The Court dropped four fascinating constitutional law opinions on Wednesday, and Will & Dan talk through two of them. First up is Mahanoy, which addresses First Amendment protections for Snapchatting school kids. Then we have Cedar Point, an important decision about the Takings Clause.
The Court dropped four fascinating constitutional law opinions on Wednesday, and Will & Dan talk through two of them. First up is Mahanoy, which addresses First Amendment protections for Snapchatting school kids. Then we have Cedar Point, an important decision about the Takings Clause.
Will: (00:19)
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: (00:24)
And I am Dan Epps. So Will, after suffering through a number of boring decision days, we've got a good one. We've got a really good day. We're recording this on Wednesday, June 23rd, and the court gave us four quite interesting opinions today.
Will: (00:43)
Yeah. No, I've got to say, this is one of those days where I feel like I'm the stereotype of what people and constitutional officers do, I'm up reading some court opinions. There's just so much different stuff going on, I'm taking notes, I go to lunch with my colleagues, argue about a couple of them, then jump on a podcast to give takes. This is just a lot of fun.
Dan: (01:01)
Did you go to lunch? You look like you're in your house, you're not in the office.
Will: (01:05)
I went to the office.
Dan: (01:05)
Was it a virtual lunch?
Will: (01:07)
I went to the office in-person, to have lunch with my colleagues, and then came home because my microphone is at home.
Dan: (01:11)
Great. I'm glad that you're going in. I haven't yet returned to my office, though I plan to do so tomorrow, once I move my computer and recording setup back over there. So yeah, great day for people interested in the court, interested in constitutional law, like us, and hopefully that means a great day for our listeners. Where should we start? There's so much here. I think you thought that maybe the place to start-
Will: (01:40)
We have to start with Mahanoy.
Dan: (01:41)
Yeah, although it's a little tough start with that because, I don't totally know how to pronounce it. But, it's I think Mahanoy Area School District vs. B.L.
Will: (01:51)
Yes.
Dan: (01:51)
So, we don't know who B.L. is because B.L. is a minor, she's underage, and she's going to be identified by her initials.
Will: (02:00)
I think we know who she is then.
Dan: (02:02)
Do we? Well, in the opinion, she's called B.L. I'm sure we can figure it out with Google and so forth. But, this is the cussing cheerleader case.
Will: (02:12)
Yeah. So, the facts of the case are I think pretty simple. B.L. did not make the varsity cheerleading squad, and she was pretty upset about that. She visited a convenience store that is called The Coco Hut with one of her friends, where she used her phone to post two photos on SnapChat. The most infamous of which had a picture of her and her friend raising their middle fingers and it had the caption, "Fuck school, fuck softball, fuck cheer, fuck everything." Which is quoted in full, F words and all, in Justice Breyer's opinion for the court. She was suspended. Is that okay?
Dan: (02:55)
Okay for whom?
Will: (02:56)
Well, was that constitutional?
Dan: (02:58)
Oh, yeah. There is another image that it's only worth nothing because, the opinion by Justice Breyer gives us the text, which is not that interesting. It's about her complaining about how she has to be JV before she makes varsity cheerleading. But he notes, "The caption also contained an upside down smile face emoji," and then cites to the joint appendix. Could they not have just printed the emoji like in the quote? They quote the text and then they describe the emoji in a sentence. Does the printing office just not have the capability of just straight up printing the emoji in the US report, or would that be undignified?
Will: (03:35)
I wonder. Justice Breyer, he sometimes includes pictures in his opinions, doesn't he? I feel like sometimes-
Dan: (03:40)
Yeah, there's no reason he couldn't do that.
Will: (03:42)
Maybe there's been a separate page or something.
Dan: (03:44)
Yeah. This has to be... It's not the number one worst, but it's got to be one of the more ridiculous lines in the Supreme Court opinion, "The caption also contained an upside down smiley face emoji." Do you think he felt ridiculous writing that or reading over that draft?
Will: (04:05)
Maybe the original drafted opinion actually had the emoji, and maybe somebody's joint memo said, "Dear Steve, I will happily join your opinion, but I think it's undignified to include emojis in Supreme Court opinions." Once they start, can you imagine all the emojis Justice Alito is going to put in his opinions?
Dan: (04:21)
I was doing some research on this, and there's apparently a disagreement about whether the plural of emoji is emoji or emojis. As a Japanese derived word, it may just emoji. I was hoping that there was a different word that may be like a singular like emojo, then I could've criticized the court for not using. But, emoji is-
Will: (04:39)
Emojum.
Dan: (04:42)
Emojous from the land. But, I guess we should actually talk about the law and stuff. She gets in trouble, so she gets ratted out.
Will: (04:51)
Yes. So, she sent this SnapChat to merely her 250 closest friends, but one of those so called friends apparently took a photo of the, what is the singular? Is it a Snap? Is it a SnapChat? What do you call it?
Dan: (05:06)
I think it's a Snap, but our listeners-
Will: (05:09)
Photo of the thing.
Dan: (05:10)
... Our teenage listeners will correct us. But yeah, you do this because, if you do it the other way, if you just take a screenshot, it tells the person. It's like, "This person screenshoted you." But if you use another phone, there's no notification. So that's sneaky.
Will: (05:25)
This is real mean girls territory here.
Dan: (05:27)
Yeah. So, one of the students who saw the photo that was taken with the other phone showed it to her mom. Come on. Come on kids. You don't need to do that. Of all the things you need to report to your parents, this is just not even anywhere near the top of the list.
Will: (05:47)
Several cheerleaders and other students approached the cheerleading coaches, visibly upset about these posts, and questions about the posts persisted during an algebra class taught by one of the coaches. So, they suspend her for a year.
Dan: (05:59)
From cheerleading, not from school.
Will: (06:01)
Yeah, yeah. Okay. So then the question is, she sues, the question is, were her free speech rights violated by the school punishing her for this core political speech objecting to the content of a government official, i.e. the cheerleading coach?
Dan: (06:15)
We should note, when it comes to the First Amendment Law, we're not drawing on a blank slate here. The court has waded into the First Amendment Rights of elementary and secondary school students a number of times, starting with this case, Tinker v. Des Moines Independent Community School District. Where there, as I recall, the student actually was engaged in political speech wearing an armband protesting the Vietnam War. But, we've also had some other cases involving students engaged in maybe slightly less serious speech. This case, we can't really talk about this case without talking about Bong Hits for Jesus.
Will: (06:55)
What does that even mean, Dan?
Dan: (06:57)
Well, no one knows but, I think that was Morse v. Frederick, right? Where there was a student, hang a banner that said Bong Hits for Jesus, using some creative capitalization that I can't really replicate in this medium. And then was disciplined for doing so, and the court said that was okay.
Will: (07:16)
Yeah, and indeed, I think Tinker, the foundational case, is 52 years old, that case the students win. They have a right to wear black armbands at school, and the court says students free speech rights do not end at the schoolhouse gate. I think every Supreme Court case sense, Hazelwood, Fraser and Morse v. Frederick, the students lose all of those. So, this then was the trend that, you get one court opinion like Burhot or whatever, playing out the initial protection, then you get the slow whittling away of that protection. Until now, Tinker lives.
