an argument that I don't think is too widely shared; namely, that Pickering decides this case.

If that's your argument, I'd like to ask you a question based on the assumption Pickering does not decide this case.

And it seems to me that Pickering involves a case in which it's both a matter of public concern and outside the scope of employment.

Mr. Robin-Vergeer: --Right.

Justice Breyer: And here we have a case that is a matter of public concern, but inside.

Mr. Robin-Vergeer: Right.

I--

Justice Breyer: So, in those circumstances, I want to know how you believe the first amendment requires us to decide this case.

And as I read this case, in the record, we have one individual, your client, who looked at an affidavit.

The affidavit said that the deputy sheriffs were trying to locate where a vehicle that was chocked up came from.

They saw tire tracks.

The tire tracks went back to a fence at the end of a long driveway.

So, I looked in the record.

I couldn't find the affidavit.

So, I assume that's what it says.

And I wanted to know what the deputy sheriff said.

What they said is that your client agreed that there were tire tracks.

There were tire tracks that did not go the whole length of the driveway, but, rather, tire tracks near the house, where they got the search warrant for.

And, they added, that... the deputies... that there was rocks broken up.

All right.

So, we have two sides to this argument: the deputies, who might reasonably contend that they did nothing wrong; your client, who thinks they were lying.

And we also have a letter that your client wrote, where he said that these deputies are grossly inaccurate and clearly misleading.

Suppose his supervisor goes to him and says,

"I think that that letter is not the right tone. "

"Maybe you're right, maybe you're wrong; maybe they're in good faith, maybe they're not. "

"And so, if you don't change that tone, I'm going to discipline you. "

All right?

Now, that's my hypothetical, which seemed to me, perhaps, very much like this case.

How, in your opinion, does the first amendment handle such a matter?

Mr. Robin-Vergeer: --If the supervisor told Mr. Ceballos that there was something wrong in the manner in which he conveyed his speech, and told him to revise the memo, that would have been... he would have been well within his rights to do so.

Bear in mind that there's never been an argument here that there was anything inappropriate about Mr. Ceballos's speech, that he exercised poor judgment, that there was anything disruptive about the manner in which he communicated.

The head of the office--

Justice Kennedy: But I don't under--

Mr. Robin-Vergeer: --actually said--

Justice Kennedy: --I understand the ultimate answer you gave the hypothetical.

I don't understand the principle you're following.

I mean, it's a matter of--

Mr. Robin-Vergeer: --It's--

Justice Kennedy: --you would agree this is a matter of public concern.

Mr. Robin-Vergeer: --Yes.

Justice Breyer: Which is what I'm looking--

Mr. Robin-Vergeer: Yes.

Justice Breyer: --for.

I'm looking for--

Mr. Robin-Vergeer: It is--

Justice Breyer: --a standard.

Justice Kennedy: But we don't have a standard.

Mr. Robin-Vergeer: --The principle is that an employer... we agree with the position of the United States, that the employer has the ability to dictate how an employee carries out his duties.

In a case where the employee--

Chief Justice Roberts: But in Justice--

Mr. Robin-Vergeer: --is insubordinate--

Chief Justice Roberts: --in Justice Breyer's hypothetical, if the employee filed a lawsuit claiming a violation of his first amendment rights, you would say that could not be thrown out, on summary judgment, on the ground that the speech was within the scope of his employment.

Mr. Robin-Vergeer: --It would be not on that ground.

Chief Justice Roberts: No.

Mr. Robin-Vergeer: The reason it would be thrown out in summary judgment would be because the employer had a different reason for taking retaliatory action--

Chief Justice Roberts: Well, that would--

Mr. Robin-Vergeer: --against the employee.

Chief Justice Roberts: --be a dispute of fact, so it probably wouldn't... so it wouldn't be thrown at summary judgment at all.

Mr. Robin-Vergeer: Virtually all of these cases are able to be disposed of at summary judgment.

And you have, basically, 20 years of litigation in the circuit courts to look at where--

Justice Breyer: Look--

Mr. Robin-Vergeer: --the problems that are being posited haven't materialized.

Justice Breyer: --I'm not making my question too clear.

I'm, imagine, the district judge.

I get just the facts I described to you.

Your client, who's very upset, says,

"This is the most unreasonable thing that ever happened. "

"They were trying to prevent me from communicating with the judge. "

"I'm the one who saw the sheriffs. "

"They didn't. "

The other side says,

"We think it's reasonable what we did. "

My question to you is, What standard does that judge apply under the first amendment?

What does he do?

Mr. Robin-Vergeer: The judge looks first at whether the speech is on a matter of public concern.

And if it's a dispute over Government misconduct, it would meet that threshold.

Second, the court would proceed to a Pickering balance and would say the employer's actual reason for retaliating or taking action would be because of the... you know, the tone or the message or because it was a disagreement, and the supervisor's views ultimately prevail.

And so, that's how it would be--

Justice Kennedy: So, the Federal--

Mr. Robin-Vergeer: --analyzed.

Justice Kennedy: --Federal courts supervise the constant dialogue that is the everyday routine practice in every governmental agency, local and Federal, in the United States.

Mr. Robin-Vergeer: With respect, no.

These cases are not that hard to dispose of at summary judgment.

Most actions that employers take against the employees are not because of the employees' speech anyway, it's because of how they carry out their job functions.

Justice Ginsburg: But that would be something that would have to go to trial, to prove that the... that the employee was incompetent.

Mr. Robin-Vergeer: Respectfully, I don't... I don't think that most of these cases... they don't go to trial, most of them.

They're... of course, there are some trials, but that is not the way most of these cases are handled.

And, besides that, adding an extra test, another preliminary hurdle, wouldn't change the litigation burden.

Instead of it being the Connick Pickering test, it would be Connick Pickering Ceballos test.

And then the question would be, Was the person doing their job?

How do you decide that?

Is it in his job description?

Is it a matter of custom and practice?

What if he's doing extra credit work to build up goodwill with his employer, but it's something that's not--

Justice Kennedy: Well, in--

Mr. Robin-Vergeer: --ordinarily required?

Justice Kennedy: --in this case, the supervisor said,

"There can't be... can't be tracks on asphalt, so you're probably right. "

Then he finds out that it's a tire rim, and of course the rim makes a... so we have to find out this at discovery... at the discovery stage of a lawsuit?

Mr. Robin-Vergeer: As long as he's made an... as long as he's made allegations or spoken in good faith in their... and it isn't demonstrably false, then he would clear that initial hurdle.

And there certainly was nothing suggesting that he spoke in bad faith or was obviously false, whether or not he was correct in his assessment.

And it wasn't just an argument over a tire rim.

He accused these... the deputy sheriff here of perjury.

It was a quite serious allegation of Government misconduct that was made here, and not, sort of, a mundane dispute over--

Chief Justice Roberts: Why doesn't--

Mr. Robin-Vergeer: --whether or not--

Chief Justice Roberts: --why doesn't Rust answer this question?

I mean, there, it was really... this issue was just outsourced by the Government.

They paid for the speech there, and we said that if you pay the piper, you get to call the tune.

And this is just an insourced... the same question.

Mr. Robin-Vergeer: --Ceballos was not speaking on behalf of the Government when he went to his supervisor.

That was an internal communication to his supervisor reporting--

Chief Justice Roberts: He was writing a memo about why the case should be dismissed.

Wasn't--

Mr. Robin-Vergeer: --Right.

Chief Justice Roberts: --that part of his job?

Mr. Robin-Vergeer: It was part of his job, although I... I'd quibble with the idea that it was required by his job.

But it was part of his job.

And, in doing so, he spoke to the Government, not as the Government.

A better analogy with respect to Rust would be if the doctor in Rust... let's say it's a doctor at a public university hospital, and the doctor was told that the policy is not to engage in abortion counseling.

And he wrote a memo to the supervisor saying,

"This is a terribly policy. "

"This is inhibiting our ability to counsel my patients and for me to do my job correctly. "

That memo would not be the Government's message.

And Ceballos's memo here to his supervisor was also not the Government's message.

But I want to... I want to get--

Chief Justice Roberts: Well, why is that?

In the... in your hypothetical, the doctor is... it's not his job to challenge the restriction on the Government grant, but that's what he's doing, so that's not part of his job.

Here, it's part of Ceballos's job to explain why the case should be dismissed, and that's what he wrote in his memo.

Mr. Robin-Vergeer: --But this is a very malleable and manipulable concept, what's part of a job.

I mean, for a doctor to talk to his supervisor about a restriction that he feels is inhibiting his ability to counsel his patients is as much part of his job as a prosecutor going to his supervisor and saying,

"There's government misconduct in this case, and we need to do something about it. "

Just like a teacher in the Givhan case, going to her principal, a conference between a teacher and her principal about whether there's racial... racially discriminatory practices in the school would be part of a teacher's job, complaining about something that affects her students.

Chief Justice Roberts: What do you do with your friend's response to that, that in Connick the Court characterized Givhan as involving a case of a citizen complaining about a particular practice?

Mr. Robin-Vergeer: Well, I think that underscores the point, that the employee in Givhan was speaking both as an employee and as a citizen, and these roles are not mutually exclusive.

You can be both.

There's no artificial distinction that the Court has drawn here.

And where a Government employee comes forward and reports misconduct and puts himself at risk, he is doing just that, speaking in both capacities.

And--

Justice Scalia: We just shouldn't have said "as a citizen" in all of these cases.

We were just padding our opinion with unnecessary words.

Mr. Robin-Vergeer: --The court... the court always views the "as a citizen" language in conjunction with the... speaking on a matter of public concern.

And it seems to me that the court equated the two concepts.

But I want to get to why it is unwise and unjustified to draw the per se rule that petitioners are urging here.

For one, it essentially means that a public employee such as Ceballos has to go public in order to have presumptive first amendment protection.

Justice Ginsburg: But then he would be violating the internal rules of the workplace.

Mr. Robin-Vergeer: Correct.

Justice Ginsburg: Where it's giving his candid views... the search warrant... he's giving his own opinion.

But if he goes outside, he is violating a rule of the workplace.

And it would seem to me that there are certainly measures to be taken against him for that.

Mr. Robin-Vergeer: Correct.

It's a trap.

They don't tell you about what happened in the second case.

If Ceballos had taken suspicions of police misconduct and gone to the Los Angeles Times, they would have fired him.

And had he brought a case challenging that termination under the first amendment, he would have lost on under the Pickering balance.

The circuit--

Chief Justice Roberts: Do you think he should have lost under the Pickering balance, in that case, if he went public right away?

Mr. Robin-Vergeer: --Yes.

If he had evaded proper internal channels of communication, then the employer would be well within his rights to fire him for taking an action that's so disruptive in bringing... discrediting the office without even letting his own employer try to address the situation internally first.

Justice Souter: What if he does let the employer try first, and the employer does nothing, then he goes public?

Where does the Pickering balance come out then?

Mr. Robin-Vergeer: Closer question.

I think he probably still loses, but it's a closer question.

I think, at some point, if the magnitude of this... of the problem is so large... I mean, imagine in the Ramparts scandal situation if... which has been discussed in the briefs... if a prosecutor tried to deal with that within the DA's office, and failed to get any response, and then went public with the Ramparts scandal, something of such magnitude, a court perhaps would find their way.

But in the--

Justice Kennedy: What--

Mr. Robin-Vergeer: --individual--

Justice Kennedy: --what you're saying is, is that the first amendment has an office and a function within the confines of a Government agency that it doesn't have outside.

That's a curious calculus.

It seems to me that the first amendment has its most application when you talk to newspapers, when you talk outside.

That's what the first amendment's about.

The first amendment isn't about policing the workplace.

Mr. Robin-Vergeer: --The court held, in both Givhan and Rankin, that private communications on matters of public concern are still protected.

And it's... and there's very good reasons for that to be.

I mean, imagine an employee at FEMA who thinks that FEMA is not ready to handle the next hurricane, that it has problems in its disaster preparedness, and so that FEMA employee goes to his supervisor and says,

"We have problems here. "

"Here are the four areas in which we're not ready to handle the next hurricane. "

He gets fired, because the supervisor doesn't want to hear that.

It's critically important that public employees who have information, who know what ails the agencies that they work for, be able to find an avenue to communicate issues of public importance.

If that FEMA employee had gone--

Justice Scalia: Is any... is any duty of an employee in a... an agency devoted to service of the public... is any of his functions not a matter of public concern?

Mr. Robin-Vergeer: --Yes.

The standard isn't anything of public interest, it's something of legitimate news interest.

The court reiterated that recently in the Roe case.

The standard does... it's not a--

Justice Scalia: It's news.

This is a press... a press kind of a test.

Mr. Robin-Vergeer: --Newsworthy.

And it's the same test--

Justice Scalia: Newsworthy.

Mr. Robin-Vergeer: --the court has applied in invasion of privacy contexts.

It's... although it's a broad standard, but it's also a well known and well established standard that--

Justice Ginsburg: I thought that's--

Mr. Robin-Vergeer: --courts are using--

Justice Ginsburg: --what Connick was about, that there are things that are said in the workplace that are of no public interest.

They're personal gripes.

Mr. Robin-Vergeer: --Correct.

The line the court was drawing in Connick is between the personal and the public.

The court said that, had the prosecutor in that case come forward had... to bring to light actual potential wrongdoing, a breach of public trust, the court suggested strongly that that would have been a matter of public concern, and that the court would then--

Justice Scalia: So--

Mr. Robin-Vergeer: --have proceeded to the Pickering balance.

Justice Scalia: --so if an employee... I really don't understand it... an employee comes forward with some scurrilous information about a family member of his boss, who is a public figure, and his whole families are public figures, which would be picked up by the press, that would be a matter of public concern?

Mr. Robin-Vergeer: If he's talking--

Justice Scalia: Gee, I never understood that that's what the test was.

I thought this was a matter that deals with the welfare of the public, rather than... rather than the welfare of the press.

Mr. Robin-Vergeer: --Two things.

One is that if the public employee is basically reporting something corrupt in the--

Justice Scalia: Well, that I understand.

Mr. Robin-Vergeer: --in the workplace.

Justice Scalia: That's the welfare of the public.

Mr. Robin-Vergeer: Correct.

And--

Justice Scalia: No, he's--

Mr. Robin-Vergeer: --in Government--

Justice Scalia: --he's just saying, you know, his boss's wife, a mayor of a big city, is running around with somebody.

Okay?

And that's picked up by the press.

It's there on the gossip pages.

She's a public figure.

You say that would be covered by this.

Mr. Robin-Vergeer: --The test the court enunciated in Connick is public, social, or... excuse me... political, social, or other concerns is up to the community.

If it's something that would be of legitimate news and--

Justice Scalia: Anything that would get in the press.

That's it.

Mr. Robin-Vergeer: --Then potentially--

Justice Scalia: Wow.

Mr. Robin-Vergeer: --But it has to be legitimate news interest.

And the court... the courts have not usually taken idle gossip to meet that test.

Justice Breyer: We live in a world where people are leaking things all the time.

And there are thousands of things that are in the public interest every day.

But what's bothering me is, while I see the Government's rule as protecting the interests of the employer, it's very hard for me to believe that never is there an instance where the first amendment offers protection.

But the only choice you've given me is a rule that says every dispute of the public interest is going to go right into constitutional litigation.

And I don't like that either.

So, am I hopelessly--

Mr. Robin-Vergeer: No.

Justice Breyer: --forced to choose which is the lesser of the evils, or is there some middle approach that gives discretion to the Government, but doesn't allow them to exceed that discretion in a certain category of cases?

If so, what?

And--

Mr. Robin-Vergeer: Certainly--

Justice Breyer: --how would you phrase it?

Mr. Robin-Vergeer: --at a minimum, a report of Government misconduct by an employee to his supervisor, at a minimum, should be treated as meeting whatever threshold the court establishes.

And there's something that all the all circuits that have addressed this point agree, that whistleblower types of speech is of paramount public--

Justice Kennedy: So, we do this--

Mr. Robin-Vergeer: --concern.

Justice Kennedy: --so we do this as a... so we do this as a matter of what is sound management principles for a Government agency?

How does that relate to the first amendment?

Mr. Robin-Vergeer: Because Government misconduct goes to the very heart of Government accountability and the public's ability to hold officials accountable when there is--

Chief Justice Roberts: But Government misconduct... if I get a memo from a law clerk that says, "Justice So and So's jurisprudence is wacky", that goes to--

[Laughter]

--that goes to Government misconduct, under your theory, right?

And I fire them, because I think that's not appropriate to put in a memo.

Mr. Robin-Vergeer: --But if--

Chief Justice Roberts: They have a first amendment claim, right?

Mr. Robin-Vergeer: --Well, they have a first amendment interest in their speech, but they have no claim, because if the... if you fired them just because--

Justice Scalia: Nobody's wacko here.

I mean, it's plainly--

[Laughter]

--plainly false.

Mr. Robin-Vergeer: --You know, it would depend why... it would depend why you fired them.

Chief Justice Roberts: Well, I disagree with it.

They think it's... whatever... unprincipled, wrong.

They write me a memo, and I say,

"Don't write me a memo like that. "

And they write me another one, and then I fire them.

Mr. Robin-Vergeer: All right.

But if you're firing them because you think they've exercised poor judgment in the... in the way that they've communicated, then it's--

Chief Justice Roberts: And they think it's Government misconduct because of the way cases are decided, and that they have a first amendment interest.

What could be more important than how the court decides cases?

And that violates their first amendment rights.

Mr. Robin-Vergeer: --In the hypothetical you gave me, it doesn't... I mean, it doesn't sound like a serious claim of Government misconduct.

It sounds like more like an offhand remark with... which, if you thought it was inappropriate, you might be able to take action against that employee.

Here, we have a very grave allegation to public... of Government misconduct, not casually made.

I mean, the... Mr. Ceballos talked to--

Chief Justice Roberts: But there was--

Mr. Robin-Vergeer: --other people--

Chief Justice Roberts: --a dispute about that in this case, too.

I mean, it... under the supervisor's view, it may come down to simply whether there were tire tracks or tire rim tracks.

And that's not as serious, in one view, as your client thinks it's serious.

Mr. Robin-Vergeer: --My client carefully considered what the... what the allegations were in the case, and they talked to people in this office.

So seriously did the supervisors take it that they actually released somebody who pleaded guilty, who was in custody for seven months, and let them out on their own recognizance, because that's how seriously... what a problem they thought, in his office, they had with this... the affidavit.

It was only after the meeting with the sheriff's department where they, kind of, launched into him exactly like a public defender, did the tide turn.

So, we're not... it's not a casual dispute over tire tracks, or not tire tracks, in this case.

But getting back to Justice Breyer's question about drawing lines, I think that's just--

Justice Scalia: Your answer to Justice Breyer's... I was just going to jump in there... your answer to Justice Breyer's question is, look at... if you want to be sure that, in every case, you know, the good cases fall on this side, the bad cases fall on... he should buy your position that every case should go to a balancing test.

That will give you the perfection of first amendment application.

The absolute perfection.

Now, it'll cost a lot of money, and it'll, you know, interfere with a lot of employment things, but it will give you first amendment perfection.

Right?

I mean, that's the answer.

Mr. Robin-Vergeer: --There's an... with respect, I think there's--

Justice Breyer: Is that your answer?

Mr. Robin-Vergeer: --I'm not sure I can answer that.

[Laughter]

I'll take that as a rhetorical question.

But, to get back to Justice Breyer's question, there's also... I think this came up in... when my opposing counsel was talking, about this extra element present here, which is that there is an independent constitutional problem here, in that when you have a... police misconduct, you have someone whose right to fair trial are at stake, and you have a prosecutor who's trying to fulfill his individual ethical and constitutional obligation--

Justice Kennedy: Well, that--

Mr. Robin-Vergeer: --on top of it.

Justice Kennedy: --There would... in this case, unlike any other case I've seen in the employment area, there is a hearing in... before a court of general jurisdiction, who goes into this.

That's what the criminal trial is for.

And he did.

There was also a grievance proceeding.

Mr. Robin-Vergeer: Had Ceballos remained silent, however, then this speech would never have been aired, and police misconduct--

Justice Breyer: All right--

Mr. Robin-Vergeer: --would go unchecked.

Justice Breyer: --I've got... you've got me part of the way.

Now, I'm not saying I... I have to think this through, but you got part of the way.

You say here, there's an independent constitutional basis for the speech being permitted.

But, now, still within that, the Government agency has to have some authority to discipline a person, even there, because, after all, he might have been accusing these sheriffs of things that were really not justified by what they, in fact, did.

Or maybe he was right.

What about that part of the standard?

Do you want to say that the Government wins, as long as it behaved reasonably?

Do you want to say that the Government loses only if there was an abuse of ordinary employer discretion?

Do you want to say the Government... et cetera.

What do you want to say?

Mr. Robin-Vergeer: If the Government takes action because the employee has exercised... has done... carried out his job in an inappropriate way that reflects a lack of fitness or poor judgment and what have you, the employer's within his rights to do so.

The court acknowledged that in Pickering, it acknowledged that in Rankin.

That has never really been an issue in the court's cases.

And it's not--

Justice Breyer: All right.

Suppose--

Mr. Robin-Vergeer: --our position--

Justice Breyer: --we were to write this, hypothetically.

Indeed, the employer has broad discretion to discipline the employee for the manner... or whatever he does... even in such an area, but that discretion can be abused.

And, therefore, it is up to the judge to determine whether a jury could find such abuse of discretion here.

Mr. Robin-Vergeer: --Correct.

I agree with that standard.

Justice Souter: But that does--

Mr. Robin-Vergeer: That--

Justice Souter: --that does mean that potentially... as the Government says, potentially every case is at least going to get as far as summary judgment in court.

Mr. Robin-Vergeer: --That's already the case.

Almost all these cases go to summary judgment.

It's almost impossible to dismiss one of these cases on a pleading.

That's true even in the fourth circuit.

Justice Ginsburg: Well, you... it wouldn't be that way if the rule was that if it's employee speech on the job, it's not protected at all.

Mr. Robin-Vergeer: Respectfully, that's not correct.

Even in the fourth circuit--

Justice Ginsburg: No, that's the argument that's being made here by both the--

Mr. Robin-Vergeer: --I understand that, but that argument is unfounded.

Even in the fourth circuit, which has come closest to adopting the per se rule the petitioners are asking for, district courts... and there's a case we cited in our brief, Echtenkamp... it's from the eastern district of Virginia... where the court said, in trying to decide,

"Did the employee speak as a citizen or as an employee? "

this is going to take factual development.

We can't decide this on the pleadings.

It's going to--

Justice Souter: Okay, do--

Mr. Robin-Vergeer: --have to go to summary judgment.

Justice Souter: --do we know how many cases of this sort there are?

Mr. Robin-Vergeer: I can only say based looking at published cases--

Justice Souter: Yeah.

Mr. Robin-Vergeer: --on Westlaw.

Justice Souter: Yeah.

Mr. Robin-Vergeer: There seem to be around 60 or 70 court of appeals cases--

Justice Souter: Over what--

Mr. Robin-Vergeer: --a year.

Justice Souter: --period of time?

Mr. Robin-Vergeer: Each year, for the least five years, about--

Justice Souter: In--

Mr. Robin-Vergeer: --60 or 70 court of appeals cases.

Justice Souter: --in all of the circuits--

Mr. Robin-Vergeer: In all of the circuits.

Justice Souter: --that follow a ninth circuit kind of rule?

Mr. Robin-Vergeer: Yes, in all of the circuits.

Justice Scalia: That's court of appeals.

You really don't know how many district court judgments there may have been that didn't go up to the court.

Mr. Robin-Vergeer: There's around a hundred a year in the district courts that appear on Westlaw, each year for the last five years.

Justice Ginsburg: --There's one aspect of this case that no one has touched on.

The concurring judge, Judge O'Scannlain, said, this is what whistleblower statutes are supposed to handle, and that if we accepted your view of the first amendment coverage, the whistleblower statutes would be superfluous.

Mr. Robin-Vergeer: That's incorrect.

The whistleblower statutes, which are sort of a patchwork nationwide, protect, or at least they have the ability to protect, speech beyond what the first amendment does.

If you take the Federal whistleblower protection statute, for example, if an employee makes a protected disclosure, and an employer takes a prohibited action in response, there's no balancing.

The employee wins.

The causation burden is also lower.

The agency's on the hook for paying the money.

There's no immunity, and so on.

Justice Ginsburg: California does have a whistleblower statute.

Is that right?

Mr. Robin-Vergeer: It does.

Justice Ginsburg: And there was a claim made under it, but we're not told how it came out.

Mr. Robin-Vergeer: There wasn't a claim made under it.

Justice Ginsburg: There was not.

Mr. Robin-Vergeer: There was not a--

Justice Scalia: I... I'm--

Mr. Robin-Vergeer: --did not bring a claim under California whistle blowing--

Justice Ginsburg: He did... he--

Justice Scalia: --I'm not sure you've answered Justice Ginsburg's question.

Her question was, Don't whistleblower statutes cover this?

And your answer, if I understood it correctly, is, whistleblower statutes cover this, and a lot more.

That doesn't prove--

Mr. Robin-Vergeer: --Oh, I'm sorry, I--

Justice Scalia: --that doesn't prove--

Mr. Robin-Vergeer: --understood the question--

Justice Scalia: --that they don't take care of this problem.

Mr. Robin-Vergeer: --No, I understood her question to be whether they're rendered superfluous.

Whistleblower statutes are patchwork across the country.

Some would cover this kind of speech, some would not.

Justice Scalia: Some would not cover it.

Mr. Robin-Vergeer: Not all whistleblower statutes cover internal communications.

Some do--

Justice Ginsburg: --Some are quite narrow--

Mr. Robin-Vergeer: --some don't--

Justice Ginsburg: # of what they cover.

Mr. Robin-Vergeer: I'm sorry?

Justice Ginsburg: --Some of the whistleblower statutes are very specific and narrow--

Mr. Robin-Vergeer: Yes.

Justice Ginsburg: --of what they cover.

Chief Justice Roberts: Some of them--

Mr. Robin-Vergeer: Yes.

Chief Justice Roberts: --in fact, don't cover disclosures that are job related.

If it's the employee's job to blow the whistle on this type of thing, it's usually not covered by a whistleblower statute.

Mr. Robin-Vergeer: Well, no, that's not... that's not correct.

I mean, in... many of the statutes do cover internal, and some don't.

In some, you have to go to a legislature, or you have to go... take it to a certain outside organization or entity in order to cover it, and--

Chief Justice Roberts: I guess I'm--

Mr. Robin-Vergeer: --some internal--

Chief Justice Roberts: --thinking of the Federal law, where the idea is, if it's part of your job, you have the normal civil service job protections if you're being retaliated or discriminated against for doing your job, so you don't get the extra protections of the whistleblower law.

The only people who get it are the people who... it is not part of their job.

Mr. Robin-Vergeer: --The Federal circuit has interpreted the Federal whistleblower statute to narrow the protection, so if it's within your normal duties of employment, then it would excluded.

But if I could... if I can... just for a moment, I want to return... I've hinted... I've hinted at this somewhat, but I haven't... oh, I see my time's up.

Chief Justice Roberts: Yeah.

Thank you, Ms. Robin Vergeer.

Mr. Robin-Vergeer: Thank you.

Rebuttal of Cindy S. Lee

Chief Justice Roberts: Ms. Lee, you have one minute left.

Mr. Lee: Under our approach, we believe that many cases won't even be filed, because they won't be able to make a colorable claim that it is citizen speech.

This case, in its essence, is about whether a public employee has a constitutional right to perform his assigned job duties in such a way that is to the dissatisfaction of the employer.

In Pickering and in Connick, this Court contemplated first amendment litigation in a public employment context in the relatively rare circumstances in which adverse employment action was taken as a result of an employee's extracurricular activities.

Under the ninth circuit and the respondent's approach, the exception would become the rule.

It is our view that the ninth circuit has simply gone too far in giving a broad sweep for first amendment protection for any public employee speech, simply because it happens to be a matter of public concern.

As Judge O'Scannlain stated in his special concurring opinion,

"The time is right for this court to steer the drifting first amendment jurisprudence back to its proper moorings. "

Thank you.

Chief Justice Roberts: Thank you, Ms. Lee.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Clingman v. Beaver - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Clingman v. Beaver

Media File:

04-37_20050119-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Wellon B. Poe, Jr.

Justice Stevens: We'll now hear argument in Clingman against Beaver.

Mr. Poe, as soon as you're ready, we'll hear from you.

Mr. Poe: Mr. Justice Stevens, and may it please the Court:

This case today involves a conflict between Oklahoma's semi-closed primary law and a rule adopted by the Libertarian Party of Oklahoma which, contrary to that State law, would allow the Libertarian Party to open its primary elections not just to independent voters, but also voters registered as members of other political parties.

The Oklahoma primary system simply requires that a person who is registered as a member of that party may only vote in that political party's primaries.

If the voter desires to vote in another party's primary, all that voter must do is, within a reasonable time before the elections, primary elections, approximately 7 to 8 weeks, is disaffiliate from that first party and then reaffiliate as a member of that second party, or if the parties so chose to allow independents, he may registered as an independent in order to vote in that primary.

Justice O'Connor: Well, of course, I guess from the standpoint of the Libertarian Party, it's kind of a problem because a voter who wants to disaffiliate under Oklahoma law with their... their prior registration have to do it basically 8 weeks ahead, at which time they don't know if the Libertarian Party will even qualify for having a primary.

I mean, it just gives them a very impossibly short window.

If the time were reasonable, that might be a different picture, but isn't that kind of burdensome?

Mr. Poe: Well, Your Honor, the practicality of that matter is... is that generally the parties are notified 10 days/2 weeks in advance of the registration deadline that they are being... if... being recognized as a political party.

Of course... and that's if that party has waited until the very last minute by statute in which to turn in their petitions and try to get recognized.

Of course, those petitions could be turned in earlier, which would allow them more time to do so.

But the practicality of the... of--

Justice Scalia: If they're turned in earlier, will they... will they be ruled on earlier?

Mr. Poe: --Yes, Your Honor.

The Oklahoma statute requires that the election board take a... has 30 days, a maximum of 30 days, in which to review the petitions, verify the number of signatures and the authenticity of those signatures, and then make a decision on whether to recognize or not recognize the political party.

Justice Breyer: I guess there's a difference here between the interest of a small party and a large one.

A small party would like, if there is a deadline, to be as close to the election as possible so voters have a chance to get fed up with the two big parties.

[Laughter]

That's their chance.

A big party would like it to be further away because then they can plan how their election campaign is going to be.

Has any of this been litigated below?

Mr. Poe: No, Your Honor.

The... the only question that has really been litigated below is whether section 1-104, which is the semi-closed primary law, is burdensome on the association rights of the Libertarians.

Justice Kennedy: In line... in line with Justice Breyer's question, does the State of Oklahoma have an interest in insulating major parties from competition for members?

Mr. Poe: Not from insulating them from competition, Your Honor, but the State of Oklahoma does have... it has a closed primary system.

It has... it has an interest.

And this Court has found that interest, as recently as in Timmons, that it does have an interest in a stable political system, which may be a two-party system.

As long as--

Justice Kennedy: So you have a... the State has an interest in protecting major parties from losing their members and thereby weakening the two-party system by benefitting a third party.

I thought that's contrary to the whole thrust of our holding in cases such as Anderson and Celebreeze where third parties are entitled to special protection under the First Amendment.

Mr. Poe: --Well, Your Honor, since that time in Anderson and as Timmons and other cases cite, if the regulation is a neutral, nondiscriminatory regulation, then it is a proper regulation as far as it is applied to all the parties.

In regards to the requirement of registration, change of voter registration, all of those are applied equally across any... any party, whether it be the Libertarian Party, the Democratic Party, Republican Party, or any other party which may be recognized at that time in the State of Oklahoma.

And back to Justice Breyer's comments, the period of 7 to 8 weeks prior to a voting... to a primary election is actually a very short time as compared, for example, to Rosario which this Court--

Justice Kennedy: Well, even in presidential elections, most people don't get interested until 4 or 5 weeks before the election.

Everybody knows that.

Mr. Poe: --Well, Your Honor, we... this is not the presidential primaries of which we're talking about.

Justice Kennedy: Well, I'm saying even in a presidential primary.

If they're local races, it... it takes longer.

The public just tunes out until the last... last couple weeks.

Mr. Poe: Well, the statutes in this... or the sites or the... the elections themselves are close in time, and... and the statutes involving the petitioning have all been looked at as... as courts and have been found that this is a close enough connection to the time of the elections, that that time frame of petitioning and getting the requirements for... for petitions and the State recognizing the political party all fit comfortably within the confines of... of constitutionality.

Justice Ginsburg: Mr. Poe, the... the district court in this case rejected all grounds except one.

It rejected the raiding and swamping.

It said that's what the Libertarians want to expose themselves to.

It's not for a State to be paternalistic to protect them against their own bad choices.

But it said this request is damaging to the majority parties, to the major parties, because it poaches on their members.

But there is not in this litigation any major party that's complaining about that.

So if that is the rationale that the district court went on, can this Court possibly oppose it when there is nobody, as far as we know... they haven't even come into this case at this level, filing a friend of the Court brief.

Mr. Poe: Yes, Your Honor.

This Court can find... first of all, that the local Democratic and Republican Parties were not named in... in the action, and as to why they were not in the action in lower courts I do not know.

But the State has its interests and has to protect those interests whether those parties are involved in litigation or not.

Justice Ginsburg: Well, when you... would you say that the rationale on which the district court rejected the Libertarian Party's claim was unsatisfactory?

Mr. Poe: No, Your Honor.

Under Monroe before this Court, I think the Court was looking to the potential, the possibility, of course.

And as to the fact pattern we had at the trial court, it was a very minor party wanting to... or effectively poach voters from the two major parties.

But you have to look at the entire statutory scheme and not just how it would apply.

It could be applied by the Democrats or the Republicans.

But also more importantly, in Monroe this Court clearly stated that a State does not have to wait until it sees actual damage to its political or electoral system to make reasonable decisions.

In fact, this Court says the States should have the foresight to make those reasonable determinations in an effort to prevent those... those potential evils from occurring if the likelihood of... of that is there.

And the district court made very--

Justice Scalia: Mr. Poe, I... I suppose... here I am.

Mr. Poe: --Excuse me, Justice Scalia.

