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In Hawaii, This Will Never Be Eaten

SCOTUS and the Stolen Valor Act - First Amendment Protects Lies about Medals Too

The Supreme Court handed down its decision in United States v. Alvarez. Opinion, authored by Justice Kennedy, is here.

The plurality decision was joined by the Chief Justice and Justices Ginsburg and Sotomayor.  It begins:

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for theDetroit Red Wings and that he once married a starlet fromMexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, theStolen Valor Act of 2005. 18 U. S. C. §704.

The background facts are the subject of my earlier posts, here, here and here.  Briefs can be found there too.

The court noted:

It is right and proper that Congress, over a century ago,established an award so the Nation can hold in its high- est respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to thedefense of the rights and honor of the nation,” Selective Draft Law Cases, 245 U. S. 366, 390 (1918), have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

The Government contends the criminal prohibition isa proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside.

The Court continued:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.

The Court concluded:

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, hisright to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Justice Breyer, joined by Justice Kagan concurred in the judgment. Wading through the First Amendment discussions about "intermediate scrutiny," he thinks that Congress could pass a more tightly worded statute that provides the protection for these military awards without running afoul of the First Amendment.

Justice Alito wrote for the dissent, and was joined by Justices Scalia and Thomas. 

Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.

Building on earlier efforts to protect the military awardssystem, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom ofspeech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill anyvaluable speech.

By holding that the First Amendment neverthelessshields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harmand serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality ofthis valuable law.

SCOTUS Strikes Down Stolen Valor Act

Analysis to follow, opinion is http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf.

Unfavorable Interlocutory Decision - "So What" Asks the Eleventh Circuit

Ah, it seems that court opinions are becoming more and more .... spicy.

Now now, don't get too excited, this is a law blog after all.

The Eleventh Circuit just ruled on a interlocutory decision regarding a limitation of liability provision of a cruise ship ticket-contract.  The case is Wajnstat v. Oceania Cruises, Inc. and it can be found here.

Facts are straightforward.  A cruise ship passenger on a voyage from Istanbul (not Constantinople)  to Athens became ill and was evacuated to the Ukraine where he underwent three surgeries and allegedly received substandard care. The passenger brought his claims for negligence (of the ship's doctor) in federal court in Fort Lauderdale (Note:  cruisers- read your ticket carefully) per the ticket forum selection clause.  The cruise ship company asserted a limitation of liability defense based on the ticket-contract.

The trial court went through the limitation of liability provision and found that it was unenforceable because the provision required the passenger "to parse through the treaties and the statutes to determine the limits of Oceania’s liability."

The court did not address the merits of the appeal but rather raised its jurisdiction to even hear the appeal.  Generally, parties may only appeal the "final" decision of a trial court and not any interlocutory ones.  The court's decision, in this case, was interlocutory and therefore, not appealable.

The cruise ship argued that if it is ultimately NOT liable to the plaintiff, it won't have the ability to appeal the court's decision on the limitation of liability provision.  In the court's words:

Even though no court, including the issuing court will be bound by the ruling, Oceania fears that the very existence of the ruling will persuade other courts to follow it.

But so what?

If another court does follow the ruling and Oceania suffers a non-limited award of damages in some future case, it can appeal that judgment and argue the issue on appeal.

 

Land Use, Shorelines, Substantive Due Process....Oh My

It isn't often my day job doing land use and condemnation litigation overlaps with my maritime interests, but the Ninth Circuit just published a decision that comes awfully close.

The case is Samson v. City of Bainbridge Island and the opinion can be found here.

The facts: the City of Bainbridge Island issued a moratorium on building piers that a property owner sought to build. The property owner battled the City in state courts finally obtaining a judgment that the moratorium violated the Washington constitution. During the pendency of that litigation, the City passed a permanent prohibition on the construction of piers and docks. The property owners filed a civil rights lawsuit in state court and the City removed the suit to federal court. There, the City prevailed on a summary judgment motion.

The Ninth Circuit affirmed the decision, but peppered the decision with language that it was sympathetic to the property owners' plight. 

Substantive Due Process: the property owner asserted that the moratorium constituted a substantive due process violation. The first inquiry: what is the property right being impacted by the offending governmental conduct? The City contended that the right was merely the "abstract need or desire"to build a single use dock. The owners contended that the right to build a dock was a "vested right" which, under Washington law, gives owners the vested right to have their building permit applications governed by the then-existing law governing such applications. The court did not resolve this issue because it found that even if there were a cognizable property interest at stake, the moratorium did not infringe upon it.

As the Samsons conceded, the moratorium did not impinge on their fundamental right. See Jackson Water Works, Inc. v. Pub. Utils. Comm’n, 793 F.2d 1090, 1093 (9th Cir. 1986) (noting that government action that “affects only economic” interests does not implicate fundamental rights). “The Supreme Court has ‘long eschewed . . . heightened [means-ends] scrutiny when addressing substantive due process challenges to government regulation’ that does not impinge on fundamental rights.” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (alterations in original) (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545 (2005)). Hence, to establish a substantive due process violation, the Samsons must show that Bainbridge’s ordinances establishing and extending the moratorium were “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994) (internal quotation marks omitted). The ordinances are “presumed valid, and this presumption is overcome only by a clear showing of arbitrariness and irrationality.” Id. (internal quotation marks omitted). The Samsons have not met this “exceedingly high burden.” Shanks, 540 F.3d at 1088 (internal quotation marks omitted).

The Court found that the moratorium was in the government interest to avoid the flood of applicants that foreshadow a change in governmental regulation.  The City's aim to avoid owners "vesting" was legitimate and that the City's action was not "arbitrary".

Procedural Due Process:  the property owners also brought a procedural due process challenge to the moratorium, alleging it was passed without any hearing.  The Ninth Circuit found that the moratorium was a "legislative act" and there was no evidence that it was targeted to any property owner.

Procedural due process entitles citizens to a legislative body that “performs its responsibilities in the normal manner prescribed by law.” Id. at 1260 (internal quotation mark omitted). The Bainbridge City Council hewed to its ordinary protocols when it passed the moratorium ordinances. The Samsons’ rights were thus “protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915).

The court concluded: 

It is surely vexing to the Samsons that they and their co-plaintiffs successfully challenged the moratorium in state court, but received no damages for their efforts. And it must be more vexing still that they won the battle, but lost the war: the state courts struck down the temporary moratorium, but upheld the permanent ban on shoreline development. But the federal courts do not exist to satisfy litigants who are unhappy with what they received in state court. Nor do they exist to second-guess the manner in which city officials promote the public welfare.

Cold solace indeed.

Coast Guard Tribute By The "Chairman"