Dan: (07:52)
Hazelwood is the one where the guy gives the really profane speech-
Will: (07:57)
That's Fraser.
Dan: (07:57)
... Because he's running for office, or is that Fraser? Okay. I love that one.
Will: (08:00)
Well, yeah. I think Hazelwood is-
Dan: (08:01)
Hazelwood is the student newspaper one?
Will: (08:03)
Yeah.
Dan: (08:04)
Okay. These are some fun cases. I encourage you all to go look at them. There are some fun facts in those. I think Fraser is particularly funny. I love cases involving vulgar, profane speech because, sometimes you can tell the court is more, just really uncomfortable with repeating it.
Will: (08:24)
Which again is... One of the things I'm struck by is that, the court here was willing to completely repeat word for word the profane speech addition in this case, which it does not always do. I think when the court had Fox v. FCC about a swearing on various news broadcasts, I think the advocates did not say the words in court, I think the court didn't say them in its opinion.
Dan: (08:45)
I've heard that in some cases, the court is going to subtly signaled to the advocates, "Please, don't say the words in court." I have no idea if that happened here. I think over the decades, things like that have occurred.
Will: (08:58)
Yeah. It looks like the rule is that you quote the word if it's protected speech, and you don't quote the word if it's not protected speech.
Dan: (09:05)
Oh, that's interesting.
Will: (09:07)
Which is a little on the notes but-
Dan: (09:07)
So, you just derived a principle. There's an article right there.
Will: (09:11)
Well, but then it also, when you're teaching this case in class, then question of whether to quote the words suddenly is loaded.
Dan: (09:21)
I don't know how you teach it without quoting it, but you could dance around it. But that's interesting because, one thing that we should note is how Justice Thomas, who disagrees with the majority here, he redacts the word in his opinion with asterisks [crosstalk 00:09:37]. And he thinks it shouldn't be protected.
Will: (09:42)
Exactly.
Dan: (09:42)
So there you go.
Will: (09:46)
Luckily on here, there are a ton of lower court cases about the basic question of, what happens off-campus? All the previous school speech cases have been about what schools can on the school grounds, Morse v. Frederick. The Bong Hits for Jesus case, the student was actually not on school grounds, he was across the street at an Olympic torch passing, torch carrying event, but the court fudges that and treats him as if he's at school.
Will: (10:15)
So, there's the general question about, "Well, if you're..." We have one rule, Tinker, for what happens inside the schoolhouse gates. When you're outside of the schoolhouse gates, what's up? Are you full free speech? Is it the school has the same kind of power? Is it something in between? Obviously in the cyber age, there's that immensely practical question as students say all sorts of things on the internet and on their phones. So the court took this case I think, to try to answer that question.
Dan: (10:44)
We don't get a totally conclusive answer to all possible facts that could arise, but we do get the answer that, at least some of the time, this is going to be protected.
Will: (10:57)
I think even a lot of the time.
Dan: (10:58)
Yeah, yeah. I think a good amount of the time, a significant chunk of the time.
Will: (11:04)
Yeah, exactly. So the court doesn't give a complete answer, but in an opinion by Justice Breyer, the court engages in Justice Breyer's typical tactic, which is to list a bunch of facts and considerations that cause the case to come out the way it is, and let you sort out exactly how to add those facts up and what to do. So for instance, he notes that while the court is not willing to adopt the categorical rule that off-campus speech is always protected, which the third circuit came pretty close to doing, they are willing to note that off-campus speech has three features that often, even if not always, distinguish schools efforts to regulate that speech from their efforts to regulate on campus speech. One, off-campus, a school is rarely standing in loco parentis. So off-campus, your parents are normally there, so normally it's up to them to decide whether they care that you're swearing on your Snapchat, if they even know about your Snapchat.
Will: (11:57)
Principle two, from the student speakers perspective, regulations of off-campus speech when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24 hour school day. So they have to be more skeptical of these rules because, after all you're supposed to have someplace you can express yourself. Third, the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off-campus. America's public schools are the nurseries of democracy. So that is, even from the school's point of view, they should want you to get used to free speech. I do wonder if that's a little bit of the moment.
Dan: (12:31)
Yeah, I don't know. I think the school administrators don't feel that way, but I think there is something to that. That we should, if we're trying to build a democratic society where people feel comfortable speaking, we should not from an early age create this environment in which they're told that they never get to say what they want, and they could be punished for doing so. But yeah, it does seem to me like there are some contexts where you would want to let schools impose some consequences, like off-campus harassment of other students. Like if you have the mean girls burn book, if you're circulating that to trash some other student and that has a reasonable possibility of bleeding into in-school activities and things like that, that seems different than just this generalized fuck school, fuck everything.
Will: (13:26)
I agree. I agree. And the court, I don't think they note this. Maybe Justice Alito does, but I know there are plenty of lower court cases where the schools get sued under Title IX or other things for failing to do enough to police off-campus student harassment. Obviously, if a student persecutes another student on the basis of their, say sex, outside of school, and it's so bad that the student doesn't want to come to school anymore, that's a serious problem. The school needs to deal with it. So we wouldn't want the First Amendment to be interpreted in a way that the school was required to deal with that, but couldn't deal with it.
Dan: (13:58)
Yeah, although the student could under this off-campus engage in hate speech type things, as long as it's not directed against somebody, and that would be presumably protected because, the First Amendment doesn't really let you draw distinctions based on the content.
Will: (14:19)
Yeah. Although again, so this is going to get back to the opinion, under Justice Breyer's opinion, the school does have more ability to regulate student's speech off-campus than they would regular adult speech off-campus. So I don't know. If a student engages in really virulent hate speech off-campus that causes lots of on-school disruption and so on, I don't know if the school can do something with that.
Dan: (14:43)
Yeah. It's that in-school disruption thing which is important because, that was one of the restrictions, one of the limits that Tinker recognized on First Amendment Rights of students. That if it's going to cause disruption, then maybe you have a little bit more... You have more of an ability to regulate or prohibit. But it can't be the case that then lets you prohibit any speech that people don't like because, we've also been told at various times there's no heckler's veto in the First Amendment. So I think it would have to be something more than just other students are upset about the speech, right?
Will: (15:24)
I don't know. This I think is the most interesting question that was in the case that the court doesn't answer. Normally, as you say, there's no heckler's veto. Normally, the fact that other people get really mad at you for what you say cannot be a basis for regulating what you say. In the speech context, there are lots of lower court opinions, and I know you're intimately familiar with some of them.
Dan: (15:42)
In the school context you mean.
Will: (15:43)
In the school context.
Dan: (15:44)
In use of speech.
Will: (15:45)
Now, there're lower court opinions in the school context where the court does basically allow a heckler's veto. This came up at oral argument because, Lisa Blatt, who was defending the school district was essentially trying to throw those lower court opinions away. She was saying, "It's totally safe to apply the school speech precedents off-campus because there's never a heckler's veto." And then the ACLU was saying, "Look, that's crazy. There are tons of cases that we've litigated and lost where the lower courts have told us there is a hecklers veto in Tinker. So if you apply Tinker off-campus, it's going to apply."