Justice Scalia: I suppose that if... if I were the party chairman of the Republican or Democratic Party, I'm... I might have defended your... your State system if I had been named as a party, but if I were not named as a party, I'm not sure that I wouldn't... I wouldn't decline to come in as an amicus, even though I'm interested in the outcome simply because I don't want to alienate my Republican members by depriving them of the freedom, if they want to do it, to go vote.

You know, it makes you look sort of parsimonious, doesn't it, when you tell your Republican members, I don't want you to vote in the Libertarian primaries?

I... I don't think we can say that it doesn't hurt the Republican Party or the... or the Democratic Party simply because they hadn't filed an amicus brief.

Mr. Poe: I would agree, Your Honor.

I... I think the... the fact that they're not there... here the Court--

Justice Scalia: They are, after all, politicians, aren't they?

[Laughter]

Mr. Poe: --And they do like to keep their party members as happy as they can.

Justice Stevens: Mr. Poe, may I just focus in on exactly what the injury is?

Is the injury that they vote with the Libertarians or that they don't vote with their own party?

Mr. Poe: The... the injury is twofold, Your Honor.

And... and first, it is the fact that by them not voting in the primary to which they have associated... and that is registering as a Republican or a Democrat... if they go to the polling place and at the last minute decide to go and vote in the Libertarian Party primary, their decision not to vote in the Republican primaries, when candidates have been trying to... to use voter lists trying to get to their party members to vote--

Justice Stevens: But wouldn't it be precisely the same injury if they just didn't like the Republican candidate in that particular election, decided to stay home?

Mr. Poe: --Well, if they had already made the decision to stay home, then they would not be voting for the candidate, but they would also not be voting in another party's primary.

Justice Stevens: But how... how are they hurt by the fact that rather than staying home, they decide to cast a vote for a minority party candidate?

Mr. Poe: Well, the party is here because it has the... the possibility, for those who are not voting, of changing the elections of the candidates.

And I think also by--

Justice Stevens: Well, it's very unlikely if it's a party that is... gets the small vote that this party gets.

But you... no matter how small the vote is, you still find the injury to the major parties because they voted for the Libertarians or because they didn't vote at all?

Mr. Poe: --Well, because they voted either way of voting... or for voting in the Libertarians and... and not voting, they have changed and possibly have changed, especially when they went to the--

Justice Stevens: Is there any evidence on the question whether the... the support for the major party candidate is any smaller than it would have been if there had been no Libertarian Party at all?

Mr. Poe: --There... there's nothing in the record that supports any of that.

Justice Souter: And... and a very similar question.

Is there anything in the record that indicates that those who would vote in the Libertarian primary are the stay-at-home Republicans or the Republicans who would otherwise have voted in the Republican primary?

Mr. Poe: There... there is nothing in the record.

There was no type of polling.

There was some... some expert testimony as to the potential reasons for people voting in a Libertarian primary such as purposeful intent to do harm to Libertarians or walking in intending to vote--

Justice Souter: But that... I mean, the Libertarians are happy to have... take that risk.

Mr. Poe: --Yes.

Justice Souter: It seems to me if we don't know whether the... the Republicans who are going to migrate to the primary are stay-at-homes or Republican voters, the State has no basis even to say whether in fact the harm it's trying to prevent is going to be affected one way or the other by its rule.

Mr. Poe: Well, I... I think, Your Honor, there... there is a context or... there is belief that it will harm.

And there's been no polling in this action, and there's no... there was only one other State that has a open... what we have termed in this litigation as a... a semi-open primary.

And there's no data that has effectively come out of their one primary that says why people are not voting, why they're voting in one primary or not or the effects of that.

I can give you--

Justice Scalia: Mr. Poe, I... I... why do you rely only upon the damage to the Republican and Democratic Parties?

I frankly don't care much about that, but I might care a whole lot about damage to... to Oklahoma's system of election.

Why do you allow party designations?

I suppose it is because you want people to know that there are candidates who are associated with particular political views.

And to allow a party to, in effect, come in and say, we don't have any particular political views, we... we just want to nominate, you know, whoever the most people want to nominate, that just destroys the whole purpose of... of your system of allowing people to run under a party label.

What's the use of a party label?

Mr. Poe: --And... and, Your Honor, we... we provided that information and those interests to... to the district court.

And those are interests the State has.

It is if a party is running as a party and if the State... there... there may be an interest in it.

I'm not sure--

Justice Scalia: It... if it's running as a party, it should run somebody who... who shares the views of the people in that party, which is somebody who is nominated by... by the people in that party, or at least those people, joined by others who are not affiliated with another party.

That seems to me to make a lot of sense.

And it seems to me to destroy that system if... if you say, hey, we're... you know, we... we're going to allow the Libertarian Party to say, you know, we don't have any real views.

We're just going to... we want to nominate somebody that most people like.

So let the Republicans come in, the Democrats come in.

The only thing we want is to win.

We don't really care.

Mr. Poe: --That... that is the premise, of course, of the voter registration.

And... and that goes back to another... an adverse effect on the State and the State's political system is this Court has recognized... it recognized it as recently as Jones and it has recognized in other cases... that there is a... a party labeling or a party identification that voters use in a general election.

And if the poaching of members have changed the... any of those party... those messages from that party, then the reliance is going to be misplaced by those party members when they go.

They go to vote for a Democrat.

They see the D or the R or the L.

And more importantly, in this case we're not talking just about the Libertarian Party, the effect of the Libertarian Party.

It could very well the effects on all of the political parties.

In fact, that effect could happen if the Democrats wanted to open theirs up and run that effect on the Libertarian Party.

Another reason, especially that is specific to Oklahoma, to help prevent party factionalism and party splintering.

In Oklahoma, when a new party is recognized, a... a potential candidate has the opportunity within 15 days of the party being recognized of changing his voter registration.

That can even be outside the parameters of section 4-119.

In that instance, there is the potential and I think the probability of this occurring is that... let's say there are four or five candidates who have announced for the Republican nomination if they want to get their nomination, and one of them decides I don't want to compete against those others.

A new party comes in.

He is excused from the 6-month disaffiliation requirement.

Within those 15 days, he can change to the Libertarian Party in hopes of getting that nomination, get the party support and the party structure.

By that happening, you then incur... by allowing this party-option primary, then that would promote party splintering, party factionalism.

And the manner of that individual going to the Libertarian Party the day of the election without any prior registration... those Republicans who may have supported him leave the Republican Party and start to choose that.

That's splintering that this Court has specifically said is not only a legitimate, important State interest but is also a compelling State interest to effect.

Poaching has the same effect as raiding.

It is a little different how it gets there, but it has the same effect.

And raiding has been determined to be even a compelling State interest in this Court.

I would like to reserve the rest of my time.

Justice Stevens: That's fine.

Mr. Schaerr.

Argument of Gene C. Schaerr

Mr. Schaerr: Justice Stevens, and may it please the Court:

In the decision below, the Tenth Circuit stuck... struck down an election rule that has been adopted by nearly half the States pursuant to their authority under Article I, section 4 to prescribe the manner of holding elections.

In so doing, the Tenth Circuit in our view made three fundamental errors that I'd like to address briefly.

The first was the Tenth Circuit's per se approach to determining whether the alleged burdens here are severe.

That's an extremely important issue, of course, because to our knowledge, this Court has never invalidated a State election regulation under the First Amendment without first finding that the burden at issue was severe.

But instead of looking at that issue closely, the Tenth Circuit, at page 15 of its decision, simply assumed that a severe burden necessarily arises from any regulation that, quote, restricts the options of parties seeking to define the scope of their associational rights.

Now, one would have thought that it's for courts to determine the scope of a... of a party's associational rights rather than... than the party itself.

But in all events, that was the sum total of the Tenth Circuit's analysis on the... on the question of severe burden.

Now, the respondents cite that finding, but they... they make no attempt to defend that approach.

They argue instead that the burden here is severe because, at bottom, Oklahoma requires a Republican or Democrat, wishing to vote in the LPO primary, to... to disaffiliate from the party 2 months in advance.

But that burden is no more severe than others that this Court has found constitutionally acceptable.

The burden on voters, for example, is less severe than the burden this found... this Court found acceptable in Rosario, which was a... a requirement, as Mr. Poe mentioned, that voters, wishing to vote in a... in a party's primary, register as a member of that party some 8 to 11 months in advance.

The burden on the party is also less severe than a burden that this Court found acceptable in Burdick which is that a party wishing to qualify for a primary ballot gather the necessary signatures, in that case 1 percent of the voting population, 5 months before the primary.

It's 2 months here.

And it's also similar to a burden that all the members of this Court found acceptable in Burdick, which was... which was a requirement that a candidate wishing to run on a nonpartisan primary ballot collect the necessary signatures about 2 months before the primary.

And the message of these decisions... and I think it's fair to say the holding in Burdick... is that requiring participants in elections to take action a few months sooner or a few weeks sooner than they might prefer does not amount to a severe burden.

And that's the only real burden here.

The LPO has to--

Justice O'Connor: Well, I guess the one other concern would be the timing in Oklahoma is such that the... the Republican or Democrat who wants to disaffiliate in order to vote with the Libertarians has to do so at a time before the State has decided whether to allow the Libertarian Party on the ballot.

So, you know, it probably isn't burdensome to... in principle, to have some disaffiliation requirement, but does the State have to allow enough time so that the decision can be made with knowledge of whether the Libertarians are going to be on the ballot?

Mr. Schaerr: --Justice O'Connor, I... I think that's really up to the party.

And I... and I think that gets back to my point about Burdick.

Yes, there is a deadline and if the LPO--

Justice O'Connor: It just seemed to me that it might be more burdensome on the voter in that situation.

Mr. Schaerr: --Yes, I... I think that's true, but again, the burden on the voter depends on what the LPO does.

If the LPO marshals its resources, gets... gets its message out, determines who its candidates are going to be or who its potential candidates are going to be in advance of the filing deadline and in advance of the deadline for filing a petition to become a recognized party, then the voter will have ample time to make a decision.

It's really only if the LPO procrastinates that the voter is put in that position.

It's not really a function of the... of the State law.

Justice Souter: Let me just ask you to look at the other side of the equation.

However we assess the burden, we're assessing it in relation to the State's interest.

What is your best statement of the State's interest here that you think is defensible?

Mr. Schaerr: Well, I think... I think the State's interest is what the district court found it to be, and I think the... the district court actually found two interests, not just one.

It found an interest in avoiding poaching and an interest in promoting party loyalty along the lines that Justice Scalia mentioned earlier.

Justice Souter: Do... do you think the... the poaching argument stands up on any... any empirical basis?

Mr. Schaerr: I do.

And in fact, the... the district court at... at page 49--

Justice Souter: May... let me just add quickly.

I... I realize, of course, there's going to be some movement of voters, but do we have any idea whether the voters who are moving are the ones who would otherwise have stayed at home anyway and done nothing, merely nominal Republicans as opposed to active Republicans?

Mr. Schaerr: --Yes.

We... we do have an answer to that.

That is implicit, first of all, in the district court's finding that poaching would, in fact, made... make a difference in the... in the outcomes of the elections.

He... he made that finding very clearly on... on page 49--

Justice Souter: Well, he found that the numbers are such that they could, but did he find... and I'm not sure of this.

Did he find that the actual people who migrated would otherwise have voted differently so that in fact it made a difference?

Mr. Schaerr: --That is implicit in his finding.

He said the institution... this is again on page 49.

The institution of a party-option open primary format in Oklahoma, as sought by the plaintiffs, would likely affect the outcome of some primary elections.

That... implicit in that is the view that there... there would be some voting Republicans and voting Democrats that would be moving to the LPO, not just the nonvoting Democrats and Republicans.

Now--

Justice Ginsburg: Was there a basis in the record for making that finding?

Mr. Schaerr: --Yes.

Mr. Darcy's testimony, which I believe appears at... at page 63 of the joint appendix, in that... in that general area, anyway.

Now, poaching... poaching is a concern and... and a legitimate and important concern to the States for three important reasons.

I... I might mention that in Tashjian this Court mentioned in footnote 13 that a... that an open primary could have disorganization effects on the other parties, and poaching is one of those, as the district court found.

And... and it's a concern for three independent reasons.

First of all, the State has an interest in preventing poaching because that helps protect parties from spurned candidate candidacies which was one of the... the Court in Tashjian identified Storer and Rosario as examples of that.

And... and the... the semi-closed primary protects parties against that.

For example, if a candidate for the Democratic nomination felt that she wasn't getting enough support from the party leadership before the primary, she might form or join another party and then try to take... take her supporters with her into that other party.

And although Oklahoma allows the candidate to switch parties in that circumstance, the... the semi-closed primary and the 7-week period or 7 or 8-week period, standoff period, if you will... that period protects the party from having its voters poached as a result of a... of a spurned candidate joining another party.

The second reason that poaching is a significant concern is that... is that it can lead to efforts, strategic efforts by... by other parties to influence the outcome of another party's primary.

For example, suppose we're in California in 2002 a few days before the gubernatorial primaries there.

The Democrats have already decided that their incumbent, Governor Davis, will be nominated, so they're looking ahead to the general election.

And they see two possible Republican candidates, Reardon and Simon, to pull two names out of a hat.

And they conclude that... that they have a better chance of beating Simon than they have of beating Reardon.

Well, what can they do to affect the... the outcome of the Republican race?

One possibility, if the Republican primary is open, is to raid it by having some Democrat switch registration and go vote for Simon.

And of course, the Court has said repeatedly that States have an important interest in... in preventing that kind of behavior.

The other possibility is for the--

Justice Stevens: And that's not permitted in Oklahoma, is it?

That kind of behavior is not permitted in Oklahoma.

Mr. Schaerr: --That's correct.

Justice Stevens: Yes.

Mr. Schaerr: That's correct.

And the other possibility, though, is for the Democrats to open their primary and to lure some of the... some of the Reardon voters out of the Republican primary through targeted advertising or direct appeals from the candidate or something like that.

Justice Stevens: Well, neither of the major parties has done that in Oklahoma, has it?

Mr. Schaerr: Not that I'm aware of, but... but it is... but it is a plausible concern that a legislature would have.

And as Justice Scalia said, these--

Justice Stevens: But the question is whether when a minor party like the Libertarians do it, is... is it going to have that effect.

Mr. Schaerr: --Well, there... there's another scenario for... in the California example, for example.

Take... assume that the Democrats, instead of opening up their own primary to Republicans, they strike a deal with the Green Party such that the Green Party makes an effort to peel off the Reardon voters out of the Republican primary voting pool in California.

That--

Justice Stevens: But the cost of that deal would... they'd also run the risk the Democrats would... would migrate also if they made that deal.

Mr. Schaerr: --It depends on how they ran... ran the campaign.

In all events, it's a... it's a plausible scenario and... and one that the State is entitled to respond to before it... before it actually happens.

Now, the... the third reason that poaching is a problem is that--

Justice Stevens: I apologize for taking your time with a question, but I'm afraid your time is up.

Mr. Schaerr: --Thank you.

Justice Stevens: Yes.

Mr. Linger.

Argument of James C. Linger

Mr. Linger: Justice Stevens, may it please the Court:

The integrity of a political party should be defined by the political party and not by the State.

The State interest that they have asserted here and alleged is to prevent against draining, and draining the State has defined as the inverse of raiding.

Now, raiding, of course, is the State preventing and keeping out of a political party disloyal voters of another party coming in for a purpose to hurt that party.

Now, if draining is inverse raiding, then the State is saying that it has an interest in keeping in to a political party disloyal voters.

So the State is asserting and is at cross purposes that it has an interest to both keep out disloyal voters from a political party's primary and at the same time keep in disloyal voters.

Justice Breyer: Why is that inconsistent?

Because I mean, you're... you're basically advocating that the Constitution requires Alaska's rule, and I thought that... we got briefs on that, I think, in... in the previous case and a lot of other parties thought Alaska's rule was not a wise rule, though that's up to Alaska.

But to think that the Constitution requires that is surprising.

The interest they assert is just the one you said--

Mr. Linger: And--

Justice Breyer: --that the Republicans, in order to have their party work, have to be able to plan a campaign for a stable group of voters.

They have to know, roughly, who is in their party, let's say, a week before or 2 weeks before, some period of time before.

And that's the interest that Oklahoma is asserting.

It has nothing to do with you.

It has do with... and it has zero to do with you if you had a rule for minor parties, frankly.

But if you can't get a rule for minor parties, special, then you have to take it seriously I think.

Mr. Linger: --Most States--

Justice Breyer: What's your answer?

What do you respond--

Mr. Linger: --Justice Breyer, most States have a rule for minor parties.

They don't treat, like Oklahoma does, you're either a party or you're a nothing.

Justice Breyer: --The States do but to say that the Constitution... and I'm asking.

You see, I'm not... but I... if I could figure out how in the Constitution you had a special rule for minor parties, the interest that they're asserting has very little to do with it.

But I don't see how you can have a constitutional rule that would forbid... allow you to open and drain, but wouldn't allow the Dems to do the same as they've done in Alaska.

Mr. Linger: I think in... in Alaska, of course, right now there is a party option where all the parties but the Republicans have opened the primary.

They have a blanket primary.

The Republicans haven't and the Republicans, of course, in Alaska happen to be the dominant party.

There seems to be a pattern in these cases--

Justice Breyer: Well, because they say... what they're thinking, I take it... I don't know what they're really thinking, but I imagine they could be thinking, no, we don't want to open our primary.

We'll run the risk that our voters go over and vote for the Dems and like it there and stay.

We'll run that risk, but we don't want them coming and raiding us.

We think that's the bigger risk.

Mr. Linger: --And... and that--

Justice Breyer: And how can the Constitution tell them that they can't make that judgment?

That's what's bothering me.

Mr. Linger: --I don't think the... I think the Constitution... and the Court has recognized that it is legitimate to protect against raiding because we can all suppose how disloyal voters coming into a party could hurt it.

But how about disloyal voters leaving a party?

Because these voters that would come in and vote in the Libertarian--

Justice Breyer: Go back to my interest, the one I asserted--

Mr. Linger: --Yes.

Justice Breyer: --which isn't that.

It is the interest in the Republican Party in Alaska saying to itself we do not want our voters to go leave and vote for the Democrats because we want a stable body of people 3 or 4 weeks before the election for whom we can plan.

We don't want to open ours because we don't want the raiding.

We want to keep them--

Mr. Linger: And, Justice Breyer, that sort of First Amendment view of your voters shows that the party thinks that they own the voters.

We hear this language where the party is contributing voters or they're being poached or it's a donor party.

That shows a certain view of the party and what they--

Justice Breyer: --No, no.

It's not an ownership, but you have a period of time.

So you focus on the period of time.

They're saying, of course, up to X period of time, they take their choice.

Is this a fake thing, a fake reason, the need to have a stable group of people for whom you plan your campaigns?

Now, is that a hoax or is it flimsy or is it serious?

What do you think?

Mr. Linger: --I... I think it is flimsy and I'll tell you why because I think paternalistically the State of Oklahoma is way off or the Republican Party, if they thought that way in Alaska, would be off.

If you really think about it, a party, particularly at the general election, wants its loyal voters to get to the poll.

Actually this would be a benefit to the Republican and Democratic Parties in Oklahoma or the Republican Party in Alaska because it allow them to find out which of their voters had voted in their primary and which had defected to another party.

When they're sending out mailers or doing phone banks or driving people to the polls, they're going to want to take their loyal voters.

So this will actually serve to help them to identify some of their voters who aren't loyal, and they won't want to bring them in.

So I'm saying that--

Justice Scalia: The... the State... the State of Oklahoma doesn't want your party raided.

And... and you say we don't care if we're raided.

Come raid us.

All we want to do is win.

It seems to me it... it... you cannot apply the... the maxim, volenti non fit injuria.

Oklahoma is saying to your party, you can't welcome raiding.

We don't want your party to be raided whether you like it or not because that's what a party system is.

We've set up these elections that... that have party primaries and party systems on the assumption that each party is going to have a certain... a certain belief, a certain philosophy, and to allow your candidate to be elected by everybody simply destroys that system.

Why is that... why is that so unreasonable that it's unconstitutional?

Mr. Linger: --Because it's... it's not practical on what happens.

As Justice O'Connor pointed out in her questions, there is such a limited time.

The Libertarians, as shown in the record in this case, have never and continually do not have the time to build up a voter pool.

They have their supporters spread out among a number of political affiliations because there's such a little amount of time that you can register as a Libertarian, unlike the vast majority of States.

I don't think anyone has ever accused the Libertarian Party of not having a set philosophy on what they stand for.

But the fact of the matter, this Court itself has expressed skepticism about whether even party raiding ever exists.

People don't go out generally to vote because they want to pick someone who's a bad candidate.

They want to vote for someone they feel proud of who expresses their views.

The people that the Libertarians would appeal to would be Republicans and Democrats who either weren't going to vote in their primary or those who were very Libertarian oriented or people who would be Libertarians if they had more opportunity under the law to register as Libertarians.

They're, in effect, marooned--

Justice Scalia: Weren't those--

Mr. Linger: --over these other affiliations.

Justice Scalia: --weren't those who would like to nominate the Libertarian candidate who would attract the most people from the other large party?

Right?

Mr. Linger: Who would they attract?

They would attract Libertarian-oriented people who would be drawn by their philosophy because the Libertarian Party, as with most minor parties, is an ideological party.

They take positions oftentimes ignored by the major parties, and that is one of the reasons that--

Justice Scalia: No, but... but the candidate mostly to attract people from one of the major parties is the candidate that is... is more likely to water down the pure Libertarian message and be closer to the message of the Democratic Party or the Republican Party.

And... and--

Mr. Linger: --If you can tell--

Justice Scalia: --people who come into your primary may want to elect such a candidate so that the Libertarian Party will be strengthened and draw votes away from the other majority--

Mr. Linger: --Of course, this Court, I think, has recognized that raiding is not a legitimate concern for the State that overcomes a party that would open up.

And that's what the district court so held.

We go into the inverse of draining and talk about the effect it would have on the Republicans and Democratic Parties.

I think the... the district court said several times in its opinion that the results would be highly speculative.

But I say that the results would probably be to the benefit because it would ensure major parties that they got a nominee who was picked by loyal supporters of the party, and what would be drained off would be disloyal supporters who would rather be doing something else.

And that, of course, is the essence of competition.

We should not be worrying about protecting the major parties from competition for ideals.

This is--

Justice Ginsburg: Do I understand your brief to say that this constitutional rule that you are seeking would be just for the minority party?

I think you said in your brief it doesn't follow like the night the day that because the Libertarians must be allowed to do this by the Constitution, therefore the Democrats and Republicans must also have the option to invite anyone into their primaries.

Mr. Linger: --The finding of the Tenth Circuit was, of course, that it applied to these plaintiffs under these particular facts.

And I think that's one thing to remember, how cautious and conservative this Court and the First Circuit in Cool Moose were.

They didn't make a broad-based rule, and I don't interpret this decision and I don't interpret the teaching of this Court in footnote 13 in Tashjian is that we should come down and make some bright line rule that's always going to say we have to have a party-option open primary or not.

We need to look at the factors.

I think there are very few States that this would even apply to because, as we know, 21 States don't even have political party registration.

Justice Scalia: --What facts?

We... we have to evaluate it on the basis of each election?

What is a State legislator supposed to do when he votes for a... an election system?

He's going to flip a coin trying to figure out what the fact situation will be when this... when this system finally gets before a court?

Surely that... that can't be the test.

Mr. Linger: I do... I do ask that the State legislatures think about what they're doing.

And as I demonstrated--

Justice Souter: Okay.

But you... you want them to think and you want to leave the door open to their making a distinction for these purposes between the major parties and the minor parties, and I can't think of anything more intrusive into the political process than that.

Coming from a Libertarian, I... I get a sense that I must misunderstand you, but I don't know where it is.

[Laughter]

Mr. Linger: --I'm saying that I... I don't... I don't think courts should ever go out and look for cases in advance.

We look at the case that is--

Justice Souter: No, but we are... we have got to look around the corner.

Mr. Linger: --about the effects.

Justice Souter: And... and if you're issuing the invitation to come up with a different rule for Republicans and Democrats and Libertarians, I think you're asking for trouble and we would be asking for trouble if we accepted that invitation.

Mr. Linger: No.

I'm... and as I said before, I think the political party should be the one that defines its integrity--

Justice Breyer: Then... then if you say that... I want you to just respond in detail to the questions that I think Justice Scalia and Justice Souter were asking, as I understand it, putting it dramatically, that if you win this case, Alaska's system becomes the Constitution of the United States.

Now, that I know you think is not so, and I want to know why.

Mr. Linger: --Because, number one, first, let's eliminate the 21 States that do not have political party registration.

They would not... in fact, the... the problem that we're worried about here, draining, and... and the problem is going to happen simply because people in those States, like President Bush's Texas, are free from election to election to go to any primary they want--

Justice Scalia: That's the same as election system... that's the same as Alaska's system.

Right?

I mean, it boils down to the same thing.

It boils down to an open primary, doesn't it?

Mr. Linger: --Justice Scalia, I respectfully disagree because Alaska, unlike Texas, has political party registration.

Also, they have a party option.

And most States that have political party registration, in fact, have a sort of two-tier system where they recognize it would be discriminatory to treat major parties and small political parties the same.

Most of them like, for example, the amici States here of New Mexico, Maryland, they have political conventions for their... they recognize that that is something that shouldn't be applied to the smaller parties.

But Oklahoma, of course, mandates primaries.

The Libertarians of Oklahoma are forced to have primaries.

They're forced to live under what is the most restrictive ballot access and ballot retention laws, which limits the amount of time they could be on the ballot.

The voter registration laws, as was cited in the record of this case, as the trial judge found, of the 29 States that have political party registration, essentially 26 of them have... they have free and open registration.

There are very few that limit things across the board like Oklahoma does, and that's what makes this case unique.

And I think the footnote 13 in Tashjian talked about looking at the particular facts and circumstances.

I think this case gives the Court an opportunity to fully expand on that footnote, the full footnote, of course, as I cited in the brief for the respondents, and that is to say that all these are factors when you're analyzing any State.

Is... does it have political party registration?

Does it mandate primaries for even the little parties?

How much time is available to change your registration as new parties come up?

The New... State of New Hampshire, of course, has found a way to deal with this problem, which Oklahoma hasn't, which is that they allow new parties that are just recognized.

Where many voters didn't have the opportunity to register in that party, they have an open primary.

That's one way to deal with it.

But the point is Oklahoma didn't even think about that.

As we pointed out in our brief, the sore loser provision where you have to be affiliated with a party for 6 months... the legislature... when the first time the Libertarians got on the ballot 25 years ago, they didn't even realize that there was no way you could be affiliated with a party for 6 months because you couldn't register with it.

And the law and the workings of all these registration laws in Oklahoma, because they are so restrictive, prevent the Libertarian Party to get in the position that the major parties have because they simply can't get their people registered and stay registered with the Libertarian Party because they're constantly being purged and they're... the people are frustrated.

Justice Breyer: Would there be a way... suppose, for hypothetical purposes, the Court were to say... you got a ruling that said there is no rule in the Constitution that forbids a State, as a general matter, to forbid this cross registration, this jumping, for a reasonable time.

But a reasonable time has to take into account the interests of minor as well as major parties.

Now are you foreclosed because of the circumstances of this case from litigating whether 8 weeks is a reasonable time and whether the disjunct between the period where you become a party and that 8 weeks is unreasonable in the circumstances or other specific things that you say work to the disadvantage of the Libertarians?

Mr. Linger: I think that's something reasonable, but in this case it is unreasonable because you simply don't have the opportunity to register.

Remember this--

Justice Ginsburg: I thought your case was you want to appeal to people who don't want to register as Libertarians and don't even want to be independent.

You want to appeal to people who are and want to be members of the Republican or Democratic Party but have Libertarian leanings, but they don't want to give up their party affiliation.

Mr. Linger: --That... that is part of the appeal.

There are obviously some people simply because of family tradition or it may help them with their job or because the Libertarians are controversial, some people may want to keep it quiet and don't formally affiliate other than they might wish to vote.

But our appeal and request was not simply those people but to many people, the vast majority of Oklahomans who never vote--

Justice Scalia: The last category could... could register as independents.

I mean, if they're ashamed of... of the L word, they... they could just register as independents.

Right?

Mr. Linger: --A person can do that, yes.

And, of course, independents are growing.

I think, as you know--

Justice Ginsburg: Yes, but that you could do right now, and you say that's not enough.

We want people who are members of other parties and don't want to change their party affiliation.

Mr. Linger: --We would like... first, when you have competition in ideals and in politics, it's always a continuing process, and they're hoping to win all these people over.

They don't want these people to stay in other political parties, but they are opening it up because they have such a limited period of time in Oklahoma when people can formally affiliate with the Libertarian Party or, for that matter, any newly recognized party.

Think of it this way.

When counsel was talking about the Rosario case where you... the... the State was allowed to have 8 to 11 months and the Court found that was acceptable to change your registration or the older case of Kusper v. Pontikes where the Court found that 23 months in... in advance to change your affiliation was too much, in Oklahoma, whether it's 23 months before the newly affiliate party gets recognized or 8 to 11 months, you can't register with that party.

So if it was unreasonable in Kusper v. Pontikes but was reasonable in Rosario, the point is under either of those time periods, in Oklahoma you can't register with a newly recognized political party.

So how can that be reasonable?

The Libertarians do not have the opportunity.

Newly recognized parties under Oklahoma law do not have the opportunity to get their people in in time, to the extent they could, as demonstrated in the record by States of similar population like Kansas and Arizona and, as I noted in the brief, Oregon where there are substantially more--

Justice Scalia: What did... what did you seek in this action?

What did you seek in this action?

Did... did you seek just more time to... to register?

I... I thought you... you sought to overturn the... the system entirely and... I mean, maybe you asked for too much.

Mr. Linger: --As... as to the Libertarians, we asked that we have a party-option open primary, which I think is acceptable, and it's what New Hampshire does.

Justice Scalia: So more... more time might be... might be a good idea, but that wouldn't satisfy your... your complaint here.

Mr. Linger: If you go... if you go--

Justice Scalia: Your... your complaint is no matter how much time you're given--

Mr. Linger: --The... the legislature... if... if the law is overturned and the Tenth Circuit is affirmed, the legislature might go back in then and address the problem and they might come up with some solution as they did back in 1980 when it became apparent to them that they had set up a system where Libertarian candidates couldn't be candidates for State office because they couldn't be affiliated with a party with 6... for 6 months.

They made the change that is set forth in the statute that allows 15 days after the party is recognized.

It might very well be that a possibility the legislature could pursue that could solve this problem, a problem created by the State of Oklahoma, would be to allow a period of time after a party is recognized for voters, not just candidates, but for people who just want to vote in the primary to change.

That might be one solution.

Or it might be, as in the State of New Hampshire, where they allow that if it's a newly recognized party and we recognize that all these people in the State never had the opportunity to register in this party, then they will have an open primary there.

So I don't think there's one solution for this problem, and I think when the law, hopefully, is held to be unconstitutional as it applies to Libertarians, then the Oklahoma legislature can come in and perhaps remedy the situation then.

Now, this... this case is one in which there are some other factors that have to be considered, and that is the importance that is put on First Amendment rights to political association.

The State of Oklahoma, contrary to the brief of the petitioners, has not been overburdened with minor political parties.

It is a State in which only in presidential elections, by petitioning, have parties even been able to gain ballot status.

The State has also a very severe... the trial judge in this case found that the retention requirement of 10 percent for every general election for the top of the ticket was very difficult.

The finding was that the registration here was among... very limited and among the most difficult.

And finally, the State has imposed, I think unwisely, primaries on these small political parties.

But other than the Libertarians and the Reform Party, there have been no other minor parties on the Oklahoma ballot.

In this situation, we have to say to ourselves, as the trial judge in fact commented on, is whether or not the law is simply the result of the concerns of the major parties.

I do not think that the State legislature in Oklahoma went out of its way to try to interfere with the rights of Libertarians.

I just think that they never really considered them, and that is why this Court has said on a number of occasions that when the rights of independent voters and small parties are impacted by legislation, that this Court should exercise more strict and careful scrutiny there because--

Justice Ginsburg: But how does that square with Timmons where this Court turned away a party that says, we've got this candidate and she's running on a major party ticket and she's happy to be on ours too?

And the Court there said the State can legitimately eliminate... limit the candidate to one party affiliation.

So if it can limit the candidate to one party affiliation, why not the voter?

Mr. Linger: --Because that was a candidacy right, what the candidate was going to do, and in that particular case, this Court noted that the candidate of the Democratic-Farmer-Labor Party had a choice.

That candidate could have choosen to be the candidate of the new party or that he could stay, as he did, with the Democratic-Farmer-Labor Party.

We don't have the choice here.

They wanted to have him be the candidate of both parties at the same time.

We recognize that the State may properly limit each voter to a single nominating act, to a single vote, and we're not asking that.

We're not asking that the State not be allowed to set reasonable times to let them know about what we're going to do.

But in Timmons... and I think Timmons is what led the district court astray here was what was not recognized was that there was a choice allowed in Timmons, and there's not a choice here.

If... if this had been in Oklahoma, in... in that regard, there would have been no way for... there's no way for a voter who's in the Republican or Democratic Parties who wants to vote in the Libertarian Party because of the unreasonable deadlines to change and because of the lack of opportunity, there's no way that they can register.

So they don't have the choice to register as a Libertarian, as the candidate of the Democratic-Farmer-Labor Party did in Timmons, to change if he wanted to.

He chose to stay in the major party.

But that is one significant difference with Timmons.

And also, of course, I couldn't... I would also want to mention that Minnesota is a State that has no political party registration.

So once again, the problem and issues we're confronted with here could not occur in Minnesota.

But I think that's significant.

And there was... there was nothing on any voter that would have kept them from being able to vote for that particular candidate in the general election.

They were going to be... he was going to be on the ballot in the general election.

In this case, the voters that don't have the choice that that candidate did in Timmons, they are not going to be able to express their opinion on a party that they would like to express an opinion in in their primary.

And I think that is a very important distinction.

I think that oftentimes in the standard that the court uses, that there is a difference, sometimes depending on which particular judge writes the decision on how a standard is explained.