Will: (16:16)
And so in essence, the ACLU was arguing for really broad power of schools because, they were hoping that would be an excuse to limit it here. And Lisa Blatt was arguing that schools have really limited power, and therefore we shouldn't be scared about extending the power. So I was hoping, my wishlist was that, in the course of resolving this case, Justice Breyer would say, "And there's no heckler's veto for students. Like if you wear an offensive t-shirt to school and other people get mad at you for it, try to beat you up for it, that's their problem, and the school should protect you." The court doesn't take a stand on that.
Dan: (16:48)
Yeah. We'll need another case for them, or more likely we'll just see that get worked out more in the lower courts. And yeah, as you say, there've been quite a lot of cases in the lower courts about this. One of them, I don't know if you've ever looked at this one, and this sort of explains something in this case. So we have a separate concurrence by Justice Alito that is really rich in footnotes and cites to a bunch of other lower court cases. This is an area of interest to Justice Alito because, he wrote an opinion about school speech when he was on the third circuit in a case called Saxe v. State College Area School District. Where, he actually wrote an opinion striking down school speech restrictions, striking down a school's anti-harassment policy, saying it wasn't consistent with Tinker and so forth. So it's an area of interest to him.
Will: (17:43)
I remember that case actually. So when Justice Alito was nominated, I was a law student. I read a bunch of his opinions and concluded that he was going to be one of the most civil libertarian justices on the court on the basis of his opinion in Saxe, and I think he had an early religious liberty opinion, and I think it had one other, which proves that three data points don't make a trend.
Dan: (18:06)
I don't know what to take away from that. Is the takeaway that maybe you needed a little bit more time to mature as a legal scholar, or that he just went in an unpredictable direction or both?
Will: (18:16)
I think there are a lot of things I thought in law school that did no age well.
Dan: (18:20)
Probably a lot of things that each of us thinks right now that won't age well by next week. It's unfortunate we're giving all our views in this recorded medium where they can be used against us, but such are the dangers of podcasting.
Will: (18:35)
Yeah. So why is Justice Alito writing separately? So what do you understand? And he's joined by Justice Gorsuch here. What do you think they are unsatisfied with in the majority?
Dan: (18:46)
I was trying to figure this out. So one of the hot takes I saw on Twitter is, "Oh, this is a case where Justice Alito is grudgingly going along, but he's writing something to show that he is holding his nose." But I didn't really get that. I don't think that actually is what's going on here because, I think if you read this, I think maybe he's actually going further. He's suggesting that he would go further in future cases than the majority would.
Will: (19:15)
I think that's right. I actually think the most fun part of this opinion and more concurring opinions should do this is, where he gives his own reading of the concurring opinion. This is the very beginning of part one. "The court holds that that schools can regulate some student speech, but this authority is limited, which would be skeptical. The doctrine rarely applies here." He gives his own gloss on how narrow it is, with footnotes to pin, cites from the majority opinion for his theory, which is clearly designed I think, so you can now cut and paste this into your ACLU brief to say, "Here's our argument for how narrow the majority opinion is." So, I read them to be quite skeptical of a lot of the lower court opinions here, and maybe signaling some interest in taking them in the future.
Will: (20:00)
There's also a point later on where he cites a bunch of lower court opinions to describe the kinds of scenarios that have arisen. And then in footnote 21 he says, "The cases cited in this footnote and footnotes 22-23 are listed to show types of claims addressed by the lower courts. I do not address any of you with the correctness of the decisions." I similarly, I take he's saying he's not totally happy with how these things are going in the lower courts.
Dan: (20:25)
Yeah. This is like a law review article, like opinion. It's richer in material and citations. It represents a lot of research I think, in a way that concurrence is usually like, "Okay, here's my view and here's why I'm joining."
Will: (20:42)
Relative upon who. Justice Thomas' concurrences are often like this.
Dan: (20:45)
Yeah. He's in his own category. He does things... We know he does things differently.
Will: (20:50)
So, I do think one other reason I'm rather interested in saying about this opinion is, it contains a response to Justice Thomas's dissent. So Justice Thomas has a longstanding idiosyncratic position in these cases, that students at school have absolutely no rights because, students, children have no rights against their parents and schools act in loco parentis. So, the school can do all sorts of terrible things to you and you have no rights. I was curious what was going to happen here because, I didn't know whether there was Snapchat, in the 19th century, and if so, what the courts would have said about it. But to my surprise, it turns out that there's this Vermont case, I don't know if you saw this.
Dan: (21:28)
I saw. I did see this, yeah.
Will: (21:29)
Both Justice Thomas and Justice Alito argue about Lander v. Seaver, which I'll just say, I read the opinion, it's remarkably on point. Okay, it doesn't involve Snapchat, but you have a student in a school who is afterschool, not even on their way to and from school, but on their own time or on their father's time, on his father's time of course, insulting the teacher. And then the question is-
Dan: (21:53)
You're leaving out some key facts. He was driving his father's cow, right? He's driving the cow by his teacher's house.
Will: (22:02)
Yeah. Yes. He's driving the cow by his teacher's house, and then calls him, is it Old Jack Seaver.
Dan: (22:09)
Old Jack Seaver.
Will: (22:10)
Yep. Which I think is-
Dan: (22:12)
That is the teacher's name is Jack Seaver. I think he's just-
Will: (22:15)
Called him old.
Dan: (22:16)
... He's just calling him old.
Will: (22:18)
I think Old Jack Seaver is 19th century Vermont for fuck school.
Dan: (22:23)
Yeah, yeah. I think that was probably even more scandalous in that more restrained age.
Will: (22:29)
Yeah. And so then the Vermont Supreme Court says, "Well, what do we do here?" Everybody agrees the teacher has the right to discipline the kid.
Dan: (22:36)
But you didn't talk about the penalty. The penalty was rather severe too.
Will: (22:39)
Oh yeah, yeah.
Dan: (22:40)
He was whipped with a small rawhide, the boy, for calling him Old Jack Seaver.
Will: (22:45)
Yeah, an 11 year-old, which again-
Dan: (22:46)
This is no one year suspension from the cheerleading team. This is-
Will: (22:51)
Well, I think that's 19th century Vermont for one year suspension from the cheerleading team.
Dan: (22:53)
Yeah, yeah.
Will: (22:54)
You just have to translate a little bit. And they say, the school master can punish the pupil for things that happen during school, and that also includes going to and from school because, most parents would expect and desire that teachers should take care of their children, should not loiter or seek evil company or frequent vicious places of resort. But when the student is under his parents' control, that normally there wouldn't be any ability to discipline him, except when the offense has a direct and immediate tendency to injure the school and bring the master's authority into contempt, such as," and then they have this amazing list of examples. "Such as destroying the books of other scholars or the books or apparatus of instruction, or destroying the instruments of punishment of the master, or stirring up disorder and insubordination, or," and this is my favorite, "Writings and placed so as to suggest evil and corrupt language images and thoughts to the youth who must frequent the school."
Dan: (23:51)
That sounds like this, yeah.
Will: (23:52)
Actually, that was the part. Yeah, like dirty graffiti near the school, apparently that's punishable they say because, by common consent and the universal custom in our New England schools, the master must have the right to keep order.
Dan: (24:05)
I haven't gone through the briefs and figured out where this cite came from, whether it's in the briefs, or whether this is just something that Justice Thomas came up with. Whoever found this case must have been like, "Oh yes, this is great."
Will: (24:17)
Yeah. So Justice Thomas says, "Look, this is resolved. This is 10 years before the enactment of the 14th amendment, it's a presumptive guide in its original meaning. We know what the original meaning was about the right to discipline students."
Dan: (24:31)
[crosstalk 00:24:31] walk me through the originalist argument. Why would this tell us how to resolve this case, like the fact that this is a case under Vermont tort law?
Will: (24:42)
So the 14th amendment is enacted in 1867 or 1868, and it protects the privileges or immunities of citizens in the United States. That draws on the widespread general law of rights and liberties that are developed in the states under state constitutions, under customary constitutional law, also under federal constitutional doctrine, although there wasn't as much of that then. So if this was a generally considered consistent with the privileges or immunities of citizens at the time, then that's a good sign that it's not an abridgment.
Dan: (25:13)
Yeah. Although one case, given that we know like, if there's 50 cases, there could be, even if we think that the general law is one thing, there could be some disagreement or something. It seems like I'm just-
Will: (25:27)
It's presumptive.
Dan: (25:29)
It just seems like the prohibitive value of one case, if it's only one case, is really, really pretty slight.
Will: (25:35)
Maybe. I do wonder if there's a sliding... I mean, fair enough, fair enough. But I do think-
Dan: (25:41)
I bet there's a way to empirically think through this, not that we can do, but imagine what are the odds that any one case would actually reflect consensus views at that time across the country versus just being a one-off? Then, you'd want to look at how other cases come out on other issues and how much disagreement there tends to be.
Will: (26:04)
Sure.
Dan: (26:04)
I feel like there's a way to do this more rigorously rather than being like, "Oh, I found the one case therefore game over."
Will: (26:11)
Right. No, I do think you should... Beware of the man of one case is a good motto. But part of what you're looking at is like different levels of distractions. Justice Thomas already has a pretty good body of cases in general about the broad authority held by school teachers at the time, that's much more exhaustive and recounted in the previous opinions. And then here, we have a factual wrinkle that might cause you to think, "Oh, those cases don't apply." And if in the one case where the factual wrinkle comes up the courts said, "Oh no, you know, here's how we handle that," I don't think even Justice Thomas, I don't think he thinks he's bound by that. But that does seem like a plausible starting point.
Dan: (26:46)
Yeah. It's not nothing, that's for sure.
Will: (26:48)
Justice Alito thinks that the people in New England were unusually flinty. And so, "even if flinty Vermont parents at the time in question could be understood to have implicitly delegated to the teacher the authority to whip their son for his off-premises speech, the same inference is wholly unrealistic today."
Dan: (27:07)
I think Vermont might be flintier than your median New England state. A tougher life there than in pleasant Rhode Island.
Will: (27:15)
Yeah. I tend to think Justice Alito was right by the way, that this case is not controlling for an originalist for lots of reasons, but I'm sort of delighted that it exists, and that the Court's talking about it.
Dan: (27:26)
Yeah. Although, in terms of thinking about what people might've expected, it strikes me as perfectly plausible to say that in 1791 or 1868 people, just like the Justice Thomas view, that people just didn't think that students had any rights. I don't know. I'm just thinking that, that doesn't strike me as wholly implausible.
Will: (27:48)
Right. Although again, this is what's amazing with the opinion, is the opinion rejects that view. The opinion has the view that, while you're driving your father's cattle, your speech is presumptively protected from the school teacher.
Dan: (27:57)
Yeah.
Will: (27:58)
Part of what makes it so striking is that, they are actually in some ways engaged in the same balancing test as Justice Breyer's.
Dan: (28:04)
Yeah, yeah. It's obviously not interpreting the First Amendment, but it still could be useful. Okay. That's probably enough about this, about Old Jack Seaver and the cow, from which an assault on his youthfulness was launched. So let's say more about Justice Alito here. He really does seem to think that... To want to really lay out the path for these cases and give lower courts things to draw on.
Dan: (28:33)
One thing that's interesting about these cases is, the political valence on them may have flipped a little bit over the years. Tinker was this liberal decision, student protesting the Vietnam War against the punished by reactionary school officials. But a lot of the lower court cases in the decades since, have actually been about well-meaning liberal school officials restricting speech by students who are, let's say, saying things that are seen as not politically correct by the standards of the day.
Dan: (29:05)
So, the Saxe case is about this anti-harassment policy, which encroached on some speech case. I've thought a lot about Harper v. Poway Unified School District. It was about a school that had this day of tolerance for gay rights, and there was a student who's a conservative Christian student who wanted to wear a t-shirt protesting this. The school said no, and he ended up suing. So, there does seem to be this kind of... It's interesting, the First Amendment in particular, seems to be an amendment, an area of constitutional law where you really can see this kind of polarity flip at various times in history.
Will: (29:49)
Yeah, yeah. I totally agree. It is very possible that Justice Alito is more attuned to the free speech rights here than some of the free speech cases because, he's a specialist skeptical of the judgments of liberal school teachers and college administrators and that kind of thing.
Dan: (30:06)
Yeah. And that Morse versus Frederick, The Bong Hits for Jesus case, comes out in the other direction I think, because in part, justices are uncomfortable with drugs and it seems not even clear what that meant.
Will: (30:21)
Yeah. It could come out... It could probably be that. So it's hard to take Bong Hits for Jesus that seriously as speech really, even at all. I realize it's technically a banner so it is speech, but it seems like he could have released a bunch of water balloons and it would have been about the same kind of message. It's just being reckless.
Dan: (30:40)
Well, a speech doesn't have to make sense, right?
Will: (30:43)
No, although it's a puzzle of why. So there's this classic puzzle about, is Jackson Pollock's abstract art protected speech? Probably it is, but it's totally unclear why. It doesn't relate to ideas or the things you more would think that free speech is about.
Dan: (30:59)
Just going back to Morse for a second, there's another... This is another place where the Court is just engaged in ridiculously serious analysis where, the court is grappling with this question of whether Bong Hits for Jesus could have meaning. And they say, "We agree at, least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative, colon. And then there's a quote with take in brackets, take bong hits, a message equivalent," as Morse explained in her declaration, "To smoke marijuana or use an illegal drug. Alternatively, the phrase could be viewed as celebrating drug use." "Bong hits, bracket, (are a good thing) closed bracket, close quote, or quote bracket, "(We take) close bracket, bong hits" close quote. This is the kind of stuff Supreme Court justices write with a straight face.
Will: (31:54)
I always wondered if the for Jesus made it religious speech actually, either way. That's really more like Jesus is great and therefore he should have some marijuana.
Dan: (32:03)
Yeah. But there, I think the court viewed it more as drug speech than religious speech because, I think they're typically more inclined to protect religious speech then drug speech.
Will: (32:12)
Yeah.
Dan: (32:13)
I've derailed us. I do that.