But in this case, it is, as the Tenth Circuit said and as the district court recognized, something that lies between this Court's decision in Tashjian and this Court's decision in California Democratic Party v. Jones.

But in both those cases, the Court recognized and called for exacting scrutiny when a law was impacting a party's choice as to how it wishes to choose its nominees.

I do not think that the rationale come up by mistake.

This thing about draining, taking... keeping the disloyal voters in the Republican and Democratic Party and not letting them come over, whether they wouldn't have voted at all, or whether they didn't have the chance to register as Libertarians, or whether they simply are inspired by the particular candidates, I don't think in that situation that that is either a compelling interest by the State and I certainly don't think it is rational.

And in fact, as far as being paternalistic, I think the State is totally wrong there because I think this would actually benefit the major parties.

But I am saying to you that this is limited, under the Tenth Circuit's decision, to the facts in Oklahoma.

And in other States, what the States can say there, if it comes up, is what is a difference between us and Oklahoma on ballot access and ballot retention, on voter registration laws, on requirements.

Do we allow, like a number of the amici States, to have our minor parties select by political party convention?

But all of this--

Justice Scalia: --What are the mici States?

You said this a couple... what are mici States?

Mici States did you say?

Mr. Linger: --The amici, amicus--

Justice Scalia: Oh, the--

Mr. Linger: --amici.

Justice Scalia: --Okay.

I thought you were saying mici.

Mr. Linger: Amici.

Okay.

In any event, we ask that the Court, when it fully considers this, under the particular facts and circumstances in this case and the record, that the Court will affirm the decision of the United States Court of Appeals for the Tenth Circuit.

Justice Stevens: Thank you, Mr. Linger.

Mr. Poe, you have about 3 minutes.

Rebuttal of Wellon B. Poe, Jr.

Mr. Poe: I will try and be brief, Your Honor.

The important thing to remember, in regards to most of respondents' argument today and in their brief, is that the events and the hurdles they are challenging now were... have never been raised at any time prior to this briefing and this hearing.

The district court did not make findings as to the difficulty of the ballot access or the ballot qualifications.

He merely set forth what those were.

The Tenth Circuit never even addressed anything in regards to ballot access or ballot qualifications and in relation to the need to open up a primary.

And in the complaint, at the joint appendix page 22, the specific relief sought by the respondents is to have section 1-104, which is the semi-closed primary section... have it declared unconstitutional.

There's no mention of any other relief sought.

No other section, the election primary scheme, or anything else mentioned in their complaint.

It's never been raised before and it's never been addressed by any court and... and should not be addressed by this Court at this point in time.

There are no findings for this Court to rely on to review the allegations that have been made today.

Where the district court... or where the Tenth Circuit did err specifically is they found, as a matter of fact or as a matter of law, based on Jones and Tashjian, that any infringement upon a party's ability to associate is a compelling... must... is subject to strict scrutiny and requires a compelling State interest.

Jones specifically says that is not the case.

Tashjian implies that that is not the case.

And the cases since Tashjian's time say a compelling State interest is not always the appropriate test.

You look to the injury and then you look to the burdens.

In this case, the appropriate burden... or the appropriate injury is not severe.

They are reasonable restrictions placed on Oklahoma to maintain the integrity of its political system and its election system.

With that, the restrictions on... in the Oklahoma statutes are reasonable restrictions that govern and control and support important State interests.

For that reason, the Tenth Circuit was incorrect.

The district court was correct in its analysis, and we would ask that this Court reverse that decision and find that those statutes are constitutional.

Thank you.

Justice Stevens: Thank you, Mr. Poe.

The case is submitted.

Unknown Speaker: The honorable court is adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Virginia v. Hicks - Oral Argument

Fri, 09 Jan 2009 14:50:41 +0000

Case:

Virginia v. Hicks

Media File:

02-371_20030430-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of William H. Hurd

Chief Justice Rehnquist: We'll hear argument first this morning in No. 02-371, Virginia v. Kevin Lamont Hicks.

Mr. Hurd.

Mr. Hurd: Mr. Chief Justice, and may it please the Court:

Before this trespass policy took effect, the families in Whitcomb Court lived in the middle of an open-air drug market.

Surely those who must rent from public housing ought not be required by the law to live in greater danger from criminals than those who rent from private landlords.

And yet, that is the consequence of the decision below and its mistaken application of the First Amendment.

This defendant is a common trespasser, not engaged in any expressive activity.

The court below struck down the trespass policy only by indulging in an extravagant expansion of the overbreadth doctrine.

Justice O'Connor: Well, was... was the State applying some State law notion of standing, because certainly Virginia can have different rules for standing than the Federal court might have.

Mr. Hurd: There is absolutely no indication in the record, Your Honor, that the State supreme court was doing anything other than applying what it thought was this Court's overbreadth jurisprudence.

Justice O'Connor: Well, but on... on the matter of standing, would we necessarily assume they were applying some Federal standard?

Mr. Hurd: Your Honor, you don't need to assume that in this case.

They... they discussed the question of standing in their opinion, and they referred to this Court and this Court's traditional rule and the overbreadth rule, never suggesting for a moment that they thought Virginia might have a more generous rule of standing than this Court has required.

Justice Scalia: Did they cite our cases?

Chief Justice Rehnquist: There's... there's no--

Mr. Hurd: They did.

Chief Justice Rehnquist: --There's no citation of any Virginia case in the opinion, is there?

Mr. Hurd: There is no citation when discussing the... the standing issue, the overbreadth issue at all.

That's correct, Your Honor.

They... they cite this Court's cases, and this is found joint appendix page 159.

It says the Supreme Court... and I'm quoting now from the second complete paragraph... the Supreme Court has held that in the context of a First Amendment challenge, a litigant may challenge government action granting government officials standardless discretion even if that government action as applied to the litigant is constitutionally permissible.

They then cite this Court's decision in Los Angeles Police Department.

They then go on to cite this Court's decision in Ferber and in Broadrick and in Gooding v. Wilson and in Dombrowski and in Thornhill, never suggesting for a moment that Virginia has a more generous notion of overbreadth standing--

Justice Ginsburg: But if we were to hold for you on that ground, the Virginia Supreme Court would be free to say on remand, would it not, that it has decided to take a more generous view of standing?

Mr. Hurd: --It certainly could do that, Your Honor.

The Virginia Supreme Court has historically adhered very closely in its interpretation of the State constitutional standards to the standards laid down by this Court under the Federal Constitution.

Justice Souter: But when we're not talking about substantive law, why is that really an... an issue for us?

Mr. Hurd: Well, Your Honor--

Justice Souter: They can do what they want.

It's their courts.

Mr. Hurd: --Your Honor, they... they believe they are required by this Court's jurisprudence to grant--

Justice Souter: Well, but they didn't say that here.

I mean, they didn't say the Supreme Court requires this and our standing doctrine would be narrower, but we feel we must.

I mean, we... we just don't know.

Mr. Hurd: --Your Honor, I believe we... we do know based on the portions of the record I read.

They relied solely upon this Court's overbreadth standing jurisprudence.

Justice Souter: Well, they... they did with respect to... to substantive law... the substantive doctrine overbreadth.

But at no point did they say, we would not entertain this matter if it were brought under State law, but we are required to do so by the Supreme Court's substantive doctrine.

Mr. Hurd: Your Honor, I... I think of the... the recently decided case of Virginia v. Black cross burning where in that case the criminal defendant raised claims under both Federal and State law.

It decided it under the Federal.

It did not decide it under the State.

Justice Scalia: Mr. Hurd, that's not the issue anyway, is it, whether they would have had a narrower interpretation under State law?

Mr. Hurd: No, Your Honor--

Justice Scalia: The issue is whether... whether they adopted a broader interpretation under State law than Federal law would require.

Mr. Hurd: --That's--

Justice Scalia: Isn't that the issue?

Mr. Hurd: --That's correct, Your Honor.

Justice Scalia: There's no indication that they were adopting a broader interpretation than Federal law requires.

Mr. Hurd: That is correct.

A... a State may well be able to adopt a broader interpretation of standing than this Court requires, but it cannot adopt a narrower interpretation.

It cannot disregard this Court's direction that you give overbreadth standing according to the Federal constitutional standards, according to this Court's standards.

There's nothing in the record to suggest at all that it was adopting a broader interpretation.

It said that this Court... I'm paraphrasing, of course.

But it says this Court's standing rule... its traditional standing rules do not apply in these overbreadth cases, and then it cites this Court's decisions.

Justice Scalia: And if they were correct about what our standing rules are, they would have to follow those standing rules, wouldn't they?

They could not apply a narrower--

Mr. Hurd: That's--

Justice Scalia: --basis for standing, could they?

Mr. Hurd: --That is absolutely correct, Your Honor.

The State supreme court has no discretion to disregard this Court's application of the First Amendment through its overbreadth doctrine.

Here, what happened--

Justice Stevens: If they... if they were wrong in interpreting our cases, they still could have done exactly that they did.

Mr. Hurd: --They could have, Your Honor, but there's no indication that they did.

Justice Stevens: They didn't say so.

Mr. Hurd: They didn't say so.

Justice Stevens: So if we sent it back and then they said so, then we'd have to take the case and decide whether they're right or wrong on the merits.

Mr. Hurd: That's correct, Your Honor.

Justice Stevens: Yes.

Justice Breyer: I'm not sure why we... why it's called standing.

That's where I'm basically mixed up in this case.

The person has nothing to do with speech, the particular defendant.

It's sort of like a person who has a gun under a gun statute that forbids it.

And he wants to say that this law is unconstitutional because it might apply to people who were petitioning, and if it did, it wouldn't do it right.

It might apply to people who were speaking.

It might apply to speech, just as the gun law might apply to people who have a gun in a theater in a part of a play.

And he wants to say that this law is unconstitutional as applied to him because of that problem with it.

And in the gun case, it would be apparent that the law wouldn't be unconstitutional as applied to him because in most of its applications, it would be constitutional and he has nothing to do with speech.

And now you want to say, that's true here, too.

Mr. Hurd: Absolutely, Your Honor.

Justice Breyer: Well, why aren't you and he arguing on the merits of a constitutional matter, whether this statute is or is not unconstitutional because of the possibility that it could be badly applied in a free speech area that isn't this one?

Mr. Hurd: Well--

Justice Breyer: Why isn't that the merits?

Why is it standing?

Mr. Hurd: --Well, Your Honor, there are a number of problems with... with Mr. Hicks' case, one of which is exactly the one you described.

We think that there are several aspects of that.

We think one aspect of standing.

We think another aspect is that this Court's practice has been not to allow overbreadth challenges to be brought in cases where it was not a... a speech-related statute or a statute governing something closely related to speech.

Justice Scalia: Mr. Hurd, we don't normally decide whether a statute is constitutional in the abstract, do we?

I thought we normally decided whether someone has been unconstitutionally convicted.

We don't go around bashing statutes in their totality.

We say this person was unconstitutionally convicted.

Mr. Hurd: That's correct, Your Honor.

And... and certainly--

Justice Scalia: And that's why it's... it's a question of third-party standing whether you can say I was unconstitutionally convicted because if you applied this statute to somebody else, he would be unconstitutionally convicted.

Mr. Hurd: --It... that is certainly our argument, Your Honor.

Standing is one problem with Mr. Hicks' case.

But even if he had standing, there's a problem here of not meeting the requirement that alleged overbreadth be substantial.

In fact, the State supreme court didn't address this prong of the overbreadth doctrine at all.

And it's clear, we believe, that even if there were some possible unconstitutional application of this policy, that the overbreadth would not be substantial.

The legitimate sweep of this policy is very broad.

It sweeps up those who come to Whitcomb Court to deal drugs and batter women and damage property and steal and intimidate and try to make this property their turf.

Justice Stevens: I didn't think it was limited to those people.

I thought it was a total ban on people coming in without permission.

Mr. Hurd: Your Honor, that is... that is not exactly the... what the policy says.

The--

Justice Stevens: Well, what does the policy ban?

Mr. Hurd: --The policy is--

Justice Stevens: It doesn't just ban drug dealers, does it?

Mr. Hurd: --No, Your Honor, but in terms of... of the legitimate sweep, if we tried to contrast the legitimate sweep of the policy--

Justice Stevens: Well, I... let's say it's legitimate to keep all the drug dealers and all the armed robbers out, but... but how many other people does it keep out?

That's what I was curious about.

Mr. Hurd: --Well, Your Honor, we believe that the risk that any legitimate speaker will be chilled is... is very small.

In fact, you know, the policy was developed to chase away the ne'er-do-wells I have described, and if we're unable to remove the criminals, it would not be safe for people to come and engage in speech.

Justice Stevens: But doesn't the no trespassing sign apply to everybody?

It doesn't just apply to ne'er-do-wells, does it?

Mr. Hurd: Your Honor, it... it does not apply to... just to ne'er-do-wells, and the problem is how do you know until you actually catch them in the act of dealing drugs?

Chief Justice Rehnquist: Well, it applies to... it does not apply to someone who is coming to see someone in the housing development, as I understand it.

Mr. Hurd: That's correct, Your Honor.

The... the policy is explained by Gloria Rogers, the housing manager, on page 32 of the joint appendix.

There's a question and an answer at the bottom.

If a nonresident... question... if a nonresident is seen on privatized public housing property and he cannot demonstrate that he is either visiting a lawfully residing resident or conducting legitimate business, is he an authorized... an unauthorized person?

Justice Scalia: Which, as far as the text of the ordinance is concerned, legitimate business could include pamphleting.

Mr. Hurd: It... it certainly could, Your Honor.

Justice Scalia: As far as the text is concerned.

Mr. Hurd: Absolutely.

Absolutely.

It all could be included under the concept of visiting residents, going door to door to visit them and hand them material.

Chief Justice Rehnquist: If... if we agree--

Justice Scalia: --It wasn't the interpretation by one of the administrators that leafleting was not ipso facto legitimate businessing, or pamphleting or whatever.

Isn't that right?

Mr. Hurd: Your Honor, we would characterize that not so much as an interpretation of the written policy as an addendum--

Justice Scalia: An addendum.

Mr. Hurd: --an addendum to it which requires the demonstration of legitimate purpose, which is discussed in the policy, which would require that demonstration be made to the housing manager to show that the leafleting is legitimate.

That--

Justice Kennedy: Suppose... and suppose I... the... the Court were to agree with you that the speech analysis, particularly the overbreadth analysis here, was wrong.

Does the case then go back to the Supreme Court of Virginia in a posture where Mr. Hicks has the opportunity to challenge the ordinance as being unconstitutional for other reasons apart from the First Amendment?

It's vague.

It inhibits his right of... of movement.

These are streets that are the functional equivalent of a public, whatever.

Does he have all of those issues preserved to him on remand?

Mr. Hurd: --Your Honor, he certainly has this... this due process right to wander issue preserved.

There's a question that the State supreme court did not address, which is whether these streets and sidewalks are a traditional public forum or a nonpublic forum.

And he has certainly asserted the right to... to be there... the right to--

Justice Kennedy: And in the context of that, to say that the ordinance is vague for other reasons.

Mr. Hurd: --That would be a substantive due process challenge there.

He also has raised below a... a vagueness challenge.

It's a little different than the one he raises here.

But he would have that available to him as well.

So that the... the only... Your Honor, the... the only argument he raised below in the State supreme court that would... that would not be available to him upon remand would be the one decided by this Court.

And all the other issues he pressed below before the State supreme court he could press again.

Justice Ginsburg: Mr. Hurd--

Justice Souter: --Mr. Hurd, could we go back just to Justice Stevens' question for a minute?

And I... I just want to... I want you to comment on the significance of the... of the... the notice that you set out on page 5 of your brief.

The notice says: no trespassing, private property, you are now entering private property and streets, et cetera.

That sounds to me as though it... it means, as... as a no trespassing sign normally would, that if you are not a... the landowner or a licensee of the landowner specifically, you're not supposed to enter.

Then it goes on to say, unauthorized persons, which I take it anybody who is not authorized to enter, will be subject to arrest and prosecution.

So in answer to Justice Stevens' question, if... if that notice, which is posted all over the... the area, is a statement of policy, I assume it is excluding everybody--

Mr. Hurd: No, Your Honor, it's not.

Justice Souter: --who is not a resident.

And... and it then goes on to say that following some review for what may or may not be authority, people coming in can be arrested and prosecuted.

Mr. Hurd: No, Your Honor.

The... the policy is not intended to convey the idea--

Justice Souter: No, but is that what this says?

If we... if we stick simply to the notices that you've put up, isn't that, in effect, the burden of the notices that you've put up?

Mr. Hurd: --No, Your Honor, I do not believe that's the case.

I believe that... that the phrase unauthorized persons calls into question, well, who... who is authorized and--

Justice Souter: Well, but before we get to that, it says, no trespassing.

And doesn't that normally mean that if you are not the landowner or a licensee, you're trespassing?

Mr. Hurd: --Your Honor, in the context of a private apartment complex, it would not mean that.

A private apartment complex or a public apartment complex where a tenant has a leasehold interest has the right to invite people to come to that premises without having to have the landlord grant permission.

Justice Scalia: Is it the signs that are under challenge here, or is it the ordinance?

Mr. Hurd: It is... it is not the signs.

Justice Scalia: It... it may well be that the ordinance is constitutional but the signs aren't.

Mr. Hurd: It is... it is the policy--

Justice Scalia: That's possible.

Mr. Hurd: --It is the policy that is... that is challenged, not... not the signs.

Justice Souter: But are you taking the position that the policy and the signs are different in their content?

Mr. Hurd: We're taking the position they must be read together, Your Honor.

Justice Souter: If you read them separately, are they different?

Mr. Hurd: A... a person might be able to read the sign in isolation and believe that they had to get some permission to come in advance, but the people who come to the... to this housing complex and do so legitimately typically receive invitations from the residents.

So they understand.

The residents understand what the policy is.

Justice Ginsburg: Mr. Hurd, that's a curiosity about this case, the fact background of it that perhaps you can clarify.

You keep saying legitimate visitor.

This man's mother and his child and the mother of his child all live in this project, and one would think that he would certainly have a basis to visit his family.

Mr. Hurd: Your Honor, two... two points on that.

The... the first point is had he not been barred, certainly coming to visit his family would be a legitimate purpose.

But once he is barred... and he was... he was barred under this--

Justice Ginsburg: And we don't know why.

Mr. Hurd: --Well, the... the record suggests on page 60 that there may have been some domestic violence in the background.

We do not know the specific facts of that.

But we do know that that is referred to by Gloria Rogers on page 60 of the joint appendix.

There's also a reference on that same page to giving out false information about addresses he allegedly lived at in the premises.

He did plead guilty twice to trespassing and was convicted of damaging property.

He does not challenge the particular reasons why he was barred, and if he wants to deliver diapers, he should have thought about that before his misconduct earned him this barment notice and he thereby forfeited his right to return.

Besides, Your Honor, Justice Ginsburg, there's no evidence anyone saw any diapers or that he was there on such an errand other than what he said.

And when he asked Gloria Rogers to let him back on the property, he never mentioned visiting the child or the child's mother.

Justice Ginsburg: It's not disputed that his... that they live in the project.

Mr. Hurd: They do, and had he not engaged in misconduct, the situation never would have arisen.

But it certainly cannot--

Justice Scalia: Maybe they want him out too.

We don't really know that either, do we?

Mr. Hurd: --We... we do not, Your Honor.

We do not.

The... there was no testimony at trial from the mother that she had asked him to come or that he had brought her diapers or... or any of that.

We have no idea whether he is welcome there or not.

But the... the point I want to make is that surely it cannot be the law that a desire to visit one's mother or one's girlfriend trumps a barment notice regardless of how bad the individual's prior conduct may have been.

He did not challenge that barment notice by saying, well, it wasn't bad enough.

What we do know in the record is that it was pretty bad: two prior instances of trespass, damaging property, and so forth.

In sum... I see my time is... is running out.

I'd like to reserve some of it.

In sum, we have families here living in desperate circumstances, marijuana for sale on Bethel Street, crack cocaine on Ambrose, heroin over on Deforrest Street.

The overbreadth doctrine was designed to remedy situations where a challenged statute chills the rights of others not before the court.

Here it's not this trespass policy that chills the right of free speech, but the dangerous conditions at Whitcomb Court that the policy was designed to alleviate.

We ask that the judgment below be vacated.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Hurd.

And you wish to reserve the rest of your time?

Mr. Hurd: Yes, Your Honor.

Thank you.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

What makes this case distinctive as a First Amendment case is the presence of a general law not directed at speech at all but directed at conduct that's under challenge and the absence of any expressive activity whatsoever by the person seeking to raise the overbreadth challenge.

This Court's cases have entertained overbreadth challenges as a means of alleviating the chill of First Amendment rights of persons who are not before the Court, but the Court has never entertained overbreadth when the consequence of doing so would be to invalidate a general law that's primarily aimed at conduct and when the person who's raising the challenge did nothing to engage in speech or any expressive activity at all.

The costs of an overbreadth challenge, this Court has recognized, are high because they prohibit the Government from enforcing a law against conduct that is not constitutionally protected.

But those costs are magnified when the law under challenge is not merely a law that directs--

Justice Stevens: Mr. Dreeben, assume... I know it's not quite clear, but assume for the moment that Virginia had clearly... Virginia Supreme Court clearly said we're going to allow standing as a matter of State law, but... even though it wouldn't be allowed as a matter of Federal law, and the case then came to us in that posture.

Would we then have authority to decide the overbreadth issue?

Mr. Dreeben: --I'm not sure that this Court would, Justice Stevens.

It would then be in a posture more analogous to the J.H. Munson case that was before the Court in which the Court considered and Your Honor's separate opinion addressed the question of whether, when there was an independent State overbreadth analysis, could an aggrieved State official then bring the case to this Court.

What is clear on the current record is that the Virginia Supreme Court cited and relied on--

Justice Stevens: No.

I understand that.

But I'm just... I'm just wondering if it went back and they said, well, that's true, but it was a matter of Virginia law.

We think we'll entertain a stand, and then they decide on Federal grounds that it violates the First Amendment.

Then my question is, could we review that holding, and if... if we reviewed it in that?

Mr. Dreeben: --Well, the question there would be whether the State was sufficiently aggrieved so as to have standing under the principles announced--

Justice Kennedy: Some of our loyalty oath cases... I forget if it was Adler or Doremus.

Doremus was First Amendment... allowed us to relax our standing rules in order to reach a substantive constitutional issue cited by the State court.

Mr. Dreeben: --Well, the most relevant case is probably the Asarco decision in which the Court concluded that once the State court binds the State officials to a particular ruling, that there may be the requisite case or controversy to allow this Court to decide--

Chief Justice Rehnquist: There's... there's also--

Justice Scalia: --The same party can have standing to appeal.

Mr. Dreeben: --That's right.

And--

Chief Justice Rehnquist: There's also a question, isn't there, Mr. Dreeben, of whether this overbreadth doctrine is essentially a part of the First Amendment or a part of the standing doctrine?

Mr. Dreeben: --Well, it has two aspects, Mr. Chief Justice.

One aspect of it does relate to whether there is a case or controversy, and there clearly has to be a developed enough case or controversy to allow Article III to be invoked for this Court to announce First Amendment principles at all.

And part of the overbreadth doctrine responds to those concerns.

But another aspect of the overbreadth doctrine is purely prudential, and this Court has adopted those limits as a matter of... of prudential principles to avoid the premature adjudication of hypothetical and abstract First Amendment questions.

Justice Scalia: But it clearly relates to the doctrine of standing, doesn't it, which doctrine says that you normally do not have standing to raise the objections of other people?

You only have standing to raise objections to your own treatment, not to the treatment of others, right?

Mr. Dreeben: That's correct.

I wouldn't dispute--

Justice Scalia: And overbreadth changes that.

It says in this one area, you can object to the treatment of other people.

Mr. Dreeben: --Well, I think overbreadth is... is an application of a more general principle that this Court has adopted on... in various circumstances to allow a party who's before the Court and who is aggrieved to raise the rights of others.

For example, in Batson challenges, the Court allows criminal defendants to raise the rights of the excluded jurors.

This is an example of third party standing designed to implement First Amendment norms, but the Court has recognized that the costs of invalidating a law, when the person before the Court doesn't have constitutionally protected conduct, are high, and those costs are higher when what's being invalidated is not merely a law aimed at speech, but a law aimed at access, general conduct, as is this law.

Justice Stevens: But the irony of what you're saying is that the Virginia... Virginia Supreme Court might undertake that cost, invalidate a Virginia statute on Federal grounds that we think are wrong and we couldn't do anything about it.

Mr. Dreeben: That is probably true unless the Court applies the Asarco principle to allow an aggrieved State official to bring the case here because its own supreme court has interfered with the implementation of Federal law--

Justice Breyer: See, but that's... that's the problem.

I mean, this is exactly... that's why I'm mixed up about the standing part versus the merits.

It seems to me if it's a traditional question of standing, there... there are a group of people who are trespassing who have nothing to do with speech.

And then there's some other hypothetical people that might have to do with speech.

And the question is can these people who have nothing to do with speech invalidate the statute because of the way it applies to some other people?

Now, in the First Amendment area, we have normally let people do that, but in other areas not.

All right.

So suppose the answer is not.

You can't.

That's their problem.

Let them raise it.

Now, Virginia says, we want to let any taxpayer raise it.

If it were purely standing, any taxpayer could raise it, but then what?

I would have said that the first holding would have meant it is not unconstitutional under the Federal Constitution to convict this person.

And... and now, under... under the guise of standing, they're going to come back and say, oh, no, it is unconstitutional because we let this person raise the rights of some others.

That's where I'm confused.

Mr. Dreeben: --I think the answer to this paradox is that the State court can adopt much broader principles of law with respect to standing than this Court would impose, and it can administer them even when it's adjudicating Federal light... rights.

For example, a State could allow a purely advisory opinion to be issued by its State supreme court challenging this law by any citizen.

Justice Breyer: Well, fine, let them challenge it.

Justice Souter: Okay.

Does--

Justice Breyer: --But if you're right, no matter how much they challenge it, the simple fact is, if you're right, it doesn't violate the Federal Constitution to convict this person.

Mr. Dreeben: That's true.

Justice Breyer: So what's raising it going to get him?

Mr. Dreeben: Well, that... that is an adjudication of the... of the overbreadth challenge on the merits.

It would be a determination that there is not sufficient real and substantial overbreadth to invalidate this law, and we do think that that is a correct analysis and would suffice to reject the Virginia Supreme Court's holding in this case.

Justice Souter: Okay, but you're... I think you're saying that... that under Asarco, they can challenge the substantiality point, but they wouldn't necessarily be able to challenge the standing point which gets this particular defendant in a position to raise the issue in the first place.

Is that right?

Mr. Dreeben: It's not exactly right, Justice Souter, because I think this is an area analogous to the Court's rules in criminal cases under Michigan v. Long where the Court has to decide, does this opinion rest on a question of Federal law or does it rest on a question of State law?

And in Michigan v. Long, the Court adopted a presumption that if what a State court does is cite and rely on Federal precedents, we will presume that it did what it did because it thought it was compelled to by the force of this Court's decisions.

Justice Souter: We certainly... that certainly applies when you're talking about substantive law whether it... it would be an extension of that to apply it to standing.

Mr. Dreeben: I think it would only be a modest extension because in this case the court did not separately analyze the questions of standing as such from whether respondent could bring an overbreadth challenge, and the question wasn't posed with a--

Justice Souter: Why... why isn't that a question of standing by definition?

Mr. Dreeben: --It... what it--

Justice Souter: Overbreadth is an exception to standing, and... and so why is it anything but a standing issue?

Substantiality of overbreadth is... is a substantive issue, but... you see my--

Mr. Dreeben: --Let me... let me explain it this way, Justice Souter.

If this Court said the First Amendment overbreadth doctrine requires that State courts entertain overbreadth claims like this one even when it's a general law and even when the party before the court has been convicted of conduct that doesn't involve speech, then State courts would be required to follow that rule and could not adopt a different standing principle that was narrower and that would exclude respondent.

And our reading of the Virginia Supreme Court's opinion is that Virginia either thought or assumed that it was required by this Court's cases to entertain an overbreadth challenge.

The proper response, if the Court agrees that it's not the State court's obligation to entertain this overbreadth challenge, would be to vacate the judgment, announce the correct First Amendment principles, and remand the case to the Virginia Supreme Court for proceedings not inconsistent with this opinion.

Justice Souter: --But that would... that would basically be applying something like Michigan v. Long rather than Asarco, right?

Mr. Dreeben: In this case, it certainly would because the State court hasn't relied on a clearly insufficient case or controversy in order to adjudicate Federal rights.

There is, in fact, a case or controversy here.

The respondent has been convicted of a criminal offense, and he is challenging the law under which he was convicted.

So this case does not fall outside of the case or controversy requirement even measured by Article III standards.

Justice Ginsburg: If we follow that course, we wouldn't get to the substantive overbreadth, right?

We would just--

Mr. Dreeben: That... that is correct, Justice Ginsburg.

Thank you.

Argument of Steven D. Benjamin

Chief Justice Rehnquist: --Thank you, Mr. Dreeben.

Mr. Benjamin, we'll hear from you.

Mr. Benjamin: Mr. Chief Justice, and may it please the Court:

In 1997, Richmond took a neighborhood and by ordinance, deed, and a police authorization, made it so that a person could not walk down the street or the sidewalk unless he could prove to the police that he was authorized to do so.

The policy that the city implemented was of such breadth that it included the public, residents and nonresidents alike of this community, that it included innocent people doing lawful things, and it included protected conduct, such as the distribution of literature.

Chief Justice Rehnquist: Are you suggesting that these streets were still as if they belonged to the City of Richmond after they were deeded to the housing authority?

Mr. Benjamin: Yes, Your Honor.

Chief Justice Rehnquist: Why is that?

Mr. Benjamin: They were still public.

They were still public streets, regardless of the transfer--

Chief Justice Rehnquist: Why... you know, clearly the city intended that they no longer be public streets.

Why did that intention fail?

Mr. Benjamin: --Your Honor, for the same reason when Congress ruled... or... or passed a law saying that the sidewalks around this building were no longer to be used, for the same reason.

The intent didn't matter.

The character and the use and the form didn't change at all, and those were the criteria that mattered.

Justice Scalia: That wasn't a law making those private sidewalks.

What... what about the streets to and from the entry to the Governor's mansion in Richmond?

Are they public streets too?

Mr. Benjamin: Yes, they are, Your Honor.

Justice Scalia: They are.

Mr. Benjamin: Yes, sir.

Justice Scalia: You can't exclude the public from... from marching right up to the Governor's front door?

Mr. Benjamin: You can exclude the public from the gate.

Justice Scalia: There's a gate.

From the gate, but there's a street that goes right from the gate right up, you know, circular driveway, right up to the Governor's front door.

That's a public street.

Mr. Benjamin: That is not a public street, Your Honor.

Justice Scalia: Of course, it's not a public street.

Unknown Speaker: [Laughter]

Chief Justice Rehnquist: So it's--

Justice Scalia: --So... so there can be streets owned by the State of Virginia or the City of Richmond that are not public streets.

Mr. Benjamin: Yes, sir.

Justice Scalia: And the only issue is whether this is one of them.

Mr. Benjamin: Well, that street, Your Honor, I would call a driveway.

That's what it is.

[Laughter]

Justice Scalia: Well, the residents of this housing project would call these streets their... their driveways, the... the access to their particular apartments.

Mr. Benjamin: I disagree with you.

Justice Breyer: Well, there are a lot of streets in Cambridge which are called private ways, and nobody knows what that means.

Unknown Speaker: [Laughter]

Mr. Benjamin: And that, Your Honor--

Justice Scalia: A lot of stuff in Cambridge that nobody understands.

Unknown Speaker: [Laughter]

Justice Ginsburg: Well, they have some original alleys in the District that are comparable I think.

Mr. Benjamin: --That's true too, but you know, I have never, Your Honor, heard anyone with a grievance say let's take it to the alley.

It's always, let's take it to the street because--

Justice Kennedy: Well, I... I take... I take it there are any number of... of difficult and important issues here.

One is the character of these streets.

We don't know very much about it in the record.

The other is whether, even if they are streets with some special status, whether Ms. Rogers is the one who has the right to say who can come and who can go.

This is Ms. Rogers' neighborhood in a very interesting way.

Unknown Speaker: [Laughter]

Justice Kennedy: But I... I take it that all of those issues are open for you to argue if we were to agree with the State that the Supreme Court of Virginia was simply wrong in its First Amendment analysis on overbreadth, and you would have all of those arguments to confront and to see if you can prevail on if we remand it to the Supreme Court of Virginia.

Mr. Benjamin: --Your Honor, that's correct.

However, those same issues, of course, were before the Virginia Supreme Court.

The... the State, the petitioner, did not even challenge standing until the State sought cert at this Court.

The question presented concerning the closest issue to standing was whether Mr. Hicks was untimely in his challenge to the barment-trespass policy.

The State in all of the State courts argued that Mr. Hicks should have challenged his barment in some civil proceeding, and that's the question presented on page 97 of the joint appendix and that was what the Virginia Supreme Court dealt with, it having been the only issue presented to them on this at page 158.

Justice Scalia: It doesn't have to argue it if they decide it.

We... we will review a question that is either argued or decided by the State court.

There's no doubt that the Virginia Supreme Court decided the standing question, decided the overbreadth question, and you're saying that we cannot review that decision because he was not the one that initiated the... the matter?

That's just not what our law says.

Mr. Benjamin: I don't know, Your Honor, if it is true to say that the Virginia court necessarily decided the standing order, it not... the standing issue, it not having been raised.

But--

Justice Scalia: They had a whole long discussion of overbreadth.

I mean--

Mr. Benjamin: --Yes, sir.

Justice Scalia: --What do you think that was about?

Mr. Benjamin: Yes, Your Honor, that was on the merits.

When the Virginia Supreme Court discussed the merits, they discussed whether there was overbreadth and whether it was substantially overbroad.

Justice Scalia: But they didn't decide that overbreadth was an issue.

They just went ahead and decided if overbreadth had been an issue, this is how the issue would be resolved.

Certainly they decided that overbreadth... that is, the standing doctrine of overbreadth... was applicable to this case.

Mr. Benjamin: Your Honor, I disagree with you.

I don't think they decided that and I don't think it was--

Justice Scalia: Then why did they go into the discussion of whether this was overbroad?