Will: (32:15)
Okay. Well anyway, the upshot of Justice Alito's opinion is to walk through all these various scenarios and all the reasons he thinks they should be taken more serious in the future. So my bottom line here is maybe this will not be the last time that students win a school speech case in the Supreme Court. Maybe there'll be another.
Dan: (32:33)
Yeah. Or lower courts will read this Alito opinion, and those cases will mostly come out in a way that Justice Alito and maybe some of the other justices to the extent they agree with him, see as coming out the right way and the court won't need to weight into it.
Will: (32:50)
Yeah, could be, could be.
Dan: (32:52)
I don't know how much more we want to say about this, but were you struck by the degree of consensus here, eight justices in favor of the student? Because I think that heading into it, and even coming out of the oral argument, people were not confident it was going to be that big of a win. They were talking about, "Oh, Kavanaugh seems pretty interested in the student. That's a good sign."
Will: (33:13)
I was not that surprised. I thought it seemed in the oral argument like most of the justices were not willing to... Were skeptical of the third circuits categorical rule that their jurisdictional argument, that school grounds are the only place the school can regulate, but all seemed to think the school had overreacted. And so then the question is, how do you say those two things in an opinion? I think my prediction was more or less exactly what happened, that Justice Breyer would write a mostly unanimous opinion, trying to say both those things in an opinion. Except that, I thought it would be then a remand for the lower court to sort through Justice Breyer's confusing musings.
Will: (33:50)
So the fact that he went so far as to affirm, so far as to say, "Basically Judge Ambro," who was a concurring judge below who had a similar approach, "Was basically right. So, the third circuit was right for the reasons given by Judge Ambro," was a little more definitive than I was expecting.
Dan: (34:05)
If you were sitting on that prediction, I wish you'd made it on the podcast last week, so then we would look like geniuses, or you would, and I would be able to bask in the reflected glory.
Will: (34:15)
I've got to get better at that, sorry.
Dan: (34:16)
Yeah. It's easy to say after the fact that you predicted it. I predicted the outcome of all these cases. Anything else we want to say about that one? It's a fun case. It seems right to me. We can argue about what the exact boundaries should be, because I think that sounds like we both agree that there should be a lot of protection here, but also we don't agree that... We don't think that there should be this categorical rule because, there could be some situations where off-campus speech is really bleeding into what's happening on campus. But we'll have to... It seems like we need more concrete fact patterns to really know exactly where we want to draw that line.
Will: (34:59)
Yeah. No, that seems right to me.
Dan: (35:01)
Okay. What next? So much to choose from. I think you said maybe we should talk about Cedar Point Nursery v. Hassid?
Will: (35:10)
Yeah, I think we should. So this is a Takings case about a California labor regulation that lets union organizers go on to agricultural property to try to talk to the workers and try to organize them. My understanding is, often this is especially important because, you might have employers who live on the property and there's really no other way to reach them than by going-
Dan: (35:30)
Employees, employees who live on the property.
Will: (35:31)
Sorry, yes, employees. Employees who live on the property, because there's no other way to reach them. That's not actually true here, but the statute, that's what the statute does. It gives the organizers a quite broad right to go onto the property up to three hours a day, 120 days a year. Although, I don't think there are many organizers who are actually taking up all that time. And the question is whether that right is a property right that's been taken from the farms and given to the organizers.
Dan: (36:04)
So, let's back up and try to even see if we can explain to people why this is even in that category. So Takings Clause in the Fifth Amendment, "Nor shall private property be taken for public use without just compensation." Am I quoting that right?
Will: (36:18)
That sounds right, and that's applied to the states by the Privileges or Immunities Clause, but let's just go with that.
Dan: (36:24)
Wait. Is that true?
Will: (36:25)
Well, yes.
Dan: (36:25)
Under the existing doctrine or-
Will: (36:28)
The court says it's applied through the Due Process Clause, but that's-
Dan: (36:31)
Okay, that's what I thought. That's what I thought. I didn't think they'd snuck that one in there. We've got to distinguish. We've got to distinguish between what the Court has said and your own-
Will: (36:38)
Truth.
Dan: (36:39)
... Revisionist theories. I don't think that's wrong necessarily. I think that there's a lot of reason to think that it's right, but nonetheless, I don't want to confuse people. So the core of a Takings claim is, the government is like, "We need to build a road through your land. We're building a road and we're not going to give you any money." And you're like, "No, you've got to give me money for that," and they give you the money, right?
Will: (36:59)
Yes, right. So that's the... The initial core is the government says, "We're taking this property to build the road. From now on, it's going to be our road not your road." They couldn't compensate you for that. The next step, which happened a lot in 19th century is, suppose they say, "Well, we don't actually need your property. We're just going to bulldoze through it." So commonly in the 19th century, this was with flooding. They'd say like, "We're going to build a dam, and the dam is going to turn your property into a lake." Is that a Taking? And the 19th century courts largely concluded yes, that's also-
Dan: (37:30)
So, they're not actually taking title to the property, they're just doing something that-
Will: (37:34)
Right.
Dan: (37:35)
... Affects the value or-
Will: (37:36)
You can keep it. You can keep the lake. But it's not just affecting the value either. Part of what was important in the 19th Century is that it's physical. In a sense, the government is dumping a lake full of water on your property and keeping it there, and you aren't allowed to go knock down their dam the way you would, and drain it out. So in the modern doctrine, taking this doctrine has subdivided it into two things. One is called a Regulatory Taking and the other is called a Per Se Taking.
Will: (38:06)
A Per Se Taking is something like the classic road example. So, the government is basically just taking your property like for a road, they have to pay you just compensation. The Regulatory Takings category is everything where the government is doing something that affects the value of your property, but it's not the equivalent of taking your property for a road, and so it's usually treated as not a taking it all. There's a three part balancing test to decide whether it's a taking, from a case called Penn Central, but usually it's not taking at all.
Dan: (38:36)
Like a zoning restriction might affect the value of your property. You can't use it.
Will: (38:41)
Right.
Dan: (38:41)
You can't build whatever you want. You can't build a 100 story building there, and that means your property's less valuable, but that doesn't necessarily mean the property has been taken-
Will: (38:52)
Exactly, exactly.
Dan: (38:53)
... And requiring compensation. This matters a lot because, if something is a Taking, it's going to make it, sure the government could pay, but it may end up being so cost prohibitive that the government just lacks the power to do certain things for practical purposes.
Will: (39:09)
Yeah, we'll get to that. We'll get to that. But sometimes there could be a lot of-
Dan: (39:12)
Yeah, sometimes.
Will: (39:12)
But it matters a lot because, if you get in the Per Se category, then government owes you compensation, it may not be worth it, they may just give up. And if you're not in the Per Se category, you have to satisfy a really weird balancing test to get very, really satisfying. So in these kinds of Takings claims, the action is, can you say this is a Per Se Taking or not? Two of the things that the court has said, one thing the court has said is that, Temporary Takings are not Per Se Takings. So in a case called Tahoe-Sierra that I believe was argued and won by then appellate litigator, John Roberts, the court said, a temporary development moratorium that says you can't build anything on your property at all for X months is not a Per Se Taking because, you get to build eventually maybe. For a while, you can't do anything.
Will: (39:59)
On the other hand, Physical Takings are a Per Se Taking. This is a case called Loretto, where the government mandates that you let a third-party install a cable box on your property.