They must have thought it relevant.

Mr. Benjamin: --Your Honor, because it... it was the... the immediate issue that confronted them.

They were confronted with a policy that was unconstitutional in so many fundamental respects.

Justice Ginsburg: But they dealt with only one.

Mr. Hurd said, yes, your question of public forum or not would be open, your due process vagueness argument would be open.

What wouldn't be open, if we ruled against you on this First Amendment overbreadth thing, is... that's all.

Everything else... the Virginia Supreme Court said this is what we're deciding and we're not getting to... they deliberately said we're not getting to public forum.

Mr. Benjamin: Your Honor, if the Virginia Supreme Court did implicitly decide the standing issue, then it was a right that it had to accept this... this case which was, as the Government concedes, and the petitioner, a case and controversy.

Mr. Hicks was convicted, and he did raise all of these constitutional issues in defense of his conviction.

And if the Virginia Supreme Court implicitly reached the standing question, then as a matter of State law and State rights, it was entitled to do that.

Chief Justice Rehnquist: Mr. Benjamin, certainly the dissenting opinion in the Supreme Court of Virginia talked about overbreadth.

I mean, the... the one... I'm just reading a sentence here from appendix page: Thus, I conclude that the defendant may only challenge the trespass policy as it was applied to him.

Now, that... that is overbreadth.

Mr. Benjamin: Yes, sir.

Yes, Your Honor.

Justice Breyer: So what is the answer then to the overbreadth question?

That is, the first question presented in the petition for certiorari, which we granted, asks, as I read it, the question of whether a person who does not engage in expressive conduct at all can ask the court and can succeed in having the court strike down a statute as applied to him for the reason that it might be unconstitutional as applied to other people engaged in expressive conduct.

The example would be, favoring their side, that you have a gun statute.

Any person who possesses a gun is... goes to jail, and the defendant says, well, I did possess a gun and I was trying to rob a bank, but maybe this statute would be applied to a person in a play, in which case it would be too broad.

And they say it's like that absurd example.

All right.

Now, why isn't it close enough to the absurd example?

They're also arguing that this is a statute that deals with drugs.

It deals with ordinary trespass.

Very few of these people want to pamphlet or engage in expressive conduct.

A handful might, but if they do, let's consider it, when this statute is applied to them, which it never has been in their view.

Now, what's your response?

Mr. Benjamin: Your Honor, my response is that in the ordinary case, such as some of your hypotheticals suggest, it would become instantly apparent that the robber, although claiming that the statute or the policy is overbroad... it would become instantly apparent that he had no basis whatsoever to bring this motion.

If he even got to a hearing, there would be an immediate failure of proof, but it wouldn't get to a hearing because there would be a motion to quash the motion for lack of--

Justice Breyer: There happened to be... I didn't give you the whole statute.

There were seven other constitutional errors in it, but I didn't mention them because they could be raised on remand.

Unknown Speaker: [Laughter]

Justice Breyer: So it's... that... that I'm trying to make this--

Mr. Benjamin: --In this policy I counted eight constitutional errors.

In this case, Mr. Hicks' conduct was expressive.

Mr. Hicks meets Virginia's own test because he was going to see his children, and there is no expressive action--

Justice Kennedy: --You know, I... I think it's a mistake to put too much onto the First Amendment.

The police officer stops me unlawfully and I say, I was on the way home to talk to my wife.

I mean, this... this... it tends to trivialize the First Amendment if you put so much on it.

You have some very important substantive issues here about the right of freedom of movement to use the streets and so forth, and it seems to me that for the... for you to rest the case, A, on the First Amendment, B, under what is a very questionable application of the overbreadth doctrine.

It... it is not the right way to proceed in this case.

Mr. Benjamin: --Your Honor, I understand your question, and Mr. Hicks at the inception was not outraged about free speech and First Amendment issues.

He was outraged about the fact that he had been banned for apparently nothing more, as the en banc Virginia court found, going back to see his family repeatedly.

He was upset and challenged the very barment proceeding and the... the entire policy.

Justice Ginsburg: May I just stop you there as a matter of accuracy?

We don't know why he was debarred, but we do know that one of the charges was destruction of property.

We don't know what property that was.

So it's... I think you're painting a somewhat false picture to suggest that this was a loving father who was simply going to visit his children.

Mr. Benjamin: The en banc court at page 125, footnote--

Chief Justice Rehnquist: Is this the court of appeals?

Mr. Benjamin: --Yes, Your Honor.

Chief Justice Rehnquist: Not the supreme court.

Mr. Benjamin: Not the supreme court, had found, Your Honor, that the... the charge of damaging property had nothing to do with his barment, and there was nothing in the record or in the evidence suggesting otherwise.

The testimony at page 60 of the joint appendix does not permit the inference urged by the petitioner.

The inference at most urged... that you could draw from page 60, the testimony there is that the police quite often saw Mr. Hicks in the development and he gave them an address, and then Ms. Rogers would confirm that he did not live there.

Justice Scalia: Well, if you're going appeal to page 60, you're just out of the frying pan into the... into the fire.

Yes, it... it doesn't mention destruction of property, but it does mention domestic violence.

Mr. Benjamin: Your Honor, what Gloria Rogers is doing in that instance, although she has been asked the specific question, how did Kevin Hicks come to be barred, she begins, as she does, giving a general answer in how people get barred.

And in the... she began with that.

Then she went to Mr. Hicks' case, and then she went back to one of her own reasons of domestic violence.

Justice Scalia: No.

She's answering the question, please tell the court how he came... how has he come and have you banned him from the property.

Yes.

All right.

Please tell the court how that came about.

And she said, number one... she gave two reasons.

When the police see a person in the development and they say they live someplace, they confirm with the office, and Kevin Hicks gave a false address.

Secondly, because of the domestic violence in the development.

I... I take that to be a response to the question that was asked.

So, you know, to the extent we know anything about why he was banned, it was either because he destroyed property or because he participated in domestic violence.

Mr. Benjamin: Yes, Your Honor.

We had sought discovery of the reasons that he was banned, and counsel at page 1312 and 13 had said that counsel needed to demonstrate why Mr. Hicks was barred.

But RRHA counsel, the housing authority counsel, objected that the reason why Mr. Hicks was banned was irrelevant because being a private property owner, the position was, they could ban anyone at any time for any reason.

Justice Souter: Okay, Mr. Benjamin, I'm going to ask you to assume that I at least do not accept the view that the record shows that your client was there for an expressive purpose that ought to be recognized by the... by the First Amendment.

I don't ask you to stipulate that he was banned because he was a criminal.

I will simply assume that he is in some middle ground, that he is not there for expressive purposes.

Assume we don't know why he's there.

What's your... your answer basically to the question put to you by Justice Breyer?

Why is it necessary, in order to protect the First Amendment, to allow a person in that position to... to raise this kind of... of issue with respect, say, to leafleters or people who are there for expressive purposes?

Why do we need to recognize this?

Mr. Benjamin: Because, Your Honor, as you... this very exchange illustrates how unworkable that very test would be because reasonable people will disagree over whether any given conduct is in fact expressive.

If the very fact that Mr. Hicks--

Justice Souter: Well, you're changing my hypo.

I mean, I... I said let's assume that we don't have a predicate for saying this person's conduct is expressive.

I will grant you that there are always going to be points on the margin in which we say, well, was he there for speech or wasn't he.

Assume he wasn't.

What... what is the... what is the best argument for recognizing his right to raise a First Amendment claim?

Mr. Benjamin: --Because the whole reason for the exception is the importance of First Amendment rights and values.

To impose this sort of a test would defeat the purpose and... and the value, the opportunity for society to deal with laws that sweep this broadly and infringe upon and violate people's--

Justice Souter: Why... why don't you have an adequate basis to deal with them under the vagueness doctrine, for example, that is open to you on remand, even if you lose here?

Why do we have to turn this into a First Amendment issue?

Mr. Benjamin: --Because I think the Virginia Supreme Court, when it saw the entirety of this policy, including not just the First Amendment issues, but the vagueness that permeates this policy... I think that the Virginia Supreme Court decided, from a conservative approach, that it would deal with the most to it... the most obvious deficiency and that is the complete unfettered discretion that... that Gloria Rogers, the housing manager, had, that every single police officer had, and deal with it then while the policy was before it, instead of going on and settling other questions, instead of requiring that challenges--

Justice Ginsburg: But what you just said goes right to vagueness, that you have an administrator who says, I'm queen.

I'll let you in or I won't let you in.

I don't see why you need the First Amendment hook to challenge that point.

Mr. Benjamin: --Mr. Hicks didn't need the First Amendment.

His issue from the very beginning began with the... the vagueness that permeates this, but it... he--

Justice Kennedy: But... but maybe it's not your fault, but that's what the Supreme Court of Virginia said, and in the course of doing so, it arguably... and there's a very serious concern that it misapplied Thornhill.

Justice Stevens: Mr. Benjamin, I don't want to put words in your mouth... excuse me.

I'm sorry.

I didn't... I don't want to put words in your mouth, but is this what you're trying to say, that if the statute is so overbroad it would be unconstitutional if the person has standing to challenge it?

It doesn't matter whether he is... his disability is... is because it's not a First Amendment issue at all or whether he's engaged in First Amendment conduct which is perfectly prohibitable as to him.

In either event, it doesn't matter why he can't challenge it as long as his... as the statute itself is overbroad.

Is that what your position is?

Mr. Benjamin: --Yes, Your Honor, that is.

Justice Breyer: All right.

Then--

Unknown Speaker: [Laughter]

Justice Breyer: That's... is there a... is there a risk here?

And I'm not asking it from one point of view or another.

I don't know.

But if we accepted that, there are trespass laws all over the country.

And... and would... I don't know what they all say, but people who are convicted of ordinary trespass... and a lot of them apply to public property, et cetera... could then come in and say, look, these trespass laws, even though they've never been applied to stop expression... except in my case, but I'm assuming it's not expression in my case.

Assume it's not.

We have to set them all aside because they might be applied to expression in... in a way that's unconstitutional.

If I accepted the proposition that you've just accepted, have I got myself in that box?

Mr. Benjamin: Your Honor, I'm afraid I lost you somewhat during--

Justice Breyer: Well, in other words, if I take the proposition you've just accepted as your argument, am I then allowing people who trespass... nothing to do with expression... to start attacking all the trespass laws on the ground that if applied in the expression area, they would be unconstitutional?

And they haven't been applied in that area.

Mr. Benjamin: --Yes, Your Honor.

Justice Breyer: In other words... I would be--

Mr. Benjamin: Yes, Your Honor.

Justice Breyer: --I would be accepting that.

Mr. Benjamin: Yes.

And that... that... but it's not much of a risk.

Justice Breyer: Because?

Mr. Benjamin: Because those challenges would fail almost immediately because it... I know of no other case where the trespass law has applied so pervasively to the entire streets and sidewalks of a community.

Justice Breyer: But trespass on public property... there could be all kinds of situations, Federal buildings and dozens of them, where in fact it's really applied against people who are breaking in who have no business there, and they just don't apply it or it never has come up whether they would apply it were somebody interested in a demonstration.

Mr. Benjamin: Yes, Your Honor, but the system can easily deal with frivolous motions because of the requirements already built into the requirement.

Overbreadth must not only exist and be articulable, it must be substantial.

And the system could deal with that, with sanctions if necessary.

In this case it wasn't enough for a citizen to have, in fact, a legitimate purpose to use the sidewalk.

He had to be able to demonstrate that he had a legitimate purpose.

The legitimate purpose was by reference solely to the subjective standards of any particular police officer or Gloria Rogers, the housing manager.

There was no housing authority handbook of what constitutes legitimate business.

There was no clear meaning as to what legitimate meant.

Left unsaid would be whether someone could go onto these streets and sidewalks if their business was to argue and have it out with someone or to go meet with abortion activists.

All we know from this policy is that before you can use these sidewalks, you must be engaged in a legitimate... whatever that means... business or social reason, which by its own terms--

Justice Scalia: Those are all vagueness... those are all vagueness points.

They... they really don't go to the... right?

You're making the vagueness argument now.

Mr. Benjamin: --I am--

Justice Scalia: You... you would have us rule on a vagueness ground as well, wouldn't you?

Mr. Benjamin: --I would, but--

Justice Scalia: I'd sort of like to separate the arguments that are going to vagueness and those that are going to overbreadth.

The ones you're making now don't go to overbreadth, it seems to me.

Mr. Benjamin: --Your Honor, you can't separate vagueness and overbreadth, and this argument goes directly to the heart of First Amendment.

Chief Justice Rehnquist: Well, our cases have certainly separated vagueness from overbreadth.

Mr. Benjamin: I think that this Court has used the terms vagueness and overbreadth interchangeably and--

Justice Kennedy: Well, let's... let's assume that we're up to the challenge.

Unknown Speaker: [Laughter]

Justice Kennedy: It... it seems to me that there are some very important vagueness arguments in... in the... in the classical sense of that term that your client can and should make, and they're unrelated to the speech point.

They're completely unrelated to it.

They can play back in the speech context just as well, but... but the Supreme Court of Virginia thought about this just in the speech context, and that's our concern.

Mr. Benjamin: --I submit, Your Honor, that the Virginia Supreme Court was taken and impressed by the First Amendment implications that are produced by the vagueness.

If you must have a legitimate business or social purpose... and by those terms what's excluded as a legitimate purpose are lawful purposes like wandering or jogging because that's not a... a business or social purpose, but also protected purposes such as distributing fliers, literature, or holding religious meetings.

That does not... that kind of conduct at least arguably does not fall within the rubric of business or social--

Justice Souter: No, but isn't it true... but isn't the problem with your argument this: It is one thing to say that a statute that ostensibly addresses speech is likely to have a serious overbreadth problem if it is very vague in the way it does it, but it is a very different thing to say that a statute that does not ostensibly address speech, that addresses conduct, walking across a line, becomes an overbreadth... presents an overbreadth problem simply because somebody who crosses that line might want to talk.

And you're arguing on the basis of cases in the first category, speech with vague limitations, to tell us that we ought to... that we ought to consider everything in the second category a speech case.

Isn't that the... the difficulty of your argument?

Mr. Benjamin: --It is not, Your Honor, because this policy targeted streets in the first place, streets and sidewalks, which are... a principal purpose of which is for expressive activity.

The policy itself was called the street privatization program.

Justice Ginsburg: Well, that--

Justice Souter: --But the--

Justice Ginsburg: --Mr. Benjamin, it may not be immediately before us, but it seems to me it is the heart of your case.

You are essentially saying that a public authority cannot create, for people who live in projects, a gated community.

The people who live outside projects can have streets, everything just like this, but government can't create it for poor people.

Is that--

Mr. Benjamin: Your Honor, they... they can't... the Government can't do it by simply saying that the streets are private and simply putting up signs because--

Justice Souter: --Okay.

If you're right on that, we don't have to get to the speech issue.

If you're wrong on that, you have the problem that I just presented to you, don't you?

Mr. Benjamin: --I don't understand.

Justice Souter: If... look, if... if you're right that the Government cannot, in their words, privatize the streets, then that's the end of the case.

Your guy can't be prosecuted for trespass in this instance, and that's the end of the issue here.

If it turns out, on the other hand, that the Government can indeed do what it purported to do here, then it seems to me your argument suffers from the problem that I raised.

You're saying that even in a case in which the statute doesn't address speech but addresses conduct, crossing a property line, there is a speech implication and every one of those trespass cases becomes a First Amendment overbreadth case.

Isn't... isn't that correct?

Mr. Benjamin: I agree that the challenge can be made if counsel sees fit to do so, but of course, he's bound by the State's ethical requirements.

And the... the issue won't be there in most cases.

There is no policy that is going to be as vague and overbroad, so pervasive in its effect on First Amendment freedoms as well as--

Justice Souter: You're saying when it gets very, very, very, very, very vague that's when it becomes a... a First Amendment problem even though it... the statute doesn't address speech.

Is that basically it?

Mr. Benjamin: --Your Honor, yes.

Justice Souter: How could we administer that?

Mr. Benjamin: It's not... what you administer is what has always been administered, the requirement of a finding of substantial overbreadth.

Justice Souter: Do we... do we have any... any overbreadth cases that... that would support that?

I mean, our overbreadth cases start with... with a speech claim and says, well, maybe you can stop my speech, but you can't stop his.

Do... do you have any authority for--

Mr. Benjamin: I don't think that in Chicago v. Morales that there was any claim that the petitioners in that case were involved in expressive activity.

Justice Souter: --I thought they wanted to have a parade or a... a--

Mr. Benjamin: That was--

Justice Souter: --an assembly of some sort.

Mr. Benjamin: --I think, Your Honor, that was in Forsyth County.

Justice Souter: Oh.

Mr. Benjamin: We have cases such as Watchtower, for example, where admittedly in Watchtower, Jehovah's Witnesses were engaging in expressive activity, but there was nothing about the facts of that case or the ordinance that suggested that anyone in nonexpressive activity would not have been able to raise the substantial overbreadth challenge.

If it had been Girls Scouts, for example.

Justice Scalia: No.

I think that was a First Amendment.

What about Morales?

What... what did Morales involve?

Mr. Benjamin: That involved the Chicago anti-loitering statute.

Justice Scalia: Street corner assembly.

Mr. Benjamin: Right.

In a police... a two-part test, the police--

Justice Scalia: Their... their right to gather and assemble.

I... that's sort of First Amendment stuff, isn't it?

Mr. Benjamin: --I don't know that this Court reached it on that point.

It... the Court did reach overbreadth, but didn't decide on overbreadth because the statute... see, the ordinance explicitly by its terms did not reach First Amendment freedoms or protected activity because you had to be doing something with no apparent purpose.

Justice Scalia: No, but the thing that the person wanted to do was to... was to gather with his buddies on the street corner.

Mr. Benjamin: Under that ordinance, it wasn't illegal.

That didn't violate the ordinance because that was an apparent--

Justice Ginsburg: Yes, it did, and one of them was a gang member.

Mr. Benjamin: --It did not because if he wanted to do it for an apparent purpose of expressive activity, then it didn't violate, and so that was not a problem.

In this case we have the extraordinary situation that a person must have government permission, police permission to walk a street, to use a sidewalk, and his right to do this depends entirely upon the completely unfettered discretion of the police and a government official.

If someone wants to go onto that sidewalk and pass out literature, they must get permission.

They must get Gloria Rogers' permission, and she can give that permission or deny that permission in accordance with whatever criteria she uses at any given moment.

The First Amendment problems with this case are substantial and pervasive.

The Virginia Supreme Court saw that and dealt with it while it was there, seeing nothing redeemable about this policy whatsoever.

Chief Justice Rehnquist: Thank you, Mr. Benjamin.

Mr. Hurd, your time is expiring even as we speak.

Unknown Speaker: [Laughter]

Rebuttal of William H. Hurd

Chief Justice Rehnquist: So the case is submitted.

Mr. Hurd: Thank you, Your Honor.

Attribution:

The Oyez Project

Featured:

Overton v. Bazzetta - Oral Argument

Fri, 09 Jan 2009 14:50:40 +0000

Case:

Overton v. Bazzetta

Media File:

02-94_20030326-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Thomas L. Casey

Chief Justice Rehnquist: We'll hear argument now in No. 02-94, William Overton v. Michelle Bazzetta.

Mr. Casey.

Mr. Casey: Mr. Chief Justice, and may it please the Court, the lower courts in this case were wrong for two reasons.

First, because the Constitution does not give prison inmates a right to receive in-person visits since that activity is inherently inconsistent with the status as a prisoner and with legitimate penological objectives and second, because the Michigan visitation rules are rational and reasonably related to legitimate penological interest.

The Court has recognized the right of intimate association with certain people in certain circumstances outside of the prison context in cases such as Roberts v. United States Jaycees.

In Turner v. Safley, the Court examined the question of how to evaluate a right which is recognized outside of the prison context and determine whether it applies inside the prison.

The right there was the right to marry.

The Court said you should look at the elements or incidents of the rights to determine whether it is affected by incarceration or the pursuit of legitimate corrections goals.

In Roberts, the Court also identified several attributes of the right of intimate association which respondents assert.

These rights include a high degree of selectivity and decisions regarding the affiliations, seclusion from others, relative smallness of the group.

Our contention is that all of the these attributes are significantly affected by incarceration and they are inherently inconsistent with incarceration.

And so the--

Justice O'Connor: Well, does the right to association while in prison survive in some form, do you think?

Mr. Casey: --In... the right to have the relationship which is what was actually at issue in Safley with marriage and in the Jones case with prisoner... with the union membership.

That status can survive.

There's no effect on the relationship here.

What this case is about is activity--

Justice O'Connor: Noncontact visits, aren't we talking about here?

Mr. Casey: --Noncontact visits but it involves activities inside the secure prison walls in furtherance of the relationship.

There's no impact on the relationship itself, the question is, can prison officials... do the necessities of prison have an impact on the right of association.

Chief Justice Rehnquist: What would exist outside... what relationship are you talking about?

Mr. Casey: The relationships that the prisoners are asserting are family members beyond the definition of the Michigan prison system... has adopted particularly minor nieces and nephews.

One of the problems with--

Justice O'Connor: Well, presumably children of the prisoner are included, are they not?

Mr. Casey: --Children of the prisoner are included within the definition--

Justice O'Connor: There are limited... they have to be accompanied by, what is it, a legal guardian?

Mr. Casey: --By a family member within the definition or a legal guardian, that's the Michigan regulation.

Justice Souter: As I understand it, the regs originally would have prohibited visits from minor siblings of the prisoner and that has been changed by statute; is that correct?

Mr. Casey: There was a statute passed, right at the close of the district court opinion that permitted the Department to permit visits by siblings, the Department changed the regulation to include siblings, minor sibling visits, so that issue is no longer before the courts.

Justice Ginsburg: Excuse me.

I'm sorry.

Mr. Casey: Pardon.

Justice Souter: On the class of visitor eligibility then, what were I going about is nieces and nephew, minor nieces and nephews?

Mr. Casey: That is the class with respect to minor children, they also have a contention about former inmates and--

Justice Souter: What is the State's interests in... in restricting visits from minor nieces and nephews of the prisoner?

Mr. Casey: --The prison officials testified uniformly that there were serious overcrowding problems, prison management problems, concerns about safety, so the overriding interest was to reduce the volume of visitors.

Justice Souter: So it's simply a means of reducing volume?

There's nothing peculiar to the niece/nephew relationship?

Mr. Casey: That's correct.

Justice Souter: You just want to keep the numbers down and this is one way to do it.

Mr. Casey: To keep the numbers down, the Department is permitted to draw lines.

And that is to draw a line--

Chief Justice Rehnquist: Is it also of some concern with the activities of children within the prison as opposed to adults?

Mr. Casey: --Oh, absolutely.

That... there was... there is extensive testimony that not only was there a problem with overcrowding and management, just because of the volume in general, but particularly, because of children.

Justice Ginsburg: Mr. Casey, I would like to back up to go where you were when you were responding to Justice O'Connor's question.

Do I take it that your position is whatever rights there may be to have a relationship, for example, by telephone call, correspondence, there is absolutely no right to any visitation, even noncontact, so that whatever you permit is a matter of administrative grace?

Is that your starting position?

Mr. Casey: Yes.

In response to--

Justice Ginsburg: There is no right to visitation, noncontact visitation at all?

Mr. Casey: --That's correct.

Justice Ginsburg: So everything that we're arguing about... you... in your view of this is a matter of administrative grace?

Mr. Casey: That's correct.

Justice O'Connor: Do you have a fallback position from that?

And if so, what is it?

Mr. Casey: The Court specified three issues and the first issue is whether there is a right to visitation at all.

Our position on that question is there is no constitutional right.

It's a privilege.

It's not a right.

The second question was whether assuming there is some limited right, are the Michigan regulations rational and reasonably related to legitimate correctional goals.

Justice Ginsburg: Mr. Casey, would you explain... you have been very clear of what is your position about... round one of this case in the lower courts, when you clarified that your regulations went only to contact visits and then you came around and said it applies to all visits.

Mr. Casey: The way the case evolved... the regulations on their face apply to all visitation.

The restrictions apply to both contact and noncontact.

When the case was initially filed, there were motions for summary judgment.

There was a 3-day hearing on that motion and most of the testimony that was introduced related to contact visitation.

So when the case first went to the court of appeals, the court of appeals mistakenly viewed the case was relating only to contact visitation.

Justice Stevens: Well, I got the impression that the State had represented that they... that they covered only contact visitation?

Mr. Casey: There were statements in the brief referring to contact visitation, largely because that was the evidence that was adduced at the summary judgment proceeding.

But the complaint challenged the regulations in their entirety.

And the parties, I believe, understood that it applied to both contact and noncontact.

Justice Stevens: But the Court thought it only applied to contact visitation--

Mr. Casey: In the court of appeals' first opinion it held that it applied only to contact.

Then it went back to the district court and then we had longer trial, more elaborative evidentiary proceeding.

Justice Ginsburg: --In the district court the first time around the district court didn't think it was limited to contact?

Mr. Casey: The district court dismissed the complaint in its entirety on our motion.

There was no misrepresentation.

There may have been some unintentional statements which led the court of appeals to conclude in the first view--

Justice Ginsburg: But the district court understood that it was dismissing the complaint with respect to any visitation, contact and noncontact, or we just don't know?

Mr. Casey: --The first order of the district court dismissed the complaint in its entirety.

And the complaint, the initial complaint, did not say we are challenging only contact.

The... as I say, because of the way the summary judgment evidence went in, it evolved that the... the court of appeals thought it was related only to contact.

But the rules on their face don't make a distinction between contact and noncontact.

Justice Stevens: May I ask this question?

The rules as I understand are at page 174 of the appendix of the cert petition and they don't tell us anything, at least I couldn't find anything, about the number of visits a person can have or how often.

Do the rules regulate that the number of times a particular visitor may visit an inmate?

Mr. Casey: Yes.

At page 111 of the joint appendix, there's a memorandum that was issued in April of 1995, which sets out hours of visitation for different institutions... it varies between institutions.

Justice Stevens: 111 of the joint appendix?

Mr. Casey: Of the joint appendix.

Justice Stevens: I see.

Mr. Casey: And it varies... excuse me, Your Honor.

Justice Scalia: It limits the number at any one time.

But does it limit, you know, you can only have so many visitors a month?

Mr. Casey: Yes.

Justice Scalia: Why isn't that sufficient to solve the problem of overcrowding and too many... too many people?

If... if you have too many people, an easy way to solve it is just to reduce the number of visits each one of the inmates is allowed to have per month.

Mr. Casey: That would have been one solution.

The Department chose a solution where they evaluated the visitors and concluded that it would be best to make quality visits for close family members following essentially--

Justice Stevens: Is there any evidence they found out how many nephews and nieces would be excluded by the rules and, therefore, worked that into the quantity determination, that's a strange way to regulate quantity.

Mr. Casey: --They did not know in advance how many nieces and nephews.

We simply don't keep that kind of record.

Justice Breyer: Is there a specific anti-niece... I didn't understand this case, I guess.

I thought there's a simple determination by the prison authorities, we don't want children in the room, period.

Now, we'll make an exception for that if they're your children.

Mr. Casey: That's essentially what they did.

Justice Breyer: And the reason had nothing to do... it had something to do with a lot of people, but basically they think children are more dangerous to the child or more disruptive, because they're younger, harder to discipline, they might run around in the room.

They might learn things that... that they don't want children exposed to the language or behavior of the prisoners, et cetera.

So I just thought it was... now maybe you're telling me, no no, that's not the reason it was totally different.

Mr. Casey: No.

That's--

Justice Breyer: This is quite interesting to me.

Mr. Casey: --No, that's one of the bases, it would possible to prohibit all children in prisons.

Justice Breyer: No, they don't prohibit all children.

They say generally children are more of a problem than adults to have in visits.

Mr. Casey: That's correct.

Justice Breyer: So we draw a line.

We say no children except for your own children.

Mr. Casey: That's correct.

Justice Breyer: Right.

Mr. Casey: That's our position.

Justice Breyer: So why don't you defend it on that basis, if that's what it is?

Mr. Casey: Well, I thought I was, I'm sorry if I didn't make that clear, Your Honor.

The Department made decisions on who is to visit.

And they said we are going to permit visits with close family members, children, grandchildren, at some point they have to draw a line, as you've said, which is kind of... and they drew a line to eliminate certain extended family members.

One of the problems is... is... if the Court finds that there is a right to visitation, the... there will be... I suspect a great deal of additional litigation on where those lines can appropriately be drawn.

Michigan, for example, has very generous rules concerning times of visitation, they permit visits on evenings, on weekends and holidays, some States don't do that.

If there's a right to visitation, I suspect there will be litigation on--

Chief Justice Rehnquist: Is there any limit on the number of times the same person can come in a given month?

Mr. Casey: --No.

There... inmates, for example, in the lowest security level are entitled to eight visits per month.

And the time is... is not regulated either.

It depends on overcrowding and situations like that.

Justice Scalia: What adults are permitted?

Suppose I don't have any children, I don't have any spouse, I don't even have any siblings.

Mr. Casey: The rule permits an inmate to designate immediate family members as defined by the Department and 10 other individuals.

Justice Scalia: Ten others, okay.

Mr. Casey: Now, there are certain prohibitions, former prisoners are prohibited, I think, unless they're a family member and receive the ward's permission.

That is being challenged here as well, but--

Justice Ginsburg: In relation to the family, this one last question, a child must be accompanied by an adult and you cut that back from any adult on the filing of the affidavit to only an immediate family member.

Does an immediate family member include an unwed father?

Mr. Casey: --No, it includes spouses, but it would include, it would include--

Justice Ginsburg: But an unwed father would not be a spouse?

This is the child... the mother is incarcerated, the child is brought to visit her.

Can the person who brings the child be that child's biological father, maybe even care-giving father?

Mr. Casey: --The child can visit if the child, you know, is the biological child, but the child has to be brought by a member of the immediate family.

Justice Ginsburg: But the unwed father would be a member of the child's immediate family.

Mr. Casey: That's correct.

Justice Ginsburg: Although not of the mother's immediate family?

Mr. Casey: That's correct.

Someone other than the unwed mother would have to bring that child under the rules.

Justice Ginsburg: The mother is in prison?

Mr. Casey: But someone other than the unwed father would have to bring--

Justice Ginsburg: The unwed father would not qualify?

Mr. Casey: --He is not qualified--

Justice Scalia: Unless he's the guardian?

Unless he's the guardian?

Mr. Casey: --If he is the legal guardian, yes.

Justice Scalia: If he's the legal guardian, he would?

Mr. Casey: Yes.

If the mother, the custodial parent, has gone through legal guardianship.

Justice Scalia: A close enough family relationship despite the lack of the wedding bond, he would probably be the guardian, I would guess, wouldn't he?

Mr. Casey: The guardian in fact, perhaps, but the Department is permitted to insist on enough evidence to demonstrate the legal relationship.

And, again, this case is about drawing lines, and the prison officials here drew reasonable lines based on a perception that they observed in--

Justice O'Connor: This is a facial challenge not as an as-applied?

Would an as-applied challenge be possible, assuming we recognize some right of visitation?

Mr. Casey: --These rules could be challenged as an... on an as-applied basis but we did go through a complete trial on the merits here.

There is evidence.

Our position is we submitted evidence to demonstrate the reasonable relationship under Turner v. Safley.

So if there is a right, then we satisfied the requirements of... of permitting our rules to take... to take a--

Chief Justice Rehnquist: A particular person brought this action, did they not?

Michelle Bazzetta?

Mr. Casey: --Yes.

It's a class action.

Inmates and--

Chief Justice Rehnquist: And she was an inmate somewhere?

Mr. Casey: --She was an inmate.

So... I have not addressed the Court's third question, the cruel and unusual punishment.

If there are no questions on that, I'll rely on the briefs.

And I would like to reserve my remaining time for rebuttal.

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: Very well, Mr. Casey.

Mr. Lamken.

Mr. Lamken: Mr. Chief Justice and may it please the Court.

The right asserted here for inmates to receive in-person visits other than those permitted by Corrections Department rules is consistent neither with inmate status nor with the legitimate penological interests underlying Michigan's rules.

Justice Ginsburg: But, Mr. Lamken, you are then agreeing with Mr. Casey that there is right of... no right to any visitation, contact, noncontact, that what right... what privilege is extended is a matter of administrative grace?

Mr. Lamken: That is our initial position, yes.

And we also have two backup positions.

Justice Kennedy: On your initial position, in your view, under a scheme like this could complete discretion be given to the warden to determine who gets the visitation and who does not?

You know, you didn't really... you've been looking sloppy for a couple of days so I'm going to take away your visiting privileges?

Mr. Lamken: Not necessarily.

The fact that the Federal Constitution itself does not create a liberty or a property interest in visitation, does not preclude the possibility that State prison regulations or State law might create that type of interest.

It could not be taken away under--

Justice Kennedy: I know it isn't an issue here.

But one of the reasons I'm asking is because if the warden doesn't have complete discretion, then that indicates that maybe there's some right that's either conferred by the statute or by the Constitution.

You say the warden has complete discretion?

Mr. Lamken: --The answer is not necessarily.

And that is the Court would have to examine under the standards established by... in Sandin v. Conner, whether or not State law provides a property or a liberty interest that can't be taken away without sufficient process.

And that--

Justice Kennedy: As you read these regulations, does the warden have the complete discretion?

Mr. Lamken: --Well, it's not a question of what the content of the regulations are.

That was... Sandin v. Conner got rid of that inquiry.

Instead, the question is whether it is a grievous deprivation or an adverse... or excuse me, an atypical hardship that is contrary to the typical norms of incarceration.

Justice Kennedy: And under that standard, do you think the warden should have complete discretion to deny anybody for any reason visiting privileges?

Mr. Lamken: We think that's a very difficult question.

If push came to shove, our answer would be the warden should have that discretion but I should point out that Bureau of Prison regulations and the State of Michigan both provide extensive hearing procedures before such rights are withdrawn.

And such that the type of... for example, in Michigan, you can challenge the underlying finding of misconduct if your rights are going to be taken away for the minimum 2-year period bound that's at issue here.

And you get not only an investigation, you get a hearing, you get administrative review, you get judicial review.

And we believe that those types of procedures are certainly sufficient in terms of due process.