Dan: (40:10)
I always thought that this case is stupid.
Will: (40:12)
I love this case.
Dan: (40:13)
These are little tiny boxes that are screwed into the side of a building, right?
Will: (40:17)
Yes.
Dan: (40:17)
So that your tenants can get-
Will: (40:19)
Cable.
Dan: (40:19)
... Get their 30 channels or whatever was on cable back decades ago.
Will: (40:24)
Yes. And the court says that's a taking. There it is, this foreign object on your property that you didn't want there, they owe you 20 bucks a year or whatever it is, for the right to stick a box on your property.
Dan: (40:36)
That's a permanent physical invasion.
Will: (40:38)
Yep. So what about labor organizers? Are they more like a cable box or are they more like a development moratorium?
Dan: (40:49)
Neither is super helpful, a super helpful precedent, but the court is going to say they are like the cable box, right?
Will: (40:56)
Exactly. They're a third party physical invasion.
Dan: (40:59)
Yeah, even though they're not there permanently, not like labor organizers get to move in and set up a cot and live there for the rest of their lives. This is going to be more of a Per Se, what you might call a Per Se Taking, right?
Will: (41:13)
Yeah, because if they do, there is a physical aspect to it. There's a coming onto your property, and there is a permanent aspect in the sense that, they have a permanent right to come. They're not there all the time, but they have what the court thinks is essentially a permanent easement to come. The same way that somebody who got the right of the road or whatever, the right to come across your land, there may not be anybody on the road at any given point in time, but they have a permanent right to come through your property, and that's a real pain in the butt.
Dan: (41:43)
Yeah. Now, can we just step back for one second here?
Will: (41:46)
Yeah.
Dan: (41:47)
We've gotten pretty far from the core case that we talked about a second ago. We were like, this is about... The core is like the government says, "That's your plot of land, it's now my plot of land. Go away. I'm not paying you any money." To now encompassing all sorts of situations that are a lot further away from that, where there basically just the government is saying like, "Here's something that has to happen with respect to your property or some restriction on a way to use it." What's the case for expanding the doctrine this far beyond the core that we might've been worried about with this, with the Takings Clause?
Will: (42:31)
Well, one of the things the court says, and I think there's some truth to this, is that, the core property right, like one of the most important property rights, is the right to keep people out, the right to exclude. So what they're taking away from you, the government's taking away from you is the right to say, "No trespassers, you're not welcome here." That is in a way closer to the core of the road. It's true that they're only giving the right to a certain set of a certain political favorite group to come onto your property, not everybody, but it's still in a different way getting at that core property interest.
Dan: (43:04)
Yeah. It's not just like they're giving it to a politically favored group, they're doing this for public policy reasons, to let these workers, some of whom are really mistreated, get informed about their rights and so forth.
Will: (43:17)
Yeah. No look, I think the reason... This case really pits the Takings Clause against the modern regulatory state. I think part of the question underlying this, which the court tries to make sound less radical than it is, but is what to do about the many, many ways in which in the modern world, we don't let you just do whatever you want to on your property, right? You can't run a restaurant on your property without all these food inspection rules, you can't run a dangerous factory without getting into trouble whenever people get killed by the machinery, you can't all sorts of stuff. You can't run a farm in which you keep people in relatively low labor conditions, and not let labor organizers come and try to do something about that. But all of that is a little bit out of step with the really classical view of property rights.
Dan: (44:05)
Can we talk more about that? One of the things you mentioned there was inspections, safety inspections, because that seems important. That seems like that would be a big deal if we were suddenly to say that OSHA inspectors can't come to your factory to make sure that you're following safety procedures and not hurting your employees. And the court says, "No, that's probably going to be okay." This is on page 19.
Will: (44:33)
Probably going to be okay.
Dan: (44:33)
Yeah. The reason being, it's because that's conditional. Agreeing to that is conditional on a benefit. Is that the justification?
Will: (44:45)
The court holds out three exceptions, three times these things are going to be okay. So one offs are okay. If it's just a trespass rather than a taking, it's still not a taking. So if like a government official comes on your property one time, that's not a taking. That could cover a few kinds of inspections. It's not going to cover like regular OSHA inspections to make sure you're not injuring people.
Will: (45:07)
Second, longstanding background restrictions on property rights. So this is something the courts like, an originalist escape path that the courts into the Takings doctrine. But if something was a nuisance at common law, then the government's still allowed to come-
Dan: (45:22)
Yeah, because there you never really had the property right to begin with, I think is the way to understand it.
Will: (45:26)
That's it, yeah. I think I'm not sure how broadly to understand those kinds of nuisance exceptions. So I could imagine a world where you say those really are all about third-party externalities, if you have a really smelly factory that's emitting toxic stuff on your neighbor's property. But, I could imagine a world where actually really poor working conditions that are resulting in lots of injuries could still happen because it's a public nuisance. It's like we need to know more about Public Nuisance Law and Externalities, to know that fits in that category.
Will: (45:53)
The third category, maybe where the action is, is basically consent where we say, "Well, the government can always tell you, "You can't run a factory at all." So they can tell you, "You're only allowed to open the factory, if you agree to an inspection regime." Now, what's funny about this exception is, the court has a lot of doctrine being skeptical about the government using this kind of leverage too much. So we have the General Unconstitutional Conditions Doctrine, where we worry about the government doing that, saying like, "You can't do this unless you waive your constitutional rights." And then we have a special version within the Takings Clause called the Exactions Doctrine, where the court tries to be skeptical of them saying like, "You can't add a third bedroom to your house, unless you let people go use the beach behind your house." But, now that's being held out as that's the exception that's going to save the Regulatory State.
Dan: (46:40)
Yeah, yeah. They say, "Look, there's this exception, but it turns on whether the permit condition bears an essential nexus in rough proportionality to the impact of the proposed use of the property insights." A couple of cases for that. It says, "Under this framework, government health and safety inspections will generally not constitute Takings." Basically says like those nexus and rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy.
Will: (47:15)
When the inspections are reasonable. So they spell that a couple of times. They're saying is, "Look, as long as it's a reasonable health inspection, it'll be easy to satisfy it. It will say, "Look, the OSHA inspector is just here to make sure that your machines are not unnecessarily dangerous. That's pretty reasonable." But I think people are right to raise their eyebrows a little bit. I take it a federal court would have to decide whether every OSHA inspection regime is reasonable.
Dan: (47:38)
Yeah. This isn't just saying they're always okay, you know?
Will: (47:42)
Right. So this analogy gets thrown around a lot, but I actually think this is somewhat analogous to the Supreme Court's decision in the Lochner, where the court says there's a general right to contract, and then the state can regulate the right to contract, have regulations of working conditions as long as they're reasonable, and consistent with the common law. And in fact, the Lochner court upholds huge numbers of various kinds of regulations, but they're always subject to the court's scrutiny about whether it's a reasonable regulation, whether it's a fair bargain or the state is demanding too much. That actually seems to be the right body of precedent for the analysis the court anticipates here. For every inspection regime. We have to ask whether it's consistent with the common law. If it's not, whether it's proportionate to the amount of the need for it. Federal courts will be in charge of all that.