The answer to that question would be if push came to shove, we would say no, it could be a matter of--

Justice Stevens: Then how would you distinguish the holding in Turner against Safley pertaining to the right to marry?

Mr. Lamken: --On two bases, Justice Stevens.

First, marriage has or can have a religious, that is free exercise element, and it also has an effect on property rights and the rights to certain benefits outside the prison context.

Neither is true of the right to... of visitation.

Second, incarceration as a form of punishment necessarily places a barrier between the prisoner and those with whom he would otherwise associate.

The very essence of the punishment is that separation and the vesting of control over exceptions to that separation, in the State and corrections authority.

Marital status in contrast, such as free exercise of religion, doesn't have the necessary relationship to incarceration as a form of punishment.

Justice O'Connor: Do all prisons allow some form of visitation for prisoners?

Isn't that a pretty universally accepted practice?

Mr. Lamken: It is a universally accepted practice, that for certain prisoners under proper conditions, certain visits, will aid in rehabilitation and that is the accepted view and one that the Bureau of Prisons firmly supports.

Justice O'Connor: Right.

If you're going to release somebody back into society, you don't want to cut off all contact with family members or friends who might help that person on release, do you?

Mr. Lamken: Well, that, Justice O'Connor, is a matter of penological philosophy, but not a matter of constitutional right.

And as a matter of sound penological philosophy, the Bureau of Prisons, for example, does allow visits.

But it will restrict those visits rather severely if the... if the circumstances provide.

And we believe that one--

Justice O'Connor: Well, why isn't the Turner/Safley rule quite adequate here to deal with this?

Mr. Lamken: --Well, Your Honor, you could decide it... actually Turner v. Safley, as we read it has two components.

On page 95 in particular, it says that an inmate retains those rights that are not inconsistent with incarceration or with the penological interests of the corrections system.

And so we believe that this Court could resolve it under either of the inconsistent-with-inmate status problem, which is to say that there is no right.

Or it could go into the Turner v. Safley balancing and determine that, in fact, Michigan's rules do have the requisite relationship to legitimate penological objectives.

Justice Breyer: But to the first, if you're right on the first point, which is what is disturbing about the first point, a prisoner would have no right whatsoever to any kind of visit or communication or association with outside people, even if there were virtually no penological reason for doing that?

And that's... why do you have to go that far?

Mr. Lamken: Justice Breyer, I think part... when you say communication, I wouldn't go that far.

We are saying that--

Justice Breyer: You say that because that's what's that the cases seem to say.

Communication, association.

Mr. Lamken: --Well, in fact, what incarceration cuts off and what the punishment of incarceration is is the physical separation of the inmate from the rest of society.

The inmate, for example, it's not inconsistent, for example, for a corrections official to have authority to give an inmate a furlough to go outside to work for example.

But it is inconsistent, for an inmate to say you must give me a furlough to go outside because your failure to do so interferes with my in-person associational rights.

The very essence--

Justice Breyer: You're thinking of cases where that's justified what the prison is doing.

And if you win on your first point, you better think of cases where the prison is unjustified, but it still wins.

Mr. Lamken: --Well, I think the answer is, the very essence of the punishment of incarceration is separation from society and the vesting of exceptions thereto in corrections officials.

That is the punishment and that is the difference between, for example, a broader right to communicate, which wouldn't necessarily be cut off.

A broader right--

Justice Scalia: You would say that even if... even if the prison... even if the prison administration is unjustified in refusing to allow the prison a furlough out into society, even if a thoroughly trustworthy prisoner, you would still say he has no right to?

Mr. Lamken: --Absolutely.

That is the nature of incarceration as punishment, Justice Scalia.

Turning to the Turner balance argument--

Unknown Speaker: So you say there can be solitary confinement for life, if that's what the State wants?

Mr. Lamken: --Justice Kennedy, solitary confinement should be distinguished from merely cutting off visitors from outside.

And the answer to your question is, yes, under certain circumstances, solitary confinement for life would be permissible, but one would, as the Court has pointed out in various cases, have to--

Justice Kennedy: Well, then under all circumstances under your view?

Mr. Lamken: --Well, the barrier for solitary confinement for life would be whether or not that's cruel and unusual punishment.

But the reality of prison life is that prisoners don't get to choose who their cellmates are.

They don't get to choose who they bunk with.

They don't get to choose who they dine with.

They don't get to choose the institution in which they're incarcerated.

Even though each of those personal choices may be protected outside.

Justice O'Connor: Well, presumably, the prison allows prisoners to send mail?

Mr. Lamken: Yes, that's correct.

Justice O'Connor: Okay.

How about phone calls?

Mr. Lamken: In this case the prison does allow phone calls for outside, which are other means by which general First Amendment community rights--

Justice O'Connor: So a prisoner who doesn't know how to read and write and who has... whose family has no telephone, what are they supposed to do without a contact visit?

Mr. Lamken: --Well, the Court--

Justice O'Connor: Or a noncontact visit?

Mr. Lamken: --The Court actually addressed that in Pell, which is to say that that's not a problem unless the State precludes the prisoner from getting aid in writing letters.

And Pell actually addressed the specific claim that the prisoners were unable to write.

And there's no evidence in this case that the State precludes prisoners from getting aid in writing or reading letters so that they may communicate with the outside world.

But the--

Justice Ginsburg: Are you saying that there is a right to communicate to that extent, or you've been candid and upfront and said there's no right to visitation.

Mr. Lamken: --That's exactly the line we draw, Justice.

Justice Ginsburg: Do you extend that as well to telephone calls and writing letters?

Mr. Lamken: No.

There may be... there may or is a distinct First Amendment and societal interest in allowing general communications between inmates and the outside world.

In that sense it's important to distinguish between the two rights at issue.

One is a substantive due process in-person associational right, and the other is a more general First Amendment right to communicate or like a more general First Amendment right to free exercise of religion.

The former is what incarceration cuts off.

The latter is something that incarceration may limit but generally only to--

Justice Stevens: But you would agree that the inmate could be... have a visit from his lawyer?

Mr. Lamken: --Yes, Your Honor.

He would have a visit from the lawyer and potentially clergy as an exception as well.

And that's because of the distinct and hybrid nature of the right.

It's not merely an associational right, but the right to a fair trial may be at issue, the right to petition for redress of grievances, the right to free exercise of religion may also be at issue in the case of clergy.

That's why almost all of these limits, except clergy and lawyers.

Turning to the Turner balance, the Court below invalidated the... these rules as applied to noncontact visits based on the principle that noncontact visits do not raise the penological concerns that contact visits do.

That was incorrect for three reasons.

First, many prisons including Federal Bureau of Prisons' facilities, lack noncontact facilities.

The construction of new facilities is not the type of de minimis or ready alternative this Court contemplated in Turner.

Second, the portable noncontact booths used by the State of Michigan separate the visitor from the--

Justice Stevens: Are there any high-security prisons that don't have noncontact facilities?

I know there's some--

Mr. Lamken: --No.

Justice Stevens: --low security.

Mr. Lamken: No.

No.

In fact, the Federal Bureau of Prisons' facilities, if they are high security or pretrial dissension centers, they will have noncontact facilities.

If they are lower security--

Justice Stevens: Well, shouldn't we decide the case on the assumption that we're dealing with facilities that can have noncontact visits?

Mr. Lamken: --The facilities in these cases... may I answer the question, Chief Justice?

I see I'm out of time.

Chief Justice Rehnquist: Yes, you can.

Mr. Lamken: Okay.

The facilities at issue in these cases are portable booths, which separate the inmate from its visitor but not the visitor from all the inmates who are having contact visits so they do not address the problems of the child visitors having contact with inmates.

Argument of Deborah LaBelle

Chief Justice Rehnquist: Thank you Mr. Lamken.

Ms. LaBelle, we'll hear from you.

Mr. LaBelle: Mr. Chief Justice, and if it please the Court.

The Court... I would like to clarify quickly the administrative proceedings before we got to trial in this Court, because the Court asked an inquiry.

We did have a 3-day trial and a preliminary injunction hearing and at that time the Corrections Department represented that the rules were only as to contact visits and the Court, recognizing that there were some smuggling and contraband issues, thereafter denied a preliminary injunction and followed with the summary judgment, summary disposition based solely on the understanding that it was limiting... these rules only limited contact visits.

And that's how it went to the Sixth Circuit.

Justice Ginsburg: So there's nothing in the district... in the district court's opinion or order that clarifies that?

Mr. LaBelle: No.

The district court ruled only with regard to thinking it was contact and the Sixth Circuit accepted it that way, when it became clear, when it was sent down, that the visits were being applied to ban all visits for certain categories of people, we asked for a rehearing in the Sixth Circuit, they used a clarifying opinion and then said that, no, the justification is given for limiting contact visits, smuggling and contraband did not suffice for limiting all visits for these categories of visitors.

Chief Justice Rehnquist: Did the case go to the Sixth Circuit twice?

Mr. LaBelle: Yes, Your Honor.

It went to the Sixth Circuit after a whole... first on the initial preliminary injunction, then it went back down, it was tried on the issue of noncontact visits and the permanent ban.

The permanent ban, Mr. Chief Justice, was not tried in the first go-around, because they indicated that they had not yet implemented it in any form, so it was not yet right.

Chief Justice Rehnquist: Is that particular procedural history significant in what we decide on the issues before us?

Mr. LaBelle: I think that it is not significant, only to clarify one point, the issue of whether the siblings are before this Court.

It was after the district court's decision that the Department chose to pass... that a rule was passed voluntarily allowing the Department to allow siblings in, which they have, but they have put a position throughout the case and up through the Sixth Circuit that they had the right, at any time, to withdraw that voluntary choice to allow siblings.

So I think the siblings issue is still very much before this Court.

Justice Ginsburg: But their position is they have the right to say no to all children?

Mr. LaBelle: That's correct, Your Honor, including siblings, children, that it is all a matter of discretion.

Justice Ginsburg: So their position is not different with respect to a child, a grandchild, a sibling.

They say whatever we want to do, it's up to us to do in our judgment and you have no right at all, whatever you get is a privilege.

Mr. LaBelle: That's correct, Your Honor.

And I think that that is why the case has gotten so far.

It is because that the insistence that families and prisoners do not retain the rights of intimate association past the prison door.

Justice Scalia: Is it unconstitutional then, and this is why I'm reluctant to get this Court into a whole new line of constitutional law... is it unconstitutional to send a prisoner from the East Coast to a prison far removed from his family and friends?

Mr. LaBelle: Certainly not, Justice Scalia.

Justice Scalia: Why not?

Mr. LaBelle: Because that is a collateral consequence of something that happens to prisoners.

They get moved.

They get transferred.

This Court addressed that in Olim.

That's not what happened.

Justice Kennedy: Suppose they do it for the purpose of denying the prisoner the contact?

Mr. LaBelle: I think that if they are targeting the intimate associational rights at issue, if that is the purpose that we are going to target the intimate associational rights, then a fundamental right has arisen and then it's a Turner question.

Justice Scalia: You're not targeting the rights.

Their object is not to cut off those rights.

Their object is to reduce the number of children in the room, to reduce the number of visitors, just as in the other case, their object is to use prison facilities that are more... that are cheaper, that are... that are more readily available, so they send the inmates somewhere else.

But if you have a constitutional right to the... to the visitations you're talking about, it doesn't seem right to me that you should be able to be removed from the people who could possibly visit you.

Mr. LaBelle: I think that, Your Honor, what's going on here is that the decision to slice deeply into the family and to make that decision as to who gets to visit and who doesn't goes directly to, and that's exactly what they did, they said, here are minors and we're going to select out certain intimate associations, we're going to slice--

Justice Scalia: We're going to have to pass on one by one nieces, nephews, grandchildren, illegitimate children, children of... one by one, all of these are constitutional questions, on the theory, I suppose, that what is truly stupid must be unconstitutional.

Mr. LaBelle: --I think you don't have to for two reasons, Your Honor.

One I think if this Court affirms that the intimate associational rights that are at issue here do pass through the doors for the families, that you will have Departments of Corrections exercising their discretion and their expertise under Turner, which they're allowed to do, something that is clearly not evident here.

They didn't... there is no expertise in their decision.

Justice O'Connor: What... what is the basis of the... is this some kind of a facial challenge to the whole scheme of regulating noncontact visits?

Mr. LaBelle: No, Your Honor.

I think that--

Justice O'Connor: What is it?

Is it an as-applied challenge, of some kind?

Mr. LaBelle: --Thank you, Your Honor.

With regard to the categorical restrictions, they are challenged as both facially and as-applied under Turner, because I think Turner is a very fact-intensive question.

Chief Justice Rehnquist: Well, what... what happened to Mrs. Bazzetta who wrote this... who brought this action?

Did she ask for all these things and was denied them?

Mr. LaBelle: The... Your Honor, the... it was a class action.

And she represented--

Chief Justice Rehnquist: I know it was a class action.

Mr. LaBelle: --one of the... what happened is that she... her sister wanted to bring in her newborn child to visit Ms. Bazzetta and that would have been the nieces and nephews which were precluded.

There were other class representatives--

Chief Justice Rehnquist: But her sister wanted to.

I mean shouldn't her sister have brought the action, then?

Mr. LaBelle: --The... Ms. Bazzetta was denied the visit with her niece and nephew.

Her sister was also a class representative.

Chief Justice Rehnquist: Ms. Bazzetta is the inmate?

Mr. LaBelle: Is the inmate.

There were... the class representatives were both the prisoners on the inside and the family members on the outside who joined together to bring this action.

Chief Justice Rehnquist: And what else did Ms. Bazzetta challenge that had happened to her, besides the visit from her sister?

Mr. LaBelle: Ms. Bazzetta challenged only the denial of her ability to see her nieces and nephew.

Ms. Barker challenged the ability to see her children.

Ms. Barker challenged--

Chief Justice Rehnquist: Well, how... how can one of them represent an entire class then if each of them is challenging something different?

Mr. LaBelle: --We had class representatives, Your Honor, that were certified as adequate to represent each of the interests in which we presented to the Court.

Justice O'Connor: Is the claim a First Amendment claim or what?

What... what is... what provisions of the Constitution specifically are you looking to?

Mr. LaBelle: With regard to the categorical restrictions on the minor siblings, children, nieces and nephews, it is both a First and Fourteenth Amendment claim of intimate association, and family association.

And what we have said here is that the Department can make its decisions to limit people.

They can do it either neutrally by volume, they can say we're going to say neutrally that you can only have so many minors, just as they do adults.

You can only have so many minors come to visit at any time and we are not going to slice into who... who is your most intimate family member.

Or we can do it with regard to the further-out reaches, which is they can say cousins, I suppose, or even further, but they can't go into--

Chief Justice Rehnquist: What, where... where--

Mr. LaBelle: --I'm sorry, Your Honor.

Chief Justice Rehnquist: --Where do you get this out of the Constitution?

Mr. LaBelle: I think that I get it from the Court's decisions in Moore, in Roberts and that this Court has already said that--

Chief Justice Rehnquist: Well, Roberts was a case involving whether you can get into the Jaycees or not, not whether you could get out of prison.

Mr. LaBelle: --I think that you're correct, Your Honor, in that the Roberts edicta, which everyone has relied upon in this case, is what I'm referring to.

But Moore directly says that you have to protect certain intimate family relationships and by anyone's understanding of what it means to be family--

Chief Justice Rehnquist: Well, Moore was a zoning case.

I mean, it had nothing to do with prisons.

Mr. LaBelle: --It had nothing to do with prisons, Your Honor, but it did identify that there are intimate associational rights involved in families choosing--

Justice O'Connor: But... but when in the prison context, we've had specific cases and have tried to articulate some governing principles outlined largely in Turner v. Safley about what the prison can do and not do.

Should we just look to that case and analyzing this rather than the... some zoning cases and other things?

Mr. LaBelle: --I think that... I think that Turner is the governing case in here and in fact, I think if... further that if these rules, if this is not affirmed it would be... do great damage to the Turner case, because what Turner says is when you have these fundamental rights, that then you look to extreme deference to the Corrections Department.

Justice Scalia: But Turner assumes the question that we've been immediately discussing, that there is a fundamental right.

Before you get to the Turner questions, you have to establish that there is a... aright to... to... to visitation in prison.

If you talk about intimate... the right to intimate family association, I suppose there is no more stronger right to intimate family association than the right of... of... of a man and wife to cohabit, and that's... that's eliminated in prison, unless you think that conjugal visits are constitutionally required.

Do think that they're constitutionally required?

Mr. LaBelle: No, I don't think--

Justice Scalia: It's a pretty intimate family association that you're cutting off there, isn't it?

Mr. LaBelle: --I think that although some States certainly allow it, it's certainly not constitutionally required, because there is two prongs of Turner.

One is whether it... it is inconsistent with incarceration and certainly you can argue that people going outside the prison, the conjugal visits puts certain burdens and may be inconsistent with the general incarceration.

Justice Scalia: You can arrange for it.

Mr. LaBelle: If every--

Justice Scalia: You can arrange for it.

Mr. LaBelle: --You can arrange for it.

And I think that you would not win under a Turner test with that limit on that associational right.

But here where they have impinged on the associational and intimate associational right in such a way but if--

Justice Ginsburg: Well, that's where we have... Mr. Lamken clarified that... that there is a right of expression, and that's why he said you couldn't cut off letters.

But he maintains that there is not this right of intimate association, that the right doesn't exist at all.

So you never get into Turner v. Safley balancing.

And I think your first job is to establish that... that just as a prisoner retains a right of expression, which can be curtailed drastically given incarceration, just as there is that interest and expression, so there is a retained interest in intimate association, which can be shrunk, but not totally eliminated.

Mr. LaBelle: --Yes, I think that's correct, Justice Ginsburg.

The... this... this Court has on the outside recognized that we have intimate association rights, we have companionship rights.

And although they may... there may be attributes of that right, that are necessarily diminished by... by having one member of your family in prison, the many attributes of what it means to be a family is not gone.

The ability to see your... your wife's face, the ability to see your child and assure that you're--

Justice Breyer: Well, all that is true, but I thought... I thought that this case... it's much more complicated than I thought.

I thought it was fairly simple, at least in my mind.

I assume with you that Turner is the law and there's some kind of constitutional right here.

But I thought we had basically four regulations, one says no children can visit unless they're your own children.

The second one says no prisoners can visit unless they're in your family.

The third one says that you lose those rights if you're on drugs, you lose them for two years if you have two drug problems.

And there was one other, which... if the children come in, they have to be accompanied by an adult, okay?

And I thought that's what the regs say and, in addition, there's another reg which says, warden, if you feel you need to make an exception for a particular visit, you can do it.

Okay?

Now, that's what the regs were, the district court said those are unconstitutional.

The court of appeals said that's right and I would like to know, assuming with you, that Turner is the law, what's unconstitutional about them?

It strikes me as the most reasonable thing to say that you can't have children in a prison environment unless they're your own children.

What's wrong with that?

Mr. LaBelle: --And I think, Justice Breyer, what's wrong with that is that it's not the business of the Department of Corrections to start making decisions once you decide that family members and children can come in, that to make decisions as to which family members are close... which... for those people who are 18, 17, 16, who have no children but wanted to see their only family member, which was their brother or sister, the questions--

Justice Breyer: They've now dealt with that, I take it.

And you're saying that... that we should decide what is a totally hypothetical thing, whether a regulation in... are they seeking damages?

I take it they're seeking--

Mr. LaBelle: --No.

Justice Breyer: --an injunction.

The law is now that they will let the family members in, if you have a brother who's 2 years old, they can bring the brother.

So... so I would think that's pretty hypothetical, but any way, I'll consider that.

What about the rest of it?

Mr. LaBelle: I think that the question is whether it's reasonable to slice off certain family members and there's a penological--

Justice Breyer: They say, sure, it's reasonable?

Mr. LaBelle: --interest in doing it.

Justice Breyer: Sure it's reasonable.

The reasonable thing is we want as few children as possible.

But we're not prepared to say, if they're your own children, you can never see them.

That to me sounds like a reasonable thing.

Why isn't it?

Mr. LaBelle: Because it is total discretion on what constitutes the family and who comes in and it interferes with the fundamental right at issue here which is--

Chief Justice Rehnquist: Can't they... can't they regulate categorically rather than just tuning it to each particular family to say that your own children are in a different class than siblings or nieces or nephews and say one can... I mean, the whole thing is line-drawn.

You're going to draw lines or slice somewhere as you put it.

Mr. LaBelle: --I think that's true that you can draw lines, and you can draw lines that are content-neutral with regard to the family, because that's what the concern was here, volume.

So you can say, you can only have two minors, or you can only... on your list, or you can only have five minors visit or we're going to limit the number or they can say, we are only going to protect the recognized intimate associations which include your children, your grandchildren, your siblings and your nieces and nephews.

Justice Breyer: Well, of course.

You say nieces and nephews are the same as a child, that I guess, that's a matter of judgment.

And I take it I can imagine a case where a person and who is a prisoner would have the same relationship with let's say a foster step-child or something that he's raised that I might have or you might have with a natural child.

But that's why I thought there is a reg here that permits the warden to make exceptions in unusual cases.

Now, why isn't that good enough?

So that if the warden turns a person down, where that is the relationship, then that person could complain about it and bring a lawsuit rather than striking down the whole reg.

Mr. LaBelle: The... the record in this case is that the warden had neither discretion or at least the wardens that testified felt they had neither discretion to allow minor siblings in and... or do they have any discretion whatsoever with regard to the permanent ban.

Justice Scalia: Of course, Ms. LaBelle, once you leap over the... the prior constitutional question, as Justice Breyer has and go immediately to Turner v. Safley, we are in the line-drawing business.

And it becomes a constitutional question, whether it is unreasonable to exclude an nephew or a niece or somebody who has this, is as close to the prisoner as a child might be.

Why do we want to get in this line-drawing?

Why... what is the problem here?

Is there any real risk that prisons are going to arbitrarily and unreasonably limit visitation?

Would... would any prison... or any person trying to manage a prison without... without a revolt arbitrarily cut off visitation?

It seems to me a problem in search of a solution.

Mr. LaBelle: I think that, Your Honor, they did arbitrarily here, they denied all minor siblings--

Justice Scalia: Solution in search of a problem.

I'm sorry.

Mr. LaBelle: --They denied... excuse me, Your Honor.

They denied all minor siblings coming in.

They restricted who can bring the child in to such an extent that there were... that children were no longer allowed to come in to visit their parents.

They denied all biological children.

Justice Breyer: What do you mean they couldn't?

The children couldn't visit... I'm now confused about the facts.

I have a reg in front of me, by the way, which says the warden may, quote, allow a single visit between a person and a prisoner and a person not on the approved visitor's list as long as it's in the best interests of the prisoner and there's no threat to order and security.

Now, why is it that that reg doesn't give the warden the power to deal with unusual cases?

Mr. LaBelle: The testimony of the warden was if you were not on the... the visiting list, Your Honor, you could come in during the time that you were waiting to get cleared.

But if by policy you were prohibited from coming in, if you were a minor sibling--

Justice Breyer: I don't understand.

Mr. LaBelle: --The testimony of the warden was that if by policy you were prohibited, then there could be no exception to policy.

There could be--

Justice Breyer: He said there's no exception, if, in fact, a prisoner has raised a 6-year old child just as it's his own child, but, in fact, there's no formal adoption paper.

So there's testimony that he would never let that child in?

Mr. LaBelle: --There's testimony that... that there was no ability for wardens to make exceptions with regard to policy decisions.

If, in fact, the person had not yet been able to clear and be put on the visiting list, but they were allowed, those exceptions could be made, but, for example, the... the prisoner whose younger brother was begging to come in after their mother had died and this was his only relative, the warden testified she could not make an exception to that.

Justice Breyer: I'm not concerned... although I believe you also said that there were... their own children weren't allowed in.

What's the example of that?

Mr. LaBelle: The example of that was actually that there was... some testimony with regard to Justice Ginsburg's example with regard to the... the father of the child who was unwed could not... and who had custody of the child but was not the legal guardian could not bring the child in to visit.

There are many--

Justice Breyer: No... so, in other words, you have to be the legal guardian of the child if it's not your child, in order to have a visit?

Mr. LaBelle: --If you were not... no.

Even if it is your child, your biological child, you must be the legal guardian, if you are not married.

So that if you're not married, you cannot bring... the parent can't bring the child in to visit the other parent, unless you go through the full legal guardianship proceedings.

And--

Justice Ginsburg: The relationship that counts is the relationship to the prisoner, not to the child?

Mr. LaBelle: --Correct, Your Honor.

Justice Ginsburg: And the unwed parent would not be related to the prisoner, but you have on that list, let's assume we're past the basic question and there is some constitutional right, you have on the list a person whose parental rights have been terminated, and you would allow that person a right that doesn't exist outside the prison, in other words, once a parental relationship has been terminated, there is no visitation right, according in the larger society, but you would say that it's arbitrary in the prison setting to deny that?

Mr. LaBelle: I think... yes, Your Honor.

I think because it's not a right to visit, you do have a right on the outside to that intimate association.

If... and here, I mean you're not precluded from intimate association with your biological child and the parent, the legal parent, can make a decision can make a decision as to whether--

Justice Ginsburg: Well, then it's no right of yours, if... if you... if the legal parent wants to allow someone with no parental rights, but you've... as far as the law is concerned, as far as any right is concerned, a person who has... whose parental rights have been terminated is a stranger to the child.

And it's one thing to talk about what would be reasonable for a prison to do.

But I don't know how you get any right with respect to someone who has no right outside the prison?

Mr. LaBelle: --I think the protection for intimate association on the outside is not limited to legal relationships.

In here are legal parents on the outside who are members of this class, and who were class representatives saying, listen, the adoption here was an open adoption.

We all agreed that this child, in the best interests of this child, that it should see it... his or her natural parent.

And I'm making a decision that it's in the best interests of this child to come in and visit.

And it's the prison saying... and I have to say the prison didn't say there's some reason for us to do this.

They said we never thought about it.

We really--

Justice Breyer: So this case... this case, in other words, it sounds to me from having listened to it and looked at it a little bit, it's a kind of litigation problem, I mean, there's a long litigation history here of contention.

And perhaps extreme positions.

But given that, is it up to us to say, could we say, look, on their face, these regs are okay, under Turner?

If they're not... if they're being applied in a way that makes really very little sense, let the individual who has this unusual situation of the, you know, adopted child or something like that, let him ask for the visit, let him ask for an exception to be made, if necessary, and then if that doesn't happen, and I would imagine normally, if calm prevails, it would happen, but if it didn't happen, then he could bring his case.

Or if there is such a person in this case, you could proceed with that person.

Mr. LaBelle: --Your Honor, assuming the right that exists and we go to Turner--

Justice Breyer: Yes.

Mr. LaBelle: --I think there has to be some reasonable justification for infringing on the right.

In the case of, for example, the biological children, the guardianship... which is not just one, Your Honor, but 20 percent of the women in prison have their kids in foster care or people who cannot bring them.

We're not talking about one or two.

We're talking about hundreds of people here.

To the extent that they have any reason, but what they said is we just didn't think about it.

They didn't exercise their expertise.

Justice Souter: Ms. LaBelle, are you asking them to exercise their expertise on a subcategory of children basis?

Or are you saying as... is your real point something you mentioned a moment ago, that once they make a decision to allow child visitation, they've got to restrict it?

If they restrict it at all on what you call... I think you called a content-neutral basis.

And I believe you meant by that they can put a number on it, only X number of children in Y period of time or something like that, but they cannot... I thought you were saying... determine subcategories of children who will be privileged and others that will not be.

That would be one answer to Justice Breyer and one answer I guess to the problem that we've all got about how are we going to manage this litigation if... if we've got to do it on a case-by-case basis.

Is... is your basic position the so-called content-neutral position?

All you can regulate is number once you allow any in?

Mr. LaBelle: Yes, because that was the concern articulated.

If, in fact... I suppose there could be one exception.

If in fact, there was some evidence of a... of a wild minor sibling smuggling ring and there was some basis to target certain individuals, they could do it.

But what they said--

Justice Souter: Well, then you would say the burden would be on the... on the prison to say despite the number regulation, this one can't get in as opposed to the burden on the prisoner saying despite your regulation, an exception ought to be made for me?

You're switching the burden?

Mr. LaBelle: --Correct, Your Honor.

Justice Souter: All right.

Now, so--

Chief Justice Rehnquist: --What is your authority for... in cases from this Court, say, for the content neutral principle?

Mr. LaBelle: I think that the... the authority is... is Turner itself, because what they said--

Chief Justice Rehnquist: Does it say something about being content-neutral?

Mr. LaBelle: --No, but it did say what you have to do is compare the rationale for the regulation that infringes, you have to see if there's a reasonable penological purpose, are there alternatives and look at the balancing.

Justice Scalia: Well, do you think that's fair?

You think that's fair?

I have children that want to visit me.

They are my children in... in a stable wedlock situation, they can't visit, because we've adopted an absolute number of children and and some of my coprisoners whose nieces and nephews want to visit, they have been visiting, so I can't see my kids?

Does that seem fair to you?

Mr. LaBelle: The... the rules themselves, the time, place and manner restriction.

Justice Scalia: Well, you want an absolute number.

Kids are kids.

So since some of my coprisoners are seeing nieces and nephews, I can't see my children.

There are just too many.

Mr. LaBelle: I think that that wouldn't occur, Your Honor.

Justice Scalia: It wouldn't occur?

Mr. LaBelle: Because, first if, in fact, you limited the number of children down to such a minuscule amount of minors that had no relationship with their concerns with--

Justice Scalia: Well, it would be anything under nine just on--

--You put me in prison, you got big troubles.

Mr. LaBelle: --But they allow that amount, Your Honor.

What they said was we need to reduce volume by 10 to 15 percent.

And we had absolutely no problem with the time, place and manner restrictions it did so.

What they did by this sort of overbreadth and basically because they felt there were no rights at issue here, they reduced it over 50 percent.

There's... I think that you have to look to see if there's a reasonable relationship here.

Justice Souter: Let me ask you--

Mr. LaBelle: --and there's not.

Justice Souter: --I'm sorry.

I didn't mean to cut you off.

Finish your--

Mr. LaBelle: No, Your Honor.

Go ahead.

Justice Souter: --How do you square your argument on content-neutral with respect to child visitation?

With other visitation that might be an issue, for example, one of the things that's an issue here is the possible visitation of other prisoners.

Would you say that the answer to that is that once the prison allows any adult visitation, the only limitation it can place as a general matter is numbers, and, therefore, the prison would have to object on a specific basis with the burden to establish on a specific basis that the visitation of any prior prisoner would be deleterious?

Mr. LaBelle: I think that the... what they do is, for adults, there's a 10 limit there.

Justice Souter: No, no, just as a threshold question, are you going to apply your... your content neutral-theory across the board to adults, as well as children?

Mr. LaBelle: Yes, absent there being a rationale or a specific security concern, which is--

Justice Souter: And it would be the burden of the prison to show that in a given case?

Mr. LaBelle: --I think that if you're doing a categorical restriction, it is their burden.

If they're doing--

Justice Souter: I thought you were saying the only categorical restriction you can make is visitors, nonvisitors.

When you say you can have visitors, the only further restriction is one of numbers given at least this prison's rationale?

Is that correct?

Mr. LaBelle: --No, I think that you can have individual requirements as many States do with regard to a rational basis to say someone who has been out of this prison for 6 months, we're not going to allow you to come in, because it's... there's a rational basis.

Justice Souter: Okay.

If you're going to accept that kind of categorization as legitimate, what's your basis for saying that in the case of child visitation, it's got to be content-neutral?

Mr. LaBelle: I think because--

Justice Souter: Or are you merely quantifying?

Mr. LaBelle: --I think that because there was absolutely no basis, the only concerns... I think because it was a different... a deference to the different concerns articulated, the concern with regard to minors was simply volume.

There was no articulation that any particular group of minors raised any specific concern.

Justice Souter: So you're... so you're saying, look we will take their rationale at their word, and if we take it, this is the only limitation that they could put on?

Mr. LaBelle: That's correct, Your Honor.

Justice Souter: Okay.

Justice Breyer: And the limitation by the way in--

Justice Ginsburg: --But if you... but if you spread to other prisoners, then you're going beyond the constitutional right that you've identified as intimate association.

I understand that for family.

But just a friend who is an ex-prisoner.

How does that come with intimate association?

Mr. LaBelle: May I answer the question, Your Honor?

Chief Justice Rehnquist: You may answer the question briefly.

Mr. LaBelle: I think that the general right there was both a general associational right that you have to companionships with loved ones as well as an equal protection argument.

Chief Justice Rehnquist: Thank you, Ms. LaBelle.

Mr. LaBelle: Thank you, Your Honor.

Rebuttal of Thomas L. Casey

Chief Justice Rehnquist: Mr. Casey, you have 4 minutes remaining.

Mr. Casey: I would just like to clear up a couple of points initially.

This case is not about visits from lawyers or clergy.

It's not about custody level.

Persons can be or prisoners can be in minimum custody level and still have these visitor restrictions.

So when Justice Kennedy referred to solitary confinement, Justice Breyer, excuse me, we're not talking about that.

We're just talking about visitation.

And Justice Ginsburg, I stand by my earlier statements about the nature of the arguments in the initial district court proceeding as it proceeded in the first court of appeals.

The issue of a distinction between noncontact and contact visits simply didn't come up in that... in the... in those district court proceedings.

Justice Ginsburg: And do I understand your position that you don't get to any Turner against Safley question, because there's simply no right to beginning with, no right that can be shown?

Mr. Casey: That's our initial position, yes.

The limitation to contact... or to noncontact visits is not a panacea.

Children still present problems of the... they have unique risks and burdens.

When a guard and a visitationer is watching a child, they're distracted from watching some other visitation.

The Michigan prison system, most facilities with multicustody levels have one large room for visitation.

They have tables and chairs for the contact, along one wall, there will be vending machines and along another wall, there will be one or two of these temporary booths.

And noncontact prisoners are brought through the contact room to that booth.

Visitors for the noncontact prisoner are brought through the contact room.

There's ample opportunity for exchange of contraband and visibility of other activity that's going on in this one room.

With respect to the argument about content-neutral regulations regarding children, prison officials are entitled to make categorical decisions.