Dan: (48:32)
Yeah. So this sort of Lochnerization of the Fifth Amendment, people have already talked a bunch about the Lochnerization of the First Amendment, another place where constitutional doctrine is really used to limit government attempts to regulate industry, to the benefit of capital basically. This is a situation where the court is saying, "Look, if you own a farm, then you have this inherent property right. It means you, if you want to keep out the labor organizers, you can." Although I'm wondering, is there any wiggle room here? What if they say, "Okay, conditional... We'll give you the permit to have this massive farm if you allow regular visits by union organizers."
Will: (49:20)
Well, so that is one of the great questions raised by this is, why can't California avail itself of this third category? I take it it's just that they haven't written the regulation the right way. I take it they should be able to say, "Yeah, nobody can have a farm. And if you want to have a farming permit, then you need to consent to let the organizers come on." I take it that would be-
Dan: (49:40)
Yeah. Although they say this on page 20, the majority says, "Unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public." That seems wrong to me in the sense that, you might think that it's a risk of that employees are going to be mistreated by these large conglomerates, right? Isn't that-
Will: (50:08)
Well, but maybe they don't care. So then the court says, "Basic and familiar uses of property are not a special benefit that the government may hold hostage to be ransomed by the waiver of constitutional protection." I think this is the version of the Lochner test. If you're doing something weird, if you're running a strip mine on your property, that might not be basic and familiar, and so then the government can say, "You can't do that unless you let in the mining inspectors, let these farms-
Dan: (50:32)
Yeah. Where is all this coming from though? There's a lot of kind of judicial creativity here.
Will: (50:38)
I agree. I actually suspect you could find a lot of roots for this in the common law and in precedents from 100 years ago. I'm not saying that makes it better. A lot of people think the Lochner era was a mistake, but I think for this line drawing, if we're going to do it seriously for this line trying to work, that's how it works. Now look, I think it's quite possible that this is not going to happen, and instead, lower courts are all just going to rubber stamp every regulatory regime and say, "Yeah, this fits this exception," because they don't have a lot of patience for local land use cases. But it's too soon to tell.
Dan: (51:11)
Yeah. I guess we will find out. But given that, given that this has this Lochner flavor, it shouldn't be surprising to people that this is one of the so far somewhat rare opinions from this term, that really breaks cleanly on ideological lines. We've got the conservative justices in the majority and we've got dissent by Justice Breyer joined by Justices Sotomayor, and Kagan.
Will: (51:34)
Can we spend one second on Justice Kavanaugh's concurrences?
Dan: (51:37)
Yes. Yes, we should.
Will: (51:38)
Okay. So at oral argument, Justice Kavanaugh tried to cook up a compromise theory derived from the court's federal labor law precedent, because federal labor law has its own compromise about when workers are allowed to enter the employer's property. And basically, it's when there's no other reasonable way to reach the workers. So if the workers live on the property, you can do it, but if not, maybe you have to go into something else. Justice Kavanaugh dug into the briefs in those cases, and discovered that in addition to the statutory arguments, there were these constitutional arguments there. So you could those precedents as being constitutional precedents.
Will: (52:14)
And then he found, maybe this is in the briefs, this 1976 California Supreme Court case where the California State court upholds the state law four to three, and the dissent by Justice William Clark picks up a little bit of this argument. And so he says, "Look, actually there's this long-standing compromise that I can find in these clever sources, that could still give a win to the employers here, but without being nearly as broad." But apparently, he had no takers. He still had to tell us about it in his concurring opinion. Actually, I like this style from Justice Kavanaugh, but-
Dan: (52:50)
He maybe seems to be suggesting there's more limits on this than the majority because, he suggests that there is... It's a little hard to say how much he's endorsing this, but I read this as basically agreeing that there may be this necessity exception. Like for employees who live on company property, that would be okay to let them invade. And he says, "As I read it, Babcock recognized that employers have a basic Fifth Amendment Right to exclude from their private property subject to a necessity exception similar to that noted by the court today." And then he sights back to the majority opinion. Although if you go back in the majority opinion, I don't feel like the way they describe any kind of exception is quite as broad as that.
Will: (53:34)
Yeah, I agree. So it could be, obviously in a future case about the scope of the court's opinion, which we just talked about could be quite broad, you can imagine the Justice Kavanaugh concurrence being the new, more limited version of the rule. Anyway, justice Breyer writes a very long dissent about what a bad idea all this is and why it doesn't make any sense.
Dan: (53:58)
As one might expect in a case as ideologically loaded as this. So what do we want to say about that? There's a lot here, and I think he's really worried about the future of Takings Law, and how this is going to be built on and expanded and really used as a threat to various kinds of government regulation.
Will: (54:25)
One other problem that Justice Breyer raises that we haven't talked about yet, is a Supreme Court case called Prune Yard, also in California I believe. California's free speech principles were applied to a private shopping mall. So they were told they couldn't exclude leaf letters from their property, just because... And again, they weren't covered by the constitution, the First Amendment because, it's just a private shopping mall, it's not a state actor. But they were applied to the shopping mall, and the shopping mall lost their Takings challenge to that. Even though that does seem analogous, right? The private property owners being forced to let people come onto their property and do stuff they don't like, it's the violation of the right to exclude, it doesn't fit any of the three exceptions we talked about. So, the majority has to have a separate exception and say, "Well, that's different because they opened their property to the public."
Dan: (55:22)
Persuasive?
Will: (55:24)
No. This is one of these one off things. It's true that's a difference. It's not clear why that's a difference that is analytically relevant under the majority's theory.
Dan: (55:37)
Yeah, because if the majority is emphasizing the importance of the right to exclude as this key part of property ownership, that includes the right to open to the public except for people you don't want to open it to, right?
Will: (55:51)
Right. Although again, part of the reason the majority has to make this exception is, what about anti-discrimination law? So why is it if I let people come on our property generally, and somebody shows up with a seeing eye dog, I can't say, "Well, I don't allow seeing eye dogs." Or if I want to let male workers onto my property and not female workers, I can't do that.
Dan: (56:12)
Yeah. The anti-discrimination provisions, that would be really problematic if the court were suddenly to go there and start saying, "Well, that's a Taking to say you have to serve all customers equally without regard to race or gender."
Will: (56:29)
Yeah. Nika Bowie, a Harvard Law professor made this point in a piece he wrote before the Cedar Point argument, that if we take this argument, if you take this challenge seriously, it seems to eliminate in some ways the Civil Rights Act and the basic public accommodations rules.
Dan: (56:45)
Danielle was listening to me record and is texting me saying, "Public accommodations law is an ancient background principle." So maybe that, maybe there's some background that we can sneak in that way.
Will: (56:56)
Yeah, maybe. Although again, the whole point of the anti-discrimination laws was to change some of the previous public accommodations principles.
Dan: (57:05)
Yeah. That hadn't been the case in like the South for quite some time.
Will: (57:13)
Right. So maybe that's where the majority would squeeze them in, although I don't think the majority has put the two together, and I don't think the majority would want to say that the discrimination laws are only permissible if they can be shown to have roots in the law of common carriers.
Dan: (57:30)
Does this have any relevance do we think, to like internet content moderation? Florida has that wacky new law that basically says, "Facebook can't exclude people on the basis of politics from participating in Facebook." And mostly we think about those in terms of like First Amendment doctrine, but if there's a law that says like, "You have to let Trump on Twitter," is that a Taking?
Will: (57:58)
I think it looks... Maybe, if the court thinks you waive your Takings Clause rights if you open your property to the public, you just forfeited your right to exclude by letting in too many people, then maybe you can also waive your free speech rights. Maybe Twitter would have a First Amendment Right not to carry speech it disproves of, but maybe they waive it if they let too many things in. That's not how the doctrine currently works, but this is an area where the court seems to be trying to brute force the intuitions it knows has to be right, without giving us a totally satisfying doctrinal answer. So, maybe.
Dan: (58:33)
Yeah. I don't think we've gotten a ton of super satisfying doctrinal answers this term yet. I feel like maybe that's a theme. Maybe that's always a theme. Maybe that's just what the court does.
Will: (58:44)
All too often. I still remember Edwards v. Vannoy. That was a super satisfying doctrinal answer.
Dan: (58:52)
Yeah.
Will: (58:53)
[crosstalk 00:58:53].
Dan: (58:53)
The answer is, it doesn't exist. It's not a thing.
Will: (58:58)
Yeah. I think it's a late June is not a time we get super satisfying doctrinal answers.
Dan: (59:03)
Yeah. They're struggling to just get these out and write something that everybody can live with, and that might require fudging it a little bit.
Will: (59:12)
Yeah, a little bit. Anyway, big case. That's what I think. It's a big case.
Dan: (59:17)
Yeah. Would you agree that this is probably the biggest, polarized case this term so far, kind of right, left classic, conservatives versus liberals case that we've had come down?
Will: (59:32)
Not counting the shadow docket cases?
Dan: (59:34)
Well yeah, that's the big exception, right? When we had the shadow docket COVID church cases probably are bigger in some sense. I guess we can try to figure out which of those is more likely to matter, and I think it depends a lot on like how sui generis this factual situation is versus how generalizable is this rule to a bunch of other contexts. Like is this really going to actually lead to this kind of judicial review of every safety inspection regime? That's a big deal.
Will: (01:00:09)
Yeah. Although, so then this brings us to the last point, which Justice Breyer makes briefly, which is remedies. So the Takings Clause does not stop the government from taking your property. It just requires them to pay for it. What is the appropriate compensation for letting a few labor organizers onto your property every so often? We don't ask, "How much money would the government have had to give you to buy this from you," right? That's the holdout problem. We ask, "What's the fair market value?" I assume the fair market value is pretty low. Like if some farm decided to sell off the right to occasionally visit its workers during the workday, on eBay, I'm guessing it wouldn't sell for much.
Dan: (01:00:51)
It'd sell for basically nothing. What if they just said there's a $10 fee or something for each visit, which is probably more than it's worth?
Will: (01:01:00)
I think $10 a year is probably more than its worth.
Dan: (01:01:03)
Yeah.
Will: (01:01:03)
Except maybe to go... Well, except the organizers, the organizers might pay $10 a year.
Dan: (01:01:07)
Yeah.
Will: (01:01:09)
Maybe.
Dan: (01:01:10)
So how's that going to be worked out? Because one thing that's interesting is, sometimes in these cases, we're trying to figure out like, can they take the thing at all, versus do they have to pay you for it? And then there's this interesting question there about, is this a Takings problem or is this actually just a due process problem? It's something that Justice Kennedy grappled with a little bit in some opinions he wrote. But here, I guess they're doing this. This is a taking, and so next step would be, go have a little trial and compensation?
Will: (01:01:46)
I think so. And again, it's funny because like one version, look, if the organizers succeed at unionizing the workers, the total cost to the business could be quite substantial. Is that the right way to ask for compensation?
Dan: (01:01:58)
Yeah, but that's not the property damage, right? That's how much they would pay to avoid having to have these people on our property, but that's the holdout.
Will: (01:02:07)
Well, although it's just not the whole... If you imagine like there are two farms in the market, and one of the farms comes fee simple and the other farm comes with an easement to the labor organizers of California, who might come organize your workers. How much more would somebody pay for the first farm than for the second farm?
Dan: (01:02:24)
Yeah.
Will: (01:02:24)
Now, I bet that should be a lot. It doesn't seem like the right way to ask the question to me, but it may be worth a lot.
Dan: (01:02:30)
Yeah. So I guess we're going to have to wait on that. Do you know what happened down the road in Loretto, the cable box case?
Will: (01:02:40)
No. I have in my head that the conversation turned out to be-
Dan: (01:02:42)
Danielle, she's waving at me. What happened?
Danielle: (01:02:44)
The damages were $1, and the Taking was $1.
Dan: (01:02:48)
$1. She says that ultimately they had to pay a dollar of compensation for putting the cable box on the apartment building.
Danielle: (01:02:54)
No, it was the bore hole that was the Coax Cable going through.
Dan: (01:02:56)
They had to make a hole, that was more problematic, the hole through the building. $1.
Will: (01:02:59)
Plus attorney fees.
Dan: (01:03:03)
Why do they even... Like who cares? Pay the dollar.
Danielle: (01:03:06)
They didn't know at the time of litigation what the damages were.
Dan: (01:03:13)
All right, all right. But still. Okay, $1. All right. So I guess we'll see how broad this rule ends up being and then different things could happen. I guess the state could just say like, "Don't do this," or the labor organizers could just say, "We're not going to go in anymore," or they're going to do it, and then the farms will try to go get money. There's different ways this can happen.
Will: (01:03:34)
Yes, yes.
Dan: (01:03:38)
There's also this question as like, is this a Taking for public use? That's a separate Fifth Amendment Takings Clause problem where this Kelo, which is where the city wants to take the property and hand it over to a private developer, and the property owner sued and said, "You can't even do this because..." The question there wasn't are you going to pay me compensation? The question was, can they do it at all because it's not for public use? And the court said, "No, they can do that. That public use restriction is not really that meaningful."
Will: (01:04:17)
Yeah. No, that's a puzzle too because, there are these long standing kinds of Takings. Like if you have property that's totally enclosed by other people's properties so you can't get to it, you can like claim an easement across their land so you can get into your property. There's a way in which that's a Taking, not for public use, but it goes way back. Maybe that's a background principle or something instead. I'm not sure. So yeah, we'd have to think about that too.
Dan: (01:04:43)
Yeah. It's just a little different than a situation where the government is like, "We're taking title of the property and now this is a public park or now this is a road that everybody can drive on." It's more like the government is saying like, "This discreet group of people for this discreet purpose can you visit your property for a limited period of time." So, there's two more big opinions that we're going to want to talk about from today, but we're going to split it up into two episodes to keep giving you some content. So that will be out in a day or so. The episode that we're going to talk about Collins v. Yellen's an important structural common law case, and Lang v. California, an interesting little Fourth Amendment case. So, we haven't forgotten about those. Those are coming, but just, you're going to have to wait a little bit for our discussion of those cases.
Will: (01:05:34)
Stay tuned.
Dan: (01:05:35)
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