The decision here is that it's better to permit the quality close visits based on a parent-child relationship, partly because of limitations on time as Justice Scalia alluded to, there were overcrowding problems before the regulations were put into effect.

All of the wardens testified after the regulations were put into effect, the conditions were noticeably better.

In closing, I would just like to emphasize, that the... the judgment of the corrections officials here was a valid exercise of their informed discretion regarding the conditions of confinements.

The courts should have deferred to that, this Court has recognized deferral to, deference to prison officials as an important factor.

And in summary the court of appeals should be reversed.

Justice Breyer: If you have a minute, I have one factual question?

Mr. Casey: I would be happy to.

Justice Breyer: From the brief from the respondents, I just want this clarified, there are a certain number of prisoners who have families and they have children, but they aren't legally married.

Now from the briefs, I had the impression that visits are allowed by those children, even though they're not legally married, unless parental rights have been terminated.

But from respondents' argument, I had the impression that you could not have a visit from such a child, period, unless you went through some formal adoption procedure.

Which is it?

Mr. Casey: The... a child of a prisoner is entitled to visit if they're brought by a member of the immediate family or a legal guardian.

Justice Breyer: Whether they're married or not married?

Mr. Casey: That's correct.

Justice Breyer: Thank you.

Chief Justice Rehnquist: Thank you, Mr. Casey.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Madigan v. Telemarketing Associates - Oral Argument

Fri, 09 Jan 2009 14:50:38 +0000

Case:

Madigan v. Telemarketing Associates

Media File:

01-1806_20030303-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Richard S. Huszagh

Chief Justice Rehnquist: We'll hear argument next in Number 01-1806, Lisa Madigan, Attorney General of Illinois, versus Telemarketing Associates.

Mr. Huszagh.

Mr. Huszagh: Mr. Chief Justice, and may it please the Court:

It cannot be true that charitable solicitors are free to commit fraud just because they are charitable solicitors.

Under long-established common law fraud principles, it is unquestionably fraudulent to induce someone to make a gift of money by saying it will be used for a specific charitable purpose when, in fact, only a nominal amount goes to that purpose and the solicitor keeps the vast majority.

The First Amendment does not...

Justice Scalia: What about...

Mr. Huszagh: displace these principles.

Justice Scalia: What about 25 percent going to the charitable purpose?

Mr. Huszagh: 25 percent may or may not be a misrepresentation, depending upon what the public was told about the ultimate purpose of...

Justice Scalia: The public's told, you know, I'm... I'm soliciting for X charity, would you... would you give money, please, for X charity...

Mr. Huszagh: If the public...

Justice Scalia: to help children in Cambodia.

Mr. Huszagh: Well...

Justice Scalia: 25 percent of the money actually goes to that purpose, 25 percent.

Mr. Huszagh: If the public reasonably understands that significantly more than that amount goes to that purpose...

Justice Ginsburg: I... I...

Mr. Huszagh: then it would be a misrepresentation to rely upon...

Justice Scalia: What do we...

Mr. Huszagh: that assumption...

Justice Scalia: public opinion poll as to whether the public reasonably understood it was going to be more than 25 percent?

Mr. Huszagh: Assumptions form a fundamental part of human communication, assumptions about the meaning of language, assumptions... assumptions about events and conditions.

If somebody were to say that they were soliciting money to... for... for the family of people who died on September 11, and the people they were referring to were their parents who died of natural causes in Topeka, Kansas, on September 11 of 1995, that's a misrepresentation, because people are entitled to make a reasonable...

Justice Souter: Sure.

Mr. Huszagh: assumption about what that language means.

Justice Scalia: That was misleading, but it is not misleading to say, I'm going to... this money is going to go to this charitable cause when, in fact, you acknowledge many charities have to pay substantial amounts, substantial percentages in order to, in order to get organizations to solicit for them, and who... who is to say that the 25 percent is too much.

I've no idea whether it is.

Mr. Huszagh: I think that...

Justice Scalia: You're just going to give that to a jury and leave the fundraising to be liable criminally or not, depending upon whether this jury thinks that 25 percent is too little to go, or... I... I just... I'm not comfortable with that at all.

Mr. Huszagh: I... I think the Court needs to distinguish between two different types of circumstances.

One is the fact that there may be legitimate reasons why a charity could have expenses above a certain level.

It could be that they're an unpopular charity.

It could be that it's a charity that's small, or has recently started up, but those are the types of reasons that the Court used to invalidate laws that declared expenses above a certain threshold to... to establish that the charity was a sham entirely.

Those don't negate...

Justice Scalia: It would still be a misrepresentation even if they had good reasons for... for giving the fundraiser 90 percent of the money.

Mr. Huszagh: And...

Justice Scalia: It would still be a misrepresentation, wouldn't it?

Mr. Huszagh: And that's my point, that the First Amendment should not displace that principle where misrepresentations are determined based upon whether the defendant made a material representation of fact, and it's... i is no different from...

Justice O'Connor: Well, would this prosecution have been brought if the fee, if the amount given to the charity had been more substantial?

Mr. Huszagh: There's a substantial likelihood, or there's less likelihood that such a prosecution would bought, been brought, because...

Justice O'Connor: How would anyone know when the Attorney General would be likely to charge them?

Mr. Huszagh: I think really the ultimate question is not whether they're going to know whether the Attorney General is going to bring the case, but whether they've committed fraud.

Ultimately, the Attorney General is not going to prosecute every case of fraud that exists, and...

Justice O'Connor: Is... is there an intent requirement, an intent to defraud requirement under the Illinois law?

Mr. Huszagh: As to what we've alleged for common law fraud, yes, there is, and we've made that allegation as... with respect to all of the statutory antifraud counts as well, and to the extent that there is a concern about the uncertainty as to whether a specific statement may be a misrepresentation, depending upon the inability to predict exactly what the public may know, then certainly there's no such objection if the defendant, it can be proved knew that they were creating a false impression.

Chief Justice Rehnquist: But one of your affidavits says that one of the solicitees expressly asked and was told that 90 percent or more goes to the vets.

Now, certainly that's a classic misrepresentation, is it not?

Mr. Huszagh: Yes, it is, but our position goes further, which is that there is no constitutional value in intentional half-truths or artificial, contrived ways of stating something that may be literally true...

Justice Souter: No, but the concern that we have is that there's no... there is no way to predict in advance what is going to be treated or what is going to be found as the half-truth.

Let me put the question to you this way.

Leave to the side the moment the particular cases that in... that you include among... among those you have brought in which at least the allegation is that a very specific misrepresentation was made, no labor cost, 90 percent goes to the... to the... the objects of the charity.

Put them aside, and consider only the cases in which no representation is made beyond the fact that we are collecting money for this charity, and no representation is made about the amount of money that's going to go for overhead and the amount that's actually going to get to the charitable donees.

I don't see where any charitable fundraiser could in advance draw a line and say, I don't have to disclose anything under risk of being prosecuted.

I would suppose that any charitable fundraiser, if you win this case, would say, there's only one way I can cover myself, and that is to disclose the percentages when I make the... the solicitation.

Otherwise, I'm vulnerable to a prosecution.

If that is the way the charitable fundraisers are going to be forced to operate, then, in fact, we have totally undercut the precedent that says you can't require that disclosure, so my question is, how can we, how could we sanction a system on your theory that would be fair, without, in practical terms, whether we say it or not, requiring the very disclosure that we have said previously need not be required?

Mr. Huszagh: I would agree that if that were the conclusion as to what would occur in... in... if the law that we advocate were permitted, then the Court would effectively be forced to reevaluate the validity of its precedents, and we are not...

Justice Souter: And maybe we should.

I'm not saying one way or the other there, but...

Mr. Huszagh: But in this case we are not urging the Court to do so, but it is our... our premise that the... that that conclusion does not necessarily follow, and it has not been established in this case.

Ultimately, these speakers know how much is going to be used for various purposes, or they certainly have the ability to know that, and they are the masters of their own speech, and to suggest that they have no ability to know what the public is going to believe, or be led to believe when they make specific representations about seeking money for charity I think is somewhat unrealistic.

Justice Souter: Okay, let's assume that it's unrealistic in this particular case.

85/15, okay, let's assume you win.

65/35, 60/40, 55-45... it's those cases that we've got to worry about.

Mr. Huszagh: But I think that the... the question then becomes whether the Court should displace common law fraud principles, which already provide a measure of breathing room for that type of uncertainty.

Ultimately...

Justice Kennedy: I suppose the breathing room is that there has to be a false statement, a misrepresentation, let's assume with knowledge of its falsity, which is relied upon by the... by the listener, that there's some... has to be damage and so forth.

Is that what you... what do you tell the jury, what a reasonable person would believe?

Mr. Huszagh: No.

It is important for the jury to decide what, in fact, the donating public did believe as to how much was going to be used for the purposes described, that this is not some normative imposition by the Government as to what's reasonable.

This is an adjudicatory process to determine what the understanding of the public was, and ultimately...

Justice O'Connor: What would the instruction, though, to the jury be under the Illinois law?

What must the State prove here?

Mr. Huszagh: The State would have to prove that there were a material misrepresentation of fact, leaving aside for a moment the intent requirement.

The material misrepresentation of fact includes three elements which provide the defendant with a breathing space for some of the uncertainties that the Court seems to be sensitive to.

First, the assertion must be factual, not some type of representation like, this charity is a humdinger that can't be disproved in a court of law.

The interpretation, the meaning to that statement has to be a reasonable one, which is an objective requirement subject to supervision by the courts, so if somebody believed that 150 percent of every donation was going to go to charity, that is objectively unreasonable, and the Court would eliminate that.

Justice Scalia: Well, what... what you say would be very impressive and would eliminate my problems if you were willing to go further and say, whenever you say, I'm raising money for Vietnamese orphans, oh, 100 percent of the money you collect is understood by the public to be going to Vietnamese orphans, but you're not willing to say that.

Mr. Huszagh: No, because that's not reasonable.

It's not reasonable...

Justice Scalia: Because that's not reasonable.

Mr. Huszagh: It's not reasonable for the public to assume...

Justice Scalia: 25 percent.

Mr. Huszagh: The... there is no...

Justice Scalia: So... so the...

Chief Justice Rehnquist: So it has a reasonable understanding.

Justice Scalia: what does... what does the judge instruct the jury?

Ladies and gentlemen of the jury, if you think it's reasonable to send... or... or what?

No, no, it wouldn't be whether it's reasonable.

It's what you think the average person would have thought, right?

Mr. Huszagh: It's what the Government proves that the donating public understood based upon what they were told, what they were reasonably led to believe.

That may include their background assumptions about how much normally goes to fundraising costs or other administrative overhead, and that can depend upon the nature of the charity, as well as the statements made by the defendants.

The other elements, to finish my answer to Justice O'Connor's and Justice Kennedy's questions, is that there is in addition a materiality requirement.

It is not enough that the statement be technically false, like a difference between 95 percent and 93 percent.

The difference has to be material, and that again provides that certain falsity will go unprohibited because the materiality requirement already gives a buffer zone.

Justice Breyer: Look at all... think of all of the... of the green, dark green briefs.

Those briefs are filled with examples of instances where the telemarketer kept a large, maybe 90, maybe 100 percent, which seem perfectly legitimate.

For example, it's a start-up campaign, and at the beginning they have to keep up more, keep more.

For example, it's an educational campaign, and what the charity thinks is, we want to spend this money so people will have heard our name, or will examine themselves for possible breast cancer, or whatever.

Or, it could even be the Nature Conservancy, where for accounting reasons the money that's going to purchase land is not treated as if it were an expense on behalf of the charity, so they're filled with examples.

Mr. Huszagh: Well...

Justice Breyer: Now, suppose in your case the defendant proved that he was within one of those examples.

Would you then say, if the jury believes that, that you should win, or the defendant, and the reason I ask is that I think most people feel, and the relevance of your case is that the money is going to help the charity, indeed, most of it, and what they will have shown is that the money did go to help the charity, but in this instance, helping the charity was consistent with the telemarketer keeping a very large percentage, so could you explain how, in your view, the law works with all those examples in the dark green briefs?

Mr. Huszagh: I... I think there are two basic answers to your question, Justice Breyer, and one is that the reasonableness of the manner in which the expenditures are made is not a proper subject of the Government's paternalistic bureaucratic oversight to second-guess that judgment, and I think the Court made that clear both in Munson and more specifically in Riley, and we are not arguing that the... whether the... the plaintiff's fraud claim for actual specific misrepresentations turns... they will win or lose, depending upon whether there is some reasonableness element to the manner of the expenditures...

Justice Breyer: No, well, if you're saying that they lose, the telemarketer, even if all the money is being used to help the charity, then I agree with the thrust of the questions that have gone before.

Mr. Huszagh: Well...

Justice Breyer: I don't see how you can possibly prosecute people for fraud where there is no fraud...

Mr. Huszagh: But that leads to...

Justice Breyer: and... and that would seem to me a case where there is no fraud.

Mr. Huszagh: That leads to the second point that I was going to make.

Justice Breyer: And it's a charity, too, so there's a First Amendment right.

Mr. Huszagh: And I don't dispute that, but...

Justice Scalia: Why... why is there no fraud, just because the charge is reasonable?

Fraud exists if you have represented to the public something, whether the something you've represented is reasonable or unreasonable or not.

If the public is unaware that 95 percent is a perfectly reasonable charge for this kind of fundraising, and the public therefore believes, given what you've said, I'm raising money for Vietnamese orphans, that at least 50 percent of that is going to go to Vietnam, then it seems to me you have a fraud case.

Mr. Huszagh: That is my answer to the second part of Justice Breyer's question.

Justice Breyer: All right.

In other words, you intend to convict people... you intend to convict them, and this may be one of them.

You intend to convict the Nature Conservancy because 98 percent of its revenue is... is accounted for as... as telemarketing expense, where in reality, they're buying land with that.

Mr. Huszagh: No, I...

Justice Breyer: Or you intend to convict the... the organization that is simply trying to inform women about the importance of self-examination for cancer.

Is that the answer?

Mr. Huszagh: No, it is not.

Justice Breyer: Okay, then... then why don't you elaborate on your answer.

Mr. Huszagh: Let me deal with the Nature Conservancy first.

I think that's an example in which the public who gives money to the Nature Conservancy understands realistically that their money is going to be used for the purpose of buying land, and to suggest in some artificial sense by a prosecutor that no, really they thought it was going to be used in an accounting format to be treated as... as an expense as opposed to a capital acquisition establishes fraud is... is simply unrealistic.

The other example again focuses upon the specific nature of the representation made, and there... there is a wide variety of differences, but if the representation is made that the money is going to be used to feed hungry orphans in Vietnam, it does not somehow become, per se, nonfraudulent if, in fact, those funds are being used to... to get out the word about the plight of Vietnam veterans, which is different, and materially different from what the representation was to the donors.

I think that is our basic...

Justice O'Connor: Counsel, let me ask you this.

Is... is the State taking the position that there is a material misrepresentation of fact here because the amount given to the charity was a trifling amount?

Mr. Huszagh: It... yes, because it was a trifling amount...

Justice O'Connor: Is that... is that how you bill the material misrepresentation?

Mr. Huszagh: Well, materiality doesn't always have to rise to the level that there will only be a trifling amount that would go to the charity, but there was a significant...

Justice O'Connor: But in this case?

Mr. Huszagh: Yes.

Justice O'Connor: And your... the respondent's brief says, well, the Governor had a charity ball, and just 17 percent...

Mr. Huszagh: Well, I... I don't...

Justice O'Connor: was kept and no prosecution.

Mr. Huszagh: I'd rather not use my time to try and explain the misleading...

Justice O'Connor: Uh-huh.

Mr. Huszagh: impression given by that example.

Let me just say that the facts of that case are dramatically different than were represented, and the... the argument that there has been any impermissible selective prosecution in this case based upon some type of discriminatory element that would violate the Equal Protection Clause, there's nothing in the record to that.

If there were such a case, the Court has said that there is a reserved ability to do so.

What I would...

Chief Justice Rehnquist: Do you want to reserve the balance of my time, Mr. Huszagh?

Mr. Huszagh: Yes, I would.

Thank you, Mr. Chief Justice.

Argument of Paul D. Clement

Chief Justice Rehnquist: Mr. Clement, we'll hear from you.

Mr. Clement: Mr. Chief Justice, and may it please the Court:

This Court has repeatedly reaffirmed the Government's authority to protect the public from fraud, even though virtually every representation involves speech.

Indeed, while striking down broad prophylactic laws, every time this Court has addressed the issue of charitable solicitation, it has reaffirmed the constitutional viability of individual fraud actions.

Now, part of the reason that this Court has distinguished between individual fraud actions and broad prophylactic rules is that an individual fraud action can bring into bear the entire context of a misrepresentation.

The difficulty with a statute like that before the Court in Riley was that it necessarily focused on a single factor, fundraising costs, and didn't take into account what was told to individual donors or anything else, and then categorically...

Justice Ginsburg: But isn't that essentially, Mr. Clement, what is happening here?

That is, these are... to the extent that these are telephone calls, and say, like you to contribute to Vietnam, and this money's going to be spent on veterans, and that's the extent of it, it seems that the Illinois Attorney General is measuring the decision whether to bring a fraud claim by the percent that goes to the charity in comparison to this... this portion that goes to the fundraiser.

Mr. Clement: I think that the fundraising costs are part of the analysis of the fraud action, but I wouldn't have read Riley as making that factor wholly immaterial, and I think the important thing is that in the calls in this case, they weren't just saying, we're here to raise money for Vietnam vets.

The record suggests that there was an emphasis on particular charitable services.

We're raising money for food baskets.

We're raising money to help veterans here in DuPage County.

Justice Scalia: Well, that's fine.

I mean, those specific misrepresentations that turned out to be false, and some of them said 90 percent is going to go there, those are no problems.

The ones we're concerned with are the... the fraud allegations that are sustained simply on the basis of the fact this money is going to go to this cause and, in fact, only 15 percent of it is going to go to that cause.

Mr. Clement: Well, two responses, Your Honor.

First of all, since there are these specific misrepresentations in this case, that alone is a reason to reverse the decision, because the Illinois Supreme Court seemed to be laboring under the misimpression that those cases were wholly off-limits because the fundraising percentage...

Justice Scalia: We do have to write an opinion though, you know.

Mr. Clement: Absolutely.

Justice Breyer: Okay.

Mr. Clement: So let me bring you to the second part of the question, which is, I think there are problems when you have a situation where the only thing that is said is, we're here to raise money for charity, but I think in reality, you have to give... you have to trust juries in common law fraud actions a little bit to take into account the broad nature of the representations that are made.

The... the virtue of a fraud action as opposed to a broad prophylactic rule is that a fraud action can take into account the entire mosaic of the representations that are made, and there's no need to focus on one particular tile and see whether it's literally true or literally false.

Justice Scalia: Would you be able to show to the jury how reasonable it is for this particular fundraiser to... to retain 85 percent?

Mr. Clement: I... I think so.

Justice Kennedy: Why?

Mr. Clement: If every...

Justice Scalia: Why?

What does that have to do with what the effect of the representation was upon the public?

Mr. Clement: Because there are other elements of a common law fraud action.

You also have to show materiality, and reasonable reliance.

If every single person raised...

Justice Scalia: How does that go to materiality?

How does it go to reasonable reliance?

Mr. Clement: Because if every single person raising money has had these astronomical fundraising costs, which of course is not true, but if that were true, then a... an individual donor who recognized that might well not have any reasonable reliance on the representations that money is going to charity, because no... no charity, apparently, can get any money to the actual services that money is being raised, but that's not true.

A very important element of common law fraud that I think can provide sufficient protection to legitimate charities is the intent to deceive, and the intent to deceive I think is going to make a big difference, because if you have a legitimate charity that's asked by a donor what percentage of the money goes to the specific service that you're raising money for, let's say, food baskets, and that charity responds and provides forthcoming information, then I don't see how the prosecution or plaintiff can ever show an intent to deceive.

On the other hand...

Justice Souter: Okay, but let's take... let's take the cases, leaving aside the specific misrepresentations here, let's take the case that we've got.

15 percent is going.

I take it you believe that on the basis of that, a... a jury could infer that there was an intent to deceive, from the silence?

Mr. Clement: I... I think that's right, but I... I would say...

Justice Souter: Okay.

Mr. Clement: that part of the evidence I'd like to put before the jury on intent to deceive...

Justice Breyer: May I ask...

Mr. Clement: is when a donor asks that question...

Justice Scalia: But the donor...

Justice Stevens: This is not a jury trial, is it?

Isn't this an equity proceeding?

Everybody's talking about the jury all the way through, but I think it's a...

Chief Justice Rehnquist: A fraud action for damages is a jury...

Justice Stevens: I thought it was a proceeding in... before... in Chancery in this case.

Mr. Clement: I'm reliably informed that this particular proceeding would go as a bench trial, which I think would provide even further protection for free speech.

Justice Kennedy: Yes.

Mr. Clement: I think that... my answer is in terms of the jury because I do think that the... the decision that this Court announces is going to affect jury trials as well, but what I'm saying is, I'd like to get before the jury the fact that when these particular fundraisers were asked the question, well, where does the money go, at least the record suggests that they flatly misrepresented where the money...

Justice Souter: You... you bet, and that's... that's what you've got in this case, but as Justice Scalia said, we've got to write the opinion, and... and if we consider the case in which there were not these quite specific misrepresentations, all you've got is silence about the percentage, and a statement that the object of the charity is Vietnamese orphans or whatever it may be, it seems to me that when you start getting below the 85/25, you get into an area in which the... the result is a dice throw, and if that is the case, the only way the charitable fundraiser can protect himself, with the greatest good faith in the world, is to disclose the percentage, and if that's what we are going to require in fact, then we better face the fact that we're going to have to retreat from... from what we've already held.

What's your answer to that?

Mr. Clement: Well, I would say first that we wouldn't have any objection if you wanted to retreat from what you said in Riley.

[Laughter]

Justice Souter: You wouldn't mind.

Mr. Clement: But... but...

Justice Souter: But isn't that what... that's what we've got to do, isn't it?

Mr. Clement: No, that is not what you have to do, and I think the important thing is the type of hypo of just all they do is call up and say, I'm here to raise money for charity, what that hypothetical tends to do is force the analysis into the single variable analysis that's reflected in broad prophylactic rules, and the answer in these cases, and I think what the opinion should suggest, is that the context does matter terribly, so to take some of the questions...

Justice Souter: Okay...

Mr. Clement: that concern Justice Breyer, if I could, when he's worried about the start-up charity, well, if a start-up charity says, hi, we're a start-up charity, we are trying to raise money for a new cause, and here's what we hope to do with the money, that's very different than if a start-up charity picks up the phone and says, we're a start-up charity, and we're going... if you give us money, we're going to help this particular child in this foreign country.

I mean, if a start-up charity avoids fraudulent statements, then that's going to have a reasonable effect on the mind of the donor, and the donor's going to recognize that, okay, a) start-up charities may have higher cost, but more importantly, the representation that I received was not that you were going to provide food baskets in DuPage County, but that you hoped to provide special services that weren't being provided currently by any extant charity, and I think that context can make all the difference.

And there are many elements of common law fraud actions.

You have to show knowledge of falsity, intent to deceive, materiality, and reasonable reliance.

In Illinois, as is typical, you have to show those factors by clear and convincing evidence.

All of that is going to provide substantial breathing room for First Amendment values.

Indeed, much of this Court's jurisprudence in the libel and deformation area has been a process of taking the requirements of the common law for fraud, which were much more onerous, and superimposing them on the law of libel and defamation, where things like falsity was presumed, and damages could be presumed, upon a showing of defamation, and I think if you put it in that context, that all of the safeguards that this Court has carefully constructed over the years in the libel and defamation context are in place to protect the... the First Amendment rights and provide breathing room, then I think that the idea that the sky is falling is really mistaken in these cases.

And I think to the contrary, if this Court were to suggest in a case where the reality is that not just 85 percent is going to the professional fundraiser, but fully 97 percent is going to something other than program services, because VietNow only spends 20 percent of the money they receive on program services, if this were... Court were to suggest in this case that there's not a fraud action, then it really will be open season for charitable solicitation fraud.

And I think this Court has been particularly concerned about broad prophylactic rules in the First Amendment area.

This is reflected in... in, most critically in its prior restraint doctrine, and that... that instinct is reflected in Schaumburg, Munson, and Riley, but at the same time, there's a corollary principle, which specific instances of fraud can be prosecuted by the Government, and that instinct is also reflected in Munson, Schaumburg, and Riley, and there's simply nothing in the First Amendment that suggests that charitable solicitation fraud need go unpunished, and with respect, I think what the Illinois Supreme Court did here in creating a broad prophylactic immunity for charitable solicitation from the law of fraud is just as unjustified as the broad prophylactic rules limiting charitable solicitation that this Court struck down in Schaumburg, Munson, and Riley.

If there are no further questions...

Argument of M. Errol Copilevitz

Chief Justice Rehnquist: Thank you, Mr. Clement.

Mr. Copilevitz, we'll hear from you.

Mr. Copilevitz: Mr. Chief Justice, members of the Court:

What charities spend or pay for fundraising, whether based upon a percentage or otherwise, are a measure of the charity's judgment about how much to invest in persuasion, a fully protected activity and it cannot be second-guessed.

The First Amendment guarantees the right of unpopular organizations to zealously pursue their causes.

The petitioner comes to this Court having pled one case, but having argued another case.

The petitioner's denial of any intent to impose a cost limitation on charitable appeals, and the petitioner's claim that its only purpose is to combat fraud, is simply not supported in this record.

What is clear is that the petitioner's claim is focused exclusively on the amount of the respondents' fee.

Chief Justice Rehnquist: Well now, I don't read the record quite that way, Mr. Copilevitz.

The affidavit that I mentioned earlier on page 169, where the... the woman said that she specifically asked the question and was told 90 percent or more goes to the vets, that strikes me as a straight common law fraud action.

Are you saying that that... that the State is prohibited by the First Amendment from prosecuting that case?

Mr. Copilevitz: No, I'm not, Your Honor.

What I'm saying is that if that violation had been pled in this case, we would have a different result at the Illinois Supreme Court.

Paragraph 74, at page 104 of the appendix, is the paragraph that incorporates these affidavits, and the allegation is simply that if the fee of the fundraiser had been disclosed, they would not have made contributions.

The Illinois Supreme Court specifically found, as did the Illinois appellate court and the trial court, that there were no affirmative misstatements made.

In order for the petitioner's case to be sustained, it has to have two legs.

We know that cost alone is not an indication of fraud, so it has to have some other positive statement.

Justice Scalia: Well, what if...

Justice Kennedy: Why... why is it that if... if we assume that the donors would not have given the money had this statement been made, that that is not a large part of showing a misrepresentation, I mean, I assume people wouldn't buy automobiles or toasters if they knew that the manufacturer was getting 95 percent of... of the cost and there was... only 5 percent went into raw materials, so there's always some problems here, but let's suppose that 95 percent, 100 percent of the donors would not have given the money if they had known the facts.

Isn't that the beginnings, at least, of a misrepresentation?

Mr. Copilevitz: Well, you're dealing with the lesser of two evils.

High undisclosed fundraising costs are a lesser evil than compelling a point of solicitation disclosure of information that is inaccurate, that this Court has held is not material, and risk creating for smaller...

Justice Kennedy: Well, why isn't it material if... if the money would not have been given had the... had the fact been disclosed?

Mr. Copilevitz: The percentage doesn't...

Justice Kennedy: That doesn't... isn't that another way of saying the person is acting under a misimpression?

Mr. Copilevitz: No, because the whole concept is built on the only return the nonprofit received is the net dollars, and as this Court recognized in Riley, there is a wide range of values that the organization receives from the appeal itself.

Justice Scalia: Mr. Copilevitz, it seems to me you have to respond to Justice Kennedy, no, that it doesn't constitute fraud simply to refuse to tell somebody something which, if he knew, he would not have made the contribution.

I mean, perhaps someone would not have made the contribution if they knew what an inefficient charity this particular charity was, or knew that, you know, for the past several years there had been a lot of organizational problems.

Does the person have to come out with all this upon pain of being guilty of fraud?

Mr. Copilevitz: No.

Justice Scalia: Certainly you don't have to tell someone everything which, if he knew, would make a difference.

That doesn't constitute fraud.

Mr. Copilevitz: I agree.

Justice Ginsburg: But if you ask a question and you give a false answer, the two examples were given... I was struck by another... one of the affidavits' comments.

This is the one at joint appendix 1... 182.

The receipt says it's tax deductible, and now the donor asks, on being told that only 20 percent went to the charity, is it?

Mr. Copilevitz: Is it tax deductible?

Yes.

Justice Ginsburg: Is the 100 percent tax deductible when 80 percent goes to the fundraiser?

Mr. Copilevitz: That presume... the answer to your question is yes.

The organization receives a benefit beyond the net dollars.

The purpose of the organization, and if you look at the appendix, Article 5 of the articles of incorporation at joint appendix 16 says that one of the primary purposes of this organization is to increase the community awareness of the problems faced by Vietnam veterans.

The contract that my client had with the Vietnam veterans incorporated a part of that.

It incorporated a magazine.

It incorporated an 800 number.

It incorporated distributing information.

The difference between the 15 cents on the dollar that was received and the fee is value that this organization received, so certainly the entire amount of any contribution is tax deductible, and it's not fair or proper to say that the organization received no benefit other than the dollars.

Justice Ginsburg: May I ask a question that's not entirely hypothetical?

Suppose Congress, trying to get a handle on fundraising operations that are really operating to line the pockets of the fundraiser, rather than for the benefit of the charity, would say, if more than 40 percent of what is collected goes to the fundraiser, then the donor will get a tax deduction only for the amount that actually goes to the charity.

In other words, taking your theory, up to 40 percent, but saying if the fundraiser gets more than 40 percent, then the donor will not get a deduction for everything the donor gave, but only for the part that went to the charity, would that be... would that violate the First Amendment?

Mr. Copilevitz: Yes.

An organization like Mothers Against Drunk Driving exists to advocate a change of attitude.

They could well enter into a contract that says, every cent you raise I am giving to you to call that many more people in order to... to deliver our message, in which case they would have 100 percent cost of fundraising under the approach of the petitioner in this case, and they would be justified, and your gifts to that organization would be fully deductible, as they should be, and they have the First Amendment right to spend what they believe...

Justice Ginsburg: I'm... I'm sorry, I don't... that may be the purpose of the organization, so that's for the charitable purpose, to spread the word about drunk driving, but the example that I gave you is, the fundraiser says, you're not a very appealing charity.

If you want us to raise money for you, we're going to charge a great deal, and you get... you'll get something, where if you were doing it on your own, you'd get nothing.

In that kind of case, not the example of MADD, where the word about drunk driving is being spread, but just, the economics of it is that the fundraiser takes 80 percent.

Mr. Copilevitz: You presume that the contract is made at arm's length in the marketplace.

Unpopular charities have the same right to have their message circulated as does a popular organization.

Justice Scalia: Well, I... we presume that just as some charities pay too much for fundraisers, some of them may pay too much for their corporate offices.

They may enter into exorbitant leases that they could have gotten for half of that had they been better negotiators.

Surely we wouldn't reduce the tax deduction because some of those expenses were unreasonable.

It seems to me that's simply the way the tax deduction works.

If it's an expense of the charity, it's an expense of the charity.

Mr. Copilevitz: And the charity may have all manners of expense that may be relevant to one donor but not be relevant to another.

Chief Justice Rehnquist: Mr. Copilevitz, a moment ago you said that in the opinion of the Supreme Court of Illinois there was a statement that the defendants had made no affirmative representation.

I had not read the opinion that way.

Could you either locate it during your argument, or if you can't, file a statement afterwards telling us on what page of the petition for writ of certiorari that... that statement appears?

Mr. Copilevitz: It appears in page 348 of the opinion, and I quote: Further, VietNow has never expressed dissatisfaction with the fundraising services provided by the defendants, and there is no allegation that defendants made affirmative misstatements to potential donors

Justice Breyer: What about the allegation in paragraph 63, from 1987 through the present, in conducting their charitable solicitations, the donors made representations which induced the donors to contribute funds for charitable purposes by representing that the funds they contributed would go to charitable purposes.

Now, that doesn't say what the particular representations were, but they had a lot of affidavits attached which did.

Mr. Copilevitz: But the affidavits were inherently unreliable.

They're... the...

Justice Breyer: No, no, I'm saying, in terms of whether there is an allegation in the complaint.

Mr. Copilevitz: It's not... those... those affidavits are incorporated for the sole purpose of demonstrating that there was not a disclosure of the fee paid.

If those affidavits were true and correct, each one of them would have supported an independent action in violation of a specific statute in the Illinois Charitable Association Act...

Justice Breyer: I'm not understanding.

No.

I thought that the question is simply whether they've alleged that there were specific affirmative representations, and the status, I gather from the SG's brief and what I've just read, is that they allege there were representations, and then they attached affidavits which have in them, and there's a footnote in the SG's brief that list the affidavits, statements as to particular affirmative representations, and... and therefore, I want to know is that, if that issue isn't in the case, fine, but... but I'm somewhat puzzled as to why it isn't.

Mr. Copilevitz: It's not in the case.

There are no allegations... those would have constituted violations of specific sections of the statute.

Chief Justice Rehnquist: But...

Mr. Copilevitz: There was no allegation in the complaint.

The only place they're found are in the affidavits which are incorporated as a reference that the fee was not disclosed and, had it been, they would not have given it.

Justice O'Connor: Yes, but the...

Mr. Copilevitz: That's the sole purpose of it.

Chief Justice Rehnquist: The Supreme Court of Illinois didn't go off on the ground that there was a separate statute regulating solicitation, and that therefore you couldn't have a common law fraud action in Illinois.

Mr. Copilevitz: I'm not sure I understand the Chief Justice's question.

Chief Justice Rehnquist: Well, I... I thought you were suggesting that these allegations would have been a... a violation of a specific statute governing fraud, governing charitable solicitation, but the Supreme Court of Illinois didn't say that because there's a statute governing solicitation you could not bring a common law fraud action in this case.

What they said was that the First Amendment prohibits you from doing it, as I understood their opinion.

Mr. Copilevitz: Yes, sir.

What they said is that the only allegation was that the fees were excessive and they weren't disclosed, that there was no allegation of any affirmative misrepresentation.

They did not say that an action couldn't be brought for fraud if there was an affirmative misrepresentation.

Justice Ginsburg: This case...

Justice Souter: But I took the...

Justice Ginsburg: This is... this case... something you said I thought was not quite right.

This case went off on a motion to dismiss, so there was no trial.

There was no findings of anything and, given the liberality of complaint amendments, even if you're right that they didn't make those allegations, they surely could, so one thing is to say, I thought your position was, no matter what they said in the complaint, this kind of operation must be allowed to go on, not simply that they... they... there's a defect in pleadings here, but no claim could be stated, not that these... these pleadings didn't state a claim.

Mr. Copilevitz: Well, maybe I'm not clear, then.

What I am saying, that high fund-raising costs alone, and the failure to disclose those costs, consistent with Schaumburg, Munson, and Riley, are not an indication of fraud in and of themselves.

The State needed two legs to stand on.

They might have had the high fundraising costs, but they needed some form of misrepresentation connected with the use of the money, and what the Illinois Supreme Court found, what the appellate court found, and what the trial court found on the motion to dismiss, that the second leg did not exist, and therefore, the claim could not stand, because to do so would have been contrary to this Court's holdings...

Justice Scalia: And...

Justice Stevens: Well, why wouldn't...

And supporting your, what you're saying, the question presented gives us the naked question if the 85 percent is enough.

There... there's nothing in the question presented that talks about these fringe issues.

You're... you're dead right on that.

Mr. Copilevitz: Thank you.

Justice Souter: Well, why can't... why... why isn't it appropriate for us to say that the affidavits can function for First Amendment purposes like a bill of particulars, and that the Illinois Supreme Court ought to consider that, and if, under Illinois practice, they could function as a bill of particulars, then there's nothing in our First Amendment jurisprudence that prohibits the prosecution.

That leaves open the broader question, but in this particular case, why wouldn't that at least be an appropriate response for this Court to make with respect to the affidavits?

Mr. Copilevitz: Those violations of the statute are certainly subject to prosecution.

That's not the case that was brought by the State of Illinois.

They amended the complaint two times.

Justice Souter: No, I realize that that's not the way it was originally brought.

All I'm saying is, isn't it appropriate for us to say, if... if we otherwise believe it, that the affidavits can function consistently with the First Amendment, consistently with our First Amendment cases as a bill of particulars...

Mr. Copilevitz: The...

Justice Souter: and... and when you get to that particular level, it's okay to prosecute?

Mr. Copilevitz: The Illinois Supreme Court found as a matter of law that those affidavits were not part of the complaint, and this Court certainly has the authority to...

Justice Souter: So just as a matter of State procedure you can't do that, is what you're saying.

Mr. Copilevitz: That's what the Illinois Supreme Court found...

Justice Souter: I... I see.

Mr. Copilevitz: as a matter of law.

Chief Justice Rehnquist: And they said that in this opinion, too?

Mr. Copilevitz: It's the quote that I just read, Your Honor.

Chief Justice Rehnquist: Could you give me...

Justice Scalia: It's all there, isn't it?

Chief Justice Rehnquist: Give me the citation in the petition... the petition for the certiorari.

If you can't find it now, file it with... file it with the Clerk later.

Mr. Copilevitz: Yes, sir.

Justice Breyer: Could I ask you, taking it just as you want to present it, fine, and I think... I'm... I'm convinced that there are a lot of instances in which somebody keeping 85 percent of the money would be perfectly consistent with a charitable purpose, but there may also be quite a lot of instances where keeping 85 percent of the money serves no charitable purpose, and really, it isn't much of a charity, and there the public is deceived.

Now, is there anything wrong with prosecuting that kind of charity, and if it turns out to be the first instead of the second, you could raise the claim later, after the prosecution, or during the trial, that we don't know what'll happen in such a circumstance?

Mr. Copilevitz: Well, my reservation in answering the question yes is, again, you are focused simply on the value of the net dollars that are received.

Justice Breyer: That... that's correct.

That's exactly my question.

I understand that there are circumstances where that fact, that virtually all the money goes to the telemarketer and little to the charity, is absolutely justified in terms of charitable purpose, but my question, which I'm repeating, is, there may be many, many, many instances where it isn't, and so what's wrong with prosecuting those people for fraud?

Mr. Copilevitz: Well, I would... I would refer to the decision of Judge Posner in the UCC case, where we had virtually that very set of facts, and the Solicitor for the Internal Revenue Service proposed that, in dealing with how would we know, the notice issue and the standard, is there would be a case-by-case analysis, and it would evolve, and Judge Posner, I believe correctly determined that that's no standard at all, and if there's no standard, we're back to the lesser evil.

Justice Breyer: Oh, no, there's a perfectly good standard, that if you're going to keep 85 percent of the money, you better have documents showing that you're doing it for a good, charitable reason, that's all, and the people who will be prosecuted are the people that can't show that.

Now...

Mr. Copilevitz: Well...

Justice Breyer: Now, I'm not saying that's a constitutional standard.

I'm not saying it's a State law standard.

I don't know what standard it would be.

I want to get your answer.

Mr. Copilevitz: I don't believe that you can measure the worth of an organization based upon its financial efficiency.

Justice Kennedy: Would... would you say that the State of Illinois or any State could require charities every 6 months to report the percentage of money going to telemarketers and the percentage going to the ultimate beneficiaries in... in direct payments and file this every 6 months?

Mr. Copilevitz: Yes, sir, and there are some States that do require that.

Justice Scalia: I assume that the State Attorney General or the State Secretary of State can, indeed, close down charities which are being used as... as private money-making ventures.

Aren't... aren't... isn't that possible?

Mr. Copilevitz: There is statutory... yes, Your Honor, there's statutory authority...

Justice Scalia: Not... not through a fraud action, but through investigating the books of the charity.

Mr. Copilevitz: Yes, sir, and under section...

Justice Stevens: The thing I don't understand, though, is the difference between good charities and bad charities doesn't seem to me to have a particle to do with the question of whether the State was a... was a misrepresentation or not.

You can get 85 percent from a good charity, and 85 percent from a bad charity and keep it, but the statement to the public is equally misleading in either case.

I mean, maybe that's not enough, but maybe it is.

Mr. Copilevitz: Well...

Justice Stevens: I don't see how the character of the charity has any bearing on the... on the kind of... whether there's fraud or not.

Mr. Copilevitz: I would agree, and I would point to the petitioner's reply brief at the footnote referring to the brief that was filed by Disabled American Veterans, explaining the problem of donor acquisition mailings, that it can cost $1 or more to acquire $1, and that that should be something that the petitioner should give deference to, and in footnote 13 of the petitioner's reply, they took exactly the opposite position and said the fact that it was donor acquisition mailings, trying to acquire new donors, was not a reason to set aside the principles that they've enunciated in their complaint.

Justice Kennedy: Let make... let's make an assumption that 95 percent of the donors in the case of your client's charity would not have given the money had they known of the amount being kept by the telemarketers.

Is there anything the State can do to protect the people of... of the State from having... from parting with their money under those circumstances?

Mr. Copilevitz: Yes, sir.

The State of Illinois has a series of... of disclosure requirements.

They're content-based, neutral disclosures.

You must, before you ask for a donation in Illinois, if you're a compensated professional fundraiser, disclose your professional status.

You must also disclose that you can obtain copies of financial records for the organization from the Office of the Attorney General.

You must also answer, if asked, what your fee is.

You must disclose it.

You must disclose, if asked, what portion of the monies will go to the charitable organization.

You must disclose the primary purpose of, the charitable purpose of the organization.

The State of Illinois can publish reports, the State of Illinois maintains a web site.

There are 800 numbers.

There are... there is a requirement that, prior to anyone parting with consideration, in the mail piece that is sent, when you are sitting in the privacy of your own home, having made simply a pledge in the mail, in writing, there is a disclosure that you can obtain copies of the financial information.

There is a disclosure...

Justice Ginsburg: You can... you said many times you can ask, you can obtain.

It seems that, then, the sophisticated person is protected, the sophisticated person will ask, but the person who isn't, who doesn't know, I mean, your... your position is, it's okay, if asked, must tell, but if doesn't ask, then it's against the First Amendment to require a statement of how much goes to the fundraising?

Mr. Copilevitz: Yes, Your Honor, because it's the breathing space of New York Times versus Sullivan and Riley and Schaumburg and Munson that we require.

It's the lesser of two evils.

A compelled point of solicitation disclosure will disproportionately adversely affect smaller, newer, and less popular charities.

Justice Ginsburg: And disproportionately affect donors who are unsophisticated, because those are the ones, by and large, that don't ask.

Mr. Copilevitz: I would point to the concurring opinion written by Justice Scalia in the Riley case that the... that it's the normal presumption of people to believe that someone is being compensated.

They know when they get something in the mail that you had to pay for the stamps, you had to pay for the printing.

You have in Illinois a step further, the disclosure of the professional status and the information before you part with any consideration how you can obtain all the information if cost...

Justice Ginsburg: Is it... is it...

Mr. Copilevitz: Excuse me.

Justice Ginsburg: In looking at this picture of this fundraiser, one of the things that was alleged, it seemed to me, is odd.

It said that the fundraiser does not give the names of the donor to the charity, to VietNow.

In other words, the fundraiser keeps the donor list itself, and it seems if it were in business to collect for the charity, rather than in business to collect for itself, it would surely give the charity the... the names of the donors.

Mr. Copilevitz: That's a subject of contract, and I would suggest that that's something Illinois could address.

There are State laws in New Hampshire and Arkansas that I can recall off the top of my head that specifically require as a condition of a contract that the list and the names be made available.

There is nothing in this record to refer to the fact that this contract wasn't entered into at arm's length and, in fact, the Attorney General's web site cites the percentage of this contract as being the common amount that professional fundraisers routinely charge, and as the Court addressed in Riley, that the State's paternalistic instinct in protecting attorneys...

Justice Ginsburg: Are we going on that again?

That this is the common amount that fundraisers usually charge, 80 percent?

Mr. Copilevitz: It can be.

That... it's on the web site of the Attorney General, that professional fundraiser fees generally run between 80 and 90 percent.

There's also footnoted in the brief a reference to a report that was done that veterans groups are among the lowest receiving organizations because of the nature of their appeal, and Nation-wide averaged 17 percent, and in this case they allege 15 percent, but the reality is something different than that.

Because of the magazines that were published in the last contract they got $20,000 in addition to their percentage.

If no phone call had been made, they would have received 100 percent of the money.

They got the benefit of a Nationwide 800 number.

They got the benefit of 2,200 magazines.

They got the opportunity to talk to nine of...

Justice Stevens: You're arguing that it's a good charity, and I'll... I'll... we'll assume that for purposes of the decision, that they're... they're perfect, but it still seems to me...

Mr. Clement: [Laughter]

Justice Stevens: you've raised the suggestion that maybe we should use the New York Times standard, and if that were the case, would it not be arguable that your people knowingly made these statements with the understanding they would believe that they were literally true, and that there was not an over... you know, that the... that the charity was going to get a larger amount of the money.

Mr. Copilevitz: Well, Your Honor...

Justice Stevens: It seems to me the New York Times standard might cut against you, in other words.

Mr. Copilevitz: Well, it... it's for me in the breathing space concept, but what they allege is, in the complaint is that they raised money for the charitable purpose.

What they don't allege is that no money went to the charitable purpose.

It's a question of degrees.

Again, we come back down to what portion of the gross dollar in hard dollars went to the program purpose.

What we can't...

Justice Stevens: No, the question is how... how true was the statement?

What is the reasonable understanding of the person who listened to this solicitation?

I think everybody sort of agrees that if they knew the facts, they wouldn't have given the money and, as Justice Kennedy suggests, therefore they were misled, and then the New York Times standard suggests to me that you knew they would be misled, because you say it in your own brief.

Mr. Copilevitz: No, they would... there was a value... the... one of the primary program services was to raise the awareness of the plight of the Vietnam veteran and, as a result of a phone call, 9 out of 10 people called do not make a contribution, but the organization got the benefit of every one of those conversations, and maybe next year or next month they got a bequest, or they got a donation of a car, or they acquired a donor by direct mail.

They're only focusing on one campaign.

They don't look at every campaign.

In the footnote in the DAV, referring to them, they did not limit themselves.

It can be campaign-by-campaign.

Justice Stevens: Well, that's an argument that the 85 percent is an incorrect figure.

That's... then I think the case that's presented by the... the certiorari position is, assume that 85 percent is the correct figure, then, is it... you know, is it fraud?

Mr. Copilevitz: No, sir.

Justice Stevens: Yes.

Mr. Copilevitz: Thank you.

Rebuttal of Richard S. Huszagh

Chief Justice Rehnquist: Thank you, Mr. Copilevitz.

Mr. Huszagh, you have 3 minutes remaining.

Mr. Huszagh: I'd like to first correct two clarifications in the record.

In fact, the Illinois Supreme Court never said that the affidavit should not properly be treated as part of the complaint.

They refer to the affidavits, but our allegations stand on their own without the need for those affidavits, which would simply be an elaboration of the types of misrepresentations made to donors.

A second, the web site that the Illinois Attorney General keeps does not hold up 90 percent kept by fundraisers as the ordinary and usual thing that's regularly practiced in this area.

They indicate that as another one of several egregious examples that people should be warned against, but that is not the only weapon they should have in their arsenal against actual fraud.

This case is not a claim based upon a mere nondisclosure of a high fee.

It is a claim based upon a particular instance of actual deception based upon statements made to donors that constitute misrepresentations under the common law of fraud, not explicit misstatements as the Illinois Supreme Court said, or affirmative misstatements, not explicit lies, but misrepresentations in the form of half-truths, and we ask this Court not to hold that half-truths are constitutionally protected.

I think the Court said as much in Milkovich and the Masson cases, and no different rule is warranted here.

There is that semantic distinction.

Let me point out, however, that the key allegation in this complaint, in the body of the text at joint appendix page 9, paragraph 34, says that the effect of representations that were made was that people were told that a significant amount of each dollar donated would be paid over to VietNow, and the defendants knew that was false because 15 cents or less of each dollar would be given to VietNow for its purposes.

The allegation is that people were told that their money was going to be paid to VietNow and used to buy food baskets, to provide job training for veterans.

That is an actual representation.

Whether it constitutes a misrepresentation turns upon whether it reasonably led people to believe something that was false, and we ask the Court to continue to uphold those principles in this context.

There is no plausible claim that in this case what these defendants are alleged to have done is beyond the State's power to prohibit by a properly drafted law, that these circumstances are egregious, and there is also no possible claim that... that any law invoked here cannot be applied against anybody.

The fallback position of the defendants in this case is that the Court should take the draconian step of saying that unless there is an explicit misrepresentation of fact, not an implied one, that there should be blanket immunity for charitable fundraisers to lead people to believe that their money is going to be used for specific purposes and have no liability if that is 1 percent true.

That is not something that's justified by the First Amendment.

They have conjured up dire scenarios about all sorts of charities disappearing from the landscape simply by the type of examples that they have given for a chilling effect.

There is nothing in the record to show that, and there is nothing in common experience to show that, but what they're asking the Court is to say no, it's not enough for as-applied claims of that variety to be brought in other cases, but that there should be no prosecution ever.

The State is categorically prohibited from bringing a fraud claim in such circumstances.

That is not a value that the First Amendment supports.

The First Amendment value that's most important here is the donor's right to be able to make informed decisions.

I see the light's on.

Chief Justice Rehnquist: Thank you, Mr. Huszagh.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Republican Party of Minnesota v. White - Oral Argument

Fri, 09 Jan 2009 14:50:22 +0000

Case:

Republican Party of Minnesota v. White

Media File:

01-521_20020326-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We'll hear argument now on number 01-521, The Republican Party of Minnesota, et al., versus Verna Kelly.

Mr. Bopp.

Mr. Bopp: Mr. Chief Justice, and may it please the Court: Like most states, Minnesota selects its judges through periodic popular elections.

And when candidates' speech is severely restricted, the people are denied access to the information they need to make an informed choice.

While state court judges are different from other elected officials, Minnesota's Announce Clause, as now interpreted by its supreme court, goes too far resulting in elections without campaigns.

Unidentified Justice: Could we find out from you just what the Announce Clause prohibits that isn't already prohibited by the Pledges and Promises Clause, as it's been interpreted?

Mr. Bopp: Yes, Justice O'Connor.

The Announce Clause prohibits, according the decision of the Eighth Circuit, any general... allows general discussions of the law, while it prohibits any implying of how a person would rule... a candidate would rule, on an issue or case before the Court.

Unidentified Justice: How does that differ, then, from the Pledges or Promises Clause?

Mr. Bopp: The Pledges and Promises Clause prohibits any pledge or promise that... other than faithful performance of duties in office.

The difference between "announce", the plain language of the clause, and "pledge or promise"... "announce" is simply making known, is one of the formulations of the Eighth Circuit, or implying; while "pledging or promising" is making a commitment on how you would rule in a future case.

Unidentified Justice: But you think the Announce Clause, even as interpreted by the Eighth Circuit to be the same as the ABA canon, goes beyond that?

Mr. Bopp: Well, Your Honor, there is one aspect of the current 1990 ABA canon that has... was not discussed by the Ninth Circuit or by the ABA brief.

And that--

Unidentified Justice: And where does that appear in your brief?

Where is the ABA canon we're talking about?

Where is it?

I want to look at it while you're talking about it.

Mr. Bopp: --I do not have a reference to the ABA canon, Your Honor.

I apologize.

The ABA canon states that a... the 1990 ABA canon states that a candidate may not make statements to commit, or appears to commit in deciding cases, controversies, or issues likely to come before the Court.

While the ABA and the Eighth Circuit seem to imply that the 1990 canon was similar, if not the same, as the 1972 canon, they did not discuss the difference between the words "announce" and "commit".

"Commit", if you look in the dictionary, says "pledge".

And, thus, the 1990 canon appears to be more narrow under plain--

Unidentified Justice: Well, the Eighth Circuit did say that it was... that Minnesota's provision is the same as the ABA canon, right?

Mr. Bopp: --It did, Your... it did, Your Honor.

Unidentified Justice: And the ABA canon prohibits candidates, judicial candidates, from making statements that commit or appear to commit a candidate.

Mr. Bopp: Yes.

Unidentified Justice: And that looks very much like the Pledge or Promise language.

I... I don't know how we should interpret this.

Mr. Bopp: Well, one of the problems, Your Honor, is that the January 29th opinion of the Minnesota Supreme Court interpreting the Announce Clause adopted the Eighth Circuit opinion and its interpretations.

Unidentified Justice: Right.

Mr. Bopp: Unfortunately, the Eighth Circuit had conflicting statements about the scope of the interpretation that it was announcing.

Unidentified Justice: Well, you were... you appear to be arguing, in your brief at least, that the Announce Clause is unconstitutionally vague.

Mr. Bopp: Yes, Your Honor.

Unidentified Justice: Is that your argument you're making?

Mr. Bopp: Yes, we are.

Unidentified Justice: But did you make that argument below?

Mr. Bopp: Yes, we did, as to the interpretation proffered in the district court, adding the words

"likely to come before the Court."

But where we are now, Your Honor, is that the Eighth Circuit sua sponte added other glosses to this canon, even though it was not advocated by any of the parties.

Unidentified Justice: You didn't include a vagueness challenge in your petition for certiorari, did you?

Mr. Bopp: Yes, we did.

Unidentified Justice: Is it in the question on which we granted cert, do you think?

Mr. Bopp: No, but it is encompassed within the violation of the First Amendment that we allege.

Unidentified Justice: But I wouldn't have thought vagueness was a First Amendment issue.

Mr. Bopp: Well, in the context of First Amendment protected speech, a... something that chills First Amendment speech, because of... it is a vague rule, and therefore does not provide a bright line necessary for the exercise of that speech, that it constitutes a First Amendment violation.

Unidentified Justice: One of the statements of the Eighth Circuit... and I don't have the citation to the brief; I have the citation to the Federal Third... 247 F. 3d 881.

It says that the Announce Clause applies only to discussion of a candidate's predisposition on issues likely to come before the candidate if elected to office.

Mr. Bopp: That is one of the three constructions.

Unidentified Justice: If we could... would you agree that that's perhaps the narrowest of the three constructions?

I want to find what might be the most likely statement to survive review and then have you discuss that, because I take it that you would not be... you would not agree that even that is constitutional.

Mr. Bopp: It is not the narrowest, Your Honor, because it uses the word "issue".

There are other formulations--

Unidentified Justice: Yes.

Mr. Bopp: --in the Eighth Circuit case where they use the word 45a of the petition... the petition appendix.

It prevents candidates from, quote,

"implying how they would decide cases."

end of quote.

And they also, on page 52a of the appendix to the petition, say that, quote... that the canon, quote,

"applies only to discussions of a candidate's predisposition on issues."

as you've quoted, and then finally concludes on page 53 with the statement that it prohibits candidates, quote,

"only from publicly making known how they would decide issues."

So we have conflicting interpretations of--

Unidentified Justice: Well, let's take the... let's take the last one.

I take it, if that were the authoritative narrowing constructing that were before us, you would disagree with its constitutionality.

Mr. Bopp: --Yes, Your Honor.

Unidentified Justice: Would you agree that that would be a constitutional standard if it were part of a code of judicial ethics that applied to the judge after the judge was on the bench?

Mr. Bopp: No, and... but I believe that this canon does apply to judges once they are elected and on the bench.

Unidentified Justice: Well, are judges, after they are on the bench, subject to, all of the same rights that they have before they go on the bench, insofar as making public comments?

Mr. Bopp: No, they may be limited in a number of different ways, Your Honor, that are necessary to advance compelling interests.

Unidentified Justice: Well, why is it that, if an election is in July, the State can, under your view, not prohibit statements in June before he's elected, but they can prohibit the statements in August, after he's elected?

Mr. Bopp: Well, Your Honor, the First Amendment applies... has its most urgent application in campaigns for election, and it is... and while both judges and judicial candidates may be limited in their speech, it has never been held that simply announcing your views on a disputed legal or political issue constitutes an indication of partiality such that would justify, for instance, recusal or disqualification.

Unidentified Justice: But I thought you said it would be okay.

Then maybe I didn't understand your answer.

I thought you said that the kind of limitation that Justice Kennedy referred to would be all right for sitting judges, that you could prohibit sitting judges from letting their views be known on any controversial issues.

Mr. Bopp: Well, then I misspoke, if that was your understanding.

Unidentified Justice: Like the incorporation doctrine or substantive due process and so forth--

Mr. Bopp: Canon 4--

Unidentified Justice: --you think you could prohibit judges from discussing those matters.

Mr. Bopp: --No.

Canon 4... and in fact, Canon 4(b) of the Minnesota canons encourages judges to propose changes in the substantive and procedural law, even individually.

Unidentified Justice: Sitting judges... sitting judges run for election.

So whatever rights the contender would have in an election, I assume that the sitting judge who was running for reelection would have those same rights, in your view.

Mr. Bopp: We believe that they should.

Unidentified Justice: Because the sitting judge could not be restricted, could he or she, in a way?

Mr. Bopp: Well, sitting judges are restricted, for instance, from commenting on pending cases that are pending before them, quite properly.

But here we are talking about stating general views about the law.

Unidentified Justice: So sitting--

--You wouldn't object to candidates being prohibited from commenting about particular cases either, would you?

Mr. Bopp: No, I would not.

Unidentified Justice: I didn't take your objection to be that you say, you know, that there's a case pending in the courts, if I were appointed, I'll tell you how I would decide that case.

You--

Mr. Bopp: We--

Unidentified Justice: --wouldn't permit that, would you?

Mr. Bopp: --We believe that that can properly be--

Unidentified Justice: I thought you gave examples, or your... one of the briefs gave examples of commenting on specific decisions that had been rendered by the Minnesota Supreme Court, and you said that restraint on that comment was impermissible.

Mr. Bopp: --Yes.

Unidentified Justice: Am I not right?

Mr. Bopp: Yes.

That is our position.

Unidentified Justice: So you're making--

--That was a past case.

That was a distinction you're making between past cases and pending cases in the court that are likely to come before you if you're elected.

Mr. Bopp: Yes, I... the First Amendment protects discussion of past cases.

However, the Eighth Circuit opinion only allows discussion of past cases while the enforcement authorities, specifically the Office of Lawyers Professional Responsibility, had previously said that you could criticize those opinions.

Unidentified Justice: Well, supposing that... supposing that Minnesota... the Minnesota Supreme Court had announced that its Fourth Amendment was more protective than the federal Fourth Amendment and a candidate running for that court saw that several cases, the evidence had been suppressed in Minnesota courts, the defendant was acquitted, so he said,

"I think we should go back to the idea that our Fourth Amendment is the same as the federal Fourth Amendment."

Would that be permitted under this rule?

Mr. Bopp: Under the Announce Clause?

Unidentified Justice: Under the Announce Clause.

Mr. Bopp: Not if it's considered implying how you would rule in a future case.

Unidentified Justice: But do we know that... do we... is there any mechanism for getting a clarification?

And the big problem in this case is this is a frontal attack, and so we have no specific examples.

And you can say,

"I think this would fit, and I think that wouldn't fit."

Is there any mechanism in Minnesota for seeking clarification?

For example, whether the Minnesota Supreme Court's current rule is, indeed, the ABA's 1990 rule?

Mr. Bopp: You can seek a private advisory opinion that is not binding on either the office or the board.

And petitioner Wersal sought such an opinion after suit was filed regarding other matters, and they declined to provide that advice.

Unidentified Justice: Mr. Bopp, I would assume your answer would be that if it's too fuzzy for us to understand what it means in order to rule upon its constitutionality, it's also too fuzzy for a judicial candidate to know what it means in order to conform his conduct to it and, therefore, unconstitutional.

Mr. Bopp: Yes, sir, Your Honor, not only to candidates, but this canon binds the family members, the supporters of the candidate.

If they say anything that is viewed to violate this construction... this new construction of this rule, then the candidate, him or herself, is subject to discipline or removal from office.

Unidentified Justice: Well, I still want to make clear your position.

Your position is... is that the judge can, after the judge's election, be disciplined, sanctioned for certain remarks that he could not be sanctioned for before the election.

Is that correct?

Mr. Bopp: No, Your Honor, and if I gave you that impression, I apologize.

Unidentified Justice: In other words, the rule--

Mr. Bopp: I am not--

Unidentified Justice: --post and pre-election, the rights--

Mr. Bopp: --The rule--

Unidentified Justice: --to speak are the same.

Mr. Bopp: --The rule is the same.

But I think the point I was making was that once a judge assumes office, there are restrictions on, for instance, his ability to discuss a pending case that is not imposed upon a lawyer that is not involved in the case in any way.

Unidentified Justice: Well, do you claim--

Mr. Bopp: So then--

Unidentified Justice: --All right.

Then your position is that there is a difference as it applies to pending cases as to which a sitting judge has to... to which a sitting judge has been assigned.

Mr. Bopp: --Yes, there are specific ethical--

Unidentified Justice: And--

Mr. Bopp: --canons that apply in that.

Unidentified Justice: --And that's all.

Mr. Bopp: And that's appropriate--

Unidentified Justice: Now--

Mr. Bopp: --an appropriate limit.

Unidentified Justice: --are there limits on what the candidate can say?

Mr. Bopp: Yes.

I--

Unidentified Justice: And those are what?

Mr. Bopp: --It's in the realm of Pledges and Promises.

It would apply to candidates whether they're sitting judges or not, and that is that a candidate for judicial office shall not pledge or promise certain results in deciding a particular case or issue in a case without regard to the law or facts of the case.

Unidentified Justice: Suppose he said,

"There are a lot of criminal cases pending."

and, to take the Chief Justice's hypothetical,

"we've gone too far in interpreting the Fourth Amendment, and I'm going to be more strict."

In your view--

Mr. Bopp: I think that's a--

Unidentified Justice: --that could be prohibited.

Mr. Bopp: --No, that is allowed, Your Honor, because he's not promising certain results in a particular case.

That is, again--

Unidentified Justice: He says,

"I promise when these cases come before me, this is what I'll do."

Mr. Bopp: --Then that is a pledge or promise of an outcome.

Unidentified Justice: And in your view, that can be prohibited.

Mr. Bopp: Yes, because there is a--

Unidentified Justice: Well, I'm surprised you take that view.

Mr. Bopp: --Well, Your Honor, there is a public perception of the impartiality of the judiciary that I think properly can be taken into account.

Unidentified Justice: Well--

Mr. Bopp: And I think this rule announces a rule that is consistent with the judge's obligation to decide cases in accordance with his or her role.

Unidentified Justice: --Well, that's an extremely fine line you're drawing, it seems to me, because I think a moment ago, in response to my question, you said that a candidate would be prohibited, and wrongly prohibited, under your view... on your view of it and from saying that Minnesota should adopt the federal Fourth Amendment standard rather than the more liberal Fourth Amendment standard that the Supreme Court of Minnesota hypothetically had it.

You say that a candidate ought to be allowed to do that, but he isn't under the Minnesota rule?

Mr. Bopp: He is not, under the... well, to the extent that we know what the Announce Clause means--

Unidentified Justice: Yeah.

Mr. Bopp: --with this conflicting formulations under the Eighth Circuit opinion, talking about cases or issues... talking about, implying, or making known... to the extent that we know the rule, it would appear that such a statement would be prohibited--

Unidentified Justice: And you--

Mr. Bopp: --because it would imply what he would rule in the future.

Unidentified Justice: --And you say that the First Amendment prohibits that?

Mr. Bopp: No, I'd say the First Amendment protects talking about prior decisions.

Unidentified Justice: What about--

Mr. Bopp: And one of the problems is we're talking about the rule... the Minnesota rule versus--

Unidentified Justice: --Yeah.

Mr. Bopp: --other proposed rules.

Unidentified Justice: But if--

--What about comment on a... by a candidate who is not yet a judge on a case which is then pending before the court?

In your view, can the State prohibit the candidate from saying,

"I've been reading about this case."

"I know what the evidence is, and I believe so and so should be convicted, and I think the sentence ought to be the following."

Could the State, consistently with the First Amendment, prohibit that kind of a comment?

Mr. Bopp: Well, there would seem to be, under Gentile, more leeway for a lawyer not in a pending case to discuss a pending case.

Unidentified Justice: What's the answer to my question?

Mr. Bopp: I think... I think it could not be prohibited.

Unidentified Justice: In the question that the Chief Justice asked, suppose the judge said,

"I pledge and promise that if you elect me, I will vote in every Fourth Amendment case to restore the law to what it was."

That's a pledge and a promise, which I thought your argument started out saying you accept that the pledge or promise is a valid restriction--

Mr. Bopp: I do, Your Honor.

Unidentified Justice: --that you can't go on that to the Announce.

So suppose that instead of... the Chief Justice suggested,

"I think it would be a good idea if the court went back there."

--but if he said,

"I pledge and promise that I will vote that way--"

Mr. Bopp: That is a classic pledge and promise that I think can be appropriated prohibited under the First Amendment.

Unidentified Justice: --As to issues and not as to particular cases.

Mr. Bopp: As both to issues and cases.

Unidentified Justice: So that you... you can't disable yourself from being--

Mr. Bopp: Open minded.

Unidentified Justice: --persuaded by counsel that the views you've held your whole life over the incorporation doctrine, turn out to be wrong.

Mr. Bopp: Yes.

And while judges certainly have views, and they announce these views in numerous different ways, if they are binding themselves not to have an open mind and to decide a case in advance, then that is a violation of the oath, and that type of pledge or promise should be and can be prohibited under the First Amendment.

Unidentified Justice: Is this different from that?

That is, I read through the Minnesota Bar Association's brief, the ABA's brief, and portions of the Brennen brief.

All right?

They all suggested to me that this ethical rule, like all ethical rules, is vague, interpreted by interpretive opinions, of which there are many.

I mean, there are two pages of them in these briefs.

Now, as I understood it, it comes down to an effort to do just what I did in my own Senate confirmation hearing, to say,

"I will try to reveal my judicial philosophy."

"I will try to stay away from anything that is going to commit myself or appear to commit myself about how to decide a future case."

All right.

Mr. Bopp: And I agree.

Unidentified Justice: Now, if that's what they're trying to do... do you agree that is what this is trying to do?

And, second, if that is what they're trying to do, why is that unconstitutional?

Mr. Bopp: If it amounts to a pledge or a promise--

Unidentified Justice: No, it doesn't.

I used the words that... of the ABA brief.

I've used the words... I'm referring to the briefs to call those arguments to your mind.

What they say this comes down to is you cannot commit yourself or appear to commit yourself as to how you will decide a particular case or issue if it arises.

But you can, and there are two pages of this in the Minnesota Bar brief.

I'm just trying to call that to your mind--

Mr. Bopp: --Thank you.

Unidentified Justice: --of all the things you can discuss: judicial philosophy, character, this and that.

There were two pages of them, and they're all quotes... in quotes.

All right.

So, one, am I correct in my interpretation?

Mr. Bopp: Yes.

Unidentified Justice: Two, if I am, why does the Constitution forbid it?

Mr. Bopp: If the word "commit" means "pledge", then I think you're correct in--

Unidentified Justice: No, I told you what it means.

"Commit" means "commit".

We can't go more than the words "commit" or "appear to commit", other than to illustrate them by example.

And the Bar Association brief contains 18 examples that have been given.

They're all in quotes.

They come from an authoritative source.

So that's where I am in what this means.

Am I right?

And if I am right, what's wrong with it?

Mr. Bopp: --Well, Your Honor, what is wrong with it--

Unidentified Justice: But first, am I right, in your opinion?

Mr. Bopp: --you're not right.

And what is wrong with it is that the ABA suggested that "commit" means the same thing as "announce".

And what I... my course of my argument is that ABA canon is different than the current Announce Clause.

In fact, it's--

Unidentified Justice: All right, so if you're saying the word is "announce", and all these briefs and the bar association are wrong when they say that means commit or appear to commit, on that view, what should I do with this case?

Mr. Bopp: --You should strike down the Announce Clause, because it is impossible... hopelessly impossible to know what is included within the rule and what is outside the rule.

That, and not only did the Eighth Circuit use different formulations of the rule that mean different things, in terms of its scope and application, but it also had exceptions to the rule, discussion... a general discussion of case law or a candidate's judicial philosophy, but with the proviso that if you imply how you will rule in a particular case, then you have violated the rule.

Unidentified Justice: And on an issue on a particular case.

Mr. Bopp: An issue, including--

Unidentified Justice: Can I just follow that up for one second?

All right, now take the other assumption.

Let's assume that it does mean, as the ABA says, "appear" or "appear to commit".

On that view of it... and assume that I'm right.

I know you think I'm wrong on that.

Assuming that I'm right--

Mr. Bopp: --With all due respect.

Unidentified Justice: --then is it constitutional, in your opinion?

Mr. Bopp: No, because of the "appear to commit" language.

Unidentified Justice: So you think the ABA can and is, itself, unconstitutional.

Mr. Bopp: As I interpret it, yes, because the "appear to commit" takes us back away from a bright line of a pledge or a promise into the realm of implying what you are saying.

And there--

Unidentified Justice: What is the ABA's position on judicial elections?

Mr. Bopp: --They are not in favor of judicial--

Unidentified Justice: I didn't think they were.

[Laughter]

But you're submitting this case to us on the proposition that, under the First Amendment, a judicial candidate can be subjected to restraints on speech that other... that are inapplicable to other candidates.

Mr. Bopp: --I believe that they can, Your Honor, because judges have a dual role.

One role is to make law, and particularly state court judges making common law, but they also have a duty to decide cases impartially.

So while they are running for office, in order to respect judicial impartiality, they should not be pledging to violate the oath.

That is promising now how to decide a case in the future when it comes before--

Unidentified Justice: Well, how does this play out with sitting judges who write opinions saying,

"In my view, for example, I think the death penalty is unconstitutional?"

There it is for everybody to see.

And presumably in a state like Minnesota, that judge will come up for election again or in another state for retention election.

You don't think it's... can that be prohibited--

Mr. Bopp: --No.

Unidentified Justice: --somehow?

Mr. Bopp: No.

No, it may not.

Unidentified Justice: And that judge has expressed a view that presumably the judge will follow in a future case.

Mr. Bopp: But that is... but that is different from declaring or announcing that you have a closed mind as to any future--

Unidentified Justice: No.

I don't know, if it's thoroughly expressed.

Now, if the next case comes along involving that very issue, can the judge be changed for bias?

Mr. Bopp: --No.

No, you may not be recused, and due process is not violated.

Unidentified Justice: But what if a candidate says not,

"I pledge that in every case I will say vote against the death penalty."

but,

"I have real doubts about the death penalty jurisprudence."

I mean, I don't think Minnesota has a death penalty, but--

Mr. Bopp: No, it doesn't.

Unidentified Justice: --let's assume it does.

"And I think it probably should change."

Is that permissible under this rule?

And if the rule says it's not permissible, is that statement protected by the First Amendment?

Mr. Bopp: I'm sorry.

Under the Minnesota rule or my rule?

Unidentified Justice: Under the Minnesota rule.

Mr. Bopp: It... well, it's very difficult to know, Your Honor.

Unidentified Justice: Okay, well, under your rule.

Mr. Bopp: Under our rule, it would be allowed.

And, in fact, judges are encouraged to do... make proposals just like that under these canons.

Unidentified Justice: Now I don't understand what you say the Minnesota rule is.

I would have thought your answer would be,

"That's probably okay under the Minnesota rules."

because he only says probably...

"I think it's probably, you know, unconstitutional."

Mr. Bopp: Under the Minnesota rule if you simply imply how you might rule--

Unidentified Justice: Well, it doesn't.

It says, "I have doubts about it", according to the Chief Justice, "I have doubts about it".

I think that doesn't necessarily imply... but I thought--

Mr. Bopp: --Well, it's--

Unidentified Justice: --I thought--

Mr. Bopp: --It's hard to know.

Unidentified Justice: --But I thought that your position with regard to judicial opinions is... is that it is perfectly okay for a sitting judge to make known to the public his view on something like the death penalty when he does it in an opinion and, therefore, that can be out there.

Mr. Bopp: Yes, it is--

Unidentified Justice: Subject to criticism, indeed.

Mr. Bopp: --Yes--

Unidentified Justice: But somebody who's running against him in an election cannot let be known what his view is on the death penalty.

Mr. Bopp: --It is perfectly appropriate for a judge to do that in an opinion or in speeches or a law review article.

Unidentified Justice: In speeches?

You mean the judge could go out and... a sitting judge can go out and make a speech and say,

"In the next death penalty case to come before me, I'm going to vacate."

"I'm going to vote to vacate the death penalty."

"I don't care what the argument is."

Mr. Bopp: Then not that statement.

If he made that statement, he'd be subject to recusal and a proper application of--

Unidentified Justice: Okay, well--

Mr. Bopp: --the pledge rule.

Unidentified Justice: --Okay.

Well, then what he can say in speeches certainly is less than what he can say in a judicial opinion in which he says,

"I vote to vacate the death penalty because I believe it's unconstitutional."

I mean, there's some line between them.

Mr. Bopp: Yes, I would think he would.

He does, Your Honor.

And may I reserve the balance of my time?

Unidentified Justice: Very well.

Mr. Gilbert, we'll hear from you.

ORAL ARGUMENT OF ALAN I. GILBERT ON BEHALF OF THE RESPONDENTS

Mr. Gilbert: Mr. Chief Justice, and may it please the Court: I would like to take the opportunity to try to clarify some of the questions and answers that have been provided as to what the construed rule in Minnesota means.

And I refer the Court to page 53a, of the cert petition appendix, where the Eighth Circuit stated the definitive narrow construction of this rule which says that the rule only prohibits candidates from--

Unidentified Justice: Whereabouts on the page?

Mr. Gilbert: --The beginning of the second paragraph, Your Honor.

It only restricts judicial candidates from publicly making known how they would decide issues likely to come before them as judges.

That is the narrow construction of this Eighth Circuit opinion.

That is the construction that's being applied by the two boards that I represent, and that is the construction that has been incorporated in an authoritative order by the Minnesota Supreme Court.

Unidentified Justice: What about the example I posed to your opponent?

Someone says,

"I think the Minnesota Supreme Court's ruling on the Fourth Amendment, the state Fourth Amendment being broader, is wrong, and I... if you will elect me as a judge, I would try to change that around."

Mr. Gilbert: Your Honor, this is where the record is very clear as to what Mr. Wersal has done.

And in response to your question, the candidate could criticize a prior decision of a judge, but could not say as to a future case how that candidate would decide the case.

And that's precisely--

Unidentified Justice: So let me put that to the test.

If I say,

"I think the decision of the Supreme Court of Minnesota two years ago saying that the Fourth Amendment... state Fourth Amendment protected more than the federal Fourth Amendment is wrong."

he could do that, but he couldn't say,

"If you elect me to the Supreme Court, I would carry out my view."

Mr. Gilbert: --Well, that would be a future case.

And there's other considerations--

Unidentified Justice: Well, he told me he couldn't even say,

"I think that opinion is wrong."

"And that is not my position concerning the meaning of the Fourth Amendment--"

Mr. Gilbert: --Your Honor--

Unidentified Justice: --"# in Minnesota".

Mr. Gilbert: --That's not correct, Your Honor.

I refer you to the record in this case and what Mr. Wersal has said in his literature.

If you look at the first volume of the Joint Appendix, pages 34 to 38, as well as pages 86 to 91, they contain the actual statements that Mr. Wersal made as part of his campaign.

Unidentified Justice: What pages?

Mr. Gilbert: 30... let's see... 34 to 38, and 86 to 91.

And look what he said.

First of all, he talked about his judicial philosophy.

He has said that he can't talk about his judicial philosophy.

He did.

He said, "I'm a strict constructionist", and he criticized the Minnesota Supreme Court for being a judicial activist.

But more--

Unidentified Justice: What does that mean?

I mean, that's so fuzzy, that doesn't mean--

Mr. Gilbert: --Well, but--

Unidentified Justice: --that doesn't mean anything.

It doesn't say whether you're going adopt the incorporation doctrine, whether you believe in substantive due process.

It is totally imprecise.

It's just nothing but fluff.

Mr. Gilbert: --And candidates can say that.

And that's the point.

Unidentified Justice: Can they say anything more than fluff?

Can they say anything that has any meaning?

Mr. Gilbert: Absolutely.

And what they can do... look at what Mr. Wersal--

Unidentified Justice: But what about my example?

Mr. Gilbert: --Your example, Your Honor, the candidate can, as Mr. Wersal did, criticize a prior decision of the Court.

And that's very clear from what has happened in the Wersal case.

What the candidate cannot do is say that,

"If I'm elected, I'm going to overturn that decision."

Unidentified Justice: Does that dichotomy make any sense at all?

Mr. Gilbert: Well, it does in the sense, Your Honor, that there's different dynamics involved once a judge is elected and has to overturn a decision that's already precedent in the State of Minnesota.

Unidentified Justice: So a candidate says,

"This is the worst decision that's come down since Dred Scott, it's a plague on our people, it's an insult to the system, but I'm not telling you how I'll vote."

[Laughter]

Mr. Gilbert: Your Honor, that's the point.

Unidentified Justice: It's more than that.

You assert that that does not, within the language that the Supreme Court has adopted, it does not imply how he will vote on that issue at a future date.

He says,

"It's the worst case we've ever done."

That doesn't imply how he's going to vote on it?

Mr. Gilbert: Well, that might well imply whether he's going to overturn it.

But what the candidate can say and what Mr. Wersal said... if you look at the criticism that he leveled at these decisions of the Minnesota Supreme Court, he said just as you indicated, Justice, that, "These decisions are"--

Unidentified Justice: What are you reading?

Where are you reading from?

Mr. Gilbert: --If you look at pages... page 36, for example, of the... this is of the Joint Appendix... he says, on abortion,

"The Court ordered the State must use welfare funds to pay for abortion despite state law to the contrary."

"The dissenting judge remarked."

et cetera.

This is under the topic of "Examples of Judicial Activism".

But then he goes into greater detail on page 38.

Unidentified Justice: But is the statement at page 36 that you read... is that proscribable under the State's rule?

Mr. Gilbert: No.

And that's the point.

What has happened here, Your Honor, is that there was a complaint filed against Mr. Wersal for all of this campaign material.

And the then-director of the Lawyers Board, Marcia Johnson, in an opinion, on pages 20 and 21 of this appendix, said that the statements made by Mr. Wersal are not proscribable.

And that's even before the rule is narrowed.

And if you look at page 21, the executive director said specifically that Mr. Wersal can criticize prior decisions of the Court.

And that's consistent with what the Board on Judicial Standards did in--

Unidentified Justice: What do you say--

--May he also, at the same time as they criticized the decision, say,

"I do not believe in stare decisis?"

Mr. Gilbert: --Yes.

He can't, because that is--

Unidentified Justice: Well, then isn't he saying how he's going to rule on the case then?

Mr. Gilbert: --Well, Your Honor... it might be, Your Honor.

People might be able to imply from it, but it's still... the distinction is--

Unidentified Justice: Might be able to imply that I don't believe in stare decisis and I think this case is wrong.

[Laughter]

Pretty clear, I think.

Mr. Gilbert: --No, and I understand what you're saying, Your Honor.

The distinction that's made, if you look at all the cases that have dealt with this issue, is a distinction between past cases on one hand and then pending and future cases on another.

Unidentified Justice: As long as you're silent on your views on stare decisis, that's a fine distinction.

But if you do reveal your views on stare decisis, that distinction is meaningless.

Mr. Gilbert: Perhaps.

There could be other issues that come up in terms of a case that would be a vehicle to overturn particular decisions... standing, things of that kind.

Unidentified Justice: So now you're saying there's a distinction between issues and cases.

And I'm saying you're categorically stating your view about a particular issue, as the Chief Justice's example states, and you also categorically state,

"I think stare decisis has no place in constitutional adjudication."

Can he do that?

Mr. Gilbert: Your Honor, again, the... no, under the State's interpretation of the rule.

And I understand your point.

It is a fine distinction.

But what the State is trying to do is protect the integrity of the judiciary at that point.

And to the extent--

Unidentified Justice: This protects its integrity?

Mr. Gilbert: --Your Honor, we think so.

And the reason for that is that--

Unidentified Justice: I mean, it's just a game.

It's just a dance, you know--

Mr. Gilbert: --Well, this is--

Unidentified Justice: --I don't say anything about stare decisis and it's okay.

If I say something about stare decisis, it's not okay?

Mr. Gilbert: --Well, again, Your Honor, I understand the hypothetical.

This is a hypothetical that is kind of on the fringe.

I would agree with you.

But at the same time, most of the situations are going to be clear, are going to be--

Unidentified Justice: Well, it is such a problem to know exactly what the provision covers now.

It isn't clear to me.

And what we end up with at the end of the day is a system where an incumbent judge can express views in written opinions, and perhaps otherwise, as well, and yet a candidate for that office is somehow restricted from discussing the very same thing in the election campaign.

That's kind of an odd system, designed to what?

Maintain incumbent judges, or what?

Mr. Gilbert: --No, it's not, Your Honor.

In fact, that is not correct in terms of the effect of that situation.

Again, if you look at page 20 of the Joint Appendix, what the executive director of the Lawyers Board has said is that an incumbent judge can criticize the prior decision of that sitting judge.

So that the challenger actually has greater opportunity than an incumbent judge, because an incumbent judge has a record of decisions.

Unidentified Justice: Do you... you misspoke, I think.

You meant the challenger--

--You did--

Mr. Gilbert: The challenger.

I'm sorry.

Unidentified Justice: --the challenger, who is not a judge, can criticize the specific decision of the judge who wrote it.

Mr. Gilbert: That's correct, Your Honor.

Unidentified Justice: So they're equally free at the least to discuss the specific past cases.

Mr. Gilbert: At the least.

And I would submit that the challenger is in a better situation because of the--

Unidentified Justice: All right.

Can I ask you this question--

Mr. Gilbert: --Yes.

Unidentified Justice: --because I understand that... I have two questions, really.

One is the line that's being... that you're trying to draw, everyone would concede is a very difficult one to draw, but it is the line that I tried to draw.

Mr. Gilbert: Yes.

Unidentified Justice: Now, what would happen if, instead of my being in the Senate, I had been in an election campaign, and I was trying to draw this very line between commitments to future cases, specific ones, and general judicial philosophy.

And suppose my opponent, after, said,

"Breyer made a mistake."

"He didn't get it right."

but I was in good faith.

What could happen, or would likely happen, to me under this rule?

Mr. Gilbert: As a... I'm sorry, as a sitting judge, Your Honor?

Unidentified Justice: Well, I then... suppose I won.

Fine.

I've won the election.

My opponent... what I'm trying to understand is what are the consequences?

It is, after all, an ethical rule, and ethical rules are often blurry.

Mr. Gilbert: Yes.

Unidentified Justice: And I want to know what would likely happen to a person who makes a mistake in drawing this very fine line, assuming that it's in good faith.

Mr. Gilbert: Your Honor, the Board on Judicial Standards or the Lawyers Board would have jurisdiction with respect to a violation which sounds like a technical violation, as you describe it, and could impose some discipline, but I would suspect that discipline would be very minute, if at all--

Unidentified Justice: Could a state--

Mr. Gilbert: --under those circumstances.

Unidentified Justice: --make a violation of the provisions you described a criminal offense?

Mr. Gilbert: No, Your Honor.

These are not criminal statues.

Unidentified Justice: But could a state do it under the First Amendment?

Is there any authority you have for the proposition, that can... a state can impose a civil sanction, but not a criminal sanction?

Mr. Gilbert: I'm not aware of any authority that would allow a criminal sanction for such a thing.

Unidentified Justice: Can I ask you one other question?

That's not my question.

Is there any authority that a state, under the First Amendment, is free to impose a civil sanction but not a criminal sanction on particular speech?

Mr. Gilbert: I'm not aware of authority to that effect either, no.

Unidentified Justice: This is a technical question, but the sentence you started out reading from the Eighth Circuit's opinion is not identical to the ABA canon.

And obviously if this rule differs from the ABA canon and is stricter, one could say there's a less restrictive alternative, namely the ABA canon.

And so I'm quite concerned about how to deal with that problem.

Do I assume that, in fact, Minnesota does mean it's indistinguishable from ABA canon, which is what the ABA says?

Or what your opponent says?

How do I deal with that?

Mr. Gilbert: Your Honor, our position is, just as the ABA indicated, that our rule is the functional equivalent of a commitment clause.

Unidentified Justice: The Minnesota Supreme Court turned down the ABA rule, the ABA rule... we're talking... they're both ABA rules.

Minnesota now has on its books the 1972 rule.

The 1990 rule is the one that you said is the functional equivalent of the current rule.

And yet the Minnesota Supreme Court considered and turned down that rule.

So that's one of the aspects of this case that makes it very fuzzy.

The court that turned it down now says,

"We agree with the Eighth Circuit."

And you're telling us that the Eighth Circuit has adopted, essentially, the ABA's current rule.

Mr. Gilbert: Yes, Your Honor, and that is the case, and you are right.

Back in 1995, there was discussion of adoption of the commit clause by the Minnesota Supreme Court.

It did not occur at that time.

There has been a lot that has evolved over the last seven years, Your Honor, and the Minnesota Supreme Court has made the decision in its January 29th, 2002, order that this construction by the Eighth Circuit is the construction that they are going to place on their clause.

Unidentified Justice: Whatever that is.

Mr. Gilbert: Well, this construction, Your Honor, is, for all practical purposes, identical to the commitment clause.

And--

Unidentified Justice: Mr. Gilbert, may I ask--

Mr. Gilbert: --Yes.

Unidentified Justice: --a question based on what you said about stare decisis?

You say... have said consistently you can discuss your judicial philosophy.

Well, why wouldn't one's position on stare decisis fall under judicial philosophy?

Mr. Gilbert: I think it would, Your Honor.

Unidentified Justice: So that... so you're changing back then, because you said a while ago that stare decisis... if you said,

"I think that decision about the Fourth Amendment was wrong, and I don't believe in stare decisis."

you said you couldn't put those two together.

Mr. Gilbert: Your Honor, you can put them together.

I think the question was, could someone then conclude from that what the ramifications would be if that particular candidate came to the Supreme Court, for example, on what the candidate would do with respect to that decision... whether the candidate would overturn or not.

Unidentified Justice: And your answer was it would imply how he's going to vote and, therefore, would not be--

Mr. Gilbert: Again--

Unidentified Justice: --would not be acceptable, right?

Mr. Gilbert: --Yes, Your Honor, with the distinction being to protect the integrity of the judiciary.

Unidentified Justice: Well, let me ask about that.

You know, in evaluating whether a state has demonstrated the kind of significant interest necessary to abridge speech, it seems to me we have to look at the entirety of the state law to see what interest it's pursuing.

I, frankly, am absolutely befuddled by the fact that Minnesota wants its judges elected... that's its constitutional provision... and then enacts statutory provisions that are intended to prevent the electorate from knowing, even by implication, how these candidates are going to behave when they get on the bench.

It seems to me a total contradiction.

And, indeed, it looks to me like a legislative attempt to simply repeal Minnesota's constitutional provision providing for the election of judges, which is a neat and easy way to get rid of it if you can't do it by plebiscite.

Why does it make any sense to vote for a judge in an election, a judge who is not able, even by implication, to tell the electorate what kind of a judge he would be?

Mr. Gilbert: Well, but, Your Honor, that's the fallacy in that statement, is that a candidate can tell the electorate what kind of candidate they are.

The only thing that the candidate cannot say... it's a very limited restriction... and that is, how I am going to decide a future case.

Unidentified Justice: Not a particular... well, no, not just a future case, a future issue... any, not a particular case, but any issue--

Mr. Gilbert: And--

Unidentified Justice: --how I will vote on the Fourth Amendment situation, how I will vote on the incorporation doctrine.

I can understand your saying, he shall not commit himself,

"I promise to vote this way."

No judge should do that.

He should be able to be persuaded that he's been wrong.

But to say that my current view is that the Fourth Amendment should be just like the federal Fourth Amendment, and stare decisis in constitutional matters is not a doctrine that I think is very strong... it seems to me you ought to be able to say that.

Mr. Gilbert: --And they can say that.

I think the difference of opinion we have here is whether they can go the extra step and just say,

"And I would try to overturn the decision if I'm elected."

Unidentified Justice: Well, if that--

Mr. Gilbert: I have to--

Unidentified Justice: --if that indicates a disqualification or a lack of temperament for the bench, the voters can decide that.

The bar association and the judges can come out and say,

"We have a candidate running who doesn't have the right judicial temperament."

and the voters decide.

That's the way elections work.

Mr. Gilbert: --They can do that, but I submit to you, what happens if that judge wins?

What happens if that judge wins and the litigants come before that judge who has prejudged that case?

Unidentified Justice: Well, I suppose the people have said what kind of judges they want.

Mr. Gilbert: Oh, and it's all of a sudden majority opinion?

Unidentified Justice: Why is that any worse than litigants who come before a judge who's already sitting and who has said in a prior opinion that he thinks the Fourth Amendment in Minnesota should be interpreted the same way the federal Fourth Amendment is?

Why--

Mr. Gilbert: Because in--

Unidentified Justice: --is that any different?

Mr. Gilbert: --Because in a prior opinion, due process was accorded, because the judge actually heard the argument of the litigants, heard the facts and the applicable law.

Unidentified Justice: You mean a judge can't have an opinion without hearing from all sides and going in briefs and so forth?

Mr. Gilbert: Absolutely.

Unidentified Justice: Well, what if... even if he gives a speech, does he have to first have this sort of vetting?

Mr. Gilbert: Not at all, Your Honor.

The only... again, the limited restriction here is that the... a judge cannot... I'm sorry... a judicial candidate cannot prejudge a future case, cannot say,

"I think this statute over here is unconstitutional."

or,

"I think, in consumer fraud cases, that anybody who wins is entitled to punitive damages."

Unidentified Justice: So you don't trust the electorate in Minnesota to decide whether a judge has a judicial temperament.

You wish us to depart from the usual philosophy--

Mr. Gilbert: Again--

Unidentified Justice: --that we do not allow the State to presume that the public is better off not having complete information.

Mr. Gilbert: --Well--

Unidentified Justice: Maybe we should know about this judge's temperament.

And if he spouts off on all sorts of issues, we say, this is not the kind of judge we want.

Mr. Gilbert: --Your Honor, again, this is a balance that's being struck.

There's competing interests here.

There's the First Amendment interest that we're all familiar with.

There's the due process interest of individual litigants.

There's the compelling governmental interests that the State has in ensuring the integrity of the judiciary, both in terms of the actual integrity and the perception of it.

And that's why this limited restriction is appropriate.

Unidentified Justice: Maybe you shouldn't have judicial elections if the last is a significant State interest.

Mr. Gilbert: Well, Your Honor, that's--

Unidentified Justice: To the degree that you're making it a significant State interest here.

See, I just question whether it is a significant State interest, because you have a constitution that says,

"We're going to have judicial elections."

Now, that may be a very bad idea, but as long as that's in your constitution, I find it hard to believe that it is a significant State interest of Minnesota to prevent elections from being informed.

Mr. Gilbert: --Well, again, Your Honor, we're trying to weigh the different interests.

I am sure you wouldn't suggest that the State doesn't have a compelling interest in the integrity of the judiciary, and that is a competing interest that is being weighed here, and that results in the commitment clause that the ABA has adopted and the parallel provision that has been construed narrowly by the Eighth Circuit, which, again, only forbids or prohibits a judge saying,

"I'm going to decide this particular issue this way in the future."

Unidentified Justice: So you're saying the public doesn't know enough in order to determine whether a judge has the requisite qualifications for office.

Mr. Gilbert: Your Honor, I'm not saying that the public knows or doesn't know.

The concern is what happens if that candidate is elected, and then you or any other litigant comes before that candidate, who is now a judge, and tries to litigate the issue that the judge has already prejudged.

Unidentified Justice: Well--

Mr. Gilbert: How fair is that?

Unidentified Justice: --My goodness, we... I think we have... I will say present company excluded... I know we have had judges on this Court who have answered questions about particular legal issues to the Senate confirmation hearing.

Are you saying that those judges were disqualified from sitting in cases in which that issue would later come up?

Mr. Gilbert: No, Your Honor, I'm not.

And actually, I'm surprised to hear that.

Unidentified Justice: Is it... oh.

It's--

Mr. Gilbert: I am surprised to hear that, in light of the testimony that is in our brief and other briefs--

Unidentified Justice: --You should go before the Senate--

[Laughter]

Mr. Gilbert: --But, Your Honor--

Unidentified Justice: I actually found that when they approached a particular case about how you were going to decide in the future, both the senators... in my experience, since it only concerns me... would not press the issue of how you would decide a particular case.

I'm not talking about--

--And that's why... a particular case.

I was... my reference was to a particular issue.

A particular issue.

Mr. Gilbert: --Your Honor, cases are made up of issues.

And sometimes a case only has one issue.

Issues are important in and of themselves.

Unidentified Justice: Mr. Gilbert, do you think we should draw any distinction, or whether it would be reasonable for us to draw any distinction, between the application of the rule to the candidates themselves and the application of the rule to all of these ancillary individuals around them... their associates, their families?

Let's assume that we say that the rule passes muster with respect to the candidate.

What's the justification for muzzling the candidate's spouse?

I mean, I know, in fact, what--

Mr. Gilbert: Yeah.

Unidentified Justice: --it is, because we figure, you know, that's how you get the message out.

But do we have a more difficult First Amendment hurdle?

Mr. Gilbert: Your Honor, I don't think so, not at all.

I think it's really a misnomer to talk about muzzling, which is what the petitioners have indicated.

Unidentified Justice: Let's say "limiting".

Mr. Gilbert: Well, it's not even that.

What the rule does is ask the judicial candidate to encourage close family members not to effectively circumvent the rule by announcing views that they might be aware of that the judicial candidate would support.

Unidentified Justice: But if the family member says,

"Well, I'm going to tell anyway."

Mr. Gilbert: "I'm going to tell anyway"... there's no penalty.

Unidentified Justice: But the--

Mr. Gilbert: There's no--

Unidentified Justice: --But there could be.

Do I understand that there would be an inquiry in that event as to whether the candidate had, indeed, encouraged the family member to be quiet?

Mr. Gilbert: --Your Honor, the standard is "knowingly permit".

So, in other words, some... the judicial candidate would actually have to be the actor behind those actions.

Unidentified Justice: All right, but I want to know, in practical terms, what happens.

The spouse makes a statement... any one of the statements that have been mentioned here, except as suggesting prejudgment of a case.

The candidate stays mute.

I presume that a complaint would be filed against the candidate, and I presume the candidate would have to answer to the commission as to whether the candidate had, indeed, knowingly encouraged this.

Mr. Gilbert: Your Honor, I'd assume a complaint would not be filed under those circumstances.

Unidentified Justice: Why not?

I mean--

Mr. Gilbert: Well, I don't--

Unidentified Justice: --Are your opponents forgiving in your state?

Mr. Gilbert: --Pardon me?

[Laughter]

Unidentified Justice: I mean, are opponents just forgiving of their opponents in your state?

Mr. Gilbert: Well, Your Honor, it's a very difficult standard to satisfy, "knowingly permit".

Unidentified Justice: Well, maybe it's difficult to satisfy.

I'm just trying to get a sense of what the burden on the individuals involved is.

Mr. Gilbert: Well--

Unidentified Justice: And I assume that there could be a complaint, simply based on the emphatic statement of the spouse.

And my question is, does the candidate have to show, in that event, that he did not knowingly encourage, or does the State have to show... or the prosecutor or whoever it is... that he knowingly did encourage.

What's the drill?

Mr. Gilbert: --Yes, of course, the burden's on the State.

And not only is it on the State, but the State would have to show by clear and convincing evidence.

Unidentified Justice: Okay.

Mr. Gilbert: And the--

Unidentified Justice: But the candidate would have to answer.

Mr. Gilbert: --The... possibly.

The Lawyers Board--

Unidentified Justice: Why not?

Mr. Gilbert: --sometimes doesn't investigate complaints where they don't have sufficient evidence to think there's even a basis for the complaint.

Unidentified Justice: Well, would they have sufficient evidence in the event that a spouse made an emphatic statement saying, "His view is", or "Her view is"?

Mr. Gilbert: Yeah, it's conceivable, Your Honor, but, again--

Unidentified Justice: Counsel, is that... is that part of the canon part of the question in this case?

I know it's part of the canon.

I didn't understand that it was presented to us in the petition.

What's your view?

Mr. Gilbert: --Your Honor, it's kind of oblique.

The focus is on Mr. Wersal's comments.

And then there are other comments.

And I think one of the justices mentioned a vagueness challenge.

To the extent there's any vagueness challenge at all that was discussed at the Eighth Circuit and is part of the petition, it deals with these third parties and the phase "knowingly permit".

And the issue--

Unidentified Justice: Because we didn't have the interpretation that was later adopted--

Mr. Gilbert: --Right.

Unidentified Justice: --by the Eighth Circuit.

What Counsel says is that the new vagueness issues that he's raising are a consequence of the opinion which your Supreme Court has adopted, the Eighth Circuit's opinion.

Mr. Gilbert: Well, we... Your Honor, you're correct.

However, the Eighth Circuit opinion is the opinion that's being appealed here.

And what the petitioners have done is, they have refused to acknowledge that narrow construction.

And the fact of the matter is that the Minnesota Supreme Court has now authoritatively adopted that as a state court construction.

But the fact of the matter is, as well, that the Eighth Circuit already opined on what the standard is, and that issue was not raised by them, in terms of vagueness.

It simply was not raised.

Unidentified Justice: Was not raised where?

Mr. Gilbert: In the petition.

Unidentified Justice: In the petition.

The petition is whether it's, it unconstitutionally impinges on the freedom of speech.

And one of the principles of freedom of speech is that you cannot... you cannot chill speech by having a prohibition that is not clear.

I don't think that this is a separate issue from the First Amendment issue at all.

Mr. Gilbert: Well, they have not--

Unidentified Justice: We have lots of cases like that, about chilling speech because it's not clear what the coverage of the prohibition is.

Mr. Gilbert: --Your Honor, in their petition, though, they have not made those kinds of arguments specifically as to--

Unidentified Justice: They certainly did in the reply brief.

Mr. Gilbert: --They have in the reply brief, but not in the petition, which was the question that was asked previously.

And as to vagueness, I should say that this court has been really clear in the Broadrick v. Oklahoma case, for example, and the Colton v. Kentucky case, that sometimes rules and statutes... and, frankly, all the time, rules and statutes are not conducive to mathematical precision, that there are going to be, as the Court has said, germs of uncertainty in how these laws are applied.

And these laws are going to be applied based upon facts and circumstances.

And in this particular case, I think it's really significant that we don't have any facts and circumstances as to what Mr. Wersal wants to say.

Unidentified Justice: Well, I think you could set up a system where you get advisory opinions, but I don't know that we've ever allowed that to be done in the First Amendment area.

Mr. Gilbert: Oh--

Unidentified Justice: "Please may I say this"?

You know, you submit what you want to say, and somebody tells you,

"Yeah, okay."

"You can say that."

That's certainly contrary to our approach to the First Amendment.

Mr. Gilbert: --Well, Your Honor, I don't... Your Honor, first of all, I'm not a proponent of what... of that.

But in Letter Carriers, that was a critical consideration in upholding the Hatch Act against constitutional attack, because there was the ability of people who had questions about the application of the statute to actually go to an advisory board and get an opinion.

Similarly here, both of the boards that are parties to this case do provide advisory opinions, and they provide them on short notice, as well.

So there is that mechanism.

I'm not suggesting it's a substitute, but it is a consideration in terms of if there is a close question on an issue and someone wants some assurance as to how that particular situation would be interpreted, they can go to the boards and ask that question.

Unidentified Justice: Well, how soon can you get something from the board?

If somebody wants to give a speech in a political campaign, I assume you can't get a 12-hour ruling from the board.

Mr. Gilbert: Well, they actually do advisory opinions over the phone, Your Honor, on very short order, and they could do it in a matter of hours or days, depending upon what the needs are.

Unidentified Justice: Mr. Gilbert, you brought out that this is not just a question of the candidate informing the voter, that behind all of this is a litigant who's going to be in a future case.

How does it work in Minnesota?

Suppose, to take an example that Mr. Bopp provided in his brief, the judge... or the candidate is campaigning "Tough on Drunk Driving".

And then I'm a drunk driver, and I come before this judge, now elected, and I say, I want him to recuse, he said he's tough on drunk driving.

Mr. Gilbert: Are you asking in the--

Unidentified Justice: Would there be, under Minnesota law, a grounds to say,

"I don't want that judge, because he's announced in the election that he's tough on drunk driving?"

Mr. Gilbert: --No, I don't think so, Your Honor, not under those circumstances.

3 One distinction I would like to make here... oh, I'm sorry, Your Honor.

Unidentified Justice: Thank you, Mr. Gilbert.

Mr. Bopp, you have three minutes remaining.

REBUTTAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS

Mr. Bopp: Your Honor, I don't think this is a matter of mathematical precision.

The State brief, itself, states two different formulations of the rule.

They say, quote,

"It is clear that the clause applies to statements about how they would decide, quote, issues, end of quote, on pages 1 and 47."

"And then they say it is, quote."

clear,

"end of quote, that the announced clause applies to statements about cases."

"And that is on pages 12 and 37."

"The rule is not even clear in terms of the State's own formulation of its scope."

"Secondly, as the Joint Appendix indicates on pages 111 through 123, announcing your views also includes simply answering questions on radio interviews or after speeches."

"It is hardly a remedy for a candidate to call up the board or the office for an oral opinion which is not binding on them about whether or not they can answer a question on the radio."

And, finally, it is undisputed that the people of Minnesota want an impartial judiciary.

Governor Arnie Carlson, at Joint Appendix page 247, said... who's a State's witness... that people do not want judges who are pre-committed.

Thus, candidates who would make excessive statements, who would appear to be partial, risk defeat at the polls in Minnesota.

Thus, the people can be trusted to make the decisions that they, themselves, have conferred upon themselves, as long as they have the information they need to make that choice.

The First Amendment guarantees that they should receive that information, which the Announce Clause both prohibits and chills.

It is, therefore, unconstitutional.

Unidentified Justice: Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bopp.

The case is submitted.

Attribution:

The OYEZ Project

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